1
EXHIBIT 2.2
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT, made as of the 21st day of May, 1998 (the "Effective Date"), by
and among the various corporations identified on Exhibit "A" attached hereto
and made part hereof (collectively "Seller"), each having an address at 0000 X.
Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxx 00000, and PMC COMMERCIAL
TRUST, a Texas real estate investment trust, having an address at 00000 Xxxxxxx
Xxxx, 0xx Xxxxx, Xxxxxx, Xxxxx 00000 ("Purchaser");
WITNESSETH:
ARTICLE ONE
PURCHASE AND SALE OF THE PROPERTY
Seller hereby agrees to assign, transfer, convey and sell to Purchaser, and
Purchaser hereby agrees to purchase from Seller, upon the terms and conditions
set forth in this Agreement, all of Seller's respective right, title and
interest in and to those certain thirty (30) motel/hotels commonly known
respectively by the street addresses set forth on Exhibit "B" attached hereto
and made a part hereof and as more particularly described below (hereinafter
referred to, collectively, as the "Property"). As used herein, the term
"Property" shall also refer to each and every one of the thirty (30) individual
motel/hotels, and the term "Seller" shall also refer to each and every one of
the signatories hereto, depending on the context in which the defined term is
utilized. Capitalized terms not defined in context are defined in Article
Eighteen hereof. Each Property shall include, respectively:
1
2
1.1 those certain parcels of land located in the cities, counties
and states more particularly described on Exhibits "B-1" through "B-30"
(collectively, the "Land");
1.2 all buildings and improvements (the "Improvements") located
on, over or beneath the Land (the Land and Improvements hereinafter referred
to, collectively, as the "Real Estate");
1.3 all Personal Property, and
1.4 all Appurtenances and Appurtenant Easements.
ARTICLE TWO
PURCHASE PRICE
2.1 Purchase Price. The purchase price (the "Purchase Price") for
the Property shall be SEVENTY-THREE MILLION AND NO/100 DOLLARS
($73,000,000.00), payable as follows:
(a) Five Hundred Thousand and No/100 Dollars
($500,000.00) (the "Deposit"), by check, subject to
collection, payable to the order of Escrow Agent (as
hereinafter defined) upon execution of this
Agreement, to be held in escrow pursuant to the
provisions of Article Fifteen hereof; interest
accruing thereon, if any, shall follow the
disposition of the principal sum; and;
(B) Seventy-two Million, Five Hundred Thousand and No/100
Dollars ($72,500,000.00), less any interest accrued
on the Deposit as of the Closing (as hereinafter
defined), representing the balance of the Purchase
Price, shall be paid at the Closing, payable (1) by
wire transfer of immediately available federal funds
to an account designated by Seller, or (2) in the
form of a credit
2
3
equal to the amount of indebtedness secured by each
Existing Mortgage (as hereinafter defined) and
assumed by Purchaser, or both. Purchaser and Seller
shall execute mutually acceptable escrow
instructions, consistent with the provisions of this
Agreement, in connection with the escrow to be
created pursuant hereto.
2.2 Allocation of Purchase Price. The Purchase Price shall be
allocated among the Property as set forth on Exhibit "C" attached hereto and
made part hereof, and the values so determined shall be reflected in the
documentary fee or transfer taxes, if any, paid at the Closing.
2.3 Assumption of Mortgages. Various mortgages, deeds of trust or
deeds to secure debt, as the case may be, encumber one or more of the
motel/hotels which comprise the Property (each an "Existing Mortgage"). To the
extent permissible under the terms and provisions of a particular Existing
Mortgage, Purchaser may assume the obligations of the mortgagor or grantor
thereunder, and the borrower under the note(s) secured thereby, and shall
receive a credit against the Purchase Price equal to the amount of
indebtedness at the date of Closing so assumed by Purchaser. Purchaser shall
pay Seller at the Closing, without credit against the Purchase Price, any and
all prepayment premiums or penalties payable upon the prepayment of any
Existing Mortgage not assumed by Purchaser. With respect to any Property
encumbered by an Existing Mortgage which Purchaser desires to assume, Seller
and Purchaser agree to cooperate with each other to effect the sale of such
Property hereunder in a manner, if possible, which would not violate the
applicable provisions of such Existing Mortgage regarding the sale or transfer
of such Property. In the event that Purchaser elects to assume the Existing
Mortgage with respect to any Property located in Marysville, Ohio, Plainfield,
Indiana, Sycamore, Illinois, Macomb, Illinois, or Tupelo, Mississippi
3
4
but such assumption cannot be consummated prior to the Closing Date stipulated
in Section 4.1, the Closing Date with respect to any such Property shall be
adjourned for a period ending no later than June 30, 1999; provided, however
that the Purchase Price will be reduced by an amount equal to Thirty-nine
Thousand Eight Hundred Three and No/100 Dollars ($39,803.00) multiplied by the
number of rooms for each such Property with respect to which the Closing Date
has been so adjourned, and the sum of Fifteen Thousand and No/100 Dollars
($15,000.00) shall remain in escrow with the Escrow Agent for each Property
with respect to which the Closing Date has been so adjourned. In the event
that any such assumption ultimately is not allowed by the mortgagee under such
Existing Mortgage, Purchaser or Seller may (i) elect to pay the prepayment
penalty which would be due upon the repayment of the loan secured by such
Existing Mortgage and consummate the transaction contemplated herein with
respect to the Property encumbered by such Existing Mortgage, or (ii) reject
such Property whereupon the Agreement shall terminate with respect to such
Property and the escrow funds attributable to such Property shall be returned
to Purchaser, and neither party hereto shall have any further claim against the
other by reason of this Agreement with respect to such Property.
Notwithstanding anything contained herein to the contrary, all due diligence
rights of Purchaser with respect to any such Property are expressly reserved
upon any such adjournment of the Closing Date with respect to any such
Property.
ARTICLE THREE
SURVEY AND TITLE
3.1 Surveys. As soon as practical after the Effective Date,
Seller shall deliver or cause to be delivered to Purchaser an as-built, ALTA
survey (collectively, the "Surveys") of each Property. The Surveys shall be
sufficient to permit the Title Insurance Company to delete the standard printed
4
5
survey exception in the title policy or otherwise obtain the ALTA survey
endorsement. The Surveys shall indicate the location and dimensions of all of
the Improvements.
3.2 Title Commitments. As soon as practical after the Effective
Date, Purchaser shall obtain the title commitment (collectively, the "Title
Commitments") for each property, together with copies of all documents
(collectively, the "Title Documents") constituting exceptions to Seller's title
as reflected in the Title Commitments.
3.3 Review Period. Purchaser shall have the Inspection Period (as
hereinafter defined) in which to review the Title Commitments, Title Documents,
UCC Searches (as hereinafter defined) and Phase I Audits (as hereinafter
defined) and to deliver to Seller in writing such reasonable objections as
Purchaser may have to anything contained or set forth in such documents. Each
item to which Purchaser does not accept in writing within such period shall not
be deemed to be a Permitted Exception. Seller shall have and be entitled to a
reasonable period of time within which to clear such objection(s) and shall
cure title or remove said exceptions or defect which may be removed by the
payment of money at the expense of Seller of up to (a) $50,000.00 in the
aggregate with respect to each property and (b) $500,000.00 as an aggregate for
all of the Property. Notwithstanding anything to the contrary, Seller shall
have no obligation to cure title or remove said objection(s) which may be
removed by the payment of money at an expense to Seller in excess of (a)
$50,000.00 with respect to each Property, and (b) $500,000.00 in the aggregate
for all of the Property. If Seller (I) is unable or unwilling to remove any
such objection and fails to cause the Title Insurance Company to remove the
same from Purchaser's title insurance policies (collectively, the "Title
Policies"), or affirmatively insure against the same, or (II) is unable to
convey the Property as herein agreed to be conveyed, then Purchaser shall have
the option of either (A) waiving such
5
6
objection(s) and proceeding with the Closing, accepting title subject to such
objection(s) without any abatement or reduction of the Purchase Price; or (B)
excluding each such Property from the transaction contemplated by this
Agreement, subject to the terms and conditions and with a credit against the
Purchase Price for each Property as set forth in Section 6.6 hereof. Without
limiting the generality of the foregoing, Seller shall not be obligated to
bring any action or proceeding to remove any title objection(s).
3.4 Liens or Encumbrances. Any lien or encumbrance, or apparent
lien or encumbrance, appearing of record against the Property, which can be
discharged by the payment of money, shall not be an objection to title,
provided Seller allows the amount thereof to be credited to Purchaser as an
adjustment to the Purchase Price at the time of the Closing. A lien or
encumbrance dischargeable by satisfaction shall not be deemed an objection to
title, if, at the time of the Closing, Seller shall cause to be delivered to
the Title Insurance Company either (A) a duly executed and acknowledged
satisfaction, along with the filing fee, or (B) a payoff letter and the
appropriate funds to satisfy the lien or encumbrance. Seller shall apply the
proceeds of the sale to the satisfaction of any or all liens or encumbrances.
Notwithstanding anything to the contrary contained within this Article Three,
no matter shall be an objection to title if the Title Insurance Company is
willing to insure the Property without exception therefor or affirmatively
insure against collection out of the Property by reason thereof. The
provisions of this Section 3.4 are subject to the terms and conditions set
forth in Section 2.3 above.
3.5 Title Policy. At the Closing, Seller shall cause the Title
Insurance Company to modify (by interlineation or otherwise) the Title
Commitments so as to then reflect a current commitment by a duly licensed title
insurance company to issue to Purchaser the Title Policies,
6
7
insuring good and indefeasible title to the Land and the Improvements in
Purchaser, subject only to the Permitted Exceptions and the standard printed
exceptions, except that:
(a) The exception relating to restrictions against the
Property shall be deleted, except for such restrictions which are Permitted
Exceptions;
(b) the exception relating to ad valorem taxes and
assessments shall except only standby fees, taxes and assessments owing for the
current and subsequent years; and
(c) Purchaser shall receive the ALTA survey endorsement.
3.6 Title Charges. The cost for the Title Policies shall be paid
by Seller at the Closing, and the additional costs for endorsements, if any,
selected by Purchaser (or its lenders) shall be paid by Purchaser.
ARTICLE FOUR
CLOSING DATE
4.1 Closing Date. The closing of title under this Agreement (the
"Closing") shall take place on or about June 30, 1998 (the "Closing Date), at
the offices of the Title Insurance Company, 00000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000, or at such other location as may be reasonably agreeable
to the parties.
ARTICLE FIVE
SPECIAL CONDITIONS
5.1 Conditions Precedent. The obligation of Seller to sell the
Property to Purchaser is subject to the satisfaction on or before the Closing
of the following conditions:
(a) Seller shall have received the prior written consent
of Seller's Board of Directors to the sale of the
Property to Purchaser upon the terms and
7
8
conditions set forth in this Agreement, which consent
shall be in the form of a duly authorized resolution
from each member of Seller's Board of Directors, and
shall be provided to Purchaser within seven (7) days
after the Effective Date.
(b) Purchaser, Amerihost Properties, Inc. and AmeriHost
Inns, Inc. shall enter into a master agreement (the
"Master Agreement"), and Purchaser and AmeriHost
Inns, Inc. shall enter into a lease for each Property
(the "Property Leases"), on terms and conditions
substantially as set forth on Exhibits "D" and "E",
respectively, attached hereto and made part hereof.
(c) Purchaser shall have complied with all of its
obligations herein provided.
(d) Purchaser shall cooperate with Seller in the
consummation of tax-free exchanges with respect to
the Property, including, without limitation, the
assignment of this Agreement by Purchaser to a
tax-free exchange trust in order to accomplish the
foregoing, provided Purchaser shall receive customary
indemnities from Seller and reimbursement of costs
therefor.
5.2 Covenants.
(a) From and after the Effective Date, up to the Closing
Date, Seller may enter into agreements with respect
to the Property which are necessary or desirable in
connection with the operation of the Property in the
ordinary course of business, so long as no such
agreements relate to the sale of any portion of the
Personal Property.
(b) Any liquor licenses or permits utilized in the
operation of the business at the
8
9
Property presently held by Seller or its affiliates
shall continue without assignment or transfer in
Seller's name or its affiliate's name through the
Closing Date.
(c) The repairs and improvements at the Plainfield and
Marysville properties as referenced on Exhibit "F",
attached hereto and made a part hereof, must be
either completed or funds must be placed in escrow
for such purpose prior to Closing.
ARTICLE SIX
PURCHASER'S INSPECTIONS AND APPROVALS
6.1 Submittal to Purchaser. Seller agrees that Purchaser shall be
entitled to enter upon the Property and to conduct such inspections, audits and
reviews of any and all information and materials it deems necessary to effect a
complete analysis of the proposed purchase and sale. The Purchaser shall
complete its due diligence before the expiration of the Inspection Period. The
following items (the "Due Diligence Items") will be delivered to Purchaser
prior to the Closing or will be delivered to Purchaser within the time period
after the date hereof as prescribed in Article Three. The cost and expense
of obtaining and delivering the Due Diligence Items to Purchaser shall be paid
by Seller, unless otherwise stated below:
(a) The Surveys;
(b) Any appraisals of the Property in the possession of
Seller or its agent or employees;
(c) The architectural plans and specifications for the
Property.
(d) The Books and Records. Subject to the provisions of
Section 17.10 hereof,
9
10
Seller specifically permits Purchaser to disclose
information revealed in the Books and Records to its
lenders, if any, and professional advisors, and in
any document (and amendments and supplements thereto)
which Purchaser may be obligated to file with the
Securities and Exchange Commission. Upon reasonable
advance notice, Seller shall make available to the
accountants of Purchaser such financial information
as Purchaser's accountants reasonably require for
investigation of the financial history of the
operations of the Property. Seller has also provided
monthly statements of operations for fiscal year 1997
and 1998 through the month of the Closing (the
statement of operations for the month of the Closing
to be made available after the Closing);
(e) A UCC secured transactions search (collectively, the
"UCC Searches") from each of the applicable recording
offices with respect to the Property, together with a
litigation search related to Seller and the Property
for the county in which the Property is located;
(f) Phase I Audits for each Property. Seller, at its
sole cost and expense, shall provide to Purchaser an
update of the Phase I Audit for each Property listed
on Exhibit "G" attached hereto and made a part
hereof.
(g) Policies of title insurance for the Property, if any,
in the possession of Seller or its agents or
employees, together with the Title Commitments and
the Title Documents, which shall be delivered to
Purchaser by the Title Insurance Company;
10
11
(h) A descriptive summary of all pending litigation, if
any, affecting the Property, and of any written
notice of violation of any of the Legal Requirements
applicable to the Property;
(i) Copies of all of Seller's insurance policies for the
Property or certificates thereof; and
(j) All other documents and information in the possession
of Seller or its agents or employees, or reasonably
available to Seller, relating to the Property, which
Purchaser reasonably requests.
6.2 Authorization for Inspection. Upon reasonable request by
Purchaser, Seller will grant authority to Purchaser and any of Purchaser's
representatives to obtain information provided for or contemplated in Section
6.1 hereof from any third parties. Said authorization will be provided in
writing if requested by Purchaser. All such information shall be subject to
the provisions of Section 17.10.
6.3 Adverse Phase I Audit. If any Phase I Audit states that
Hazardous Materials may be in or under the Land or within the Improvements, or
otherwise evidences any adverse environmental matter at the Property, Purchaser
shall have the right to reject such Property pursuant to Section 6.4 by giving
written notice to Seller of its intention to do so prior to the end of the
Inspection Period. If, notwithstanding such adverse Phase I Audit, Purchaser
desires to proceed with the transaction contemplated hereby with respect to
such Property, then Purchaser shall have the right to order promptly, at its
expense, a Phase II Site Assessment of the Land and the Improvements directed
and certified to Purchaser and its lender, including materials samplings on and
adjacent to the Land, to determine the extent and nature of any contamination
by Hazardous
11
12
Materials. If such Phase II Site Assessment reveals the necessity for material
environmental clean-up of for the Property, then Purchaser may reject such
Property pursuant to Section 6.4 by giving written notice to Seller of its
intention to do so within five (5) business days after receipt by Purchaser of
such Phase II Site Assessment.
6.4 Purchaser's Acceptance or Rejection; Cure or Waiver. If
Purchaser disapproves of any matter relating to any Property arising from
Purchaser's review of the Surveys, the Title Commitments, the UCC Searches or
the Phase I Audits, it shall give Seller written notice of such disapproval
not later than the expiration of the Inspection Period, or such later date as
referenced in Section 6.3, Section 11.1 or Section 11.2. If any matter is
disapproved upon the foregoing notice, then Purchaser may elect in such notice
either to (a) request that Seller cure specific matters disapproved; or (b)
reject such Property from the terms and conditions of this Agreement subject to
Section 6.6. If Purchaser requests Seller to cure any such matter, Seller
shall, within four (4) business days, indicate in writing to Purchaser whether
it shall elect to cure any such matter disproved under clause (a) above. If
Seller is unwilling to cure such matter prior to the Closing, then Purchaser
may, in its sole discretion, within four (4) business days of written notice of
Seller's refusal to cure, elect, by written notice to Seller of its intention
to do so, to (i) waive all matters disapproved and not cured, accept all
matters relating to the Property which have been cured, and proceed with the
acquisition of the Property; or (ii) reject such Property from the terms and
conditions of this Agreement subject to Section 6.6.
6.5 Effect of Termination. If this Agreement shall be terminated
by Purchaser in the exercise of its rights of termination as provided
hereunder, the Deposit, and all interest earned thereon, if any, shall be
promptly returned to Purchaser by Escrow Agent, this Agreement shall be
12
13
null and void, and neither party shall have any further obligation or liability
to the other party, except as expressly herein provided.
6.6 Partial Exclusion. Seller agrees to close the sale of the
Property on the terms and conditions herein contemplated, provided that not
more than six (6) motel/hotels shall have been rejected by Purchaser pursuant
to the provisions of Section 6.4., other than any Property rejected as allowed
pursuant to Section 11.1 and Section 11.2 hereof. Notwithstanding the
foregoing, Seller may, at its sole discretion, elect to close the sale of the
Property on the terms and conditions herein contemplated if more than six (6)
motels/hotels have been rejected by Purchaser pursuant to the provisions of
Section 6.4. In any event, however, the Purchase Price shall be reduced by an
amount equal to Thirty-nine Thousand Eight Hundred Three and No/100 Dollars
($39,803.00) multiplied by the number of rooms for each such Property rejected.
Upon rejection in accordance with the provisions of this Article Six, such
Property shall be deemed deleted from the terms and conditions of this
Agreement and this Agreement shall be deemed so modified and amended as to give
effect to such rejection.
ARTICLE SEVEN
SELLER'S REPRESENTATIONS, WARRANTIES AND AGREEMENTS
Seller represents, warrants and agrees that the following facts and
conditions exist on the date of execution hereof by Seller and shall exist as
of the Closing Date, subject to updating by Seller to the Closing Date and to
limitations otherwise set forth in this Article Seven:
7.1 Title. Seller owns fee simple title to the Real Estate,
including the Land described in Exhibit "A", which, as of the Closing, shall be
free and clear of all mortgages, except those Existing Mortgages which are
assumed by Purchaser, certain of which Existing Mortgages contain
13
14
the assumption fees as set forth on Exhibit "H" attached hereto and made a part
hereof (those Properties being the only Properties whose mortgages or related
promissory notes contain prepayment penalties upon prepayment of the respective
notes), and all liens, encumbrances, subleases, tenancies, security interests,
covenants, conditions, restrictions, rights-of-way, easements, judgments, and
title defects, other than the Permitted Exceptions. To the Knowledge of
Seller, there are no pending or deferred Impositions of Governmental
Authorities affecting the Property, except for real property and personal
property taxes for the year of the Closing. To the Knowledge of Seller, no
easements materially burdening the Property interfere with the use,
maintenance, repair, or operation of the Property, and all easements necessary
for the lawful operation of the Property, including all access, ingress,
support and mechanical easements necessary or incident thereto, are in full
force and effect and are not subject to termination, cancellation or
rescission. Seller will assist in obtaining lender estoppel letters in a form
reasonably satisfactory to Purchaser.
7.2 Zoning and Land Use Matters. To the Knowledge of Seller, all
permanent certificates of occupancy for the Real Estate have been issued, and
all conditions thereof, if any, have been fully complied with and require no
further action. Seller has received no written notice of any requirements for
obtaining necessary licenses, permits, authorizations or approvals with respect
to the Property which Seller does not now possess or maintain, and Seller has
received no written notice of any unwillingness of Governmental Authorities to
renew any Permits and Licenses. To the Knowledge of Seller, the Property, as
constructed and operated, is substantially in compliance with the terms,
conditions and requirements imposed upon the Property by the Permitted
Exceptions. To the Knowledge of Seller, the acquisition of the Property by
Purchaser will not cause a violation, default or breach of any such Permitted
Exceptions and there is no event of default currently in
14
15
existence under any such instrument which constitutes, and there is no event
which, but for the giving of notice or the passage of time, or both, will
constitute, an event of default thereunder.
7.3 Health, Environmental and Fire Codes. To the Knowledge of
Seller, there are no Hazardous Materials in, on or under the Property, except
for Permitted Hazardous Materials, and Seller has received no written notice
that the Property is not substantially in compliance with applicable fire
codes, building codes, health codes or other Legal Requirements which presently
apply to the Property or the operation of all businesses thereon which remain
unresolved.
7.4 No Adverse Action. There are no pending (and Seller has
received no written notice from Governmental Authorities threatening)
condemnation or other similar proceedings affecting the Property or any portion
thereof, or pending public improvements in, about or outside the Property,
which will affect access or create additional cost to Seller. There is no
claim, legal action, tax audit, or other proceeding of any type, including,
without limitation, any action of a civil or criminal nature, or any action or
proceeding before any arbitration board or tribunal, pending against or
affecting the Property which will materially adversely affect Purchaser upon
the consummation of this acquisition. To the Knowledge of Seller, there are no
pending claims against Seller arising out of injury to persons or property
occurring in or on the Property as a result of any accident or occurrence on
the Property thereon during the period of ownership of the Property by Seller
which will materially adversely affect Purchaser upon consummation of this
acquisition or are not covered by insurance. There is no pending claim or
legal action of any type related to any employment matter related to the
operation of the Property which will materially adversely affect Purchaser upon
consummation of this acquisition or is not covered by insurance.
15
16
7.5 Authorization. Seller has all requisite corporate power and
authority to perform its obligations under this Agreement, and the execution,
delivery and performance of this Agreement by Seller has been duly and validly
authorized by all officers and directors whose approval is required under the
corporate documentation of Seller. Each person executing and delivering this
Agreement, and all documents to be executed and delivered in regard to the
consummation of the transaction herein, has due and proper authority to execute
and deliver those documents. This Agreement, and all documents executed and
delivered by Seller in connection with the transaction herein, shall constitute
valid and binding obligations of Seller, enforceable against Seller in
accordance with their terms.
7.6 Organization. Each Seller is a duly organized and validly
existing corporation under the laws of the state of its formation, authorized
to transact business in each state where the Property owned by such Seller is
situated, with full power to enter into and perform this Agreement and to
convey, assign, transfer and lease the Property.
7.7 Legal Requirements. To the Knowledge of Seller, there are no
outstanding citations or violations of Legal Requirements in connection with
the operation of the Property or the sale or provision of food or beverages
thereon.
7.8 Business Records. All documents, items and information,
including, without limitation, the Books and Records, which have been or will
be made available by Seller to Purchaser as Review Items in accordance with the
terms of this Agreement, have been maintained in the ordinary course of
business, fairly reflect the financial condition of the applicable Property in
all material respects, and are true and accurate.
16
17
7.9 No Breach of Prohibition. The transactions contemplated by
this Agreement are not restrained or prohibited by any injunction, order or
judgment rendered by any court or other governmental agency of competent
jurisdiction. To the Knowledge of Seller, no proceedings have been initiated
or are pending in which any creditor of Seller or any other person seeks to
restrain such transactions or otherwise attach the applicable Property.
Neither the execution and delivery of this Agreement, nor the consummation of
the transactions contemplated hereby, will (a) be in material violation of any
agreements, or (b) conflict with or result in the material breach or violation
of any law, regulation, writ, injunction, decree of any court or governmental
body or agreement of any nature, applicable to Seller and the Property.
7.10 No Adverse Notices. Seller has received, within the past
year, no notice from any insurance company which has issued a policy with
respect to any portion of the Property, from any board of fire underwriters, or
from any Governmental Authority, requesting or requiring the performance of any
repairs, alterations, renovations or other physical work on the Property, which
has not been substantially completed.
7.11 No Union Contracts; Other Employee Matters. Seller warrants
that there are no union contracts in effect with respect to the Employees, and
that Purchaser shall incur no liability to the Employees arising out of
Purchaser's acquisition of the Property.
7.12 Easements. Seller will cooperate fully with Purchaser, but at
no expense to Seller, in seeking any corrective documents reasonably deemed
necessary by Purchaser to clarify the location and validity of any Appurtenant
Easement benefiting the Property.
