EXHIBIT 10.11
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of November 14, 1997 (this "Amendment")
between HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust
(the "Borrower"), and DLJ MORTGAGE CAPITAL, INC., a Delaware corporation (the
"Lender").
W I T N E S S E T H:
WHEREAS the Borrower and the Lender have entered into a Revolving
Credit Agreement dated as of August 22, 1995, as amended and restated in its
entirety by that certain Amended and Restated Revolving Credit Agreement dated
as of December 29, 1995, as amended further by Amendment No. 1 to Amended and
Restated Revolving Credit Agreement dated as of February 26, 1996, those certain
two side letters each dated February 29, 1996, that certain side letter dated
March 22, 1996, and that certain side letter dated March 1997, as further
amended by Amendment No. 2 dated as of October 10, 1997 (as the same may be
amended and/or modified from time to time, the "Credit Agreement");
WHEREAS the Borrower has requested certain amendments to the Credit
Agreement; and
WHEREAS, subject to the terms and conditions set forth herein, the
Lender is willing to make such amendments.
NOW THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions. Each term used herein which is defined in the
Credit Agreement shall have the meaning assigned to such term in the Credit
Agreement.
SECTION 2. Representations and Warranties. The Borrower
acknowledges, covenants, warrants, represents and agrees that:
(a) no Material Adverse Change or Material Adverse Effect has occurred
since December 29, 1996;
(b) there are no judgments against the Borrower or any of its
Subsidiaries in any court of the United States and there is no litigation,
active, pending or threatened, against the Borrower or any of its Subsidiaries
which
might adversely affect the Borrower's or any of its Subsidiaries' ability
to pay when due any amounts which may become payable in respect of the Loans;
(c) no default, nor event which with notice and/or passage of time
would constitute a default, has occurred and is continuing under the Loan
Documents;
(d) there are no offsets, defenses or counterclaims to the Borrower's
obligations under the Loans and the Loan Documents; and
(e) the Borrower has not entered into any agreements with creditors or
third parties that expressly or otherwise prohibit the Borrower from entering
into this Amendment.
SECTION 3. Amendment to Section 1.1 of the Credit Agreement. (a) The
Borrower and the Lender hereby agree that the following definitions are either
amended and restated in their entirety to read as follows or added in their
appropriate alphabetical order to Section 1.1 of the Credit Agreement:
"Commitment" means the Revolving Credit Commitment and the Term Loan
Commitment, collectively.
"Courtyard Hotel" means a hotel property operated as a Courtyard by
Marriott(R) and managed by Marriott International, Inc.
"Final Borrowing Date" means December 31, 1997.
"First Supplemental Facility" means the First Supplemental Credit
Agreement dated as of November 14, 1997 between the Borrower and the Lender in
the aggregate principal amount of up to $75,000,000, as the same may hereafter
be amended, supplemented or otherwise modified from time to time.
"Lending Office" means, with respect to the Lender, the office located
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other office of the Lender
as the Lender may from time to time specify to the Borrower.
"Loan" or "Loans" means a Revolving Credit Loan or Revolving Credit
Loans and/or a Term Loan or Term Loans, as the context shall require.
"Mortgage Documents" means with respect to any Hotel Facility, a
Mortgage, a Subordination Nondisturbance Agreement and the other documents
relating thereto, including financing statements on Form UCC-1, subject to
appropriate revisions for state or property specific requirements.
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"Notes" means the Revolving Credit Note and the Term Note,
collectively.
"Perfection Event" means the earlier of November 1, 1998 and the
occurrence of an Event of Default.
"Proposed Hotel Facility" means any Real Estate or Lease comprising an
operating facility offering hotel or other lodging services which the Borrower
proposes to include as collateral for the Loans.