17
18
7.13 Tax Matters. Seller has duly filed all federal, state, county
and municipal, excise, sales, hotel occupancy and other tax returns and
reports, or timely extensions thereof, required to be filed up to the date
hereof with respect to the Property. To the Knowledge of Seller, all such
returns are true and correct in all material respects, and Seller has paid all
taxes, interest and penalties shown on such returns or reports, or claimed to
be due to any federal, state, county and municipal or other taxing authority.
7.14 Property Condition. Seller warrants that each Property not
yet inspected by Purchaser is in substantially the same general condition,
normal wear and tear excepted, as those motel/hotels previously inspected by
Purchaser, and Seller will maintain each Property in such same general
condition until the Closing.
7.15 Bulk Transfers. Seller will take all actions necessary to
comply with any bulk transfer laws applicable to this transaction and Purchaser
will cooperate with any such actions at no cost to Purchaser.
7.16 Representations and Warranties of Seller. All of the
representations and warranties of Seller are true and correct in all material
respects, to the Knowledge of Seller, and do not contain untrue statements of a
material fact or omit any material fact that would make the representations and
warranties misleading. All representations and warranties of Seller shall
survive the Closing and continue in full force and effect for a period of two
(2) years after the Closing.
18
19
ARTICLE EIGHT
PURCHASER'S REPRESENTATIONS AND WARRANTIES
8.1 Purchaser's Duty of Review. Purchaser is entering into this
Agreement in reliance on its own knowledge and familiarity with the motel/hotel
industry and its inspection of the Property. Purchaser is not relying on any
representation of Seller, or its officers, shareholders or agents, except as
expressly set forth in this Agreement or the Exhibits attached to this
Agreement.
8.2 Warranties and Representations. Purchaser represents,
warrants and agrees that the following facts and conditions exist on the date
of execution hereof and shall exist as of the Closing Date:
(a) Organization. Purchaser is a Texas real estate
investment trust duly organized and validly existing
and in good standing under the laws of the State of
Texas, and has power and authority to own its
properties and to transact the business in which it
is engaged. Purchaser has taken all necessary action
to authorize the execution, delivery and performance
of this Agreement and all of the documents executed
and delivered by Purchaser in connection with the
transaction described herein, all of which constitute
valid and binding obligations of Purchaser
enforceable against Purchaser in accordance with
their terms.
(b) Authority. Purchaser has the right, power, legal
capacity and authority to enter into and perform its
obligations under this Agreement, and no approvals or
consents of any persons other than Purchaser are
required in connection with this Agreement. The
execution of this Agreement and the
19
20
consummation of the transactions contemplated hereby
will not result in or continue any default or event
that, with the giving of notice or lapse of time, or
both, would be a default, breach or violation of the
organizational instruments or laws governing
Purchaser or any lease, license, promissory note,
conditional sales contract, commitment, indenture,
mortgage, deed of trust, or other agreement,
instrument, or arrangement to which Purchaser is a
party or by which Purchaser is bound.
8.3 Representations and Warranties of Purchaser. All of the
representations and warranties of Purchaser are true and correct in all
material respects and do not contain untrue statements of a material fact or
omit any material fact that would make any of the representations and
warranties misleading. The representations and warranties herein contained
shall survive the Closing and shall continue in full force and effect for a
period of two (2) years.
ARTICLE NINE
DEFAULTS; FAILURE TO PERFORM; LIQUIDATED DAMAGES
9.1 Default of Purchaser. IN THE EVENT (A) ALL OF THE CONDITIONS
TO THIS AGREEMENT SHALL HAVE BEEN SATISFIED OR WAIVED; (B) SELLER SHALL HAVE
FULLY PERFORMED OR TENDERED PERFORMANCE OF ITS OBLIGATIONS HEREUNDER: (C)
PURCHASER SHALL FAIL TO PERFORM ITS OBLIGATION HEREUNDER; AND (D) THE CLOSING
SHALL FAIL TO OCCUR SOLELY AS A RESULT OF PURCHASER'S DEFAULT HEREUNDER, THEN,
AS SELLER'S SOLE AND EXCLUSIVE REMEDY FOR PURCHASER'S FAILURE TO CLOSE, THE
ENTIRE AMOUNT OF THE DEPOSIT (PLUS ALL INTEREST ACCRUED THEREON, IF ANY) SHALL
BE
20
21
IMMEDIATELY PAID TO SELLER. PURCHASER AND SELLER HEREBY ACKNOWLEDGE AND AGREE
THAT SELLER'S DAMAGES WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE AND THE
AMOUNT OF THE DEPOSIT (PLUS ALL INTEREST ACCRUED THEREON, IF ANY) IS THE
PARTIES' BEST AND MOST ACCURATE ESTIMATE OF DAMAGES SELLER WOULD SUFFER IN THE
EVENT THE TRANSACTION PROVIDED FOR IN THIS AGREEMENT FAILS TO CLOSE. PURCHASER
AND SELLER AGREE THAT SELLER'S RIGHT TO RETAIN THE DEPOSIT (PLUS ALL INTEREST
ACCRUED THEREON IF ANY) SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF SELLER IN THE
EVENT OF A BREACH OF THIS AGREEMENT BY PURCHASER AS PROVIDED ABOVE.
9.2 Default of Seller. If Seller defaults in its obligations
hereunder after the expiration of any notice and cure periods, if applicable,
Purchaser may, as its sole remedy, at its option, either: (A) terminate this
Agreement and receive a refund of the Deposit, whereupon the obligations of the
parties hereto, other than those expressly set forth to survive termination
hereof, shall terminate, and neither shall have any further claim against the
other by reason of this Agreement or (B) seek an action for specific
performance under this Agreement. Purchaser agrees that it shall not record
this Agreement or any memorandum hereof unless Seller has defaulted in its
obligations hereunder. This Section 9.2 shall survive Closing or other
termination of this Agreement.
9.3 Failed Funds. If a payment made on account of the Purchase
Price, whether the Deposit or otherwise, is by check, and if said check fails
due collection, Purchaser shall be deemed in default hereunder, and Seller, at
its sole option, may declare this Agreement terminated pursuant to Section 9.1
hereof and may pursue its remedies against Purchaser upon said check and/or
this Agreement or in any other manner permitted by law, such remedies being
cumulative, but in no
21
22
event shall Seller have any obligations to Purchaser hereunder.
ARTICLE TEN
CLOSING DOCUMENTS
10.1 Closing Documents of Seller. At the Closing, Seller shall
deliver or cause to be delivered to Purchaser the following:
(a) A special, limited warranty deed, as customarily provided on a
state-by-state basis, conveying good and indefeasible title in
the Property (the "Deed") to Purchaser, duly executed and
acknowledged by Seller subject only to the Permitted
Exceptions.
(b) A xxxx of sale, duly executed and acknowledged by Seller,
conveying title to the Personal Property to Purchaser.
(c) A certificate stating that Seller is not a "Foreign Person"
within the meaning of IRC Section 1445(f)(3).
(d) The Title Policies, issued at Seller's sole cost and expense,
by the Title Insurance Company, insuring Purchaser as owner of
the Property, subject only to the Permitted Exceptions.
(e) An Indemnity Agreement, duly executed and acknowledged by
Seller, pursuant to which Seller agrees to indemnify, defend
and hold harmless Purchaser, and its shareholders, directors
and officers, from any and all claims, losses, damages and
expenses which shall have arisen from any violation of the
Americans for Disabilities Act at the Property prior to the
Closing.
22
23
(f) An Indemnity Agreement duly executed and acknowledged by
Seller, pursuant to which Seller agrees to indemnify, defend
and hold harmless Purchaser, and its shareholders, directors
and officers, from any and all claims, losses, damages and
expenses which shall have arisen from an "Environmental
Problem" (as hereinafter defined) before the Closing.
"Environmental Problem" shall mean the presence or release of
any Hazardous Materials from, onto, on or under any portion of
the Property, or the violation of any environmental law with
respect to the Property or any part thereof, or the failure to
abide by the terms of any permit or approval required under
any environmental law with respect to the Property or any part
thereof.
(g) Such other instruments and documents as may be reasonably
required to consummate the transaction herein contemplated,
including but not limited to, the Property Lease, the Master
Agreement and related guaranty of Amerihost Properties, Inc.
10.2 Closing Documents of Purchaser. At the Closing, Purchaser
shall deliver or cause to be delivered to Seller the following:
(a) The balance of the cash portion of the Purchase Price
provided in Article One hereof, less any interest
accrued on the Deposit.
(b) The Property Leases, executed by Purchaser, as
lessor, in each instance.
(c) The Master Agreement, executed by Purchaser.
(d) Evidence of Purchaser's power and authority to enter
into the subject
23
24
transaction, and evidence of the signatories'
authority to sign on behalf of Purchaser.
(e) A letter addressed to Escrow Agent directing Escrow
Agent to deliver the Deposit and any interest
thereon, if any, to Seller, and releasing Escrow
Agent from any and all liability in connection with
the subject transaction.
(f) An Indemnity Agreement duly executed and acknowledged
by Purchaser, pursuant to which Purchaser agrees to
indemnify, defend and hold harmless Seller, and its
shareholders, directors and officers, from any and
all claims, losses, damages and expenses which shall
have arisen from an "Environmental Problem" (as
hereinafter defined) after the Closing, where the
Environmental Problem is caused by Purchaser.
"Environmental Problem" shall mean the presence or
release of any Hazardous Materials from, onto, on or
under any portion of the Property, or the violation
of any environmental law with respect to the Property
or any part thereof, or the failure to abide by the
terms of any permit or approval required under any
environmental law with respect to the Property or any
part thereof.
(g) Such other instruments and documents as may be
reasonably required to consummate the transaction
herein contemplated.
24
25
ARTICLE ELEVEN
RISK OF LOSS
11.1 Casualty Loss. The risk of loss or damage to the Property by
fire or other casualty, until the Closing, is assumed by Seller, but without
any liability or obligation of Seller to repair same, except Seller, at
Seller's sole option, shall have the right to repair or replace such loss or
damage to the Property. If Seller elects (such election to be made within
twenty (20) days after Seller shall have actual knowledge of such damage) to
make such repair or replacement, and such repair or replacement can be fully
complete prior to the Closing, this Agreement shall continue in full force and
effect. If Seller does not elect to repair or replace any such loss or damage
or such repair or replacement damage cannot be completed prior to the Closing,
the following shall control:
If the Improvements on any motel/hotels comprising the Property shall be
materially damaged or destroyed by fire, storm or other casualty before the
Closing, Purchaser shall have the right to reject any such Property pursuant to
Section 6.4 by giving written notice thereof to Seller within fourteen (14)
days after receiving written notice of such material destruction and Purchaser
shall receive a reduction in the Purchase Price as set forth in Section 6.6.
If Purchaser shall not elect to reject such Property, or if said destruction is
immaterial, this Agreement shall continue in full force and effect without any
modification or abatement of the Purchase Price, and Purchaser shall be
entitled to receive an absolute assignment (without representation or warranty
by or recourse against Seller) from Seller of any interest Seller may have
otherwise had in the proceeds of any insurance on the Property (including any
rent loss or business interruption insurance proceeds allocable to the period
from and after the Closing), except for any expense theretofore incurred by
Seller for restoration or safety in connection therewith, which sum shall be
reimbursed by Purchaser
25
26
to Seller at the Closing.
11.2 Eminent Domain. If notice of any action, suit or proceeding
shall be given after the date hereof, but prior to the Closing, for the purpose
of taking by eminent domain or condemning any material part of the Property,
then Purchaser and Seller shall each have the right to reject any such Property
pursuant to Section 6.4 by written notice to the other party given within
fourteen (14) days after receiving notice of such condemnation or taking and
Purchaser shall receive a reduction in the Purchase Price as set forth in
Section 6.6. If neither Purchaser nor Seller elects to reject such Property as
above provided, or if the taking or condemnation is of an immaterial part of
the Property, or in the event of a change of legal grade, the award with
respect to such condemnation, taking or change, except for any expense
theretofore incurred by Seller for restoration or safety in connection
therewith, which sum shall be reimbursed by Purchaser to Seller at the Closing,
shall be assigned (without representation or warranty by or recourse against
Seller) to Purchaser without further consideration, and this Agreement shall
continue in full force and effect without any modification or abatement of the
Purchase Price or any liability or obligation on the part of Seller by reason
of such taking, and the definition of "Property" shall be accordingly amended.
Any taking of any portion of an Improvement shall be considered "material" for
purposes of this Section 11.2.
ARTICLE TWELVE
CONDITION "AS IS"; NO FURTHER REPRESENTATIONS
12.1 Condition of Property. Purchaser represents that it has
inspected the Property and is thoroughly acquainted with its condition, and it
is agreed and understood that neither Seller nor any person purporting to act
for Seller has made or now makes any representations as to the physical
condition (including, without limitation, the presence of any Hazardous
Materials, or any condition
26
27
which would violate any laws regarding environmental matters), layout, leases,
footage, rent, income, expense, operation or any other matter or thing
affecting or relating to the Property or to this Agreement, except as
specifically set forth in this Agreement, and that no party hereto is relying
on any statement or representation made by any other which is not embodied in
this Agreement. Purchaser hereby expressly acknowledges that no representation
has been made which is not expressly set forth in this Agreement, and Purchaser
further agrees to take and accept the Property "as is" and in its condition at
the Closing. This Article shall survive the Closing and delivery of the Deed
or other termination of this Agreement..
ARTICLE THIRTEEN
FINANCIAL MATTERS; COSTS
13.1 Sales Tax. Although it is not anticipated that any sales tax
shall be due and payable in connection with this transaction, Purchaser agrees
that Purchaser shall indemnify, defend and hold Seller harmless from and
against any and all liability for any sales tax regardless of jurisdiction
which may now or hereafter be imposed upon Seller with respect to this
transaction. This provision shall survive the Closing and delivery of the
Deed.
13.2 Other Changes. Purchaser and Seller shall each pay one-half
of all escrow charges. The parties shall be responsible for all transfer taxes
or documentary taxes which are payable upon the delivery and/or recording of
the Deed or of any document contemplated by this Agreement, and the charges
incurred in connection with the recording of any instrument contemplated hereby
on the basis of custom in the jurisdiction in which the Property is situated.
Notwithstanding the foregoing, costs related to endorsements to the Title
Policies or to Surveys shall be borne by Purchaser.
13.3 Closing Statements. The Title Insurance Company shall prepare
customary
27
28
settlement or closing statements (the "Closing Statements") which shall include
the items set forth in Section 13.2, at least two (2) days before the Closing
Date, and each party shall cause its designated representatives to assist the
Title Insurance Company in doing so. All ad valorem, personal property and
hotel occupancy taxes, if applicable, shall be pro rated as of the Closing
Date.
ARTICLE FOURTEEN
BROKERAGE
14.1 Broker. Seller and Purchaser represent and warrant to each
other that they have not dealt with any broker in connection with this
transaction. Seller agrees to indemnify and hold Purchaser harmless from all
loss, damage, cost and expense (including reasonable attorney's fees and
disbursements) that Purchaser may suffer as a result of any claim for a fee,
commission or payment of any description brought by any person with whom Seller
may have dealt in connection with this transaction. Purchaser agrees to
indemnify and hold Seller harmless from all loss, damage, cost and expense
(including reasonable attorneys' fees and disbursements) that Seller may suffer
as a result of any claim for a fee, commission or payment of any description
brought by any person with whom Purchaser may have dealt in connection with
this transaction. The representations and covenants set forth in this Section
14.1 shall survive delivery of the Deed and the Closing or other termination
of this Agreement.
ARTICLE FIFTEEN
THE DEPOSIT - ESCROW
15.1 Deposit.
(a) The Deposit shall be delivered to the Title Insurance Company
("Escrow Agent"), and Escrow Agent shall hold the proceeds thereof in
escrow and dispose of
28
29
such sums only in accordance with the provisions of this Agreement.
(b) Escrow Agent shall place the Deposit in (I) certificates of
deposit issued by a bank with a Texas office, (II) money market funds
in a bank with a Texas office, or a company such as Dreyfus Liquid
Assets, Inc., or as otherwise approved in writing by Purchaser and
Seller, (III) U.S. Treasury bills or other similar securities, or (IV)
a segregated, interest bearing bank account. Any interest earned
thereon shall be paid to the party entitled to receive the Deposit
simultaneously with disbursement of the Deposit. The party receiving
such interest shall pay any income taxes thereon. At the Closing, the
Deposit and the interest thereon, if any, shall be paid by Escrow
Agent to Seller. If for any reason the Closing has not occurred, and
either party makes a written demand upon Escrow Agent for payment of
such amount stating the basis for such demand, Escrow Agent shall give
written notice to the other party of such demand along with a copy
thereof. If Escrow Agent does not receive a written objection from
the other party to the proposed payment within 15 days after the
giving of such notice by Escrow Agent, which objection states the
basis therefor, Escrow Agent is hereby authorized to make such payment
to the demanding party. If Escrow Agent does receive such written
objection within such 15-day period, or, if for any other reason,
Escrow Agent in good faith shall elect not to make such payment,
Escrow Agent shall continue to hold such amount until otherwise
directed by written instructions from the parties to this Agreement or
a final judgment of a court, and shall disburse said funds
accordingly. Escrow Agent shall send a copy of any objection to the
original demanding party. However, Escrow Agent shall have
29
30
the right at any time to deposit the escrowed proceeds and interest
thereon, if any, with the clerk of the court of the county in which
any Property is located, or with the clerk of the court in which any
litigation between Seller and Purchaser is pending, or in any other
court which Escrow Agent may select in the Chicago metropolitan area,
in an action for interpleader, all costs thereof to be borne by
whichever of Seller or Purchaser is the losing party. Escrow Agent
shall give written notice of such deposit to Seller and Purchaser.
Upon such deposit or payment pursuant to this Agreement, Escrow Agent
shall be relieved and discharged of all obligations and
responsibilities hereunder.
(c) The parties acknowledge that Escrow Agent is acting solely as
a stakeholder at their request and for their convenience; that Escrow
Agent shall not be deemed to be the agent of either of the parties;
and that Escrow Agent shall not be liable to either party for any act
or omission on its part unless taken or suffered in willful disregard
of this Agreement. Escrow Agent may act upon any instrument or
writing believed by Escrow Agent to be genuine and to be signed and
presented by the proper party. Seller and Purchaser shall jointly and
severally indemnify and hold Escrow Agent harmless from and against
all costs, claims and expenses, including reasonable attorneys' fees
(including the value of same if Escrow Agent represents itself),
incurred in connection with the performance of Escrow Agent's duties
hereunder. Escrow Agent shall have no duties or responsibilities
except those expressly set forth in this Agreement. Escrow Agent
shall not be bound by any modification of this Agreement, unless the
Same is in writing, signed by Seller and
30
31
Purchaser and delivered to Escrow Agent, and if Escrow Agent's duties
are affected thereby, unless Escrow Agent shall have given prior
written consent thereto. If Escrow Agent shall be uncertain as to
its duties or rights hereunder, or shall receive instructions from
Purchaser or Seller, which, in Escrow Agent's opinion, are in conflict
with any of the provisions hereof, Escrow Agent shall be hold or apply
the Deposit pursuant to subparagraph (b) hereof and may decline to
take any other action.
ARTICLE SIXTEEN
MERGER OF UNDERSTANDINGS
16.1 Merger. It is understood and agreed that all understandings
and agreements heretofore had between the parties hereto are hereby merged into
this Agreement, which alone fully and completely expresses their agreement, and
that this Agreement is entered into after full investigation, neither party
relying upon any statement or representation made by Seller or Purchaser or
anyone else not embodied in this Agreement. This paragraph shall survive the
Closing and delivery of the Deed or other termination of this Agreement.
ARTICLE SEVENTEEN
MISCELLANEOUS
17.1 Entire Agreement. This Agreement and the exhibits attached
hereto embody the entire agreement between the parties in connection with this
transaction, and there are no oral agreements existing between the parties
relating to this transaction which are not expressly set forth herein. This
Agreement may not be modified or, except as expressly provided to the contrary
herein, canceled or terminated, except in a writing signed by all parties
hereto. This Agreement may be
31
32
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one and the same instrument.
17.2 Waiver. Failure of either party to object to any act or
omission on the part of the other party, no matter how long the same may
continue, shall not be deemed to be a waiver by such party of any of its rights
hereunder, unless expressly provided to the contrary herein. No waiver by any
party at any time, express or implied, of any breach of any provision of this
Agreement, shall be deemed a waiver of a breach of any other provision of this
Agreement or a consent to any subsequent breach of the same or any other
provision. If any action by any party shall require the consent or approval of
another party, such consent or approval of such action on any one occasion
shall not be deemed a consent to or approval of said action on any subsequent
occasion.
17.3 Assignment. Purchaser may not assign any of its right, title
or interest in this Agreement, or its right to the Deposit and any interest
thereon, without the prior written consent of Seller, which consent shall be at
Seller's sole discretion.
17.4 Headings. The captions, section numbers and article numbers
appearing in this Agreement are inserted only as a matter of convenience, and
do not define, limit, construe or describe the scope or intent of such sections
or articles of this Agreement. Furthermore, as used in this Agreement, any
gender shall include any other gender, the singular shall include the plural,
and the plural shall include the singular, wherever applicable.
17.5 Third Parties. No party other than Seller, Purchaser and
their respective successors and permitted assigns, shall have any rights to
enforce or rely upon this Agreement.
This Agreement is binding upon and made solely for the benefit of Seller,
Purchaser and their respective heirs, personal representatives, successors and
permitted assigns.
32
33
17.6 Notices.
(a) Except as expressly provided to the contrary in this
Agreement, notices which must or may be given by any
party hereto must be in writing and shall be deemed
as given hereunder upon actual receipt, if by
personal delivery to the addresses set forth below,
or, if properly addressed, if sent by certified or
registered mail, return receipt requested, four (4)
days after depositing such notice with postage
prepaid at the rates and with the status certified or
registered in a United States mailbox, or one (1) day
after depositing such notice, with proper payment or
credit arrangement, in the custody of a nationally
recognized overnight delivery service. Notice shall
be deemed properly addressed if sent to the following
addresses:
If to Seller: Amerihost Properties, Inc.
0000 X. Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx,
President and Chief Executive Officer
With copies to: Xxxxx X. Xxxxxxx, P.C.
c/o McDermott Will & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
If to Escrow Agent: Xxxxxxx Title Guaranty Corporation
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxx Xxxxx, Esq.
33
34
If to Purchaser: PMC Commercial Trust
00000 Xxxxxxx Xxxx
Xxxx. 000
0xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxx X. Xxxxx,
Executive Vice President and
Chief Investment Officer, and
Xxxxxx X. Xxxxxxxx, Executive
Vice President
With a copy to: PMC Commercial Trust
00000 Xxxxxxx Xxxx
0xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
General Counsel
(b) Except as set forth to the contrary herein, any party
may designate, by notice in writing as above
provided, a new or other address to which such notice
or demand shall thereafter be so given, made or
mailed.
(c) The respective attorneys for the parties are hereby
authorized (i) to give any notice which the party is
required to give or may give under this Agreement;
and (ii) to agree to adjournments of the Closing. It
is understood that Seller's attorney is XxXxxxxxx,
Will & Xxxxx, and Purchaser's attorney is Xxxxxx X.
Xxxxxx, Esq.
17.7 Governing Law. This Agreement shall be governed by the laws
of the State of Illinois, without cognizance to conflicts of laws rules.
34
35
17.8 Survival. The provisions, representations, warranties,
covenants and agreements of this Agreement shall survive the Closing of the
transaction contemplated hereby, unless expressly provided herein to the
contrary.
17.9 Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed the parties shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which they are entitled at law or in equity.
17.10 Satisfaction. The acceptance of a Deed by Purchaser for each
Property shall be deemed to be a full performance of and discharge of any and
all agreements and obligations on the part of Seller to be performed pursuant
to the provisions of this Agreement, except those, if any, which are herein
specifically stated to survive delivery of such Deed.
17.11 Confidentiality. All of the information heretofore or
hereafter supplied by Seller to Purchaser shall be deemed confidential and
shall not be revealed by Purchaser other than to a bank or other financial
institution or investment banker or rating agency which shall provide Purchaser
with financing in connection with the purchase of the Property, provided that
this provision shall not apply to disclosure or utilization necessary or
appropriate under applicable securities laws. In the event that the
transaction herein shall not close, all such information shall be returned to
Seller, and copies thereof shall not be retained by Purchaser or any lending
institution. This Section shall survive the Closing and delivery of the Deed
or other termination of this Agreement.
35
36
17.12 Mutuality. This Agreement has been executed after negotiation
and the opportunity by both parties to have this Agreement reviewed and revised
by legal counsel of their choice.
17.13 Marketing. Seller agrees not to market the Property or
solicit or accept any offer for the purchase and sale of the Property from the
date hereof through the earlier to occur of (a) the Closing Date, and (b) the
earlier termination of this Agreement.