"Proposed Hotel Facility Statement" means a certificate of a
Responsible Officer providing each of the following:
(i) details of the location of the Proposed Hotel Facility and
the real estate interest;
(ii) certification (based on information available to the
Borrower after diligent enquiry) as to the proposed annual Base Rent
under the proposed Operating Lease of the Proposed Hotel Facility;
(iii) audited balance sheets if available, or pro forma
balance sheets, of the owner or operator of the Proposed Hotel
Facility, and the related consolidated statements of income, retained
earnings and cash flows of such owner or operator for its previous
three (3) fiscal years;
(iv) audited balance sheets if available, or pro forma balance
sheets, in respect of the Proposed Hotel Facility and the related
consolidated statements of operations, changes in owner's equity
(deficit) and cash flows in respect of such Proposed Hotel Facility,
for the previous three (3) fiscal years;
(v) a written report of an investigation by an environmental
consultant, reasonably acceptable to the Lender, addressing any
significant environmental, health and safety violations, hazards or
liabilities to which the owner or operator of the Proposed Hotel
Facility may be subject, which report shall demonstrate, to the
reasonable satisfaction of the Lender, that the Proposed Hotel Facility
and the operations thereof are in compliance in all material respects
with all applicable Environmental Laws and are not subject to any
material Environmental Liabilities and Costs;
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(vi) a copy of the proposed form of Operating Lease and, if
applicable, Management Agreement;
(vii) a copy of the proposed form of Limited Rent Guaranty, if
applicable;
(viii) the names of the proposed Operating Lessee and, if
applicable, Manager;
(ix) a copy of a recent market study in respect of the
Proposed Hotel Facility;
(x) a current title report and survey in respect of the
Proposed Hotel Facility, issued by a title company/surveyor reasonably
acceptable to the Lender; and
(xi) a written report of an investigation by an engineering
consultant reasonably acceptable to the Lender.
"Revolving Credit Commitment" means the obligation of the Lender to
make Revolving Credit Loans in an aggregate amount not to exceed $200,000,000
(as the same may be reduced from time to time pursuant to Section 2.4).
"Revolving Credit Loan" or "Revolving Credit Loans" means the revolving
credit loan or loans made by the Lender to the Borrower pursuant to Article II.
"Revolving Credit Note" means a promissory note of the Borrower payable
to the order of the Lender in a principal amount equal to the amount of the
Revolving Credit Commitment as originally in effect, in substantially the form
of Exhibit A-1, evidencing the aggregate Indebtedness of the Borrower to the
Lender resulting from the Revolving Credit Loans made by the Lender.
"Second Supplemental Facility" means the Second Supplemental Credit
Agreement dated as of November 14, 1997 between the Borrower and the Lender in
the aggregate principal amount of up to $130,000,000, as the same may hereafter
be amended, supplemented or otherwise modified from time to time.
"Supplemental Facilities" means the First Supplemental Facility and the
Second Supplemental Facility, collectively.
"Term Loan Commitment" means the obligation of such Lender to make Term
Loans to the Company in an aggregate amount not to exceed $50,000,000 (as the
same may be reduced from time to time pursuant to Section 2.4).
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"Term Loan" or "Term Loans" means the term loan or loans made by the
Lender to the Borrower pursuant to Article II.
"Term Loan Effective Date" means the date of first Term Loan made
pursuant to Article II.
"Term Note" means a promissory note of the Borrower payable to the
order of the Lender in a principal amount equal to the amount of the Term
Commitment as originally in effect, in substantially the form of Exhibit A-2,
evidencing the aggregate Indebtedness of the Borrower to the Lender resulting
from the Term Loans made by the Lender.
(b) The definition of "Second Facility" is hereby deleted and any
references in the Credit Agreement to Second Facility shall be deemed to refer
to the "Supplemental Facilities".
SECTION 4. Amendment to Section 2.1 of the Credit Agreement. The
Borrower and the Lender hereby agree that Section 2.1 of the Credit Agreement is
amended and restated in its entirety to read as follows:
2.1 The Loans. On the terms and subject to the conditions contained in
this Agreement, the Lender agrees to make to the Borrower from time to
time on any Business Day (a) during the period from the date hereof to
and including the Final Maturity Date Revolving, Credit Loans in an
aggregate outstanding amount not to exceed the Revolving Credit
Commitment, and (b) during the period from the date hereof to and
including the Final Borrowing Date, Term Loans in an aggregate amount
not to exceed the Term Loan Commitment. Within the limits of the
Revolving Credit Commitment and subject to the other terms and
conditions hereof, amounts prepaid pursuant to Section 2.6(b) in
respect of Revolving Credit Loans may be reborrowed under this Section
2.1 up to and including the Final Maturity Date. After the Final
Maturity Date, no portion of the Revolving Credit Commitment may be
borrowed or reborrowed and no portion of the Term Loan Commitment may
be borrowed. The Revolving Credit Loans shall be evidenced by the
Revolving Credit Note and the Term Loans shall be evidenced by the Term
Note. The Lender is authorized to endorse, at any time, the date and
amount of each Revolving Credit Loan or Term Loan and the date and
amount of each payment of principal with respect to the Revolving
Credit Loans or Terms Loans (as the case may be) on the schedule
annexed to and constituting a part of the Revolving Credit Note
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and Term Note, respectively, which endorsement shall constitute prima
facie evidence of the accuracy of the information endorsed.
SECTION 5. Amendment to Section 2.2 of the Credit Agreement. The
Borrower and the Lender hereby agree that the first and second sentences of
Section 2.2(a) of the Credit Agreement is amended and restated in its entirety
to read as follows:
Each Loan shall be made on notice, given by the Borrower to the Lender
not later than 12:00 noon (New York City time) on the fifth (5th)
Business Day prior to the date of the proposed Loan. Each such notice
(a "Notice of Borrowing") shall be in substantially the form of Exhibit
B, specifying therein (i) the date of such proposed Loan, (ii) the
amount of such proposed Loan, (iii) the account or accounts to which
the Loan should be made, (iv) the details of the Approved Hotel
Facility or Facilities or other permitted use for which the proceeds of
the proposed Loan shall be used, and (v) whether the proposed Loan is a
Revolving Credit Loan or a Term Loan.
SECTION 6. Amendment to Section 2.4 of the Credit Agreement. The
Borrower and the Lender hereby agree that Section 2.4 of the Credit Agreement is
amended and restated in its entirety to read as follows:
2.4. Reduction and Termination of the Commitment. The Borrower may,
upon at least three Business Days' prior notice to the Lender,
terminate in whole or reduce in part the unused portions of either
Commitment without premium or penalty; provided, however, that the Term
Loan Commitment shall be reduced to zero before any reduction in the
Revolving Credit Commitment can be made; and provided, further, any
partial reduction shall be in the aggregate amount of not less than
$10,000,000.
SECTION 7. Amendment to Section 2.6 of the Credit Agreement. The
Borrower and the Lender hereby agree that Section 2.6 of the Credit Agreement is
amended as follows:
(a) The first sentence of Section 2.6(a) is amended and restated in
full as follows:
The Borrower may, upon at least ten (10) Business Days' prior notice to
the Lender, stating the proposed date and aggregate principal amount of
the prepayment, prepay the outstanding
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principal amount of the Loans in whole or in part, together with
accrued interest to the date of such prepayment on the principal amount
prepaid without premium or penalty; provided that the Loans under the
Supplemental Facilities shall have been theretofore repaid in full; and
provided, however, further, that any prepayment of the Loans bearing
interest at the Eurodollar Rate made other than on the last day of an
Interest Period for the Loans to be repaid shall be subject to payment
by the Borrower to the Lender of any costs, fees or expenses incurred
by the Lender in connection with such prepayment including, without
limitation, any costs to unwind any Eurodollar Rate contracts or
Interest Rate Contracts. Any partial prepayment shall be applied first
to the Term Loans and second to the Revolving Credit Loans, and, in the
case of the Revolving Credit Loans and Terms Loans, to the installments
of principal of such Loans in the inverse order of maturity. (b) The
following Section 2.6(d) is added to Section 2.6:
(d) Upon receipt by the Borrower or its Subsidiaries of
proceeds of any issuance of debt or equity securities, the
Borrower shall forthwith prepay the Loans and the Loans made
under the Supplemental Facilities in the following order:
First, to the repayment of the Loans made under the Second
Supplemental Facility, Second, to the repayment of the Loans
made under the First Supplemental Facility, Third, to the Term
Loan, and Fourth, to the Revolving Credit Loans.