ARTICLE EIGHTEEN
DEFINITIONS
Wherever used in this Agreement, the following terms have the meanings set
forth in this Article Eighteen:
"Appurtenances" shall mean all of Seller's right, title and interest in
all rights of way, drives, rights in adjoining streets, sidewalks, alleyways,
passages, curbs, berms and similar rights and areas used in connection with the
Property; all development rights for the Land or Improvements, whether vested
or not; all planned unit development (PUD) plans and other development
approvals for the Land and the Improvements; all appurtenant rights of lateral
support and encroachment rights; and all leases of property situated off-site,
but used in connection with the operation of the Improvements.
"Appurtenant Easements" shall mean all easements and licenses on or over
land or improvements, other than the Land and Improvements, which benefit the
Land or Improvements, including, but not limited to, all easements providing
access to the Land from public streets, roads and ways, all easements, licenses
and agreements for location, maintenance and replacement of off-
36
37
premises signs of the business and utility service lines, and all easements for
parking and storage on adjoining property.
"Books and Records" shall mean all books of account and annual statements
of operations for 1996 and 1997 with respect to the Property (including audited
statements to the extent the same have been audited); the 1998 budgets and all
books of account and preliminary statements of the operations for the current
1998 fiscal year for the Property to date, which are kept by Seller in the
ordinary course of business of operating the Property, and monthly statements
of operations of the Property for 1997 and 1998 through the month of the
Closing (the statement of operations for the month of the Closing to be
provided after the Closing).
"Employees" shall mean all persons employed by Seller in connection with
the management and operation or possession of the Property during the pendency
of this Agreement.
"Excepted Items" shall mean the following property which is excluded from
the definition of "Personal Property" hereunder: (a) items owned by
independent contractors and business entities and not used in the operation of
the Property; (b) all items (prepaid or otherwise) stored, maintained, or
operated at the Property and consumed in the ordinary course of business, (c)
cash in bank accounts and xxxxx cash maintained at the Property, checks and
money orders; (d) room reservation deposits of any kind or nature, (e)
receivables, if any, (f) utility deposits, if any, of every type and nature,
including any interest accrued thereon, and (g) all accounts payable with
respect to the Property, whether owing or accruing prior to, on or after the
Closing Date.
37
38
"Governmental Authorities" shall mean all federal, state, county,
municipal and local governments, administrative agencies and quasi-governmental
authorities having jurisdiction over the Property.
"Hazardous Materials" shall mean any and all substances which are or
become defined as a "hazardous waste," "hazardous substance" pollutant or
contaminant under any Legal Requirements, including, without limitation, the
Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C.
Section 9601 et seq.), as amended, and/or the Resource Conservation and
Recovery Act (42 U.S.C. Section 6901 et seq.), as amended, and/or the federal
regulations implementing such Acts; "Hazardous Materials" shall include, but
are not limited to, petroleum products and asbestos.
"Impositions" shall mean all real estate, personal property and hotel
occupancy taxes, general and special assessments imposed by Governmental
Authorities, water and sewer charges, and fees and charges assessed or imposed
by Governmental Authorities upon all or part of the Property and which are or
may become a lien on the Property.
"Improvements" shall mean all buildings and structures erected or located
on the Land and Appurtenant Easements at the date of this Agreement, or at any
time between the date of this Agreement and the Closing Date, including all
machinery, equipment and fixtures owned by Seller and attached to such
buildings and structures and used for operation or maintenance of the buildings
and structures, all parking area and driveway surfaces, and curbs and drainage
features, all landscaping, pool areas, all utility lines and appurtenances and
all signs and structural supports for signs.
38
39
"Inspection Period" shall mean the period of time beginning on the date of
receipt of the last Survey, Title Commitment (including Title Documents), UCC
Search or Phase I Audit, and/or updates thereto, and ending thirty (30) days
thereafter, however, in no event shall this Inspection Period extend beyond the
Closing Date.
"Knowledge of Seller" shall mean the actual knowledge of Seller.
"Legal Requirements" shall mean all laws, codes, ordinances, rules,
regulations, and requirements of all Governmental Authorities existing at the
date of this Agreement or at any time between the date of this Agreement and
the Closing Date applicable to all or part of the Property or the ownership,
operation, management, maintenance, development, improvements, repair,
renovation, lease, sale, encumbering, transfer, use or manner of use of all or
part of the property (including, without limitation, any law, code, ordinance,
rule, regulation or requirement relating to Hazardous Materials).
"Permits and Licenses" shall mean all permits, licenses, certificates of
occupancy, sales tax permits, and renewals thereof, which are material to the
normal operation of the Property.
"Permitted Exceptions" shall mean any defects, liens, encumbrances,
covenants, restrictions, easements, reservations, agreements and other matters
affecting title to the Property to which Purchaser does not object prior to the
expiration of the Inspection Period.
39
40
"Permitted Hazardous Materials" shall mean Hazardous Materials in ordinary
quantities which are customarily used in the operation, maintenance and repair
of hotels and lodging facilities similar to the Property and which are stored
and handled according to manufacturers' standards and guidelines and in
compliance with all applicable Legal Requirements, and prepackaged office
supplies, cleaning materials, personal grooming items and other similar items
sold for consumer use.
"Personal Property" excludes the Excepted Items and shall mean all
fixtures, furnishings and equipment located at the Property and required for
the operation of the Improvements as a motel/hotel, including, without
limitation, office furnishings and equipment (exclusive of all of the vehicles
used in the operation of the Improvements); fittings, machinery, heating and
cooling systems, tools, maintenance equipment, appliances, wires and installed
telephones, televisions, pictures, rugs, kitchen equipment, and all other
fixtures and personal property of every kind and nature, other than the
Excepted Items, which are located on, attached to, appurtenant to or used in
the operation, maintenance, management or security of the Property or any
portion of the Property, and which are owned by Seller, including Personal
Property (other than Excepted Items) acquired by Seller between the date of
this Agreement and the Closing Date, and all replacements, substitutions and
additions of and to all of the foregoing. Personal Property does not include
assignable trade names and goodwill. Seller does not lease any Personal
Property, but rather, owns all Personal Property used in operation of the
Property.
40
41
"Phase I Audit" shall mean a Phase I environmental site assessment of the
Property with respect to Hazardous Materials from a qualified environmental
audit firm experienced in Phase I environmental site assessments, as selected
by Purchaser, to be made within the Inspection Contingency Period and pursuant
to the ASTM Standard Practice for Environmental Site Assessments.
"Phase II Site Assessment" shall mean a phase II environmental site
assessment of the Property with respect to Hazardous Materials from a qualified
environmental audit firm experienced with Phase II environmental site
assessments, as selected by Purchaser, to be made pursuant to ASTM Standard
Practice for Environmental Site Assessments.
"Title Insurance Company" shall mean Xxxxxxx Title Guaranty Corporation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
41
42
SELLER:
[AMERIHOST PROPERTIES SUBSIDIARIES
to be listed as signatories]
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
President and Chief Executive Officer
PURCHASER:
PMC COMMERCIAL TRUST,
a Texas Real Estate Investment Trust
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
The undersigned, Amerihost Properties, Inc., a Delaware corporation, and the
sole shareholder of Seller, hereby joins this Agreement solely for the purpose
of performing its duties and obligations as set forth in Section 5.1 (b) and
Section 6.6, if applicable.
AMERIHOST PROPERTIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx, President
The undersigned, AmeriHost Inns, Inc., a Delaware corporation, hereby joins
this Agreement solely for the purpose of performing its duties and obligations
as set forth in Section 5.1 (b).
AMERIHOST INNS, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx, President
42
43
SCHEDULE OF EXHIBITS
A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Property-Owning Subsidiaries
B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Xxxxxx Xxxxxxxxx
X-0 to B-30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Land
C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Price Allocation per Property
D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of Master Agreement
E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of Property Lease
F . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Repairs for Marysville, Ohio and Plainfield, Indiana
G . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Phase I Audit Update Property
H . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assumption Fees
43
44
EXHIBIT D
MASTER AGREEMENT
THIS MASTER AGREEMENT (this "AGREEMENT") is made and entered into as
of this ____ day of June, 1998, by and among PMC COMMERCIAL TRUST (the
"LESSOR"), and AMERIHOST PROPERTIES, INC. ("AMERIHOST") AND AMERIHOST INNS, INC.
(the "LESSEE").
RECITALS
WHEREAS, the Lessor has acquired those certain _________ (__) hotels
(the "INITIAL HOTELS") listed on Exhibit A attached hereto;
WHEREAS, simultaneously with the execution of this Agreement, the
Lessor has leased the Initial Hotels to the Lessee;
WHEREAS, Amerihost is a guarantor of the Lessee's obligation to pay
rent under the Property Leases (as hereinafter defined), on the terms and
conditions set forth therein, and
WHEREAS, the parties hereto desire to enter into this Agreement to set
forth certain agreements relating to the matters set forth herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing premises, the
representations, warranties and covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto
1
45
agree as follows:
ARTICLE I
DEFINITIONS
Unless the context otherwise requires, (a) all capitalized terms not
otherwise defined herein shall have the meanings set forth in the Property
Leases, (b) references to the singular shall include the plural and vice versa,
(c) references to designated "Articles," "Sections" or other subdivisions are
references to the designated Articles, Sections or other subdivisions of this
Agreement, (d) all accounting terms not otherwise defined herein shall have the
meanings assigned to them in accordance with GAAP and (e) the words "herein,"
"hereof," and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE II
LEASING OF HOTELS
2.1 Initial Hotels. Simultaneously with entering into this
Agreement, the Lessor and the Lessee have entered into an individual lease in
the form attached hereto as Exhibit "B" (the "PROPERTY LEASE") for each of the
Initial Hotels at the rents specified on Exhibit "C" attached hereto.
2.2 Additional Hotels. Lessor and Lessee may also from time to
time agree to the lease of Additional Hotels (herein so called) to Lessee. The
lease of Additional Hotels shall
2
46
be by mutual agreement of Lessor and Lessee and upon such terms and conditions
as are contained in form of the Property Lease attached hereto as Exhibit B and
such Additional Hotels shall become subject to the terms and conditions of this
Agreement as amended to reference such Additional Hotels and the Amerihost
Guaranty (as hereinafter defined).
ARTICLE III
RENT
So long as this Agreement remains in effect, Lessee promises to pay to
Lessor, in lawful money of the United States of America, in immediately
available funds, rents in the amount specified below:
3.1 The annual amount of rent (the "Base Rent"), payable in equal
monthly installments as set forth on Schedule I attached hereto, shall
initially be $____________ until adjusted as provided in the Property Leases or
as adjusted with the addition of Additional Hotels. The Base Rent shall be
paid monthly in advance in the manner as set forth in Section 3.1 of the
Property Leases.
ARTICLE IV
RESERVES
4.1 Reserves. (a) Lessee shall deposit monthly during the Lease
Term (on or before the 15th day of the subsequent month) into the Capital
Expenditure Reserve Account an amount which is equal to two percent (2%) of
Room Revenues for all Initial Hotels and Additional Hotels, as the case may be,
for the prior month.
3
47
(b) Lessee shall also deposit monthly during the Lease Term
(on or before the 15th day of the subsequent month) into the FF&E
Reserve Account an amount equal to two percent (2%) of the Room
Revenues for all Initial Hotels and Additional Hotels, as the case may
be, for the prior month.
ARTICLE V
ESCROW
Section 5.1 Escrow. The Lessee has deposited in escrow (the
"ESCROW") with Lessor, and Lessor hereby acknowledges receipt of, the sum of
$____________ (the "ESCROW FUNDS"), representing a sum equivalent to two
months' Base Rent under all Property Leases. The Escrow Funds shall be
invested in "Qualified Investments." The Lessor shall cause earnings thereon
to be remitted annually to the Lessee not later than the first day of February
of each year in which the Escrow is maintained, provided that an Event of
Default has not occurred and is continuing under the Property Lease.
Notwithstanding the foregoing provision, the Lessee shall have the option from
time to time, as a substitute for cash, upon reasonable notice to the Lessor,
to provide a letter of credit (the "LETTER OF CREDIT") in favor of the Lessor
in the amount of the Escrow Funds, in form and substance, and issued by an
issuer, reasonably acceptable to the Lessor.
Section 5.2 Coverage Ratio. The Escrow hereby created shall
continue until such date that the ratio of Net Operating Income in the
aggregate on all of the Initial Hotels to the aggregate Base Rent of all
Initial Hotels shall equal or exceed a ratio of 1.25 to 1.0 (such rent
4
48
coverage ratio hereinafter called the "RCR"), as of the first day of each
quarter during the term of the Escrow, on a trailing 12-month basis commencing
on December 31, 1999. In the event Additional Hotels are added under this
Agreement, an Escrow pursuant to Section 5.1 shall be established with respect
to such Additional Hotels and shall continue pursuant to the terms and
conditions set forth in this Section 5.2. Lessor shall have the right to draw
on the Escrow Funds upon the occurrence of an Event of Default by the Lessee in
the payment of Base Rent to the extent necessary to cure the shortfall in
payment of Base Rent and Lessee must replenish the Escrow within two (2)
business days after written notice from Lessor.
Section 5.3 Financial Reports. During the term of this
Agreement, the Lessee shall provide detailed monthly statements to the Lessor
within forty-five (45) days of each fiscal period outlining financial results
for the Property during the accounting period and year-to-date, compared to the
previous fiscal year and budget. Annual financial consolidating statements
shall be sent to the Lessor not later than one hundred twenty (120) days after
the end of the Lessee's fiscal year. The Lessee agrees timely to provide
financial data and to cooperate fully with the Lessor in connection with prompt
quarterly and annual reconciliations of the monthly payments of Base Rent with
the Net Operating Income for equivalent periods.
Section 5.4 Termination of Escrow. Within ten (10) days after
the submission of evidence reasonably satisfactory to the Lessor that the RCR
has been achieved, the Lessor shall remit the Escrow Funds, together with
earnings thereon, if any, or return the Letter of Credit, as the case may be,
to the Lessee and the appropriate Escrow created hereunder shall be closed and
of no further force and effect.
5
49
ARTICLE VI
AMERIHOST GUARANTY
Amerihost hereby executes this Agreement to acknowledge and confirm
Amerihost's agreement to guarantee to the Lessor the prompt and complete
payment of the Base Rent and Additional Rent under the Property Leases in the
form of guaranty attached hereto as Exhibit D (the "Amerihost Guaranty"); it
being expressly understood and agreed that this is a continuing guaranty and an
instrument for the payment of money only, and that the obligation of Amerihost
is and shall be absolute under any and all circumstances.
ARTICLE VII
NON-COMPETITION
During the term of this Agreement, Lessor, Lessee and Amerihost shall
not (and shall take reasonable actions to assure that any Related Party of
Lessor, Lessee or Amerihost shall not) within fifteen (15) miles of the Project
develop a property by constructing a new motel/hotel project without the
written approval of the Lessor or Lessee, as the case may be.
ARTICLE VIII
DEFAULT
Section 8.1 Event of Default. An Event of Default (herein so
called) shall exist under this Agreement if any of the following occur:
(a) Base Rent Payment. Lessee breaches any of its obligations
to pay Base Rent as provided in Section 3.1 hereof and in Sections 3.1
and 3.2 of any of the
6
50
Property Leases subject to any notice and cure period contained in the
Property Leases.
(b) Capital Expenditure Reserve Account. A breach by Lessee
of its obligation to fund the Capital Expenditure Reserve Account as
provided in Section 4.1(a) hereof and Section 3.7(d) of the Property
Leases subject to any notice and cure period contained in the Property
Leases.
(c) FF&E Reserve Account. A breach by Lessee of its
obligation to create and fund the FF&E Reserve Account as provided in
Section 4.1(b) hereof and Section 3.7(f) of the Property Leases
subject to any notice and cure period contained in the Property Lease.
(d) Failure of Lessee to replenish the Escrow within two (2)
business days after written notice from Lessor.
(e) Failure of Amerihost to honor the terms of the Amerihost
Guaranty.
8.2 Remedies. Upon the occurrence of an Event of Default, Lessor
shall have the right to terminate this Agreement upon ten (10) days written
notice to Lessee; in which event Lessor shall have all the rights and remedies
as set forth in Section 12.2 of the Property Leases and this Agreement.
7
51
ARTICLE IX
MISCELLANEOUS
Section 9.1 Modification, Amendments and Waivers. No
modification, amendment or waiver of any provision of this Agreement shall be
effective unless the same is in a writing signed by all parties to this
Agreement.
Section 9.2 Notices. All notices and other communications
pursuant to this Agreement shall be in writing and personally served or mailed
as provided in the Property Lease.
Section 9.3 Successors and Assigns. The provisions of this
Agreement shall be binding upon the parties hereto and all of their successors
and assigns and inure to the benefit of the parties hereto and their permitted
successors and assigns.
Section 9.4 Termination. This Agreement shall terminate at such
time as all of the Property Leases have terminated, except that the Escrow
created under Article V and the Amerihost Guaranty created under Article VI
shall terminate on the terms and conditions therein provided.
Section 9.5 Governing Law. This Agreement shall be governed by
the laws of the State of Texas, without giving effect to the principles of
conflicts of law thereof.
Section 9.6 Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall be an original, with the same force and
effect as if the signatures thereto and hereto were upon the same instrument.
8
52
Section 9.7 Waiver. Each party waives, to the extent permitted
by applicable law, any right to a trial by jury in any proceedings brought by
either party to enforce the provisions of this Agreement.
Section 9.8 Time of the Essence. Time is of the essence of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
LESSOR
PMC COMMERCIAL TRUST
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
LESSEE
AMERIHOST INNS, INC.
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
GUARANTOR
AMERIHOST PROPERTIES, INC.
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
9
53
EXHIBIT D
LEASE AGREEMENT
BY AND BETWEEN
PMC COMMERCIAL TRUST, AS LANDLORD
AND
AMERIHOST INNS, INC., AS TENANT
54
TABLE OF CONTENTS
Page
----
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II DEMISE; TERM; LEASE YEAR
2.1 Demise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.2 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.3 Lease Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.4 Renewal Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III RENT AND OTHER CHARGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.1 Base Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.2 Consumer Price Index Adjustments to Base Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.3 Payment of Impositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.4 Utilities and Operating Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.5 Location of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.6 No Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.7 Capital Expenditure Reserve Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.8 Specified FF&E and Operating Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE IV ALTERATIONS AND ADDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.1 Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.2 Construction Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.3 Removal of Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE V REPAIRS AND MAINTENANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.1 Tenant's Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.2 Termination for Decline in Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.3 Surrender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.4 Right of Entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VI HAZARDOUS SUBSTANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.1 No Hazardous Substances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.2 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.3 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
i
55
TABLE OF CONTENTS
Page
----
ARTICLE VII COVENANTS OF TENANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.1 Use of Project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.2 Continuing Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.3 Operating Supplies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.4 Legal Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.5 FF&E and Operating Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.6 Permits and Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.7 Tenant's Obligation to Manage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.8 Permitted Contests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE VIII RESERVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE IX INSURANCE AND INDEMNITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
9.1 Insurance Coverages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
9.2 Insurance Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.3 Exemption of Landlord from Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.4 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
9.5 Mutual Waiver of Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
9.6 Insurance Premium Escrow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE X DAMAGE OR DESTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.1 Reports on Insurance Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.2 Insurance Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.3 Reconstruction in the Event of Damage or Destruction . . . . . . . . . . . . . . . . . . . . . . . . 29
10.4 Abatement of Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE XI CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.1 Taking of Whole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.2 Partial Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.3 Tenant's Award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE XII DEFAULTS; REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
12.1 Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
12.2 Landlord's Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ii
56
TABLE OF CONTENTS
Page
----
12.3 Landlord May Perform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE XIII ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
13.1 Assignment by Tenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
13.2 Tenant Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
13.3 Assignment Due to Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
13.4 Transfer of Landlord's Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
13.5 Licenses and Leasehold Mortgages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE XIV RIGHT OF FIRST REFUSAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
14.1 Right of First Refusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
14.2 Conditions of Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
14.3 Restraining Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
14.4 Exclusion from Right of First Refusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE XV GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
15.1 Estoppel Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
15.2 Landlord's Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
15.3 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
15.4 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
15.5 Complete Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
15.6 Tenant's Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
15.7 Franchise Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
15.8 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
15.9 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
15.10 Recording . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
15.11 Holding Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
15.12 Covenants and Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
15.13 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
15.14 Subordination and Attornment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
15.15 No Joint Venture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
15.16 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
15.17 Expansion of Project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
iii
57
TABLE OF CONTENTS
Page
----
15.18 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
15.19 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
15.20 Tenant's Right to Cure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
15.21 Breach by Landlord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
15.22 Landlord to Grant Easements, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
15.23 Governing Law; Submission to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
15.24 REIT Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
15.25 Financings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
15.26 Landlord's Right to Inspect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
15.27 "As Is" Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
15.28 Third Party Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
15.29 No Merger of Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
iv
58
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into as
of the ___ day of June, 1998 by and between PMC COMMERCIAL TRUST, a Texas real
estate investment trust ("Landlord"), and AMERIHOST INNS, INC., a Delaware
corporation ("Tenant").
REFERENCE PAGE
In addition to the other terms elsewhere defined in this
Lease, the following terms, wherever used in this Lease, shall have the meaning
set forth in this Reference Page.
1. PREMISES: The motel property located at
_________________.
2. NAME: AmeriHost Inn.
3. COMMENCEMENT DATE: June ___, 1998
4. EXPIRATION DATE: June ___, 2008
5. LEASE TERM: Ten (10) years, as the term may be
extended upon Tenant's exercise of either one or both
of Tenant's two (2) options to extend the Lease Term
for five (5) years each.
6. BASE RENT: The rent set forth in Schedule I annexed
hereto and made a part hereof.
7. PROJECT: The Land, Improvements, FF&E, and Operating
Equipment, which comprise a two (2) story motel,
containing ____ rooms, located at the Premises.
The Reference Page information is incorporated into and made a
part of this Lease. In the event of any conflict between any Reference Page
information and the Lease, the Lease shall control.
RECITALS:
A. Landlord is the owner of the Project.
B. Tenant has represented to Landlord that it has
substantial experience in the operation, management and maintenance of
facilities similar to the Project and recognizes Landlord's expectation that
Tenant will use such experience to operate the Project.
59
C. Tenant desires to lease from Landlord and Landlord
desires to lease to Tenant the Project for the operation by Tenant of a motel
and Tenant desires to lease and operate the Project subject to and in
accordance with the terms and conditions set forth herein.
AGREEMENTS:
NOW, THEREFORE, for good, fair and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and, intending to be
legally bound hereby, Landlord and Tenant hereby covenant and agree as
follows:
ARTICLE I
DEFINITIONS
The following words and terms shall have the following
meanings ascribed to them:
1.1 "ADDITIONAL RENT" shall mean all costs, expenses, charges and
other amounts owed by Tenant to Landlord hereunder, other than Base Rent.
Additional Rent shall include any cost incurred by Landlord in fulfilling
Tenant's obligations hereunder. Additional Rent shall be due and payable two
(2) business days following written demand, unless specifically provided to the
contrary in this Lease; and shall bear interest at the Default Rate from the
date paid by Landlord until the date paid by Tenant to Landlord, if applicable.
1.2 "AWARD" shall have the meaning ascribed to such term in
Section 11.1 hereof.
1.3 "BANKRUPTCY CODE" shall mean the United States Bankruptcy
Code, as amended.
1.4 "CAPITAL EVENT" shall mean any of the following events: (a)
any sale, assignment, transfer or refinancing of the Lessee's interest in the
Project; (b) the receipt of any insurance payments or damage recoveries paid to
the Lessee in respect of the Project; and (c) any condemnation or eminent
domain proceedings relating to all or part of any leasehold interest in the
Project.
1.5 "CAPITAL EXPENDITURE RESERVE ACCOUNT" shall have the meaning
ascribed to such term in Section 3.7 hereof.
2
60
1.6 "CONSUMER PRICE INDEX" shall mean The "U.S. City Average, All
Items" Consumer Price Index for All Urban Consumers published by the Bureau of
Labor Statistics of the United States Department of Labor (Base:
1982-1984=100), or any successor index thereto.
1.7 "DEFAULT" shall mean an event which but for the giving of
notice or passing of time, or both, would constitute an Event of Default
hereunder.
1.8 "DEFAULT RATE" shall mean the annual rate of interest of two
percent (2%) over the Prime Rate as published in The Wall Street Journal,
Southwest Edition, or such lesser amount as may be the maximum amount permitted
by applicable law.
1.9 "ENVIRONMENTAL REGULATION(S)" means any law, rule, regulation,
permit or agreement relating to the environment, human health or safety now
existing or hereafter enacted.
1.10 "EVENT OF DEFAULT" shall have the meaning ascribed to such
term in Section 12.1 hereof.
1.11 "FF&E" shall mean all furniture, furnishings and equipment
owned by Landlord and located at the Project as of the date of this Lease and
required for the operation of the Improvements as a motel, including, without
limitation, (a) office furnishings and equipment, (b) specialized motel
equipment necessary for the operation of any portion of the Improvements as a
motel, including equipment for kitchens, laundries, dry cleaning facilities,
bars, restaurants, public rooms, commercial and parking spaces, and
recreational facilities and (c) all other furnishings and equipment as
necessary or desirable in the operation of the Project in accordance with the
terms and conditions set forth in this Lease.