SECTION 8. Amendment to Article III of the Credit Agreement.
The Borrower and the Lender hereby agree that Article III of the Credit
Agreement is amended and restated in full as follows:
ARTICLE III
Preparation of Mortgage Documents and
Approval of Proposed Hotel Facilities
Section 3.1. Recordation and Filing of Mortgage Documents, Etc.
(a) The Lender shall hold and not record or file any of the
Collateral Documents executed by the Borrower and delivered to
the Lender (i) pursuant to Section 14 of Amendment No. 2 to the
Credit Agreement dated as of October 10, 1997 and Section 23 of
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Amendment No. 3 to the Credit Agreement dated as of November 14, 1997
or (ii) on or after November 19, 1997 pursuant to Section 3.2(b) unless
and until a Perfection Event shall have occurred, provided that the
Lender may record modifications to the mortgages and deed of trust of
record as of the date hereof. On or after the occurrence of a
Perfection Event, the Lender may in its absolute discretion cause one
or more of such Collateral Documents to be recorded or filed in the
appropriate recording or filing office (to the extent recordable or
fileable). In addition, the Borrower shall promptly deliver to the
Lender upon a Perfection Event, the following with respect to each of
the Hotel Facilities:
(i) a commitment for a title insurance policy (the "Title
Insurance Policy") issued by a title company acceptable to the
Lender, in such form and amounts as are reasonably acceptable
to the Lender, insuring that the Mortgage covering such
property is a valid first priority Lien on such property
subject only to such exceptions to title as shall be
acceptable to the Lender in its reasonable discretion and
containing such endorsements and affirmative insurance as the
Lender may reasonably require and as are obtainable in the
applicable jurisdiction, and true copies of each document,
instrument or certificate required by the terms of each such
policy or Mortgage to be, or have been, filed, recorded,
executed or delivered in connection therewith;
(ii) a current ALTA survey and surveyor's certification as to
such Hotel Facility in form and substance reasonably
satisfactory to the Lender; and
(iii) copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, listing all effective
financing statements which name the Borrower or any Subsidiary
of the Borrower (under its present name or any previous name)
as debtor and which are filed in the jurisdictions referred to
above, together with copies of such other financing statements
(none of which shall cover the Collateral purported to be
covered by the Security Agreement).
(b) The Borrower shall pay to the Lender, or as the Lender may
direct, (i) all title insurance premiums, documentary, stamp
or intangible taxes, recording fees and mortgage taxes payable
in connection with the recording of any of
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the Loan Documents or the issuance of the Title Insurance
Policies, and (ii) the reasonable fees and out of pocket
expenses of counsel to the Lender and local counsel connection
with the preparation, execution, review and delivery of the
Mortgage Documents.
(c) The Borrower, on behalf of itself and each of its
Subsidiaries, hereby appoints the Lender its attorney-in-fact
to execute, acknowledge and deliver for and in the name of the
Borrower or any of its Subsidiaries, as applicable, any and
all of the Mortgage Documents for the Collateral Properties
and/or the Proposed Hotel Facilities which the Borrower or any
of its Subsidiaries fails to execute, acknowledge and/or
deliver in accordance with the terms hereof, and this power,
being coupled with an interest, shall be irrevocable as long
as any part of the Obligations remains unpaid.
Section 3.2. Approval of Proposed Hotel Facilities.