1.12 "FF&E RESERVE ACCOUNT" shall mean funds available for the
repair, replacement or refurbishment of FF&E, which funds shall be provided by,
and under the control of, Tenant through monthly payment into an account
established on the Commencement Date by Tenant and maintained by Tenant during
the Lease Term.
1.13 "FIXTURES" shall mean all equipment, machinery, fixtures and
other items of property, including all components thereof now and hereafter,
permanently affixed to or incorporated into the Improvements, including,
without limitation, all furnaces, boilers, heaters, electrical equipment,
heating, plumbing, lighting, ventilating, refrigerating, incineration, air and
water pollution control, waste disposal, air-cooling and air-conditioning
systems and apparatus, sprinkler systems and fire and theft protection
equipment, all of which to the greatest extent permitted by law are hereby
deemed by the parties hereto to constitute real estate, together with all
replacements, modifications, alterations and additions thereof.
3
61
1.14 "FRANCHISOR" A Related Party of Tenant or any other national
or regional hotel/motel franchisor reasonably acceptable to Landlord.
1.15 "FRANCHISE AGREEMENT" Any agreement that may be entered into
by and between a Franchisor and Tenant, regarding the operation of the Project
as a franchised motel of Franchisor, on terms reasonably acceptable to
Landlord.
1.16 "GAAP" means generally accepted accounting principles.
1.17 "GOVERNMENTAL AUTHORITY" means any federal, state, or local
governmental body including elected bodies, departments, agencies, commissions,
boards or instrumentalities having or purporting to have jurisdiction over
Landlord, Tenant, the Project, or the business conducted or to be conducted
from the Project.
1.18 "HAZARDOUS SUBSTANCES" means any substance, pollutant or
contaminant, as those terms are now or hereafter defined in any Environmental
Regulation, and specifically includes, but is not limited to, asbestos,
asbestos-containing materials, petroleum, or petroleum-based products,
formaldehyde, and polychlorinated biphenyls.
1.19 "IMPOSITIONS" shall have the meaning ascribed to such term in
Section 3.3(a) hereof.
1.20 "IMPROVEMENTS" shall mean all buildings, structures and
improvements now located or hereafter constructed on the Land and all Fixtures
and equipment attached to, forming a part of and necessary for the operation of
such buildings, structures and improvements as a motel, and such (a)
restaurants, bars, banquet, meeting and other public areas, (b) commercial
space, including concessions and shops, (c) parking space, (d) storage and
services areas, (e) recreational facilities and areas, (f) public grounds and
gardens, (g) permanently affixed signage and (h) other facilities and
appurtenances, as necessary or desirable for the operation of the Improvements
as a motel in accordance with the terms and conditions of this Lease.
1.21 "INSURED CASUALTY" shall have the meaning ascribed to such
term in Article 10 hereof.
1.22 "LAND" shall mean that certain real property consisting of the
Premises described in the Reference Page and legally described on Exhibit A
attached hereto, together with all easements and rights benefitting or
appurtenant to such real property.
1.23 "LANDLORD" shall mean PMC Commercial Trust, a Texas real
estate investment trust, and its successors and assigns.
4
62
1.24 "LEASE YEAR" shall mean a full calendar year, provided that
the first and last Lease Years shall be determined in accordance with Section
2.3 hereof.
1.25 "LEGAL REQUIREMENTS" shall have the meaning ascribed to such
term in Section 7.4 hereof.
1.26 "MASTER AGREEMENT" shall mean the agreement made and entered
into as of June ___, 1998 by and among PMC Commercial Trust, Amerihost
Properties, Inc. and AmeriHost Inns, Inc.
1.27 "NET OPERATING INCOME" shall mean Room Revenues and Sundry
Revenues, less Operating Expenses, but specifically excludes any and all income
derived by reason of the occurrence of a Capital Event.
1.28 "NET WORTH" shall mean Landlord's net worth which shall be
equal to the excess of Landlord's assets over its liabilities as determined in
accordance with GAAP.
1.29 "OPERATING EQUIPMENT" shall mean (a) all operating equipment
required for the operation of a motel, including chinaware, glassware, linens,
silverware, utensils, uniforms, smallwares, telephone equipment, computers and
all other similar items, and (b) all replacements, substitutions and additions
of and to all of the foregoing.
1.30 "OPERATING EXPENSES" shall mean, for any applicable period,
all expenses incurred by the Tenant in connection with the operation of the
Project in aggregate during such period determined in accordance with GAAP,
which operating expenses shall be deemed to include a reserve of four percent
(4%) of Room Revenues for fixtures, furnishings and equipment and capital
expenditures, and a management fee of four percent (4%) of Room Revenues,
provided, however that "Operating Expenses" shall exclude capital expenditures,
depreciation, amortization expenses and interest expense but shall include
administrative and general expenses, management fees, marketing expenses,
maintenance expenses, energy costs, real and personal property taxes and
insurance premiums, as such terms are described and accounted for by Tenant in
the ordinary course of its business and in accordance with the financial
statements periodically provided by Tenant to Landlord in accordance with the
provisions hereof.
1.31 "OPERATING SUPPLIES" shall mean all food, beverages and other
consumable items used in the operation of a motel, such as fuel, soap, cleaning
materials, matches, stationery, brochures, folios and all other similar items,
together with all substitutions and replacements thereto.
5
63
1.32 "PERMITS" shall have the meaning ascribed to such term in
Section 7.6 hereof.
1.33 "PERMITTED USE" shall mean the use of the Project as a motel
in compliance with all Legal Requirements and the terms and conditions of this
Lease.
1.34 "PROHIBITED CASUALTY" shall have the meaning ascribed to such
term in Article 10 hereof.
1.35 "PROHIBITED TAKING" shall have the meaning ascribed to such
term in Section 11.1 hereof.
1.36 "QUALIFIED INVESTMENTS" shall mean any one or more of the
following obligations or securities:
(i) direct obligations of, and obligations fully guaranteed
by, the United States of America or any agency or instrumentality of the United
States of America the obligations of which are backed by the full faith and
credit of the United States of America, excluding any principal-only or
interest-only stripped mortgage pass-throughs and provided that any obligations
of any such agency or instrumentality must be guaranteed as to timely payment
of principal and interest;
(ii) demand and time deposits in, certificates of deposits of,
or bankers' acceptances issued by, any depository institution or trust company
incorporated under the laws of the United States of America or any state
thereof and subject to supervision and examination by federal or state banking
authorities, so long as at the time of such investment or contractual
commitment providing for such investment the commercial paper or other
short-term debt obligations of such depository institution or trust company
(or, in the case of a depository institution which is the principal subsidiary
of a holding company, the commercial paper or other short-term debt obligations
of such holding company) have a credit rating not lower than the second
hightest rating category from a nationally recognized rating agency;
(iii) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand or on a
specified date not more than 270 days after the date of issuance thereof)
having the highest commercial paper rating from a nationally recognized rating
agency;
(iv) money market funds registered under the Investment
Company Act of 1940, as amended, having a credit rating, at the time of such
investment, not lower than the highest rating category from a nationally
recognized rating agency.
6
64
1.37 "RELATED PARTY" shall mean a person or entity who controls, is
controlled by or is under common control with another person or entity.
1.38 "RENT" shall mean Base Rent and Additional Rent.
1.39 "ROOM REVENUES" shall mean all revenues, receipts, and income
of any kind derived directly or indirectly by Tenant from or in connection with
the rental of guest rooms or suites, whether to individuals, groups or
transients, at the Project, whether on a cash basis or credit, paid or
collected, determined in accordance with generally accepted accounting
principles, excluding the following:
(a) The amount of all credits, rebates or refunds to
customers, guests or patrons, and all service charges, finance charges,
interest and discounts attributable to charge accounts and credit cards, to the
extent the same are paid to Tenant by its customers, guests or patrons, or to
the extent the same are paid for by the Tenant to, or charged to Tenant by,
credit card companies;
(b) All sales taxes or any other taxes imposed on the rental
of such guest rooms or suites;
(c) Gratuities or service charges actually paid to employees;
(d) Proceeds of business interruption and other insurance; and
(e) Revenues from the sale of food and beverage or Sundry
Revenues.
1.40 "STATE" shall mean the state in which the Project is located.
1.41 "SUNDRY REVENUES" shall mean all revenues, receipts, and
income derived from the Project's meeting rooms, telephones, TV and movie
rentals, check room, washroom, laundry, valet, vending machines, and other
motel related operation sources not specified herein as Room Revenues or food
and beverage revenues.
1.42 "TAX CODE" shall mean the Internal Revenue Code of 1986, as
amended.
1.43 "TENANT" shall mean AmeriHost Inns, Inc., a Delaware
corporation, and its successors and permitted assigns.
7
65
ARTICLE II
DEMISE; TERM; LEASE YEAR
2.1 DEMISE.
(a) Subject to the terms and conditions of this Lease, Landlord leases
to Tenant and Tenant hereby leases from Landlord, the Land, Improvements, FF&E
and Operating Equipment.
(b) It is the intent of Landlord and Tenant that Tenant have
uninterrupted control in the operation of and business conducted at the Project
so long as no Event of Default has occurred and is continuing. Without limiting
any of Landlord's or Tenant's rights hereunder, Tenant shall have absolute
discretion in the determination of room rates and rates and charges to guests of
the Project for other motel related services available at the Project and in
determination of the terms of guest admittance to the Project, use of rooms for
commercial purposes, policies relating to entertainment, labor and food and
beverage service and all phases of advertising, publicity and promotion and
other matters incidental to the operation of Tenant's business at the Project.
2.2 TERM. The term of this Lease shall be for the Lease Term,
unless terminated sooner pursuant to any of the provisions hereof or extended
as provided in Section 2.4 hereof. The Lease Term shall commence on the date
of this Lease. Tenant's obligation to pay Rent shall commence on the
Commencement Date.
2.3 LEASE YEAR. The first Lease Year shall begin on the
Commencement Date and shall end on December 31st of the calendar year following
the calendar year in which the Commencement Date occurs. The second Lease Year
shall begin on the next succeeding January 1st and each Lease Year thereafter
during the Lease Term shall consist of a full calendar year, provided that if
the Lease Term expires on a date other than December 31, the period of time
from January 1 of that calendar year until such expiration date shall be
construed as a Lease Year.
2.4 RENEWAL OPTIONS.
(a) Provided no Event of Default has occurred or is continuing, the
Term of this Lease shall be automatically extended for an additional five (5)
years to commence on the day next succeeding the Expiration Date (the "First
Renewal Term") and to expire on the day (hereinafter referred to as the
"Renewal Term Expiration Date") which shall be the fifth (5th) anniversary of
the Expiration Date, unless Tenant delivers notice to Landlord on or before the
day which is six (6) months prior to the Expiration Date of its election not to
extend the Term of this Lease for the First Renewal Term. If this Lease shall
be renewed for the First Renewal Term, it shall be upon all of the terms and
conditions of this Lease.
8
66
(b) Provided no Event of Default has occurred and is continuing, the
Term of this Lease shall be automatically extended for an additional five (5)
years to commence on the day next succeeding the Renewal Term Expiration Date
(the "Second Renewal Term") and to expire on the day which shall be the fifth
anniversary of the Renewal Term Expiration Date, unless Tenant delivers notice
to Landlord on or before the day which is six (6) months prior to the Renewal
Term Expiration Date of its election not to extend the Term of this Lease for
the Second Renewal Term. If this Lease shall be renewed for the Second Renewal
Term, it shall be upon all of the terms and conditions of this Lease except
that Tenant shall not have any further right to renew the Term of this Lease.
ARTICLE III
RENT AND OTHER CHARGES
3.1 BASE RENT. Tenant shall pay Base Rent commencing on the
Commencement Date. Base Rent shall be payable in advance in monthly
installments as set forth on Schedule I on or before the first day of each
calendar month. Base Rent for any period during the Lease Term which is less
than one (1) month shall be a pro-rata portion of the applicable monthly
installment. If the Base Rent is not paid within two (2) business days after
written notice from Landlord, a late fee equal to two percent (2%) of
one-twelfth (1/12) of the amount of the annual Base Rent shall also be due and
payable.
3.2 CONSUMER PRICE INDEX ADJUSTMENTS TO BASE RENT. Effective as
of the first day of the first month of the fourth Lease Year and the first day
of the first month of each Lease Year thereafter, there shall be made a cost of
living adjustment of the annual Base Rent payable under Section 3.1 hereof.
(a) Effective as of the first day of the first month of the fourth
Lease Year and the first day of first month of each Lease Year thereafter,
annual Base Rent as adjusted shall be increased by two percent (2%) and shall
be payable monthly until such time as the actual change in the Consumer Price
Index can be determined and calculated pursuant to Section 3.2(b) hereof. In
the event that the change in the Consumer Price Index calculated pursuant to
Section 3.2(b) is less than two percent (2%), Landlord shall, within two (2)
business days of such determination, refund the difference to Tenant.
(b) For the Fourth (4th) Lease Year and each Lease Year
thereafter, in the event the Consumer Price Index for the first month of the
Fourth Lease Year and each Lease Year thereafter reflects an increase over the
Consumer Price Index for the first month of the immediately prior Lease Year,
then the Base Rent herein provided to be paid as of the first day of the first
month of such Lease Year and each month thereafter shall be adjusted by
multiplying the Base Rent, as previously adjusted for any Consumer Price Index
increases,
9
67
by the lesser of (i) the percentage difference between the Consumer Price Index
for the first month of the current Lease Year and the Consumer Price Index for
the first month of the prior Lease Year, and (ii) two percent (2%), and the
resulting amount shall be added to the Base Rent, which adjusted Base Rent
shall be effective as of the first day of the first month of the current Lease
Year. Said adjusted Base Rent shall thereafter be payable as set forth on
Schedule I until adjusted as of the first month of the next Lease Year.
(c) If (i) a significant change is made in the number or nature
(or both) of items used in determining the Consumer Price Index, or (ii) the
Consumer Price Index shall be discontinued for any reason, the Bureau of Labor
Statistics shall be requested to furnish a new index comparable to the Consumer
Price Index, together with information which will make possible a conversion to
the new index in computing the adjusted Base Rent hereunder. If for any
reason the Bureau of Labor Statistics does not furnish such an index and such
information, the parties will instead mutually select, accept and use such
other index or comparable statistics on the cost of living that is computed and
published by an agency of the United States or a responsible financial
periodical of recognized authority.
3.3 PAYMENT OF IMPOSITIONS.
(a) Tenant shall pay and discharge when due all taxes of every
kind and nature (including, without limitation, all real and personal property,
franchise, withholding, sales, hotel occupancy, profits and gross receipts
taxes), all charges for any easement or agreement maintained for the benefit of
any portion of the Project, all general and special assessments, levies,
permits, inspection and license fees, all water and sewer rents and charges and
all other public charges, levies or taxes, whether of a like or different
nature, even if unforeseen or extraordinary, imposed upon or assessed of or
against Landlord with respect to the Project, Tenant or any portion of the
Project or interest therein, together with any penalties or interest on any of
the foregoing (all of the foregoing are hereinafter collectively referred to as
the "Impositions"). It is expressly understood and agreed that the Lease is a
triple net lease and all taxes expressly including, but not limited to, the
Michigan Single Business Tax, but not including any fees required to be paid
by Landlord in order for Landlord to maintain its organizational existence or
qualification to do business in certain states as required, the net income and
employee unemployment and withholding taxes of Landlord, shall be paid by
Tenant. Tenant will provide Landlord with copies of all bills and other
demands evidencing Impositions promptly following Tenant's receipt of the same
and Tenant shall deliver to Landlord (i) copies of receipted bills and
cancelled checks evidencing payment of such Imposition if it is a real estate
tax or other public charge, and (ii) evidence acceptable to Landlord showing
the payment of any other such Imposition.
(b) Tenant shall have the right, at Tenant's sole cost and
expense, to contest or object to an Imposition in good faith, but such right
shall not be deemed or construed in any
10
68
way as relieving, modifying or extending Tenant's covenant to pay any such
Imposition at the time and in the manner provided in this Section 3.3, unless
(i) Tenant has given prior written notice to Landlord of Tenant's intent so to
contest or object to an Imposition, (ii) Tenant shall diligently and in good
faith contest the same by appropriate legal proceedings which shall operate to
prevent the enforcement or collection of the same and the sale of the Project
or any part thereof; (iii) Tenant shall have furnished to Landlord a cash
deposit, or an indemnity bond satisfactory to Landlord with a surety
satisfactory to Landlord, in the amount of the Imposition, plus a reasonable
additional sum to pay all costs, interest and penalties that may be imposed or
incurred in connection therewith, to assure payment of the matters under
contest and to prevent any sale or forfeiture of the Project or any part
thereof; (iv) Tenant shall promptly pay upon final determination thereof the
amount of any such Imposition so determined, together with all costs, interests
and penalties which may be payable in connection therewith; (v) notwithstanding
the foregoing, Tenant shall immediately upon the request of Landlord pay (and
if Tenant shall fail to do so, Landlord may, but shall not be required to, pay
or cause to be discharged or bonded against) any such Imposition under protest
notwithstanding such contest, if in the reasonable opinion of Landlord, the
Project shall be in jeopardy or in danger of being forfeited or foreclosed; and
(vi) no Event of Default has occurred and is continuing. Landlord may pay over
any such cash deposit or part thereof to the claimant entitled thereto at any
time when, in the judgment of Landlord, the entitlement of such claimant is
established after Landlord has first requested in writing that Tenant pay such
amount and Tenant does not provide evidence of payment within five (5) business
days thereafter. Tenant shall indemnify, defend and save Landlord harmless
against any loss, cost, expense or damage arising from such contest and shall,
if necessary to prevent a sale or other loss or damage to Landlord, pay such
tax, assessment or charge under protest and take such other steps as may be
necessary in Landlord's determination to prevent any sale or loss of the
Project. Subject to the foregoing, and if Landlord shall so request, within
twenty (20) days after the date when an Imposition is due and payable Tenant
shall deliver to Landlord evidence acceptable to Landlord showing the payment
of such Imposition.
(c) Landlord shall have the right, on notice to or demand upon
Tenant, to pay any Imposition not paid by Tenant after the date such Imposition
shall have become due (subject to Tenant's right to contest such Imposition as
provided in Section 3.3(b) hereof), and nothing herein contained shall affect
such right and such remedy. Any sums paid by Landlord in discharge of any
Impositions shall be treated as Additional Rent.
(d) Upon the occurrence of an Event of Default under this Lease,
Tenant, upon Landlord's request, shall deposit with Landlord monthly (as a
deposit and not a payment) an amount equal to one-twelfth of the annual
Impositions reasonably estimated by Landlord so that Landlord shall have
sufficient funds to pay the Impositions on the first day of the month preceding
the month in which they become due. In such event Tenant further agrees to
cause all bills, statements or other documents relating to Impositions to be
sent or mailed directly to Landlord. Upon receipt of such bills, statements or
other documents, and
11
69
provided Tenant has deposited sufficient funds pursuant to this Section 3.3(d),
Landlord shall pay such amounts as may be due thereunder, in a manner so as to
take advantage of the maximum discount available, out of the funds so
deposited. If at any time and for any reason the funds deposited with Landlord
are or will be insufficient to pay such amounts as may then or subsequently be
due, Landlord shall notify Tenant and Tenant shall immediately deposit an
amount equal to such deficiency with Landlord. Notwithstanding the foregoing,
nothing contained herein shall cause Landlord to be obligated to pay any
amounts in excess of the amount of funds deposited pursuant to this Section
3.3(d). Landlord shall keep such deposits in a segregated account and shall
not commingle said funds with Landlord's own funds. In the event Landlord's Net
Worth decreases below $90,000,000, then Tenant shall deposit such funds with a
bank or financial institution or other escrow agent selected by Landlord and
Tenant, with the consent of Landlord's lender, if such funds have not already
been deposited by Landlord with a bank, financial institution or other escrow
agent (the "Reserve Agent") to administer the deposit account in accordance
with the terms of this Section 3.3(d). All such deposits shall be invested in
Qualified Investments. Any earnings on deposits shall remain in the account.
If amounts collected by Landlord under this Section 3.3(d) together with
earnings thereon exceed amounts necessary in order to pay Impositions, the
excess amounts shall be retained in the account and Tenant shall receive a
credit for such excess amount toward the next payments due for such
Impositions. Except as a result of their gross negligence or willful
misconduct, neither Landlord nor any of its officers, directors, shareholders
or employees shall be liable for any action taken or omitted to be taken by it
hereunder or in connection herewith. Landlord may rely on all certificates,
documents and other proofs delivered to it as to the facts therein disclosed
and the statements therein made, with respect to such investments, and any such
certificate, document or other proof shall be evidence of such facts to protect
Landlord in any action that it may or may not take, or in respect of anything
it may or may not do, by reason of the supposed existence of such fact. Should
Tenant fail to deposit with Landlord sums sufficient to pay such Impositions in
full at least thirty (30) days before delinquency thereof after notice from
Landlord as hereinabove provided, such failure shall constitute an Event of
Default hereunder and Landlord may, at Landlord's election, but without any
obligation so to do, advance any amounts required to make up the deficiency,
which advances, if any, shall be treated as Additional Rent. Upon expiration
or any earlier termination of the Lease Term, and except in case of termination
due to an Event of Default, the sums held by Landlord under this Section 3.3(d)
shall be allocated between Landlord and Tenant as of such expiration or
termination date based upon the periods with respect to which such sums are due
and payable, and Landlord shall be entitled to retain such portion as
represents amounts due and payable up to such termination or expiration date,
and the balance shall be returned to Tenant.
(e) In compliance with Landlord's Net Worth requirement, on the
Commencement Date and within 120 days after the end of each fiscal year
beginning with the fiscal year ending December 31, 1998, the Landlord shall
deliver to the Tenant a copy of its annual audited financial statements which
have been audited by a nationally
12
70
recognized firm of independent public accountants. Such financial statements
shall include a balance sheet, income statement, statement of retained
earnings, statement of stockholder's equity and statement of cash flows and
shall be in comparative form.
3.4 UTILITIES AND OPERATING EXPENSES. Tenant shall pay or cause
to be paid when due, all charges, fees, assessments and related costs for
public utility services (including, without limitation, gas, water, sewer,
electricity, light, power, telephone, cable and other communication services
and refuse and garbage collection) used, rendered or supplied in connection
with the Project throughout the Lease Term. Tenant shall also pay or cause to
be paid when due all other costs and expenses in connection with operating the
Project in accordance with the terms and conditions hereof including, but not
limited to, costs and expenses for personnel, Operating Supplies, Operating
Equipment, insurance and compliance with Legal Requirements (subject to the
provisions of Section 7.4 hereof).
3.5 LOCATION OF PAYMENTS. Tenant shall for the entire Lease Term
pay Rent to Landlord as herein provided at the address set forth in Section
15.8 hereof or at such place as Landlord may from time to time in writing
designate.
3.6 NO SETOFF. It is the intention of the parties hereto that the
obligations of Tenant hereunder shall be separate and independent covenants and
agreements, and that Base Rent, Additional Rent and all other sums payable by
Tenant hereunder shall continue to be payable in all events, including any
default by Landlord hereunder, and that the obligations of Tenant hereunder
shall continue unaffected, unless the requirement to pay or perform the same
shall have been terminated pursuant to an express provision of this Lease.
This is a net lease and Base Rent, Additional Rent and all other sums payable
hereunder by Tenant shall be paid without notice or demand, and without setoff,
counterclaim, recoupment, abatement, suspension, deferment, diminution,
deduction, reduction or defense, except as otherwise specifically set forth
herein. This Lease shall not terminate and Tenant shall not have any right to
terminate this Lease, during the Lease Term (except as otherwise expressly
provided herein). Tenant agrees that, except as otherwise expressly provided
herein, it shall not take any action to terminate, rescind or avoid this Lease
notwithstanding (i) the bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, winding-up or other proceeding
affecting Landlord, (ii) the exercise of any remedy, including foreclosure,
under any mortgage, (iii) any action with respect to this Lease (including the
disaffirmance hereof) which may be taken by Landlord under the Federal
Bankruptcy Code or by any trustee, receiver or liquidator of Landlord or by any
court under the Federal Bankruptcy Code or otherwise, (iv) the taking of the
Project or any portion thereof (except as specifically provided in this Lease
below), (v) the prohibition or restriction of Tenant's use of the Project under
any legal requirement or otherwise, (vi) the destruction of the Project or any
portion thereof, (vii) the eviction of Tenant from possession of the Project,
by paramount title or otherwise, or (viii) default by Landlord under any other
agreement between Landlord and Tenant. Tenant waives all rights which are not
expressly stated herein but which may now or hereafter otherwise be conferred
by
13
71
law to quit, terminate or surrender this Lease or any of the Project; to any
setoff, counterclaim, recoupment, abatement, suspension, deferment, diminution,
deduction, reduction or defense of or to Base Rent, Additional Rent or any
other sums payable under this Lease, and for any statutory lien or offset right
against Landlord or its property, each except as otherwise expressly provided
herein.