(a) In the event that the Borrower desires to provide to the
Lender as collateral to secure the Borrower's Obligations a
Proposed Hotel Facility, the Borrower shall request in writing
the Lender's consent, which request shall be accompanied by a
Proposed Hotel Facility Statement (together with all documents
referred to therein) in respect of the Proposed Hotel Facility
and such other information as the Lender may reasonably
require. The Lender's consent shall not be unreasonably
withheld.
(b) Upon the approval of any Proposed Hotel Facility, the
Lender shall prepare Mortgage Documents for such Proposed
Hotel Facility and the parties shall cooperate in the
preparation and delivery of such Mortgage Documents
(including, without limitation, ordering commitments for the
title insurance policies, ALTA surveys and UCC- searches,
obtaining estoppel certificates and retaining counsel,
including local counsel for purposes of reviewing the Mortgage
Documents and rendering opinions with respect to such
documents in form and substance acceptable to the Lender as
set forth in Section 4.1(b)). The parties acknowledge and
agree that Liens on certain of the Real Estate and Leases may
have been or hereafter be granted as collateral security for
the Supplemental
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Facilities pursuant to the terms thereof and that to the
extent mortgage documents are executed and delivered in
respect of any such Real Estate or Lease as security for
either Supplemental Facility, such Real Estate or Lease shall
be deemed to not be collateral for the Loans made pursuant to
this Agreement. In addition, the parties acknowledge that
Liens on certain Real Estate and Leases have been granted in
connection with the issuance of $125,000,000 aggregate
principal amount of Hospitality Properties Mortgage Acceptance
Corp. Commercial Mortgage Pass-Through Certificates Series
1996-C1 and are therefore not available as collateral to
secure the repayment of the Loans hereunder or the loans made
under the Supplemental Facilities.
SECTION 9. Amendment to Section 8.2 of the Credit Agreement. (a) The
Borrower and the Lender hereby agree that Section 8.2(a)(vi) of the Credit
Agreement is amended and restated in its entirety to read as follows:
(vi) Indebtedness of the Borrower or any of its Subsidiaries arising
under the Supplemental Facilities.
(b) The Borrower and the Lender hereby agree that the following Section
8.2(a)(vii) shall be added to Section 8.2 of the Credit Agreement:
(vii) The mortgage loan made November 25, 1996 in the aggregate
principal amount of $125,000,000 by Column Financial, Inc., as
originator, to HPTRI Corporation and HPTWN Corporation, as borrowers.
SECTION 10. Amendment to Section 10.2 of the Credit Agreement. The
Borrower and the Lender hereby agree that the address for the Lender and its
copy address appearing in Section 10.2 of the Credit Agreement is amended and
restated in its entirety to read as follows:
If to the Lender, at its address at:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Managing Director
(telecopy number: 212-892-4096)
(telephone number: 000-000-0000)
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with a copy to: Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Xxxx, Xx., Esq.
(telecopy number: 212-450-4800)
(telephone number: 000-000-0000)
SECTION 11. Amendment to Exhibits A and B of the Credit Agreement. (a)
Exhibit A of the Credit Agreement shall be renamed "Exhibit A-1" and all
references to Exhibit A throughout the Credit Agreement shall be deemed to refer
to Exhibit A-1. In addition, all references in Exhibit A-1 to "Loans" shall be
deemed to refer to "Revolving Credit Loans".
(b) Attached as Exhibit A hereto is the form of the Term Note, which
shall be added to the Credit Agreement as Exhibit A-2.
(c) The form of the Notice of Borrowing (Exhibit B to the Credit
Agreement) is hereby amended and restated to read in full as set forth in the
attached Exhibit B.
SECTION 12. Ratification of Credit Agreement. Except as specifically
amended herein, all of the terms, covenants, conditions and stipulations
contained in the Credit Agreement and all of the other Loan Documents are hereby
ratified and confirmed in all respects and shall continue to apply with full
force and effect.