Landlord and Tenant agree that this Lease is a true lease and does not
represent a financing arrangement. Each party shall reflect the transaction
represented hereby in all applicable books, records and reports (including
income tax filings) in a manner consistent with "true lease" treatment rather
than "financing" treatment.
3.7 CAPITAL EXPENDITURE RESERVE ACCOUNT AND FF&E RESERVE ACCOUNT
(a) Landlord shall establish an account (the "Capital Expenditure
Reserve Account") and all amounts deposited therein shall be held by Landlord
in accordance with the terms and conditions of this Section 3.7. In the event
Landlord's "Net Worth" decreases below $90,000,000, then Landlord and Tenant
shall establish and maintain the Capital Expenditure Reserve Account with the
Reserve Agent to administer the account in accordance with the terms of this
Section 3.7. Tenant shall have no right of withdrawal from the Capital
Expenditure Reserve Account except pursuant to the provisions of this Section,
and the Capital Expenditure Reserve Account shall be under the exclusive
dominion and control of Landlord or its assigns as the case may be.
(b) Not later than thirty (30) days prior to the commencement of
each Lease Year, including the first Lease Year, Tenant shall submit for
approval a proposed annual operating budget (the "Operating Budget") and a
capital budget (the "Capital Budget") to Landlord. Landlord shall have twenty
(20) days from the date of receipt of the Capital Budget to review and make
reasonable comment on the Capital Budget and Landlord and Tenant shall
negotiate in good faith the terms of the Capital Budget. If Landlord fails to
object or otherwise respond to the proposed Capital Budget within such 20-day
period, Landlord shall be deemed to have accepted the Capital Budget as so
proposed. The Operating Budget and Capital Budget shall contain the following
as applicable:
(1) Tenant's reasonable estimate of Room Revenues and Sundry
Revenues (including average room rates), operating expenses,
and operating profits for the forthcoming Lease Year on a
monthly basis, as same may be revised or updated from time to
time by Tenant.
(2) An estimate of the amounts to be dedicated to the
capitalizable repair, replacement or refurbishment of the
Improvements from the Capital Expenditure Reserve Account.
14
72
(3) An estimate of the amount to be dedicated to the repair,
replacement or refurbishment of FF&E from the FF&E Reserve
Account.
(4) A cash flow projection.
(5) A marketing plan.
(6) Any amount required to be budgeted for matters required by
the Franchise Agreement except where the Franchisor is a
Related Party of Tenant.
(c) Provided there is no existing Event of Default, Tenant is
authorized to seek reimbursement from the Capital Expenditure Reserve Account
for all items and matters contained in the Capital Budget with respect to
capital expenditures for the Improvements submitted by Tenant and reasonably
approved by Landlord pursuant to Section 3.7(b). In addition, Tenant is
authorized to seek reimbursement from the Capital Expenditure Reserve Account
in emergency situations at the Project when necessary, in the Tenant's opinion,
to maintain the Project and to provide for its continued operation and for the
safety and welfare of the Project guests. Tenant is further authorized to
spend up to Five Thousand Dollars ($5,000.00) per year for replacement and
improvements on a routine basis, without prior approval. In the event that
Tenant desires to make expenditures not contained in the Capital Budget
previously approved or such expenditures are above Tenant's authorized per year
limit, Tenant shall provide an explanation of the circumstances and need for
any requested non-budgeted expenditures from the Capital Expenditure Reserve
Account and prior to purchasing must receive Landlord's consent for such
expenditures. Nothing contained herein to the contrary shall obligate Landlord
to spend or reimburse Tenant for any expenditures in excess of the amount in
the Capital Expenditure Reserve Account. Tenant shall, except in emergency
situations, obtain the approval of Landlord for all expenditures for the
Improvements in any Lease Year which exceed the amount in the Capital
Expenditure Reserve Account for that Lease Year. Any amount of the Capital
Expenditure Reserve Account not actually expended in any Lease Year shall
accumulate in the Capital Expenditure Reserve Account for use in succeeding
Lease Years. Subject to Landlord's rights under Section 12.2(e), an amount
equal to all cash, instruments, securities and funds, if any, remaining in the
Capital Expenditure Reserve Account shall be paid or delivered to Tenant, on
the expiration of the Lease Term, provided no Event of Default exists, by
Landlord.
(d) Tenant shall deposit monthly during the Lease Term (on or
before the 15th day of the subsequent month) into the Capital Expenditure
Reserve Account an amount which is equal to two percent (2%) of Room Revenues
for the prior month. If the required monthly deposit into the Capital
Expenditure Reserve Account is not paid within two (2) days after written
notice from Landlord, a late fee equal to two percent (2%) of the amount of
such deposit shall also be due and payable.
15
73
(e) Funds in the Capital Expenditure Reserve Account held by
Landlord shall be deposited in segregated accounts and may not be commingled
with any other funds of Landlord. Cash on deposit in the Capital Expenditure
Reserve Account shall be invested in Qualified Investments. All dividends,
interest and other income earned from any such investment shall be added to and
become a part of the Capital Expenditure Reserve Account, and any losses from
such investment shall operate to reduce the Capital Expenditure Reserve Account
by the amount of such loss. Except as a result of their gross negligence or
willful misconduct, neither Landlord nor any of its officers, directors,
shareholders or employees shall be liable for any action taken or omitted to be
taken by it hereunder or in connection herewith. Landlord may rely on all
certificates, documents and other proofs delivered to it as to the facts
therein disclosed and the statements therein made, with respect to Qualified
Investments, and any such certificate, document or other proof shall be
evidence of such facts to protect Landlord in any action that it may or may not
take, or in respect of anything it may or may not do, by reason of the supposed
existence of such fact.
(f) Tenant shall also deposit monthly into the FF&E Reserve
Account an amount equal to two percent (2%) of the Room Revenues for the prior
month which payment shall be due and payable on the same terms and conditions
as set forth in Section 3.7(d) for payments into the Capital Expenditure
Reserve Account. Tenant shall also provide Landlord written evidence of such
payment and the receipt thereof by the depository of such account within ten
(10) days following each such payment. Tenant shall at all times be deemed to
be the owner of the FF&E Reserve Account and, upon the expiration or earlier
termination of this Lease, shall have the right to retain all amounts in the
FF&E Reserve Account unless an Event of Default has occurred and Landlord is
entitled to utilize such account pursuant to Section 12.2(e).
(g) If at any time Tenant receives any proceeds from the sale or
disposition of any FF&E, all such proceeds shall be deposited in the FF&E
Reserve Account.
(h) In the event any of the standards of Section 5.1 hereof have
not been satisfied and Landlord determines that the FF&E requires repair,
replacement or refurbishment, or capital expenditures or major repairs to the
Improvements are required, Landlord agrees to make available to Tenant funds
in the Capital Expenditure Reserve Account therefor, and, if Tenant shall fail
to accomplish such repair, replacement or refurbishment of the FF&E or capital
expenditures or major repairs to the Improvements, within thirty (30) days of
Landlord's written notice to Tenant requiring the same (or within such longer
period of time, as may be reasonable and reasonably necessary to accomplish
such work where Tenant is diligently pursuing the work), Landlord shall draw
funds from the Capital Expenditure Reserve Account only in the event there are
no funds remaining in the FF&E Reserve Account as may be needed to make the
required repair, replacement or refurbishment to the FF&E or capital
expenditures or major repairs to the Improvements.
16
74
3.8 SPECIFIED FF&E AND OPERATING EQUIPMENT. Notwithstanding any
other provision in this Lease to the contrary, and without affecting any other
provision of this Lease, Landlord and Tenant agree solely for purposes of this
Section 3.8, that FF&E and Operating Equipment consists of items with economic
useful lives of substantially less than the length of the Lease Term and Tenant
shall be replacing such items during the Lease Term. From and after the date
of the Lease, Landlord shall have no obligation whatsoever to repair, replace,
add to, renew or substitute for, any item constituting FF&E or Operating
Equipment. All such repairs, replacements, additions, renewals and
substitutions and the provision of FF&E or Operating Equipment that is either
necessary or desirable in the operation of the Project shall be at the sole
cost and expense of Tenant. Tenant at its sole cost and expense shall from
time to time replace with other operational equipment or parts any of FF&E,
Operating Equipment or the mechanical systems or other equipment included
within the term "Improvements" as defined in this Lease which shall have become
worn out, obsolete or unusable for the purpose for which it is intended, been
taken by condemnation, or been lost, stolen, damaged or destroyed. Tenant
shall be deemed to be the owner of all FF&E and Operating Equipment replaced by
Tenant during the Lease Term (all such FF&E and Operating Equipment being
referred to herein as the "Specified FF&E and Operating Equipment"). Landlord
and Tenant further agree that during the Lease Term Tenant shall be deemed to
be the owner of such Specified FF&E and Operating Equipment for all purposes of
the Tax Code and that Tenant and not Landlord shall be entitled to depreciation
or cost recovery deductions with respect thereto; provided, however, that upon
the expiration of the Lease Term or earlier termination of this Lease in
accordance with the provisions hereof, title to the FF&E and Operating
Equipment automatically shall vest in Landlord. Notwithstanding such automatic
vesting of title, Tenant agrees to execute and deliver such documents as
Landlord may request in order to effectuate or memorialize such transfer.
Landlord and Tenant agree to prepare their respective tax returns in a manner
consistent with the provisions of this Section 3.8. Nothing in this Section 3.8
should increase the liability of Tenant or limit the rights of Landlord
otherwise provided for in this Lease.
ARTICLE IV
ALTERATIONS AND ADDITIONS
4.1 ALTERATIONS.
(a) Tenant will not make or allow to be made any alterations,
additions or deletions in or to the Project which are not contained in the
Capital Budget and approved by Landlord, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld or delayed, except
as set forth in Sections 3.7(c), 4.1 (b) or 7.5 hereof, or except in the case
where the failure to make such changes would enable the Franchisor to terminate
the Franchise Agreement, except where the Franchisor is a Related Party of
Tenant. Subject to the provisions of Section 3.8 hereof, such alterations,
physical
17
75
additions, or improvements shall become part of the Project and the property of
the Landlord.
(b) Tenant may, at its sole cost and expense, make alterations or
additions to the Improvements without Landlord's prior consent, provided (i)
such alterations or additions do not affect the structural integrity of the
Improvements or adversely affect any of the mechanical or electrical systems of
the Improvements; (ii) such alterations or additions are performed by duly
licensed and qualified contractors in accordance with all Legal Requirements
and in a good and workmanlike manner; (iii) such alterations or additions are
completed prior to the expiration of the Lease Term; (iv) such alterations or
additions do not reduce the value of the Project; and (v) no Default or Event
of Default has occurred and is continuing.
4.2 CONSTRUCTION LIENS. Tenant shall pay when due, and indemnify,
defend and hold Landlord harmless from, all claims for labor or materials
furnished or alleged to have been furnished to Tenant for use in the Project,
which claims are or may be secured by any lien against the Project or any
interest therein in accordance with applicable law. Tenant shall not permit
any liens to be filed against the Project or any interest therein and shall
immediately obtain a release from any lien so filed or remove or discharge the
same by bond in form and content reasonably satisfactory to Landlord. In the
event that any lien does so attach, and is not released or bonded against as
heretofore required, Landlord, in its sole discretion, may pay and discharge
the same and relieve the Project therefrom after first requesting in writing
Tenant to do so and Tenant does not provide evidence of payment within five (5)
business days thereafter, and Tenant agrees to repay and reimburse Landlord
upon demand for the amount so paid by Landlord together with interest at the
Default Rate from the date such amount is paid until the date such amount is
repaid. Nothing in the Lease shall be construed in any way as constituting the
consent or request of Landlord to any contractor, subcontractor, laborer, or
materialman for the performance of any labor or the furnishing of any materials
for any alteration, addition, improvement or repair to the Project, nor as
giving Tenant any right, power or authority to contract for or permit the
rendering of services or the furnishing of materials that would give rise to
the filing of a lien against the Project.
4.3 REMOVAL OF IMPROVEMENTS. All alterations, additions and other
improvements by Tenant shall become the property of Landlord and shall not be
removed from the Project, unless request is made by Landlord to Tenant to
remove those alterations, additions and other improvements which were made
without Landlord's approval where such approval was required under this Lease.
All (i) moveable trade fixtures and signs installed in the Project by Tenant
and paid for by Tenant, other than those items comprising FF&E or Operating
Equipment which are replacements, substitutions or additions thereof or thereto
made by Tenant and FF&E and Operating Equipment present in the Project as of
the date hereof, and (ii) signs, logos and other property, including Operating
Equipment and Supplies, bearing the logo of any Franchisor which is not
continuing as the Franchisor
18
76
following the expiration of the Term of this Lease shall remain the property of
Tenant or Franchisor, as the case may be, and may be removed upon the
expiration of the Lease Term; provided that any of such items as are affixed to
the Project and require severance may be removed only if Tenant repairs any
damage caused by such removal and that Tenant shall have fully performed all of
the terms, conditions and covenants to be performed by Tenant under this Lease.
If Tenant fails to remove such items from the Project by the expiration of the
Lease Term or earlier termination of this Lease, all such trade fixtures,
furniture, furnishings and signs shall become the property of Landlord, unless
Landlord elects to require their removal, in which case Tenant shall, at its
sole cost and expense, promptly remove the same and restore the Project to its
condition on the date of this Lease. The covenants contained in this Section
shall survive the expiration or earlier termination of this Lease.
ARTICLE V
REPAIRS AND MAINTENANCE
5.1 TENANT'S OBLIGATIONS. Tenant is solely responsible for
causing the Project to be kept in good condition and state of repair. Landlord
shall not be required to make any repair, whether foreseen or unforeseen, or to
maintain any of the Project in any way, and Tenant hereby expressly waives the
right to make repairs at the expense of the Landlord, which right may otherwise
be provided for in any law now or hereafter in effect. Nothing in the
preceding sentence shall be deemed to preclude Tenant from being entitled to
insurance proceeds or condemnation awards for restoration pursuant to the terms
of this Lease. Tenant shall, in all events, make all repairs promptly, and all
repairs shall be in good, proper and workmanlike manner. In this regard and by
way of example, Tenant shall keep the exterior of the Project and the
foundations, roof, and structural portions of the walls and roofs of the
Improvements in good condition and repair; Tenant shall also keep the Project
and every part thereof and any fixtures, facilities or equipment contained
therein (including FF&E and Operating Equipment), in good condition and repair,
including, but not limited to, exterior doors, window frames and all portions
of the facade area(s), columns, nonstructural walls and partitions, the
heating, air-conditioning, ventilating, electrical, lighting, plumbing and
sewer systems, and shall make all replacements thereof and of all broken and
cracked glass which may become necessary during the Lease Term. Tenant shall
provide for all scheduled servicing of the Project and maintain necessary
maintenance contracts to assure proper maintenance of the Project. As used in
this Section, the term "repairs" shall include replacements and other
improvements as are necessary to maintain the Project in as good order and
condition. If Landlord is required to make repairs by reason of Tenant's acts
or omissions or those of Tenant's employees, agents, invitees, licensees or
contractors, and provided that Landlord has first given Tenant thirty (30) days
notice of the need for such repairs and Tenant has failed to commence such
repairs within said thirty (30) days or has failed thereafter to diligently
pursue such repairs and complete all work within a reasonable period of time
but immediately upon notice in the event of an
19
77
emergency (that is, imminent danger of injury to persons or property), Landlord
shall have the right, but shall not be obligated, after prior written notice to
Tenant to make such repairs or replacements on behalf of and for the account of
Tenant and Tenant does not make such repairs or replacements within five (5)
business days thereafter. In such event, such work shall be paid for in full by
Tenant as Additional Rent.
5.2 TERMINATION FOR DECLINE IN QUALITY. In the event the
Landlord determines in the exercise of its reasonable business judgment that
there has occurred a material deterioration of the physical condition of a
Project, the Landlord shall have the right to obtain an independent quality
assessment (the "Quality Assessment") of such Project, conducted by a third
party of national reputation in the hotel/motel industry, funded from the
Capital Expenditure Reserve Account. The Landlord shall promptly provide to
the Tenant a complete copy of the Quality Assessment upon receipt by the
Landlord. In the event the rating for the Project from such Quality Assessment
is less than a "B" level as compared to a nationally recognized franchise of
the same class of motel as the subject Project, the Tenant shall have the right
to remedy the reported defects within ninety (90) days of its receipt of the
Quality Assessment, provided that in the event such remedy is not susceptible
of cure within such 90 day period, the Tenant shall be permitted such time as
shall be needed to remedy the defect, with the further provision that the
Tenant shall timely commence to cure and shall prosecute such cure to
completion. If required by the Landlord, a re-inspection of the subject
Project thereafter shall be promptly conducted by the same or comparable
inspector. If the initial defective rating of less than "B" is sustained by
the re-inspection, the Landlord shall have the right to terminate the Lease
upon thirty (30) days' written notice to Tenant, pursuant to and in accordance
with Section 12.2 hereof.
5.3 SURRENDER. On the last day of the Lease Term, or on any
sooner termination of this Lease, Tenant shall surrender the Project in the
same condition as the Project existed on the Commencement Date, ordinary wear
and tear and damage by casualty or the elements excepted, with such additions,
replacements, betterments, alterations and improvements thereto as permitted
hereunder, broom clean, and shall surrender all keys to Landlord.
5.4 RIGHT OF ENTRY. Landlord and its authorized representatives
shall have the right to enter the Project (a) upon prior notice to Tenant at
all reasonable times to inspect the Land, Improvements, FF&E, Operating
Equipment and Operating Supplies or to show the Project to prospective
purchasers or tenants, provided any such entry is done in a manner such as to
avoid interference with the operation of the Project and, (b) in the event of
the existence of an Event of Default hereunder, to make repairs, alterations,
improvements or additions as Landlord may reasonably deem necessary, including
those to be performed by Tenant, without the same constituting an eviction of
Tenant in whole or in part, and Rent shall not xxxxx as a result of such entry.
Nothing herein shall imply any duty upon the part of Landlord to do any work
which the Tenant may be required to perform under
20
78
this Lease, and the performance thereof by Landlord shall not constitute a
waiver of Tenant's default in failing to perform it. If Tenant is not present
to permit entry into the Project, Landlord may, in case of emergency, enter by
master key, or may forcibly enter, without rendering Landlord liable therefor,
except to the extent of Landlord's gross negligence or willful misconduct.
ARTICLE VI
HAZARDOUS SUBSTANCES
6.1 NO HAZARDOUS SUBSTANCES. Tenant shall not bring into or
permit the existence of any Hazardous Substance on the Project. If Tenant
discovers the presence of any Hazardous Substance on or in the Project which is
in violation of any Environmental Regulation, Tenant shall promptly give
Landlord notice thereof. If during Tenant's occupancy or at any time
throughout the Lease Term the existence of a Hazardous Substance is caused or
permitted to occur by Tenant or any of Tenant's agents, employees, contractors
or invitees, (a) Tenant shall remove such Hazardous Substance and dispose of it
as required by any and all applicable Environmental Regulations, or (b)
Landlord, if it is advised to remove such Hazardous Substance itself to protect
or minimize against any liability to Landlord as a result of the presence of
any Hazardous Substance by no less than ten (10) days' notice to Tenant, may
elect to remove any Hazardous Substance and dispose of it as required by any
Environmental Regulation, in which case Tenant shall pay the entire cost of
such disposal within ten (10) days after receipt of a statement for such cost
by Landlord, such amount to be treated as Additional Rent. If any Governmental
Authority shall require any remedial action or other response with respect to
the Project as the result of any Hazardous Substance brought into or permitted
by Tenant on or in the Project during the Lease Term, Tenant shall notify
Landlord of such action or response and shall Tenant shall be responsible for
satisfying the requirements of the applicable Governmental Authority.
6.2 INDEMNITY. Tenant agrees to indemnify, defend, protect and
hold Landlord harmless from any and all claims, causes of action, damages,
penalties, costs and expenses (including reasonable attorneys' fees, consultant
fees and related expenses) which may be asserted against or incurred by
Landlord resulting from the presence, release or threatened release of any
Hazardous Substance on, in or from the Project during the Lease Term and not
caused by Landlord or resulting from or due to any violation or alleged
violation during the Lease Term of any Environmental Regulation by Tenant or
any of Tenant's agents, employees, contractors or invitees. Tenant's duty to
indemnify and hold harmless includes, but is not limited to, proceedings or
actions commenced by any Governmental Authority.
6.3 SURVIVAL. The foregoing covenants and indemnifications shall
be deemed continuing covenants and indemnifications for the benefit of Landlord
and its successors and assigns and shall survive the expiration of the Lease
Term or earlier termination of this
21
79
Lease and shall be in addition to any other obligations or liabilities Tenant
may have to Landlord at common law under all statutes and ordinances or
otherwise.
ARTICLE VII
COVENANTS OF TENANT
7.1 USE OF PROJECT. Tenant covenants and agrees that from and
after the Commencement Date, and except for reasonable periods of time caused by
unforeseeable events beyond Tenant's control or required for remodeling or
restoration otherwise permitted hereunder, it shall continuously and without
interruption use and occupy the entire Project (and not less than one hundred
percent (100%) of the Project except for subleases, licenses and concessions in
the ordinary course of business which are permitted and meet the requirements
hereunder) solely for the purpose of the Permitted Use and for no other purpose.
Tenant will not use or permit the use of the Project in any manner which would
result or would with the passage of time result in the creation of any easement
or prescriptive right. Tenant shall not use or occupy the Project, or knowingly
permit them to be used or occupied, contrary to any statute, rule, order,
ordinance, requirement, regulation or certificate of occupancy affecting the
same, or which would make void or voidable any insurance then in force with
respect thereto or which would make it impossible to obtain fire or other
insurance thereon required to be furnished hereunder at Tenant's expense, or
which would cause structural injury to the Improvements or cause the value of
usefulness of the Project, or any portion thereof, to diminish (reasonable wear
and tear excepted), or which would constitute a public or private nuisance or
waste, and Tenant agrees that it will promptly, upon discovery of any such use,
take all necessary steps to compel the discontinuance of such use.
7.2 CONTINUING COVENANTS. Tenant covenants and agrees with
Landlord to:
1. not abandon the Project;
2. maintain the Project and the abutting grounds,
sidewalks, roads, parking and landscaped areas in
good condition and state of repair;
3. promptly make all necessary repairs, renewals,
replacements and additions, to the Project;
4. not commit or suffer waste with respect to the
Project;
5. not remove, demolish or in any material respect alter
any of the Improvements, FF&E or Operating Equipment,
provided that Tenant may (i) remove any FF&E and
Operating
22
80
Equipment in accordance with the provisions of
Section 7.5 hereof and (ii) make alterations in
accordance with Section 4.1 hereof;
6. subject to any Legal Requirement, not make, install
or permit to be made or installed, any alterations or
additions to the Project if doing so will violate the
terms and conditions of this Lease unless approved in
advance by Landlord in writing;
7. not make, suffer or permit any nuisance to exist on
the Project;
8. conduct its business in a manner consistent with the
purpose and character of the Project and in
accordance with the standards for operating the type
of business currently operated in the Project;
9. keep the Land and Improvements clean and attractive
in appearance;
7.3 OPERATING SUPPLIES. On the Commencement Date and thereafter
during the Lease Term, Tenant, at its sole cost and expense, shall furnish and
maintain at the Project all Operating Supplies necessary or desirable for the
operation of the Project in accordance with the provisions of this Lease.
Tenant, at its sole cost and expense, shall maintain and replace the Operating
Supplies so that the same quantities of such items that existed on the
Commencement Date shall be left for the use of Landlord on the date of the
expiration of the Lease Term.
7.4 LEGAL REQUIREMENTS. Subject to the provisions of Section 7.9
hereof, Tenant shall comply with, or cause to be complied with, and conform to
all present and future laws, statutes, codes, ordinances, orders, judgments,
decrees, injunctions, rules, regulations and requirements pertaining to the
Project including any applicable insurance, environmental, zoning or building,
use and land use laws, ordinances, rules or regulations and all covenants,
restrictions and conditions now or hereafter of record which may be applicable
to it or to any of the Project, or to the use, manner of use, occupancy,
possession, operation, maintenance, alteration, construction, repair or
reconstruction of any of the Project (collectively, the "Legal Requirements").
7.5 FF&E AND OPERATING EQUIPMENT. Any additions to furniture,
fixtures and equipment located at the Project shall become part of the FF&E and
Operating Equipment. Upon the termination of this Lease, by expiration of the
Lease Term or otherwise, Tenant shall, at its sole cost and expense, cause all
of the items of FF&E and Operating Equipment
23
81
to be in proper working order and in good condition (ordinary wear and tear and
damage by casualty and the elements excepted). Any such item which requires
replacement prior to termination of this Lease shall be replaced with an item of
the same utility and quality by Tenant, at its sole cost and expense, and Tenant
shall notify Landlord in writing of such replacement promptly upon the
occurrence of the same.
7.6 PERMITS AND LICENSES. From and after the Commencement Date,
Tenant, at its sole cost and expense and in its name, shall obtain and maintain
all licenses and permits necessary or desirable for the operation of the Project
in accordance with the provisions of this Lease required by any Governmental
Authority (collectively, the "Permits"). If Tenant, for any reason whatsoever,
is denied any necessary Permit or if any necessary Permit shall, at any time be
revoked as a result of the acts or inaction of Tenant and is not reinstated
within a reasonable period of time, the same shall constitute an Event of
Default.
7.7 TENANT'S OBLIGATION TO MANAGE. At all times during the term
hereof, Tenant or a Related Party or a manager reasonably acceptable to Landlord
shall manage and operate the Project.
7.8 PERMITTED CONTESTS. Tenant shall have the right to contest the
amount or validity of any Legal Requirement or insurance requirement or any
lien, attachment, levy, encumbrance, charge or claim ("Claims") by appropriate
legal proceedings in good faith and with due diligence (but this shall not be
deemed or construed in any way to relieve, modify or extend Tenant's covenants
to pay or its covenants to cause to be paid any such charges at the time and in
the manner as in this Section provided), on condition, however, that such legal
proceedings shall not operate to relieve Tenant from its obligations hereunder
and shall not cause the sale or risk the loss of any portion of the Project, or
cause Landlord or Tenant to be in default under any mortgage, deed of trust,
security deed or other agreement encumbering the Project or any interest
therein. Upon the request of Landlord, Tenant shall either (a) provide a bond or
other monetary assurance reasonably satisfactory to Landlord that all Claims
which may be assessed against the Project together with interest and penalties,
if any, thereon will be paid, or (b) deposit within the time otherwise required
for payment with a bank or trust company as trustee upon terms reasonably
satisfactory to Landlord, as security for the payment of such claims, money in
an amount sufficient to pay the same, together with interest and penalties in
connection therewith, as to all Claims which may be assessed against or become a
Claim on the Project or any part thereof, in said legal proceedings. Tenant
shall furnish Landlord and any lender of Landlord with reasonable evidence of
such deposit within five (5) days of the same. Landlord agrees to join in any
such proceedings if the same be required legally to prosecute such contest of
the validity of such Claims; provided, however, that Landlord shall not thereby
be subjected to any liability for the payment of any costs or expenses in
connection with any proceedings brought by Tenant; and Tenant covenants to
indemnify, defend and save harmless Landlord from any such costs or expenses.
Tenant shall be entitled to any refund of any Claims and such charges and
penalties or interest thereon which have been
24
82
paid by Tenant or paid by Landlord and for which Landlord has been fully
reimbursed. In the event that Tenant fails to pay any Claims when due or to
provide the security therefor as provided in this Section and diligently to
prosecute any contest of the same, Landlord may, upon ten days advance notice to
Tenant, pay such charges together with any interest and penalties and the same
shall be repayable by Tenant as Additional Rent provided, however, that should
Landlord reasonably determine that the giving of such notice would risk loss to
the Project then Landlord shall give such notice as is practical under the
circumstances. Landlord reserves the right to contest any of the Claims at its
expense not pursued by Tenant. Landlord and Tenant agree to cooperate in
coordinating the contest of any Claims.
ARTICLE VIII
RESERVED
ARTICLE IX
INSURANCE AND INDEMNITIES
9.1 INSURANCE COVERAGES. Tenant shall obtain, at its sole cost and
expense, beginning on the Commencement Date and shall maintain through the Lease
Term, the following insurance coverages:
(a) A policy of commercial general liability insurance (including
Insurance Service Office (ISO) forms and endorsements or their equivalent)
naming Landlord, Tenant and any other party designated by Landlord as an
additional insured, to insure against injury to property, person or loss of life
arising out of the ownership, use, occupancy or maintenance of the Project with
limits of general liability not less than $10,000,000 for death and/or bodily
injury, personal injury, advertising injury and property damage. The policy
shall contain supplemental endorsements covering contractual liability as
provided in an ISO liability policy under the definition of insured contract.
(b) A policy providing commercial property insurance containing
the insuring agreement "Cause of Loss-Special Form" or its equivalent, together
with such endorsements as may be deemed advisable by Landlord to insure the
Improvements, Tenant's leasehold improvements, merchandise, trade fixtures,
furnishings, equipment and personal property, and naming Landlord and any other
party designated by Landlord in connection with a securitization or financing of
the Project as an additional insured. Such
25
83
policy shall provide coverage in an amount not less than the full replacement
cost of the Project. An "Agreed Amount Clause" waiving the coinsurance clause
must be included, as well as, if commercially reasonable and obtainable, flood
and earthquake coverage at limits equal to the maximum foreseeable loss at the
location of the Project. Such coverage must include the expense of tearing down
any Improvements, including the cost of removing its debris and increased cost
of construction coverage.
(c) A policy of workers' compensation insurance must be provided
that insures the benefits required by the State law and includes coverage B
Employer's Liability. The Employer's liability limits must be at least:
Bodily Injury By Accident $1,000,000 Each Accident
Bodily Injury By Disease $1,000,000 Policy Limit
Bodily Injury By Disease $1,000,000 Each Employee
Landlord does not, by requiring such insurance or by any other
act or event, assume or undertake liability for any work-related injuries or
death to Tenant or Tenant's employees.
(d) If Tenant commits or permits any activity or the placing or
operation of any equipment on or about the Project creating unusual hazards,
Tenant shall promptly upon notice or demand from Landlord, procure and maintain
in force, during such activity or operation, insurance sufficient to cover the
risks created thereby. Landlord's demand for unusual hazard insurance shall not
constitute a waiver of any right Landlord may have to demand the removal or
cessation of such activity or operation.
(e) In the event Tenant is in the business of manufacturing,
distributing, selling, servicing or furnishing alcoholic beverages, a policy of
alcoholic beverage and liquor liability insurance naming Landlord and any other
party designated by Landlord in connection with the securitization or financing
of the Project as an additional insured with limits of not less than $10,000,000
per occurrence. The limits may be obtained through a primary and an excess
policy.
(f) A policy of business interruption insurance with an "Extra
Expense" insuring agreement naming Landlord and any other party designated by
Landlord as an additional insured providing coverage of not less than twelve
(12) months of Rent and other business income.
(g) All other insurance, if any, customarily maintained by
businesses of like type, or required by any Legal Requirement to be carried or
maintained by Tenant, or as otherwise may be reasonably required by Landlord,
including but not limited to, boiler and
26
84
machinery coverage, innkeepers liability coverage, automobile and garagekeepers
liability coverage, service interruption coverage, food spoilage coverage and
coverage for employee dishonesty and loss of money and securities.
Tenant may comply with the provisions of this Article by providing
the foregoing insurance coverage under a blanket policy covering other Projects
and properties of Tenant as well as the Project, provided that the amount of
insurance thereunder allocated to the Project is not less than that required
herein, and the blanket policy otherwise complies as to endorsements and
coverage with the provisions of this Article. Evidence of insurance in
compliance with this Section 9.1 shall be provided to Landlord fifteen (15) days
prior to the Commencement Date and, with respect to any renewal policy, thirty
(30) days prior to the expiration of the existing policy. A copy of such
insurance policies will be provided by Tenant to Landlord upon Tenant's receipt
from its insurance company.
9.2 INSURANCE POLICIES. Insurance required under Section 9.1 shall
be written by companies duly qualified to do business in the state where the
Project is located and shall be reasonably satisfactory in all respects to
Landlord, and, if required, the holder of any mortgage or deed of trust against
the Project. The companies providing such insurance shall deliver to Tenant and
Landlord copies of such policies or certificates evidencing the existence and
amount of such insurance. No such policy shall be cancelable or subject to
reduction of coverage or modification except after twenty (20) days prior
written notice to Landlord and such other persons designated by Landlord. At
least ten (10) days prior to the expiration of such policies, Landlord may on
notice to Tenant order such insurance and charge the cost to Tenant as
Additional Rent. Tenant shall not do, or permit anything to be done which will
invalidate the insurance policies furnished pursuant to Section 9.1 or by
Landlord and shall comply with all requirements imposed by Landlord's insurers,
unless such compliance is expressly waived in writing by Landlord. Landlord may
from time to time require that the policy limits of any or all such insurance be
increased to reflect the effects of inflation and changes in normal commercial
insurance practices. Each insurance policy referred to above shall, to the
extent applicable, contain standard non-contributory mortgagee clauses in favor
of any mortgagee of Landlord. Each policy required to be carried by Tenant shall
also provide that any loss otherwise payable thereunder shall be payable
notwithstanding (i) any act or omission of Landlord or Tenant which might,
absent such provision, result in a forfeiture of all or a part of such insurance
payment, (ii) the occupation or use of any of the Project for purposes more
hazardous than permitted by the provisions of such policy, (iii) any foreclosure
or other action or proceeding taken by any mortgagee of Landlord pursuant to any
provision of the mortgage held by such mortgagee upon the happening of an event
of default therein, or (iv) any change in title or ownership of any of the
Project.
Tenant shall pay as they become due all premiums for the insurance
required by this Lease and shall renew or replace each policy. In the event of
Tenant's failure to comply with any of the foregoing requirements of this
Section 9.2 within the earlier of five (5) days
27
85
after receipt of notice of impending cancellation or five (5) days of written
notice from Landlord, Landlord shall be entitled to procure such insurance. Any
sums expended by Landlord in procuring such insurance shall be repaid by Tenant,
together with interest thereon at the Default Rate, from the time of payment by
Landlord until fully paid by Tenant immediately upon written demand therefor by
Landlord.
9.3 EXEMPTION OF LANDLORD FROM LIABILITY. Tenant hereby agrees
that Landlord shall not be liable and Tenant hereby waives all claims against
Landlord for injury to Tenant's business or any loss of income or other
consequential damages or for damage to the inventory, fixtures, furnishings,
improvements or other property of Tenant, Tenant's employees, invitees,
customers, sublessees, agents, occupants, contractors, or injury to the person
of Tenant, Tenant's employees, agents, contractors, occupants, invitees,
customers, sublessees, or any other person in or about the Project, whether such
damage or injury is caused by or results from fire, steam, electricity, gas,
water or rain, or from the breakage, leakage, obstruction or other defects of
pipes, sprinklers, wires, appliances, plumbing, air-conditioning or lighting
fixtures, or from any other cause whatsoever, whether said damage or injury
results from conditions arising upon the Project, or from other sources or
places, and regardless of whether the cause of such damage or injury or the
means of repairing the same is inaccessible to Tenant. Landlord shall not be
liable for any damages arising from any act or neglect of any other tenant of
the Project.
9.4 INDEMNIFICATION. Tenant shall indemnify, defend, protect and
hold harmless Landlord from and against any and all claims arising from Tenant's
use of the Project, or from the conduct of Tenant's business or from any
activity, work or things done, permitted or suffered by Tenant in or about the
Project or elsewhere, except to the extent such claim arises in whole or in part
out of any gross negligence or intentional misconduct of Landlord (and then only
to the extent such claim is attributable to the gross negligence or intentional
misconduct of Landlord), and shall further indemnify, defend and hold harmless
Landlord from and against any and all claims arising from any breach or default
in the performance of any obligation on Tenant's part to be performed under the
terms of this Lease, or arising from any negligence of the Tenant, or any of
Tenant's sublessees, agents, customers, invitees, contractors, occupants, or
employees, and from and against all costs, attorneys' fees, expenses and
liabilities incurred in the defense of any such claim or any action or
proceeding brought thereon. In case any action or proceeding be brought against
Landlord by reason of any such claim, Tenant, upon notice from Landlord, shall
defend the same at Tenant's expense by counsel reasonably satisfactory to
Landlord (but such approval shall not constitute a waiver of Landlord's right to
object to any dual or conflicting representation by such counsel that is
otherwise objectionable under any applicable code of professional conduct or
ethics). Landlord hereby approves of any counsel engaged by Tenant's insurance
carrier. The provisions of this Section shall survive expiration of the Lease
Term or the earlier termination thereof.
28
86
9.5 MUTUAL WAIVER OF SUBROGATION. Nothing in this Lease shall be
construed so as to authorize or permit any insurer of Landlord or Tenant to be
subrogated to any right of Landlord or Tenant against the other party arising
under this Lease. Landlord and Tenant each hereby release the other to the
extent of any loss required to be insured against by either of the parties under
the terms of this Lease, whether or not such insurance has actually been
secured, and to the extent of their respective insurance coverage actually
received for any loss or damage caused by any such casualty, even if such
incidents shall be brought about by the fault or negligence of either party or
persons for whose acts or negligence the other party is responsible. Landlord
and Tenant shall, to the extent permitted by their respective insurers, each
obtain appropriate waivers of subrogation from their respective insurance
carriers giving effect to this Section.
9.6 INSURANCE PREMIUM ESCROW. In the case of a Default or an Event
of Default hereunder, Tenant, upon Landlord's request, shall deposit with
Landlord, as a deposit and not a payment, an amount equal to one-twelfth of the
estimated aggregate annual insurance premiums on all policies of insurance
required by this Lease on the first day of each month. Upon Landlord's request,
Tenant shall cause all bills, statements or other documents relating to the
foregoing insurance premiums to be sent or mailed directly to Landlord. Upon
receipt of such bills, statements or other documents, and providing Tenant has
deposited sufficient funds pursuant to this Section, Landlord shall pay such
amounts as may be due thereunder out of the funds so deposited. If at any time
and for any reason the funds deposited with Landlord are or will be insufficient
to pay such amounts as may then or subsequently be due, Landlord shall notify
Tenant and Tenant shall immediately deposit an amount equal to such deficiency
with Landlord. Notwithstanding the foregoing, nothing contained herein shall
cause Landlord to be obligated to pay any amounts in excess of the amount of
funds deposited with Landlord pursuant to this Section. Landlord shall maintain
all deposits in a segregated account and shall not commingle said funds with its
own funds. All deposits shall be invested in Qualified Investments. In the event
Landlord's Net Worth decreases below $90,000,000 then Tenant shall deposit funds
with the Reserve Agent to administer the deposit account in accordance with the
terms of this Section 9.6. Any earnings on deposits shall remain in the account
to be applied against future premiums. Landlord may impound or reserve for
future payment of insurance premiums such portion of such payments or earnings
thereon as Landlord in its reasonable discretion may deem proper. Should Tenant
fail to deposit sums sufficient to pay in full such insurance premiums at least
thirty (30) days before delinquency thereof, Landlord may, at Landlord's
election, but without any obligation so to do, advance any amounts required to
make up the deficiency, which advances, if any, shall be treated as Additional
Rent. Subject to Section 12.2(e), upon expiration of the Lease Term and payment
of all sums due Landlord under this Lease, all remaining sums held under this
Section 9.6 if any, shall be remitted to Tenant.
29
87
ARTICLE X
DAMAGE OR DESTRUCTION
10.1 REPORTS ON INSURANCE CLAIMS. Tenant shall promptly
investigate and make a complete and timely written report to the appropriate
insurance company as to all accidents, claims for damage relating to the
ownership, operation and maintenance of the Project, any damage or destruction
to the Project and the estimated cost of repair thereof and shall prepare any
and all reports required by any insurance company in connection therewith.
Tenant shall provide Landlord notice of any such accident, claim, damage, or
destruction promptly after the occurrence thereof and at least on a quarterly
basis. All such reports shall be timely filed with the insurance company as
required under the terms of the insurance policy involved, and a final copy of
such report shall be furnished to Landlord. If no Event of Default has occurred
and is continuing, Tenant shall be authorized to adjust, settle or compromise
any insurance loss, or to execute proofs of such loss, in the aggregate amount
of $25,000 or less, with respect to any single casualty or other event, however,
any single casualty loss or other event over $25,000 shall require Landlord's
consent and approval.
10.2 INSURANCE PROCEEDS. All insurance proceeds payable by reason
of any loss or damage to the Project, or any portion thereof, and insured under
any policy of insurance required by Article 9 of this Lease shall be paid to
Landlord and held in trust by Landlord in an interest-bearing account, shall be
made available, if applicable, for reconstruction or repair, as the case may be,
of any damage to or destruction of the Project, or any portion thereof, and, if
applicable, shall be paid out by Landlord from time to time for the reasonable
costs of such reconstruction or repair upon satisfaction of reasonable terms and
conditions specified by Landlord or its construction consultants. If neither
Landlord nor Tenant is required or elects to repair and restore, and the Lease
is terminated as described in Section 10.3, all such insurance proceeds shall be
retained by Landlord and salvage resulting from any risk covered by insurance
shall belong to Landlord.
10.3 RECONSTRUCTION IN THE EVENT OF DAMAGE OR DESTRUCTION.
(a) If during the Term the Project is totally or partially
destroyed by a risk covered by the insurance described in Article IX and the
Project thereby is rendered unsuitable for its primary intended use as a motel
facility and no Event of Default has occurred and is continuing Tenant, at its
sole option shall either (i) restore the Project to its original specifications
utilizing materials of similar or superior quality so that it is no longer
unsuitable for its primary intended use as a motel facility and all obligations
of Tenant hereunder shall remain unabated during such restorations or (ii)
terminate this Lease as of the date of the casualty and neither Landlord or
Tenant shall have any further liability hereunder, except for any liabilities
which have arisen prior to or which survive such
30
88
termination, and Landlord shall be entitled to retain all insurance proceeds.
Notwithstanding the above, if the ratio of the average Net Operating Income to
Base Rent for the Project for the prior three (3) years of this Lease does not
equal or exceed 1.1 to 1.0, then Tenant must obtain Landlord's consent to
Tenant's election to either restore the Project or terminate the Lease.
(b) If during the Term the Project is partially destroyed by a
risk covered by the insurance described in Article IX, but the motel is not
thereby rendered unsuitable for its primary intended use as a motel facility
Tenant shall restore the Project to substantially the same condition as existed
immediately before the damage or destruction and otherwise in accordance with
this terms of the Lease. Such damage or destruction shall not terminate this
Lease; provided, however, that if Tenant cannot within a reasonable time obtain
all necessary government approvals, including building permits, licenses and
conditional use permits, after diligent efforts to do so, to perform all
required repair and restoration work and to operate the Project for its primary
intended use as a motel facility in substantially the same manner as that
existing immediately prior to such damage or destruction and otherwise in
accordance with the terms of the Lease either Landlord or Tenant may terminate
this Lease upon notice to the other.
(c) Upon Landlord's final approval of the reconstruction or
repair of the Project, any excess proceeds of insurance and salvage value
resulting from any risk covered by insurance remaining after the completion of
the restoration or reconstruction of the Project, as hereinafter set forth,
shall be paid to Tenant.
(d) In the event that any damage or destruction shall occur at
such time as Tenant shall not have maintained third-party insurance in
accordance with this Lease, Tenant shall pay to the Landlord the amount of the
proceeds that would have been payable had such insurance program been in effect.
10.4 ABATEMENT OF RENT. Any damage or destruction due to casualty
notwithstanding, this Lease shall remain in full force and effect and Tenant's
obligation to pay Rent required by this Lease shall remain unabated by any
damage or destruction.
ARTICLE XI
CONDEMNATION
11.1 TAKING OF WHOLE. In the event (a) the whole of the Project
shall be taken or condemned for a public or quasi-public use or purpose by a
competent authority or sold by Landlord in lieu thereof, (b) such a portion of
the Project or access thereto shall be taken, condemned or sold in lieu thereof
so that the balance cannot be used for the same purpose and with substantially
the same utility to Tenant as immediately prior to such
31
89
taking, or (c) the Project or any portion thereof or access thereto shall be
taken or condemned for a public or quasi-public use or purpose by a competent
authority or sold by Landlord in lieu thereof and Tenant is unable to repair,
rebuild or restore the balance of the Project under the terms of any agreement
to which it is a party, or under any Legal Requirement or other governmental
order to which Landlord or the Project is subject or to such condition that the
Project can be operated for the same purpose and substantially the same utility
to Tenant as immediately prior to such taking (a "Prohibited Taking"), this
Lease shall terminate upon notice from Landlord on Tenant, effective upon
delivery of possession to the condemning authority or its assignee. The award,
compensation or damage (the "Award") for the value of the fee interest in the
Landlord in the Improvements shall be paid to and be the sole property of
Landlord. The Award as compensation for diminution of the value of the leasehold
estate shall be paid to and be the sole property of Tenant. Tenant shall have no
claim against Landlord by reason of such taking or termination. Tenant shall
continue to pay Rent and other charges hereunder until the Lease is terminated.
11.2 PARTIAL TAKING. In the event (a) only a part of the Project
is taken or condemned but the Project or the part remaining can still be used
for the same purpose and with substantially the same utility to Tenant as
immediately prior to such taking, or (b) a Prohibited Taking has not occurred,
this Lease shall not terminate and Tenant shall repair and restore the remaining
Improvements provided the cost and expense of such repair and restoration does
not exceed the amount of the Award made available to Tenant and Base Rent shall
be adjusted in proportion to the lost value of the Project to Tenant for
Tenant's purposes. If the cost of such repair or restoration exceeds the amount
of the Award made available, Tenant may terminate this Lease by giving Landlord
written notice of termination.
11.3 TENANT'S AWARD. Tenant may claim and seek to recover from the
condemning authority such compensation as may otherwise be separately awarded to
Tenant for any damage to Tenant's business by reason of such condemnation and
for any cost or loss incurred by Tenant in removing or relocating Tenant's
fixtures, furnishings, Operating Equipment and Operating Supplies. Except with
respect to an award or payment to which Tenant is entitled pursuant to the
foregoing provisions of this Section, no agreement with any condemnor in
settlement of or under threat of any condemnation shall be made by either
Landlord or Tenant without the written consent of the other, and of Landlord's
mortgagee, if the Project is then subject to a mortgage, which consent shall not
be unreasonably withheld or delayed provided such award or payment is applied in
accordance with this Lease. No award made to Tenant may have the effect of
diminishing any award otherwise available to Landlord.
32
90
ARTICLE XII
DEFAULTS; REMEDIES
12.1 DEFAULTS. The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by Tenant and each
such event shall be referred to herein as an "Event of Default":
(a) The vacation or abandonment of the Project (not operating for
business in the Project for fourteen (14) consecutive days), except to the
extent caused by casualty or condemnation or during a renovation or acts of God
or third parties not reasonably foreseeable and not within the control of
Tenant.
(b) The failure of Tenant to make any payment of Rent or any other
payment required to be made by Tenant under this Lease, within ten (10) days
after written notice from Landlord.
(c) The failure by Tenant to observe or perform any of the terms,
covenants or conditions of this Lease to be observed or performed by Tenant
(other than those described in Sections 12.1(a), (b), (d), (e) or (f) hereof)
where such failure shall continue for a period of thirty (30) days after written
notice thereof from Landlord to Tenant (or without notice in case of emergency
or a hazardous condition or in case any fine, penalty, interest or cost may
otherwise be imposed or incurred). Notwithstanding the foregoing, Tenant shall
have such longer period of time in excess of thirty (30) days after written
notice as may be reasonably necessary, in which to cure such failure in the
event such failure is reasonably susceptible to cure, Tenant commences such cure
within thirty (30) days of said notice and at all times diligently pursues such
cure.
(d) (i) The making by Tenant or any entity holding a controlling
interest in Tenant of any general assignment, or general arrangement for the
benefit of creditors; (ii) the filing by or against Tenant or any entity holding
a controlling interest in Tenant of a petition to have Tenant or such
controlling entity adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant or such controlling entity, the same is dismissed
within one-hundred and twenty (120) days); (iii) the appointment of a trustee or
receiver to take possession of substantially all of Tenant's assets located at
the Project or of Tenant's interest in this Lease, where possession is not
restored to Tenant within one-hundred and twenty (120) days; or (iv) the
attachment, execution or other judicial seizure of substantially all of Tenant's
assets located at the Project or of Tenant's interest in this Lease or in the
Project, where such seizure is not discharged within one-hundred and twenty
(120) days.
33
91
(e) The existence of any default (a "Franchise Default") by Tenant
under the Franchise Agreement, provided, however, such Franchise Default shall
not constitute an Event of Default under this Lease if (i) the Franchisor has
not elected to exercise any remedy under the Franchise Agreement unless the
Franchisor is a Related Party of Tenant, (ii) the Franchise Default is
reasonably susceptible to cure, (iii) Tenant commences such cure within thirty
(30) days, (iv) Tenant diligently pursues such cure and (v) the Franchise
Default is cured within a reasonable time and (vi) the Tenant enters into a new
Franchise Agreement with a Franchisor.
(f) The Franchise Agreement shall be materially amended or cease
to be in full force and effect for any reason, except by reason of the
expiration of the term thereof, without Landlord's prior written approval.
(g) An assignment shall occur in violation of Article 13 hereof.
(h) The occurrence of an Event of Default by Tenant under the
Master Agreement.