SECTION 13. Amendments, Waivers, Etc. Neither this Amendment nor any
other Loan Document nor any provision hereof or thereof may be modified,
amended, changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
SECTION 14. Counterparts. This Amendment may be executed in one or more
counterparts each of which shall be an original but all of which when taken
together shall constitute one and the same instrument. The failure of any party
listed below to execute, acknowledge or join in this Amendment, or any
counterpart hereof, shall not relieve the other signatories from the obligations
hereunder.
SECTION 15. Governing Law. This Amendment is and shall be deemed to be
a contract entered into pursuant to the laws of the State of New York and shall
in all respects be governed, construed, applied and enforced in accordance with
the laws of the State of New York.
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SECTION 16. Submission to Jurisdiction. The Borrower agrees to submit
to personal jurisdiction in the State of New York in any action or proceeding
arising out of this Amendment. In furtherance of such agreement, the Borrower
hereby agrees and consents that without limiting other methods of obtaining
jurisdiction, personal jurisdiction over the Borrower in any such action or
proceeding may be obtained within or without the jurisdiction of any court
located in New York and that any process or notice of motion or other
application to any such court in connection with any such action or proceeding
may be served upon the Borrower by registered or certified mail to, or by
personal service at, the last known address of the Borrower, whether such
address be within or without the jurisdiction of any such court. The Borrower
hereby agrees that the venue of any litigation arising in connection with the
indebtedness, or in respect of any of the obligations of the Borrower under this
Amendment, shall, to the extent permitted by law, be in New York County.
SECTION 17. Successors and Assigns. This Amendment is binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
SECTION 18. No Partnership. Nothing in this Amendment or any other Loan
Document is intended to or shall be deemed to create any rights or obligations
of partnership, joint venture, or similar association among the parties hereto.
SECTION 19. Separability. If any term, covenant, provision or condition
of this Amendment or any of the other Loan Documents shall be held to be
invalid, illegal or unenforceable in any respect, this Amendment shall be
construed without such term, covenant, provision or condition.
SECTION 20. Waiver of Jury Trial. The parties hereto hereby irrevocably
and unconditionally waive any and all rights to trial by jury in any action,
suit or counterclaim arising in connection with, out of or otherwise related to
this Amendment and every other Loan Document heretofore, now or hereafter
executed and/or delivered in connection therewith, the Loans and all other
obligations of the Borrower related thereto or in any way related to this
transaction or otherwise with respect to the Mortgaged Properties.
SECTION 21. Non-recourse. THE DECLARATION OF TRUST OF THE BORROWER,
DATED MAY 12, 1995, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO ("THE
DECLARATION"), IS DULY FILED IN THE OFFICE OF THE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HOSPITALITY
PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS
TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE,
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OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE BORROWER SHALL BE HELD TO ANY
PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM
AGAINST, THE BORROWER. ALL PERSONS DEALING WITH THE BORROWER, IN ANY WAY, SHALL
LOOK ONLY TO THE ASSETS OF THE BORROWER FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION.
SECTION 22. Conditions to Effectiveness. (a) It shall be a condition to
the effectiveness of this Amendment, and the Lender has entered into this
Amendment in reliance thereon, that the "Conditions Subsequent" set forth in
Section 14 of Amendment No. 2 dated as of October 10, 1997 shall have been
satisfied. The parties expect that the satisfaction of the conditions of said
Section 14 shall result in the satisfaction of the Loan to Value Requirement,
provided that nothing herein shall be construed as relieving the Borrower of its
obligation to comply with Section 6.5 of the Credit Agreement.
(b) On or prior to the Term Loan Effective Date, the Lender shall have
received the following, each dated the Term Loan Effective Date unless otherwise
indicated, in form and substance reasonably satisfactory to the Lender:
(i) The Term Note to the order of the Lender.