12.2 LANDLORD'S REMEDIES. Upon the occurrence of an Event of
Default, Landlord shall have the following remedies, in addition to all other
rights and remedies provided by law or equity, or elsewhere in this Lease, to
which Landlord may resort cumulatively or in the alternative:
(a) Landlord may, at Landlord's election, terminate this Lease
upon the delivery of written notice of such termination to Tenant. On the
delivery of such notice, all Tenant's rights in the Project, in all improvements
located at the Project, to revenues thereafter arising from the Project, and to
amounts which may otherwise be due from Landlord to Tenant under this Lease,
shall terminate. Promptly after notice of termination, Tenant shall surrender
and vacate the Project in a broom clean condition, and Landlord may reenter and
take possession of the Land, Improvements, FF&E, Operating Equipment and
Operating Supplies and eject all parties in possession or eject some and not
others or eject none. Termination under this Subsection shall not relieve Tenant
from the payment of any sum then due to Landlord or from any claim for damages
previously accrued or then accruing against Tenant. Upon such termination
Landlord shall also be entitled to recover from Tenant unpaid Rent and such
other amounts which have been earned or are payable at the time of termination.
(b) Landlord may, at Landlord's election, terminate Tenant's right
to possession only, without terminating the Lease. Upon termination of Tenant's
right to possession without termination of the Lease, Tenant shall surrender
possession and vacate the Project immediately and deliver possession of the
Land, Improvements, FF&E, Operating Equipment and Operating Supplies to
Landlord, and Tenant hereby grants to Landlord the immediate right to enter into
the Project, remove Tenant's signs and other evidences of
34
92
tenancy, and take and hold possession of the Land, Improvements, FF&E, Operating
Equipment and Operating Supplies with or without process of law, and to
dispossess the others who may be occupying or within the Project, without being
deemed in any manner guilty of trespass, eviction, or forcible entry or
detainer, without incurring any liability for any damage resulting therefrom,
without such entry and possession terminating the Lease or releasing Tenant from
Tenant's obligation to pay Rent and to fulfill all other of Tenant's obligations
under this Lease for the full Lease Term. Landlord shall be entitled to recover
from Tenant (i) unpaid Rent or such other amounts which have been earned or are
payable at the time of termination, and (ii) such amounts as are payable
pursuant to the last sentence of Section 12.2(d) below. Notwithstanding any
remedial action taken hereunder by Landlord short of termination, including
reletting the Project to a substitute tenant, Landlord may at any time
thereafter elect to terminate this Lease for any previous Event of Default.
(c) Landlord may, at Landlord's election, store Tenant's personal
property, if any, for the account and at the cost of Tenant.
(d) Whether or not Landlord elects to terminate the Lease,
Landlord may, but shall be under no obligation to, relet all or any part of the
Project for such rent and upon such terms as shall be satisfactory to Landlord
(including the right to relet the Project as a part of a larger area, the right
to change the character or use of the Project and the right to restrict
prospective tenants to those whose merchandise and business is compatible with
the nature and character of the Project or such larger area, if any). For the
purpose of such reletting, Landlord may decorate or may make any repairs,
changes, alterations or additions in or to the Project that may be necessary or
convenient. If the Lease is not terminated and if the Project is not relet, or
if it is relet and a sufficient sum shall not be realized from such reletting
after paying all of the expenses of any such decorations, repairs, changes,
alterations and additions, the expenses of such reletting and the collection of
the rent accruing therefrom (including, but not limited to, reasonable
attorneys' fees and brokers' commissions), to satisfy the Rent and other charges
herein provided to be paid for remainder of the term of this Lease, Tenant shall
pay to Landlord promptly any deficiency, and Tenant agrees that Landlord may
file suit to recover and recover any sum falling due under the terms of this
Subsection from time to time.
(e) Landlord may, at Landlord's election, withdraw any or all
amounts on deposit pursuant to Sections 3.3(d), 3.7 and 9.6 hereof and apply
such amounts to Tenant's obligations hereunder.
(f) The term "Rent" as used in this Section 12.2 shall be deemed
to be and to mean Base Rent, Additional Rent and such other sums, if any,
required to be paid by Tenant pursuant to the terms of this Lease.
35
93
(g) Notwithstanding anything in this Article XII to the contrary,
Tenant shall not be liable to Landlord for consequential, punitive or exemplary
damages
12.3 LANDLORD MAY PERFORM. Landlord shall have the right at any
time, after ten (10) days notice to Tenant (or without notice with respect to
matters described in Article 9, and in case of emergency or a hazardous
condition or in case any fine, penalty, interest or cost may otherwise be
imposed or incurred), to make any payment or perform any act required of Tenant
under any provision in this Lease which Tenant has failed to make or to perform
beyond the expiration of any notice or cure period, and in exercising such
right, to incur necessary and incidental costs and expenses, including
reasonable attorneys' fees. Nothing herein shall obligate Landlord to make any
payment or perform any act required of Tenant, and this exercise of the right to
so do shall not constitute a release of any obligation or a waiver of any
Default. All payments made and all costs and expenses incurred in connection
with any exercise of such right shall be reimbursed to Landlord by Tenant as
Additional Rent.
ARTICLE XIII
ASSIGNMENT AND SUBLETTING
13.1 ASSIGNMENT BY TENANT AND SUBLEASES.
(a) Provided that Tenant shall remain liable under all of the
terms and conditions of this Lease for the full remainder of the Lease Term, and
provided further that any sublessee shall consent to use the Project for
Permitted Uses only and said sublessee's use does not increase the risk of
Hazardous Substances being used, generated, manufactured, stored, treated,
released or disposed of on, under or about the Project or transported to or from
the Project, Tenant shall have the absolute right to sublet the Project, in
whole or in part, without the consent of Landlord. Except as expressly permitted
below, Tenant shall not assign its interest in this Lease without the prior
written consent of Landlord, which consent shall not be unreasonably withheld or
delayed. Assignment of this Lease by Tenant to a Related Party of Tenant, who
remains a Related Party of Tenant, shall not require the consent of Landlord. A
change of ownership of 51% or more of Tenant shall be deemed an assignment of
this Lease for purposes of this paragraph.
(b) No assignment or subletting shall serve to release Tenant
of any obligations hereunder or alter the primary liability of Tenant for the
payment of Base Rent, Additional Rent and other sums due Landlord hereunder or
for the performance of or compliance with each and every term, covenant,
condition and obligation to be performed or observed by Tenant under this Lease
unless Landlord, in its reasonable discretion, elects to release Tenant of its
obligations or liability hereunder.
36
94
(c) Landlord may accept any rent or performance of Tenant's
obligations from any person other than Tenant and such acceptance of any rent or
performance shall not constitute a waiver or estoppel of Landlord's rights to
exercise its remedies for the default or breach by Tenant of any of the terms,
covenants or conditions of this Lease.
(d) In the event of any default or breach of Tenant's
obligations under this Lease, Landlord may proceed directly against Tenant, or
any one else responsible for the performance of Tenant's obligations under this
Lease, including the sublessee, without first exhausting Landlord's remedies
against any other person or entity responsible thereof, or any security held by
Landlord or Tenant.
(e) Any assignee of, or sublessee under, this Lease shall, by
reason of accepting such assignment or entering into such sublease, be deemed
for the benefit of Landlord, to have assumed and agreed to conform and comply
with each and every term, covenant, condition and obligation herein to be
observed or performed by Tenant during the term of said assignment or sublease,
other than such obligations as are contrary to or inconsistent with provisions
of the assignment or sublease.
(f) Each sublease of the Project or any part thereof shall be
subject and subordinate to the provisions of this Lease. Tenant agrees that in
the case of an assignment, Tenant shall, within fifteen (15) days after the
execution and delivery of any such assignment, deliver to Landlord (i) a
duplicate original of such assignment in recordable form and (ii) an agreement
executed and acknowledged by the assignee in recordable form wherein the
assignee shall agree to assume and agree to observe and perform all of the terms
and provisions of this Lease on the part of the Tenant to be observed and
performed from and after the date of such assignment, and, in the case of a
sublease, Tenant shall, within fifteen (15) days after the execution and
delivery of such sublease, deliver to Landlord a duplicate original of such
sublease.
(g) The following terms and conditions shall apply to any
subletting by Tenant of all or any part of the Project and shall be deemed
included in all subleases, under this Lease whether or not expressly
incorporated therein: Tenant hereby assigns and transfers to Landlord all of
Tenant's interest in all rents and income arising from any sublease of all or a
portion of the Project heretofore or hereafter made by Tenant, and Landlord may
collect such rent and income and apply same toward Tenant's obligation under
this Lease; provided however, that except during any period in which a breach
has occurred in the performance of Tenant's obligations under this Lease, and
remains uncured Tenant may, except as otherwise provided in this Lease, receive,
collect and enjoy the rents accruing under such sublease. Landlord shall not, by
reason of this assignment of rents or any other assignment of sublease to
Landlord, nor by reason of the collection of the rents from a sublessee, be
deemed liable to the sublessee for any failure of Tenant to perform and comply
with any of Tenant's obligations to such sublessee under such sublease. Tenant
37
95
hereby irrevocably authorizes and directs any such sublessee, upon the receipt
of a written notice from Landlord stating that a default exists in the
performance of Tenant's obligation under this Lease, to pay to Landlord the
rents and other charges due and to become due under the sublease. Sublessee
shall rely upon any such statement and request from Landlord and shall pay such
rents and other charges to Landlord without any obligation or right to inquire
as to whether such default exists and notwithstanding any notice from or claim
from Tenant to the contrary, Tenant shall have no right or claim against said
sublessee, or, until the default has been cured, against Landlord, for any such
rents and other charges so paid by sublessee to Landlord.
(h) In the event of a breach by Tenant in the performance of
its obligations under this Lease, and a resulting termination of Lease by
Landlord, Landlord, at its option and without any obligation to do so, may
require any sublessee to attorn (i.e., agree to become tenant to a new owner or
landlord of the same property) to Landlord, in which event Landlord shall
undertake the obligations of the sublessor under such sublease from the time of
the exercise of said option to the expiration of such sublease; provided,
however, Landlord shall not be liable for any prepaid rents or security deposit
paid by such sublessee to such sublessor or for any prior defaults or breaches
of such sublessor under such sublease.
(i) Any matter or thing requiring the consent of the sublessor
under a sublease shall also require the consent of Landlord herein, if
Landlord's consent is required under this Lease.
(j) Each sublease shall provide that (i) it is subject and
subordinate to this Lease and any mortgage covering the Project; (ii) Landlord
may enforce the provisions of the sublease, including collection of rent; (iii)
if this Lease is terminated for any reason, Landlord may, at its option, either
(A) terminate the sublease, or (B) takeover all of the rights and interest of
Tenant, as sublessor, under such sublease, in which case such sublessee shall
attorn to Landlord. If Landlord elects to takeover the rights and interest of
Tenant, Landlord shall not (i) be liable for any previous act or omission of
Tenant under the sublease, (ii) be subject to any defense or offset in favor of
the sublessee against Tenant, or (iii) be bound by any modification to the
sublease made without Landlord's written consent or by any prepayment by
sublease of more than one month's rent.
(k) Landlord agrees for itself, its successors and assigns,
promptly upon Tenant's request, to enter into a nondisturbance and attornment
agreement with any Qualified Subtenant, as defined below, of the Project upon
the terms described below, pursuant to which Landlord shall agree, for so long
as such Qualified Subtenant is not in default under its Qualified Sublease, as
defined below, that the Qualified Sublease shall not be terminated as a result
of any termination of this Lease and such Qualified Subtenant's use and
occupancy of the premises demised pursuant to the Qualified Sublease shall not
be
38
96
disturbed by Landlord, and pursuant to which such Qualified Subtenant shall
agree to attorn to Landlord or its successor as landlord under the Qualified
Sublease upon any termination of this Lease. Said agreement shall further
provide that nothing therein contained shall impose any obligation on the
Landlord, the then owner or any mortgagee of Landlord or their respective
successors to (i) return or apply any security deposit under such sublease, such
security shall be transferred and turned over to the Landlord, such then owner
or any mortgagee of Landlord, (ii) expend any sums to make any installations or
alterations provided to be made by the sublessor under said sublease or
reimburse the subtenant under said sublease for any installations or alterations
made by it, (iii) be liable for any act or omission of any prior sublessor, (iv)
be subject to any offsets or defense which such subtenant might have against any
prior sublessor, (v) be bound by any rent or additional rent which such
subtenant might have paid for more than the current rent to any prior landlord,
or (vi) be bound by any amendment or modification of the sublease made without
the prior written consent of Landlord, the terms of which amendment or
modification if included in the original sublease would have prevented such
sublease from meeting the criteria for a Qualified Sublease. Any subtenant under
a Qualified Sublease is a "Qualified Subtenant." A "Qualified Sublease" shall be
any absolute net sublease (that is, a subleases that requires the uninterrupted
payment of rent without offset or diminution, that confers all rights to
condemnation awards [other than a separate award for moving expenses and
subtenant's fixtures] upon the sublessor, and that places no obligations upon
the sublessor thereunder other than those of the type placed upon Landlord
hereunder) of the entire Project with a subtenant whose creditworthiness is
reasonably acceptable to Landlord and pursuant to which the subtenant thereunder
is required to fulfill all of the obligations of Tenant hereunder, including,
without limitation, payment of rent which shall at all times be equal to or
greater than the rent which Tenant is required to pay hereunder.
(l) Upon the occurrence of an Event of Default under this
Lease, Landlord shall have the right to collect and enjoy all rents and other
sums of money payable under any sublease of any of the Project, and Tenant
hereby irrevocably and unconditionally assigns such rents and money to Landlord,
which assignment may be exercised upon and after (but not before) the occurrence
of an Event of Default.
13.2 TENANT OWNERSHIP. For the purposes of this Article XIII, an
assignment shall be deemed to include any of the following transactions: (i) the
issuance or sale by Tenant or the sale by any stockholder of Tenant of a
controlling interest in Tenant to persons or entities other than Amerihost
Properties, Inc. and any Related Party; (ii) the sale, conveyance or other
transfer of all or substantially all of the assets of Tenant (whether by
operation of law or otherwise); (iii) any transaction pursuant to which Tenant
is merged with or consolidated into another entity where Tenant or a Related
Party of Amerihost Properties, Inc. is not the surviving entity; and (iv) any
other transaction or series of transactions, which results in Amerihost
Properties Inc. or a Related Party of Amerihost Properties, Inc., no longer
having control of Tenant.
39
97
13.3 ASSIGNMENT DUE TO BANKRUPTCY.
(a) In the event a petition is filed by or against Tenant
under the Bankruptcy Code, Tenant, as debtor and debtor in possession, and any
trustee who may be appointed, agree to adequately protect Landlord as follows:
1. to pay monthly in advance on the first day of each
month as reason-able compensation for use and occupancy
of the Project an amount equal to all Rent due pursuant
to this Lease; and
2. to perform each and every obligation of Tenant under
this Lease until such time as this Lease is either
rejected or assumed by order of a court of competent
jurisdiction; and
3. to determine within sixty (60) days after the filing of
such petition whether to assume or reject this Lease;
and
4. to give Landlord at least thirty (30) days prior
written notice, unless a shorter notice period is
agreed to in writing by the parties, of any proceeding
relating to any assumption of this Lease; and
5. to do all other things of benefit to Landlord otherwise
required under the Bankruptcy Code.
Tenant shall be deemed to have rejected this Lease in the
event of the failure to comply with any of the above.
(b) If Tenant or a trustee elects to assume this Lease subsequent
to the filing of a petition under the Bankruptcy Code, Tenant, as debtor and as
debtor in possession, and any trustee who may be appointed agree as follows:
1. to cure each and every existing breach by Tenant within
not more than thirty (30) days of assumption of this
Lease; and
2. to compensate Landlord for any actual pecuniary loss
resulting from any existing breach, including without
limitation, Landlord's reasonable costs, expenses and
attorney's fees incurred as a result of the breach, as
40
98
determined by a court of competent jurisdiction, within
thirty (30) days of assumption of this Lease; and
3. in the event of an existing breach, to provide adequate
assurance of Tenant's future performance, including
without limitation:
(i) the production to Landlord of written documentation
establishing that Tenant has sufficient present and
anticipated financial ability to perform each and every
obligation of Tenant under this Lease; and
(ii) assurances, in form acceptable to Landlord, as may be
required under any applicable provision of the Bankruptcy
Code; and
4. the assumption will not breach any provision of this
Lease; and
5. the assumption will be subject to all of the provisions
of this Lease unless the prior written consent of
Landlord is obtained; and
6. the prior written consent to the assumption of any
mortgagee to which this Lease has been assigned as
collateral security is obtained.
(c) If Tenant assumes this Lease and proposes to assign the same
pursuant to the provisions of the Bankruptcy Code to any person or entity who
shall have made a bona fide offer to accept any assignment of this Lease on
terms acceptable to Tenant, then notice of such proposed assignment shall be
furnished by Tenant to Landlord, setting forth:
1. the name and address of such person; and
2. all the terms and conditions of such offer; and
3. the adequate assurance to be provided Landlord to
assure such person's future performance under the
Lease, including without limitation, the assurances
referred to in any applicable provision of the
Bankruptcy Code, shall be given to Landlord by Tenant
no later than twenty (20) days after receipt by
41
99
Tenant, but in any event no later than ten (10) days
prior to the date that Tenant shall make application
to a court of competent jurisdiction for authority
and approval to enter into such assignment and
assumption, and Landlord shall thereupon have the
prior right and option, to be exercised by notice to
Tenant given at any time prior to the effective date
of such proposed assignment, to accept (or to cause
its designee to accept) an assignment of this Lease
upon the same terms and conditions and for the same
consideration, if any, as the bona fide offer made by
such person, less any brokerage commissions which may
be payable out of the consideration to be paid by
such person for the assignment of this Lease. The
adequate assurance to be provided Landlord to assure
the assignee's future performance under the Lease
shall include without limitation:
(i) a written demonstration that the assignee meets all
reasonable financial and other criteria of Landlord as did
Tenant and its business at the time of execution of this
Lease, including the production of the most recent audited
financial statement of the assignee prepared by a certified
public accountant; and
(ii) the assignee's use of the Project will be a Permitted
Use; and
(iii) assurances, in form acceptable to Landlord, as to all
matters identified in any applicable provision of the
Bankruptcy Code.
13.4 TRANSFER OF LANDLORD'S RIGHTS. Subject to Landlord's
compliance with Article XIV hereof, Landlord shall have the right to transfer
and assign, in whole or in part, all and every feature of its rights and
obligations hereunder and in the Project. Such transfers or assignments,
howsoever made, are to be fully binding upon and recognized by Tenant provided
the transferee assumes all of Landlord's obligations hereunder and Landlord
delivers to Tenant notice of such transfer within ten (10) days following its
effective date. Upon such transfer or assignment and the assumption of
Landlord's obligations by the transferee, and subject to the provisions of
Section 15.2 hereof, Landlord shall be relieved of all obligations under the
Lease accruing subsequent to the date of transfer.
42
100
13.5 LICENSES AND LEASEHOLD MORTGAGES.
(a) Tenant shall have the right during the Lease Term to grant
licenses of portions of the Project, provided that no such license shall be for
the use and operation of the entire Project without compliance by Tenant with
the provisions of Section 13.1 nor be valid for a period of more than thirty
(30) days. In the event the term of any license shall extend beyond the fixed
date for the expiration of the Lease Term, such license shall be subject to the
consent of Landlord, which consent shall not be unreasonably withheld or
delayed. In the event of the termination or expiration of the Lease Term, any
existing license shall remain in effect notwithstanding the termination of this
Lease. Tenant shall assign such license agreement to Landlord by an instrument
mutually satisfactory to Landlord and Tenant, and any such licensee's use,
occupancy and enjoyment of its premises shall not be disturbed, subject however
to the terms and conditions of any such license agreement.
(b) Tenant may grant a mortgage, deed of trust or other financing
instrument that constitutes or creates a lien on Tenant's interest in this Lease
or the leasehold estate created hereby (such mortgage, deed of trust or other
financing instrument hereinafter a "Leasehold Mortgage"). Landlord will promptly
provide to the holder of the Leasehold Mortgage ("Leasehold Lender") copies of
any material notice or other material correspondence, including, without
limitation, any notice of default or breach under this Lease that Landlord gives
to Tenant, but Landlord's failure to give any such notice shall not constitute a
default by Landlord on this Lease or constitute a waiver of any such default or
breach of Tenant or grant Tenant any additional time to cure any such default or
breach. Landlord hereby grants Leasehold Lender the right to cure any default or
breach under this Lease, the exercise of which shall be at the sole option of
Leasehold Lender. Leasehold Lender shall have the right to enter upon the
Project at any time to cure any such default.
(c) Notwithstanding any contrary provisions of this Lease,
Landlord agrees not to terminate this Lease or Tenant's right of possession of
the Project or to exercise any of Landlord's other remedies under this Lease or
to interfere with Tenant's occupancy, use or enjoyment of the Project for any
default under this Lease unless (x) Landlord has given to Leasehold Lender
notice of such default, which notice shall be set forth in reasonable detail the
nature of such default and (y) if such default constitutes a default under
Section 12.1 (b) of this Lease, the same is not cured within two (2) days after
notice of such default to Leasehold Lender, or if such default constitutes a
default under any other subsection of Section 12.1 of this Lease, which default
is curable by Leasehold Lender, and such default shall not have been cured by
Tenant or Leasehold Lender within the greater of the cure period provided
therefor under the terms of this Lease or a period of ten (10) days following
Leasehold Lender's receipt of such notice. If any non-monetary default that is
curable by Leasehold Lender is of such nature that it cannot be cured within ten
(10) days, Leasehold Lender shall be entitled to such additional period of time
as may be reasonably necessary to cure such default if Leasehold Lender proceeds
promptly to remedy the same. In the event
43
101
of the bankruptcy of Tenant, or a general assignment by Tenant for the benefit
of its creditors, Landlord will not terminate this Lease or exercise its other
remedies under this Lease so long as Leasehold Lender continues to pay all rent
and other sums and performs or causes to be performed all other obligations of
Tenant under this Lease reasonably susceptible of performance by Leasehold
Lender. If any default cannot be cured by Leasehold Lender because such cure
requires possession of the Project, Landlord agrees that it will not exercise
its rights and remedies under this Lease as a result thereof, so long as
Leasehold Lender cures all other curable defaults, including payment of past due
Base Rent and Additional Rent within the cure periods provided in this
paragraph. It is expressly understood and agreed by Landlord that Leasehold
Lender has right to cure Tenant's defaults under this Lease, but shall not have
the obligation to do so. Upon compliance with the foregoing provisions, any
notice of breach or default given by Landlord or any action of Landlord to
terminate or exercise any remedies under this Lease or to otherwise interfere
with the occupancy, use or enjoyment of the Project by reason thereof, shall be
deemed rescinded without any further action by Landlord, Tenant or Leasehold
Lender.
(d) Upon written notice from Leasehold Lender, Landlord, in
its reasonable discretion, agrees to recognize Leasehold Lender or any assignee
or designee of Leasehold Lender approved by Landlord as tenant under this Lease,
provided (i) Leasehold Lender or such assignee or designee assumes this Lease
and all of Tenant's obligations hereunder, (ii) such assignee or designee is a
financially responsible party (which shall be determined by Landlord, such
determination not to be unreasonably withheld or delayed), and (iii) all Base
Rent and Additional Rent payments are then current. In such event, Leasehold
Lender or any assignee or designee of Leasehold Lender shall thereafter be
entitled to all the rights and privileges of the Tenant under this Lease.
Landlord will not unreasonably interfere with the enforcement by Leasehold
Lender of its liens and security interests on Tenant's assets. Leasehold Lender
is permitted to act through its employees or agents.
(e) If Leasehold Lender or its assignee or designee succeeds
to the interest of Tenant under this Lease, upon Landlord's consent, Landlord
agrees to recognize Leasehold Lender or its assignee or designee as the tenant
under this Lease, and if Leasehold Lender so requests, Landlord agrees to enter
into a new lease with Leasehold Lender or its assignee or designee for the
remainder of the Lease Term at the rents and upon the same covenants,
agreements, terms and provisions contained in this Lease, including, without
limitation, any options to renew and rights of first refusal contained herein.
If Leasehold Lender or its assignee or designee succeeds to the interest of
Tenant under this Lease or enters into a new lease with Landlord, Leasehold
Lender or its assignee or designee shall have the right, with Landlord's
consent, to sublease the Project or assign this Lease or new lease to an entity
designated by Leasehold Lender, provided that in the case of an assignment such
entity assumes in writing all of Tenant's obligations under this Lease or new
lease from and after the effective date of such assignment and such entity is a
financially responsible party (which shall be determined by Landlord, such
determination not to be unreasonably withheld or delayed), and all Base Rent and
Additional Rent payments are then current.
44
102
ARTICLE XIV
RIGHT OF FIRST REFUSAL
14.1 RIGHT OF FIRST REFUSAL. During the Lease Term when no Default
or Event of Default exists and for a period of thirty (30) days following the
expiration of the Lease Term, Landlord may not sell, transfer, assign, convey,
pledge, or otherwise dispose of all or any portion of the Project or Landlord's
interest in this Lease, other than a sale, assignment or conveyance in
connection with a securitization or structured financing of the Project, without
having first complied with the provisions of this Article XIV and the following
terms and conditions:
(a) Prior to any transfer or to entering into any contract to
sell, transfer, assign, or convey all or any portion of the Project or
Landlord's interest in this Lease to a third party, or prior to accepting any
bona fide offer to purchase, buy, or acquire all or any portion of the Project
or Landlord's interest in this Lease from a third party, Landlord shall give
written notice of all the terms, provisions, and conditions with respect to such
offer, including a copy of the proposed offer, to Tenant and Landlord shall
offer to sell or to transfer to the Tenant the Project or Landlord's interest in
the Lease which is the subject of such offer on the same terms, provisions, and
conditions as are set forth in such third party offer.
(b) Tenant shall have a period of ten (10) days from the date of
its receipt of the written notice from Landlord to accept such offer on the same
terms, provisions, and conditions stated in such written notice, which
acceptance must be in writing and be received by Landlord prior to the
expiration of such ten (10) day period. Any purported acceptance made orally
shall be ineffective, and any purported acceptance which varies the terms of
such offer shall be deemed a rejection thereof for all purposes. The closing of
the purchase by Tenant shall be held at the time and place specified in the
written notice from Landlord, or such earlier date as is specified by Tenant,
but in no event later than the day the original offer would have been closed.
(c) In the event Tenant delivers written notice of rejection to
Landlord, or in the event Tenant fails to accept the offer in the manner
required by Section 14.1(b) hereof, the offer made by Landlord shall be deemed
to have been rejected by Tenant, and Landlord shall be free to sell, transfer,
assign, or convey such interest to the third party on the terms, provisions, and
conditions set forth in the written notice to Tenant.
(d) In the event that such transaction is not consummated as
provided in Section 14.1(c) hereof on or before thirty (30) days after the
closing date specified in the notice from Landlord to Tenant, or in the event
any material terms and provisions of such transaction are changed following a
rejection by Tenant, no sale, transfer, assignment, or
45
103
conveyance of such interest in the Project or the Lease may be made unless the
provisions of this Article XIV are again complied with.
14.2 CONDITIONS OF OFFER. Landlord shall not be entitled to
exercise its rights under Section 14.1(a) hereof with respect to any offer to
purchase or offer to sell any interest in the Project or the Lease unless such
offer complies with all of the following requirements:
(a) the proposed purchase price (which shall be net of any debts
or liabilities which the proposed purchaser will assume) is payable in its
entirety in cash;
(b) the offer contains provisions whereby the proposed purchaser
is obligated to comply with the provisions of Section 14.2(e) prior to or at
closing;
(c) it is an offer by or to a principal, identified in the offer,
and not an agent acting on behalf of an undisclosed principal; and such
principal shall not be a person or entity with respect to which Landlord has any
direct or indirect ownership or control or from whom Landlord shall receive any
form of undisclosed rebate, commission or other consideration in connection with
the transaction;
(d) the sale is subject to the rights of Tenant under this Lease;
and
(e) The prospective purchaser shall provide to Tenant a statement
signed by such prospective purchaser to the effect that (i) such purchaser is a
principal acting on its own behalf and not an agent acting on behalf of an
undisclosed principal, (ii) such principal is not a person or entity with
respect to which Landlord has any direct or indirect ownership or control, and
(iii) that such purchaser is not paying any rebate, commission or other
consideration not disclosed in the offer.
Notwithstanding any term or provision of Sections 14.1 or 14.2 to the
contrary, Landlord, subject to rights of Tenant under the Lease, may (i) sell,
assign or convey the Project in connection with a securitization or structured
financing of the Project (ii) assign or pledge the Project and its interest in
and to this Lease as security for any loan secured by a mortgage or deed of
trust on the Project, and (iii) sell, assign and convey the Project and its
interest in the Lease to any Related Party of Landlord or any party into which
Landlord merges whether or not Landlord is the surviving entity.
14.3 RESTRAINING ORDER. In the event that Landlord shall at any
time transfer or attempt to transfer the Project or any portion thereof or its
interest in the Lease in violation of the provisions of this Article XIV, then
Tenant shall, in addition to all rights and remedies hereunder and at law and in
equity, be entitled to a decree or order restraining and enjoining such transfer
and Landlord shall not plead in defense thereto that there would be an adequate
remedy at law; it being hereby expressly acknowledged and agreed that
46
104
damages at law will be an inadequate remedy for a breach or a threatened breach
or violation of the provisions concerning transfers set forth in this Article
XIV.
14.4 EXCLUSION FROM RIGHT OF FIRST REFUSAL. Notwithstanding any
other provision of this Article XIV to the contrary, unless the use or operation
of the Project for its intended purpose would be materially adversely affected,
based upon a reasonable determination of such affect, the Landlord may sell,
transfer, assign, lease, convey, pledge or otherwise dispose of all or any
portion of the Land on which none of the Improvements or requisite parking are
located without complying with any of the other terms and provisions of this
Article XIV.
ARTICLE XV
GENERAL PROVISIONS
15.1 ESTOPPEL CERTIFICATE. Either party hereto (the "Certifying
Party") shall at any time, upon not less than ten (10) days after the giving of
written notice by the other party (the "Requesting Party"), execute, acknowledge
and deliver to the Requesting Party or to such person designated by the
Requesting Party, a statement in writing (i) certifying that this Lease is
unmodified and in full force and effect (or if modified, stating the nature of
such modification and certifying that this Lease, as so modified, is in full
force and effect) and the date to which the rent and other charges are paid in
advance, if any, (ii) acknowledging that there are not, to the Certifying
Party's knowledge, any uncured defaults on the part of the Requesting Party
hereunder, or specify such defaults if they are claimed, (iii) acknowledging
that there are no offsets, counterclaims or defenses to the obligations of the
Certifying Party under the Lease, and (iv) certifying as to any other matters as
may be reasonably requested by the Requesting Party. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer or Tenant
of any portion of the Project. If the Certifying Party does not execute,
acknowledge and deliver the statement referred to in this Section within time
set forth above, the information set forth therein shall be deemed true and
correct.
15.2 LANDLORD'S LIABILITY. The term "Landlord," as used in this
Lease, shall mean only the owner or owners at the time in question of the
Improvements, FF&E and the fee title to the Land. In the event of any transfer
of such title or interest, Landlord shall be released from all liability as
respects Landlord's obligations thereafter to be performed, provided that: (a)
Landlord's obligations are assumed by Landlord's transferee; and (b) any funds
held by Landlord at the time of such transfer in which Tenant has an interest,
shall be delivered to such transferee. Specifically, Landlord's delivery of the
Capital Expenditure Reserve Account, and the deposits contemplated in Sections
3.3 and 9.6 hereof to any purchaser of Landlord's interest in the Project, and
the acknowledgment by such purchaser of the receipt of such funds, shall
discharge Landlord from any liability
47
105
to Tenant for the Capital Expenditure Reserve Account, and the deposits
contemplated in Sections 3.3 and 9.6 hereof.
15.3 SEVERABILITY. The invalidity of any provision of this Lease,
or of its application to any person or circumstance as determined by a court of
competent jurisdiction, shall in no way affect the validity of any other
provision hereof and each term, covenant, condition and provision of this Lease
shall be valid and be enforced to the fullest extent permitted by law.
15.4 CAPTIONS. Article and Section captions are not a part of
this Lease.
15.5 COMPLETE AGREEMENT. This Lease and the attached exhibits set
forth all the agreements, terms, covenants and conditions between Landlord and
Tenant concerning the Project and there are no agreements, terms, covenants or
conditions, oral or written, between them other than those herein contained. No
amendment, change or addition to this Lease shall be binding upon Landlord or
Tenant unless it is in writing and signed by each party.
15.6 TENANT'S REMEDIES. If Landlord shall fail to perform any
covenant, term or condition of this Lease required to be performed by Landlord,
if any, and if as a consequence of such default, Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only out of the
proceeds of sale, and condemnation or insurance proceeds, received upon
execution of such judgment and levied thereon against the right, title and
interest of Landlord in the Project and out of Rents receivable by Landlord, or
out of the consideration received by Landlord from the sale or other disposition
of all or any part of Landlord's right, title and interest in the Project or
this Lease, and neither Landlord nor its officers, directors, shareholders and
lenders, nor their respective successors and assigns, shall be personally liable
for any deficiency, provided that in the event a deficiency exists after
application of the foregoing assets relating to the Project, Landlord shall be
personally liable for such deficiency to the extent of the amount of all
undisbursed sums in the Capital Expenditure Reserve Account, and the accounts
provided for in Sections 3.3 and 9.6 provided to and held by Landlord hereunder
and required to be returned to Landlord.
15.7 FRANCHISE OBLIGATIONS. Initially the Project will be operated
by Tenant or a Related Party under the Name. Thereafter Tenant may elect to
enter into a Franchise Agreement with a Related Party of AmeriHost Inns, Inc.,
and continue to operate under the Name or with another Franchisor, however, it
is expressly agreed that at all times during the term of this Lease the Project
will be operated under the Name or terms of a Franchise Agreement and all costs
of maintaining, renewing, assigning or obtaining any Franchise Agreement shall
be borne by Tenant. So long as the Franchise Agreement with a Related Party of
AmeriHost Inns, Inc. or with any other Franchisor contains industry standard
terms, including standard franchisee rights upon transfer of the Project and
48
106
termination, Landlord's consent to such Franchise Agreement shall not be
unreasonably withheld or delayed.
15.8 NOTICES. All notices and demands hereunder shall be in
writing, and shall be deemed to have been properly given or served as of (a) the
date of personal delivery with acknowledgment of receipt; (b) three (3) business
days after the same is deposited in the United States mail, prepaid, for
delivery by registered or certified mail, return receipt requested; or (c) the
first business day after the date delivered to a reputable overnight courier
service providing proof of delivery. The initial addresses of Landlord and
Tenant are set forth below:
If to Landlord:
PMC Commercial Trust
Attention: Dept. 101
00000 Xxxxxxx Xxxx, Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
With a copy to: Xxxxx X. Xxxxxxxx, Chief Executive Officer
If to Tenant:
c/o Amerihost Properties, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx, President
With a copy to:
XxXxxxxxx Will & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Tele: (000)000-0000
Fax: (000)000-0000
Such addresses may be changed at any time or from time to time or
additional notice parties added, by notice as above provided. If any mortgagee
of Landlord shall have advised Tenant by notice in the manner aforesaid that it
is the holder of a mortgage against the Project and stating in said notice its
address for the receipt of notices, then simultaneously with the giving of any
notice by Tenant to Landlord, Tenant shall serve one or more copies of such
notice upon such mortgagee in the manner aforesaid.
49
107
15.9 WAIVERS. No waiver by Landlord of any provision of this Lease
shall be deemed a waiver of any other provision hereof or of any subsequent
breach by Tenant of the same or any other provision. Landlord's consent to or
approval of any act shall not be deemed to render unnecessary the obtaining of
Landlord's consent to or approval of any subsequent act by Tenant. No payment by
Tenant or receipt by Landlord of a lesser amount than the amount then due shall
be deemed to be other than on account of the earliest rent due, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as payment be deemed an accord and satisfaction, and Landlord shall
accept such check or payment without prejudice to Landlord's right to recover
the balance of such payment or pursue any other remedy in this Lease provided.
15.10 RECORDING. Landlord agrees, upon Tenant's request, to
execute a short form of this Lease, entitled Memorandum of Lease, a copy of
which is annexed hereto as EXHIBIT B, and Tenant may record the Memorandum of
Lease at its expense following the date on which Landlord acquires fee simple
title to the Land. The provisions of this Lease shall control, however, in
regard to any omissions from the Memorandum of Lease, or with respect to any
provisions hereof which may be in conflict with the Memorandum of Lease.
15.11 HOLDING OVER. Tenant shall surrender the Project upon the
expiration of the Lease Term or earlier termination of the Lease. Any holdover
not consented to by Landlord in writing shall not result in a new tenancy or
interest and, in such case, Landlord may treat Tenant as a trespasser. If Tenant
remains in possession of the Project or any part thereof after the expiration of
the Lease Term or the earlier termination hereof without the express written
consent of Landlord, Tenant shall pay rent (for such holdover period) equal to
the amount of 150% of the amount of Base Rent payable by Tenant under Article 3
during the last month of the Term.
15.12 COVENANTS AND CONDITIONS. Each provision of this Lease
performable by Tenant and Landlord shall be deemed both a covenant and a
condition.
15.13 BINDING EFFECT. This Lease shall bind and inure to the
benefit of Landlord and Tenant and their respective permitted successors and
assigns.
15.14 SUBORDINATION AND ATTORNMENT.
(a) This Lease, at the option of Landlord or any of its lenders,
shall be subordinate to any ground lease, mortgage or any other hypothecation
for security and any renewals, future advances, modifications, consolidations,
replacements and extensions thereof, provided Tenant's rights hereunder continue
to be recognized and Tenant's possession of the Project is not disturbed so long
as no Event of Default has occurred and is continuing. Landlord agrees for
itself, its successors and assigns, promptly upon Tenant's request, to enter
into or cause to be entered into by its lender a nondisturbance agreement in
50
108
such regard for the benefit of Tenant on terms reasonably satisfactory to Tenant
and Landlord.
(b) Provided Tenant's rights hereunder continue to be recognized
and its right of possession is not disturbed so long as no Event of Default has
occurred and is continuing, Tenant shall execute any documents required to
effectuate such subordination or to make this Lease prior to the lien of any
mortgage, ground lease or other security device, as the case may be, and failing
to do so within twenty (20) days after written demand, does hereby make,
constitute and irrevocably appoint Landlord as Tenant's attorney-in-fact and in
Tenant's name, place and stead, to do so and any out-of-pocket expenses incurred
by Tenant in connection therewith shall be paid by Landlord upon Tenant's
request.
(c) In the event of (a) a sale, assignment, ground lease, mortgage
or other transfer of Landlord's interest in the Project or any portion thereof
or in this Lease; or (b) any proceedings brought for the foreclosure of, the
granting of a deed in lieu of foreclosure of or the exercise of the power of
sale under any mortgage or security agreement made by Landlord covering the
Project or any portion thereof or this Lease, and provided that such mortgagee
or other transferee shall agree to recognize Tenant's rights hereunder and not
disturb Tenant's possession of the Project so long as an Event of Default has
not occurred and is continuing, Tenant shall attorn to the mortgagee or other
transferee and recognize such mortgagee or other transferee as Landlord under
this Lease.
15.15 NO JOINT VENTURE. Landlord and Tenant, by entering into this
Lease or consummating the transactions contemplated hereby, shall not be
considered partners or joint venturers.
15.16 QUIET ENJOYMENT. Provided Tenant pays the Rent herein
recited and performs all of Tenant's other covenants and agreements herein
contained, Landlord covenants that Tenant shall peacefully have, hold and enjoy
the Project, subject to all the other provisions herein contained.
15.17 EXPANSION OF PROJECT. Tenant acknowledges and agrees that
the Project may, from time to time and with Landlord's approval, be modified,
including expansion to include additional land, buildings and improvements. Upon
any such expansion, Base Rent payable hereunder and other affected obligations
shall be equitably adjusted. The term "Project," as used in this Lease, refers
to the Project and any such modification thereof.
15.18 COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which shall be an original and all of which together shall
constitute and be construed as one and the same instrument.
51
109
15.19 BROKERS. In connection with this Lease, Landlord and Tenant
each warrant and represent that they know of no person who is or might be
entitled to a commission, finder's fee or other like payment in connection
herewith, and each party hereto does hereby indemnify and agree to hold the
other harmless from and against any and all loss, liability and expenses that
such other party may incur should such warranty and representation prove
incorrect.
15.20 TENANT'S RIGHT TO CURE. If Landlord breaches any covenant to
be performed by it under this Lease, Tenant, after notice to and demand upon
Landlord, without waiving or releasing any obligation hereunder, and in addition
to all other remedies available to Tenant, may (but shall be under no obligation
at any time thereafter to) make such payment or perform such act for the account
and at the expense of Landlord. All sums so paid by Tenant and all costs and
expenses (including, without limitation, reasonable attorneys' fees) so
incurred, together with interest thereon at the Default Rate from the date on
which such sums or expenses are paid or incurred by Tenant, shall be paid by
Landlord to Tenant on demand. The rights of Tenant hereunder to cure and to
secure payment from Landlord in accordance with this Section 15.20 shall survive
the termination of this Lease with respect to the Project.
15.21 BREACH BY LANDLORD. It shall be a breach of this Lease if
Landlord fails to observe or perform any term, covenant or condition of this
Lease on its part to be performed and such failure continues for a period of 30
days after notice thereof from Tenant, unless such failure cannot with due
diligence be cured within a period of 30 days, in which case such failure shall
not be deemed to continue if Landlord, within such 30-day period, proceeds
promptly and with due diligence to cure the failure and diligently completes the
curing thereof. The time within which Landlord shall be obligated to cure any
such failure also shall be subject to extension of time due to the occurrence of
any delays beyond the reasonable control of Landlord. If Landlord does not cure
any such failure within the applicable time period as aforesaid, Tenant may
declare the existence of a "Landlord Default" by a second notice to Landlord.
Thereafter, Tenant may forthwith cure the same and, subject to the provisions of
the following paragraph, invoice Landlord for costs and expenses (including
reasonable attorneys' fees and court costs) incurred by Tenant in curing the
same, together with interest thereon from the date Landlord receives Tenant's
invoice, at the Default Rate.
15.22 LANDLORD TO GRANT EASEMENTS, ETC. Landlord will, from time
to time, so long as no Event of Default has occurred and is continuing, at the
request of Tenant and at Tenant's cost and expense (but subject to the approval
of Landlord, which approval shall not be unreasonably withheld or delayed), (a)
grant easements and other rights in the nature of easements with respect to the
Project to third parties, (b) release existing easements or other rights in the
nature of easements which are for the benefit of the Project, (c) dedicate or
transfer unimproved portions of the Project for road, highway or other public
purposes, (d) execute petitions to have the Project annexed to any municipal
corporation or
52
110
utility district, (e) execute amendments to any covenants and restrictions
affecting the Project, and (f) execute and deliver to any person any instrument
appropriate to confirm or effect such grants, releases, dedications, transfers,
petitions and amendments (to the extent of its interests in the Project), but
only upon delivery to Landlord of an officer's certificate stating that such
grant, release, dedication, transfer, petition or amendment does not interfere
with the proper conduct of the business of Tenant on the Project and does not
materially reduce the value of the Project.
15.23 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Lease is or
will be made and delivered in the State and shall be governed by and construed
and interpreted in accordance with the laws of the United States of America and
the State, without regard to principles of conflict of laws. All judicial
actions, suits or proceedings brought by or against Landlord or Tenant with
respect to its rights, obligations, liabilities or any other matter under or
arising out of or in connection with this Lease or any transaction contemplated
hereby or for recognition or enforcement of any judgment rendered in any such
proceedings shall be brought in any state or federal court in the State. By
execution and delivery of this Lease, Landlord and Tenant accept, generally and
unconditionally, the nonexclusive jurisdiction of the aforesaid courts and
irrevocably agree to be bound by any final judgment rendered thereby in
connection with this Lease or any transaction contemplated hereby from which no
appeal has been taken or is available. Tenant and Landlord each hereby
irrevocably waive any objections, including without limitation any objection to
the laying of venue or based on the grounds of forum non conveniens, which
either may now or hereafter have to the bringing of any such action or
proceeding in any such jurisdiction. Tenant and Landlord acknowledge that final
judgment against it in any action, suit or proceeding referred to in this
Section shall be conclusive and may be enforced in any other jurisdiction by
suit on the judgment, a certified or exemplified copy of which shall be
conclusive evidence of the same.
15.24 REIT COMPLIANCE. Tenant acknowledges that Landlord is or
intends to qualify as a real estate investment trust under the Tax Code. Tenant
agrees that it will not knowingly or intentionally take or omit any action, or
permit any status to exist at the Project, which Tenant knows would or could
result in Landlord being disqualified from treatment as a real estate investment
trust under the Tax Code as the provisions exist on the date hereof.
15.25 FINANCINGS. Notwithstanding any other provisions of this
agreement, to the extent that any trustee, rating agency or purchaser in
connection with a contemplated structured finance or securitization requires
amendment to the Lease for purposes of such structured finance or
securitization, Tenant will not unreasonably withhold approval of such
modification or amendment and any out-of-pocket expenses incurred by Tenant in
connection therewith shall be paid by Landlord upon Tenant's request.
15.26 LANDLORD'S RIGHT TO INSPECT. Tenant shall permit Landlord
and its authorized representatives as frequently as reasonably requested by
Landlord to inspect the Project and Tenant's accounts and records pertaining
thereto and make copies thereof, during
53
111
usual business hours upon reasonable advance notice, subject only to any
business confidentiality requirements reasonably requested by Tenant.
15.27 "AS IS" LEASE. Notwithstanding anything to the contrary
herein contained, Tenant expressly understands, acknowledges and agrees that the
lease of the Project shall be made by Landlord to Tenant on an "as is, where is"
basis, and "with all faults," and Tenant acknowledges that Tenant has agreed to
lease the Project in its present condition and that Tenant is relying solely on
its own examination and inspections of the Project and not on any statements or
representations made by Landlord or any agents or representatives of Landlord.
Additionally, Tenant hereby acknowledges that, Landlord makes no warranty or
representation, express or implied, or arising by operation of law, including,
but in no way limited to, any warranty of condition, habitability,
merchantability, or fitness for a particular purpose of the Project or any
portion thereof. Landlord hereby specifically disclaims any warranty, guaranty
or representation, oral or written, past, present or future, of, as to, or
concerning: (a) the nature and condition of the Project or any part thereof,
including but not by way of limitation, as to its water, soil or geology, or the
suitability thereof, for any and all activities and uses which Tenant may elect
to conduct thereon, or any improvements Tenant may elect to construct thereon,
or any income to be derived therefrom or expenses to be incurred with respect
thereto, or any obligations or any other matter or thing relating to or
affecting the same; (b) the absence of any hazardous substances on, in or under
the Land or Improvements or on, in or under any land adjacent to or abutting the
Land; (c) the manner of construction or condition or state of repair or lack of
repair of the Improvements; (d) the nature or extent of any easement,
restrictive covenant, right-of-way, lease, possession, lien, encumbrance,
license, reservation, condition or other similar matter pertaining to the
Project or any portion thereof; and (e) the compliance of the Project or the
operation of the Project or portion thereof with any Legal Requirements.
15.28 THIRD PARTY BENEFICIARY. The provisions of this Lease are
solely for the benefit of, and may be enforced solely by, the parties hereto and
their respective successors and assign and none of the provisions of this Lease
are intended to, nor shall they be construed so as to create any rights in any
third parties not party to this Lease.
15.29 NO MERGER OF TITLE. There shall be no merger of this Lease
or of the leasehold estate created hereby by reason of the fact that the same
person or entity may acquire, own or hold, directly or indirectly: (a) this
Lease or the leasehold estate created hereby or any interest in this Lease or
such leasehold estate and (b) the fee estate in the Project.
54
112
IN WITNESS WHEREOF, Tenant and Landlord have executed this
instrument as of the date set forth above.
"LANDLORD"
PMC COMMERCIAL TRUST
a Texas real estate investment trust
By
-----------------------------------
Its
"TENANT"
AMERIHOST INNS, INC.
a Delaware corporation
By
-----------------------------------
Its
55
113
EXHIBIT A
Legal Description of Land
114
EXHIBIT B
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE, made and entered into this ____ day
of _______, 1998, by and between PMC COMMERCIAL TRUST, a ___________ _________
having an office at 00000 Xxxxxxx Xxxx, Xxxxx Xxxxx, Xxxxxx, Xxxxx 00000
("Landlord"), and AMERIHOST INNS, INC., a Delaware corporation, having an office
at 0000 Xxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxx 00000 ("Tenant").
W I T N E S S E T H :
1. Landlord, in consideration of the rents reserved and agreed to
be paid by Tenant, and of the covenants, agreements,
conditions and understandings to be performed and observed by
Tenant all as more fully set out in a lease (the "Lease"),
executed by Landlord and Tenant, and dated the ____ day of
__________, 1998, has let, leased and demised to Tenant
certain land described in Exhibit "A" attached hereto (the
"Land") together with the improvements thereon (collectively,
the "Premises") in the building located thereon.
2. The term of the Lease shall commence on the date hereof and
terminate on __________.
3. The Lease grants to Tenant a right of first refusal with
respect to a sale or other conveyance by Landlord of any
interest in the Premises or any portion thereof or of
Landlord's interest in the Lease, as more particularly set
forth in the Lease.
4. This Memorandum of Lease is subject to all of the terms,
conditions and understandings set forth in the Lease between
the Landlord and Tenant, which agreement is incorporated
herein by reference and made a part hereof, as though copied
verbatim herein. In the event of a conflict between the terms
and conditions of this Memorandum of Lease and the terms and
conditions of the Lease, the terms and conditions of the Lease
shall prevail.
115
IN WITNESS WHEREOF, the parties hereto caused this Memorandum
to be duly executed as of the day and year above written.
LANDLORD:
PMC COMMERCIAL TRUST
By:
------------------------------
Name:
Title:
TENANT:
AMERIHOST INNS, INC.
By:
------------------------------
Name:
Title:
[add acknowledgments]