(ii) A certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying (A) the resolutions of its Board of
Trustees or Directors, as appropriate, approving each Loan Document to
which it is a party, (B) all documents evidencing other necessary trust
or corporate action, as appropriate, and required governmental and
third party approvals, licenses and consents with respect to each Loan
Document to which it is a party and the transactions contemplated
thereby, (C) a copy of its and each of its Subsidiaries' declaration of
trust, certificates of incorporation and By-Laws, as appropriate, as of
the Closing Date, and (D) the names and true signatures of each of its
officers who has been authorized to execute and deliver any Loan
Document or other document required hereunder to be executed and
delivered by or on behalf of such Person.
(iii) A copy of the declaration of trust or articles or
certificate of incorporation, as appropriate, of each Loan Party and of
each of its Subsidiaries (if any) which is not a Loan Party certified
as of a recent date by the Secretary of State of the state of formation
of such Loan Party or Subsidiary, together with certificates of such
official attesting to the good standing of each such Loan Party and
Subsidiary.
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(iv) A favorable opinion of Xxxxxxxx & Worcester, counsel to
the Loan Parties, in substantially the form of Exhibit D to the Credit
Agreement, and as to such other matters as the Lender may reasonably
request, provided that with respect to documents governed by, or other
matters concerning the application of, New York law, Xxxxxxxx &
Worcester shall deliver an addendum to such opinion within twenty (20)
days of the Closing Date.
(v) An Assignment Agreement in respect of the Management
Agreement for each Courtyard Hotel, duly executed by the Borrower or
its Subsidiary, as applicable, and the Manager.
(vi) Security Agreement in respect of the FF&E Reserves for
each Courtyard Hotel, duly executed by the Borrower or its Subsidiary,
as applicable, the Operating Lessee and the Manager.
(vii) A copy of the Operating Lease and Management Agreement
in respect of each Courtyard Hotel, each certified by a Responsible
Officer.
(viii) Evidence that the insurance required by the terms of
the Collateral Documents and by Section 7.4 of the Credit Agreement is
in full force and effect.
(ix) A certificate, signed by a Responsible Officer of the
Borrower, addressing any significant environmental, health and safety
violations, hazards or liabilities to which the Borrower or any of its
Subsidiaries may be subject and with respect to which the Lender has
not previously been informed.
(x) A certificate, signed by a Responsible Officer of the
Borrower, stating that the statements set forth in Section 4.2 (a) and
(b) of the Credit Agreement are true and correct on the Closing Date,
after giving effect to the Loans being made on the Closing Date.
(xi) A guaranty agreement, in form and substance reasonably
satisfactory to the Lender, duly executed by each Subsidiary of the
Borrower owning a Courtyard Hotel.
(xii) A stock pledge agreement, in form and substance
reasonably satisfactory to the Lender, duly executed by each Subsidiary
of the Borrower owning a Courtyard Hotel.
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(xiii) For each Hotel Facility with respect to which a Title
Insurance Policy was previously delivered to the Lender pursuant to
Section 4.2(d)(i) of the Credit Agreement, (A) an endorsement to such
policy, insuring that such policy continues to insure the Mortgage of
such Hotel Facility as a valid first priority Lien, and (B) a
modification of the mortgage or deed of trust confirming that the lien
extends to the Term Loans.
(xiv) Such additional documents, information and materials as
the Lender may reasonably request.
(c) The Lender shall have received evidence satisfactory to it that
all costs and accrued and unpaid fees and expenses (including, without
limitation, legal fees and expenses) required to be paid to the Lender to the
extent due and payable, have been paid.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
HOSPITALITY PROPERTIES TRUST
By: /s/ Xxxxxx X'Xxxxx
Title: Treasurer and
Chief Financial Officer
DLJ MORTGAGE CAPITAL, INC.
By: /s/ Xxxxx XxXxxxx
Title: Senior Vice President
Approved and Agreed:
Subsidiary Guarantor:
HPTCY CORPORATION
By: /s/ Xxxx Xxxxxxx
Title:
