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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: May 11, 2000
ShoLodge, Inc.
(Exact name of registrant as specified in its charter)
Tennessee
(State or other jurisdiction of
incorporation or organization)
0-19840 62-1015641
(Commission File Number) (I.R.S. Employer Identification
Number)
130 Maple Drive North
Hendersonville, TN
(Address of principal executive offices)
37075
(Zip Code)
615-264-8000
(Registrant's telephone number)
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ITEM 2 - ACQUISITION OR DISPOSITION OF ASSETS
On May 11, 2000, the Company completed a sale/leaseback transaction under which
it sold the real property relating to four Sumner Suites hotels for a total
sales price of $38.4 million and simultaneously executed an amendment to its
existing long-term lease under which it will continue to operate the hotels. The
lease amendment calls for an additional annual rent payment of $4.3 million.
Beginning July 1, 2001, additional rent will be payable computed as 8% of each
hotel's revenue in excess of the base year which is July 1, 2000 through June
30, 2001. The lease is for an initial term of 12 years beginning July 1, 1999,
with ten, five-year renewal options. The lessor retains a security deposit of
$4.3 million to be held until the end of the lease term.
The $38.4 million gross proceeds of the transaction have been applied to (1)
reduce debt by $7.5 million by paying down the Company's revolving bank credit
facility and furniture, fixture and equipment loans on one of the properties
sold, (2) pay fees and expenses of this transaction in an amount of $339,000,
(3) pay rent for the four days ending May 14, 2000, in the amount of $47,000 ,
(4) fund the required security deposit of $4.3 million, and (5) invest in
temporary short-term securities in the amount of $26.2 million until needed for
general corporate purposes.
The effect of this transaction on a pro forma basis, had it occurred as of the
beginning of the year ended December 26, 1999, would be to increase rent
expenses by approximately $3.9 million, decrease depreciation and amortization
expense by approximately $1.3 million, and decrease net interest expense by
approximately $3.3 million.
On a pro forma basis as of December 26, 1999, the Company's cash would increase
by $26.2 million, cash deposits on sale/leasebacks would increase by $4.3
million, net property and equipment would decrease by $34.1 million, net other
assets would decrease by $166,000, deferred gain on sale/leasebacks would
increase by approximately $3.9 million, and long-term debt would decrease by
$7.5 million.
ITEM 7-FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
(b) Proforma condensed financial statements
See narrative description in Item 2 above.
(c) Exhibits:
10.1 Purchase and Sale Agreement by and between ShoLodge, Inc.
and certain of its Affiliates, as Sellers, and HPT Suite
Properties Trust, as Purchaser, dated May 11, 2000.
10.2 Agreement to Lease between HPT Suite Properties Trust and
Suite Tenant, Inc. dated May 11, 2000.
10.3 Fourth Amendment to Lease Agreement and Amendment to
Incidental Documents entered into between Hospitality
Properties Trust, HPT Suite Properties Trust, ShoLodge, Inc.,
and Suite Tenant, Inc., dated May 11, 2000.
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Signatures
Pursuant to the requirements of the Securities and Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
SHOLODGE, INC.
Date: May 25, 2000 By: /s/ Bob Marlowe
Bob Marlowe
Secretary-Treasurer
Chief Accounting Officer
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EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
by and among
SHOLODGE, INC. AND CERTAIN OF ITS AFFILIATES
as Sellers,
and
HPT SUITE PROPERTIES TRUST,
as Purchaser
---------------------------
May 11, 2000
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made as of May 11, 2000, by and
among SHOLODGE, INC.,("ShoLodge"), MIDWEST INNS, INC. ("Midwest"), SUNSHINE
INNS, INC. ("Sunshine"), CAROLINA INNS, INC. ("Carolina"), each a Tennessee
corporation and HPT SUITE PROPERTIES TRUST, a Maryland real estate investment
trust ("Purchaser").
WITNESSETH:
WHEREAS, the Sellers are the owners of all the Properties (all
capitalized terms used and not otherwise defined herein having the meanings
ascribed to such terms in Section 1); and
WHEREAS, the Purchaser desires to purchase the Properties, as more
fully set forth below; and
WHEREAS, the Sellers are willing to sell all of the Properties, subject
to and upon the terms and conditions hereinafter set forth; and
WHEREAS, ShoLodge owns, directly or indirectly, all of the outstanding
capital stock of the Sellers and the transactions contemplated by this Agreement
are of direct and material benefit to ShoLodge;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the mutual receipt and
legal sufficiency of which are hereby acknowledged, the ShoLodge Parties and the
Purchaser hereby agree as follows:
SECTION 1
DEFINITIONS
Capitalized terms used in this Agreement shall have the meanings set
forth below or in the Section of this Agreement referred to below:
1.1 "AGREEMENT" shall mean this Purchase and Sale Agreement, together
with Schedules A through C attached hereto, as it and they may be amended from
time to time as herein provided.
1.2 "AGREEMENT TO LEASE" shall mean that certain Agreement to Lease,
dated as of the date hereof, by and between the Purchaser and the Tenant, as it
may be amended, restated, supplemented or otherwise modified from time to time.
1.3 "ALLOCABLE PURCHASE PRICE" shall mean, with respect to any
Property, the applicable amount set forth on Schedule A to this Agreement.
1.4 "AMENDMENT" shall mean the Amendment to be entered into pursuant to
the Agreement to Lease.
1.5 "ASSETS" shall mean, with respect to any Hotel, collectively, all
of the Real Property, the FF&E, the Contracts, the Documents, the Improvements,
the Intangible Property and the Tenant Leases owned by any of the Sellers in
connection with or relating to such Hotel.
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1.6 "BUSINESS DAY" shall mean any day other than a Saturday, Sunday or
any other day on which banking institutions in The Commonwealth of Massachusetts
or the State of New York are authorized by law or executive action to close.
1.7 "CAROLINA" shall have the meaning given such term in the first
paragraph of this Agreement.
1.8 "CLOSING" shall have the meaning given such term in Section 3.1.
1.9 "CLOSING DATE" shall have the meaning given such term in
Section 3.1.
1.10 "CONTRACTS" shall mean, with respect to any Property, all hotel
licensing agreements and other service contracts, equipment leases, booking
agreements and other arrangements or agreements to which any of the Sellers is a
party affecting the ownership, repair, maintenance, management, leasing or
operation of such Property, to the extent the Sellers' interest therein is
assignable or transferable.
1.11 "DEFECTIVE PROPERTY" shall have the meaning given such term in
Section 2.3(a).
1.12 "DOCUMENTS" shall mean, with respect to any Property, all books,
records and files relating to the leasing, maintenance, management or operation
of such Property.
1.13 "FF&E" shall mean, with respect to any Property, all appliances,
machinery, devices, fixtures, appurtenances, equipment, furniture, furnishings
and articles of tangible personal property of every kind and nature whatsoever
(other than motor vehicles) owned by any of the Sellers and located in or at, or
used in connection with the ownership, operation or maintenance of such
Property.
1.14 "HOTEL" shall mean each hotel located at the properties identified
on Schedule A, the legal descriptions of which are set forth on Schedules B-1
through B-4.
1.15 "IMPROVEMENTS" shall mean, with respect to any Property, all
buildings, fixtures, walls, fences, landscaping and other structures and
improvements situated on, affixed or appurtenant to the Real Property with
respect to such Property.
1.16 "INTANGIBLE PROPERTY" shall mean, with respect to any Property,
all transferable or assignable permits, certificates of occupancy, operating
permits, sign permits, development rights and approvals, certificates, licenses,
warranties and guarantees, the Contracts, telephone exchange numbers identified
with such Property held by any of the Sellers and all other transferable
intangible property, miscellaneous rights, benefits and privileges of any kind
or character with respect to such Property held by any of the Sellers, except
for liquor licenses or to the extent held by or transferred to the tenant under
the Lease.
1.17 "LEASE" shall mean the Lease Agreement, dated as of November 19,
1997 between the Tenant and Purchaser as amended by the First Amendment to Lease
Agreement, dated as of March 5, 1999, the Second Amendment to Lease Agreement
and First Amendment to Incidental Documents, dated as of June 29, 1999, the
Third Amendment to Lease Agreement dated as of March 3, 2000 and the Amendment.
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1.18 "MIDWEST" shall have the meaning given such term in the first
paragraph of this Agreement.
1.19 "PERMITTED ENCUMBRANCES" shall mean, with respect to any Property,
(a) liens for taxes, assessments and governmental charges with respect to such
Property not yet due and payable or due and payable but not yet delinquent; (b)
applicable zoning regulations and ordinances provided the same do not prohibit
or impair in any material respect use of such Property as an all suites hotel as
currently operated and constructed; (c) such other nonmonetary encumbrances as
do not, in the Purchaser's reasonable opinion, impair marketability and do not
materially interfere with the use of such Property as a fully functioning all
suites hotel as currently operated and constructed; (d) UCC Financing Statements
which would be permitted pursuant to the terms of Section 21.9 of the Lease; and
(e) such other nonmonetary encumbrances with respect to such Property which are
not objected to by the Purchaser in accordance with Sections 2.4 and 2.5.
1.20 "PROPERTIES" shall mean, collectively, all of the Assets relating
to the properties identified on Schedule A, the legal descriptions of which are
set forth in Schedules B-1-B-4.
1.21 "PURCHASE PRICE" shall have the meaning given such term in
Section 3.2.
1.22 "PURCHASER" shall have the meaning given such term in the first
paragraph of this Agreement.
1.23 "REAL PROPERTY" shall mean, with respect to any Property, the real
property described in the applicable Schedule B-1 through B-4, together with all
easements, rights of way, privileges, licenses and appurtenances which the
Sellers may own with respect thereto.
1.24 "RETAINED FUNDS" shall mean an amount equal to Four Million Two
Hundred Ninety-Five Thousand Two Hundred Dollars ($4,295,200).
1.25 "REVIEW PERIOD" shall mean the period commencing on the date of
this Agreement and expiring on the first to occur of the date thirty (30) days
after the date of this Agreement and the Closing Date.
1.26 "SELLERS" shall mean Midwest, Sunshine and Carolina, collectively,
jointly and severally.
1.27 "SHOLODGE" shall have the meaning given such term in the first
paragraph of this Agreement.
1.28 "SHOLODGE PARTIES" shall mean, collectively, ShoLodge and the
Sellers, jointly and severally.
1.29 "SUNSHINE" shall have the meaning given such term in the first
paragraph of this Agreement.
1.30 "SURVEYS" shall have the meaning given such term in Section 2.5.
1.31 "TENANT" shall mean Suite Tenant, Inc., a Tennessee corporation.
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1.32 "TENANT LEASES" shall mean, with respect to any Property, all
leases, rental agreements or other agreements (other than agreements for letting
of rooms or other facilities to hotel guests) (including all amendments or
modifications thereto) which entitle any person to have rights with respect to
the use or occupancy of any portion of such Property.
1.33 "TITLE COMMITMENTS" shall have the meaning given such term in
Section 2.4.
1.34 "TITLE COMPANY" shall mean American Title Company of Dallas,
Texas, or such other title insurance company as shall have been selected by the
Purchaser and approved by the Sellers, which approval shall not be unreasonably
withheld, delayed or conditioned.
SECTION 2
PURCHASE AND SALE; DILIGENCE
2.1 PURCHASE AND SALE. In consideration of the mutual covenants herein
contained, the Purchaser hereby agrees to purchase from the Sellers and ShoLodge
hereby agrees to cause the Sellers to sell and the Sellers hereby agree to sell
to the Purchaser, all of the Sellers' right, title and interest in and to the
Properties for the Purchase Price, subject to and in accordance with the terms
and conditions of this Agreement.
2.2 DILIGENCE INSPECTIONS. For the Review Period and, thereafter, until
Closing, the Sellers shall permit the Purchaser and its representatives to
inspect the Properties and the Improvements (including, without limitation, all
roofs, electric, mechanical and structural elements, and HVAC systems therein),
to perform due diligence, soil analysis and environmental investigations, to
examine the books of account and records of the Sellers with respect to the
Properties, including, without limitation, all leases and agreements affecting
the Properties, and make copies thereof, at such reasonable times as the
Purchaser or its representatives may request by notice to the Sellers (which
notice may be oral). To the extent that, in connection with such investigations,
the Purchaser, its agents, representatives or contractors, damages or disturbs
any of the Real Property, the Improvements or FF&E located thereon, the
Purchaser shall return the same to substantially the same condition which
existed immediately prior to such damage or disturbance. Neither the Purchaser
nor any of its agents, representatives or contractors shall have any right
whatsoever to alter the condition of any Property, or portion thereof, without
the prior written consent of the Sellers, which consent shall not be
unreasonably withheld, delayed or conditioned. In no event shall any such
inspection include any drilling into or under the surface of any Property, soil
sampling, water sampling or similar activities commonly known as a "Phase II
environmental study" without the prior written consent of the Sellers, which
consent shall not be unreasonably withheld, delayed or conditioned. In the event
that the transactions contemplated by this Agreement are not closed and
consummated for any reason, the Purchaser shall, upon the Sellers' request,
deliver to the Sellers all tests, reports and inspections of the Properties made
and conducted by the Purchaser or for its benefit or any other documents or
information the Purchaser has received pursuant to this Agreement. The Purchaser
shall indemnify, defend and hold harmless the Sellers from and against any and
all expense, loss or damage which the Sellers may incur as a result of any act
or omission of the Purchaser or its representatives, agents or contractors in
connection with such examinations and inspections, other than to the extent that
any expense, loss or damage arises from any negligence or misconduct of the
Sellers. The provisions of this Section 2.2 shall survive the termination of
this Agreement and the Closing.
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2.3 DEFECTIVE PROPERTIES. (a) In the event that (i) the Purchaser
reasonably determines that a Property has structural, environmental or other
structural defects or conditions such that (x) expenditures equal to or greater
than three percent (3%) of the Allocable Purchase Price of such Property are
required in order to bring such Property into a reasonably satisfactory
condition in accordance with prevailing standards, as the case may be, for like
hotels or (y) the calculation with respect to such Property of net operating
income varies by three percent (3%) or more of that set forth in the financial
data provided by the ShoLodge Parties to the Purchaser prior to the date hereof,
(any such Property being hereinafter referred to as a "Defective Property"), and
(ii) the Purchaser gives written notice thereof to the ShoLodge Parties no later
than the expiration of the Review Period (time being of the essence with respect
to the giving of such notice), identifying the Defective Property or Defective
Properties and the specific defects with respect thereto, the ShoLodge Parties
shall, subject to paragraph (c) below, be required to permit the Purchaser to
acquire all of the Properties other than such Defective Property or Defective
Properties.
(b) If, prior to the Closing, (i) any Property suffers a casualty
or condemnation which would cause such Property or Properties to become a
Defective Property, (ii) such Property is not, prior to the Closing, restored to
a condition substantially the same as the condition thereof immediately prior to
such casualty or condemnation, and (iii) the Purchaser provides written notice
of same to the ShoLodge Parties no later than the Closing Date, time being of
the essence, the ShoLodge Parties shall be required to permit the Purchaser to
acquire all of the Properties other than such Defective Property or Properties.
Promptly upon learning of the same, the ShoLodge Parties covenant and agree to
provide the Purchaser with prompt written notice of any casualty or condemnation
affecting any Property.
(c) If the Purchaser timely identifies any Defective Property and
the Purchaser and the ShoLodge Parties shall, acting reasonably and in good
faith be unable or unwilling to agree that (x) the ShoLodge Parties shall, at
their sole cost, remedy the applicable defect prior to the Closing (in which
event the ShoLodge Parties shall have the right to adjourn the Closing Date for
up to ninety (90) days for such purpose), (y) the Purchaser shall,
notwithstanding such defect, acquire the Defective Property subject to a
reduction in the Allocable Purchase Price of the Defective Property sufficient
to compensate the Purchaser for such defect or (z) on the substitution of
another property owned by the ShoLodge Parties for such Defective Property, this
Agreement shall, at the Purchaser's option, terminate with respect to such
Defective Property and the Purchase Price shall be reduced by the Allocable
Purchase Price of such Defective Property.
2.4 TITLE MATTERS. Prior to execution of this Agreement, the Purchaser
has ordered from the Title Company and directed the Title Company promptly to
deliver to the Purchaser a preliminary title commitment, for an ALTA extended
owner's policy of title insurance with respect to each of the Properties,
together with complete and legible copies of all instruments and documents
referred to as exceptions to title (collectively, the "Title Commitments").
Within ten (10) Business Days after receipt of the Title Commitments,
the Purchaser shall give the ShoLodge Parties notice of any title exceptions
(other than Permitted Encumbrances) which adversely affect any Property in any
material respect and as to which the Purchaser reasonably objects. If, for any
reason, the ShoLodge Parties are unable or unwilling to take such actions as may
be required to cause such exceptions to be removed from the Title Commitments,
the ShoLodge Parties shall give the Purchaser notice thereof; it being
understood and agreed that the failure of the ShoLodge Parties to give such
notice within ten (10) Business Days after the Purchaser's notice of objection
shall be deemed an election by the ShoLodge Parties to remedy such
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matters. If the ShoLodge Parties shall be unable or unwilling to remove any
title defects to which the Purchaser has reasonably objected, the Purchaser may
elect (i) to terminate this Agreement with respect to the affected Property, in
which event, the Purchase Price shall be reduced by the Allocable Purchase Price
of the affected Properties and this Agreement shall be of no further force and
effect with respect to the affected Properties or (ii) to consummate the
transactions contemplated hereby, notwithstanding such title defect, without any
abatement or reduction in the Purchase Price on account thereof. The Purchaser
shall make any such election by written notice to the ShoLodge Parties given on
or prior to the fifth Business Day after the ShoLodge Parties' notice of their
unwillingness or inability to cure such defect. Failure of the Purchaser to give
such notice shall be deemed an election by the Purchaser to proceed in
accordance with clause (ii) above and such exception shall be deemed a Permitted
Encumbrance.
2.5 SURVEY MATTERS. Prior to execution of this Agreement, the ShoLodge
Parties have arranged for the preparation of an ALTA survey with respect to each
of the Properties (the "Surveys") by a licensed surveyor in the jurisdiction in
which each such Property is located, which (i) contains an accurate legal
description of the applicable Property, (ii) shows the exact location, dimension
and description (including applicable recording information) of all utilities,
easements, encroachments and other physical matters affecting such Property, the
number of striped parking spaces located thereon and all applicable building
set-back lines, (iii) states whether the applicable Property is located within a
100-year flood plain and (iv) includes a certification in the form set forth in
Schedule C, or such other form as may be acceptable to the Purchaser, addressed
to the Purchaser, the Title Company and any other persons requested by the
Purchaser or designated by the ShoLodge Parties.
Within ten (10) Business Days after receipt of the Surveys, the
Purchaser shall give the ShoLodge Parties notice of any matters shown thereon
(other than Permitted Encumbrances) which adversely affect any such Property in
any material respect and as to which the Purchaser reasonably objects. If, for
any reason, the ShoLodge Parties are unwilling or unable to take such actions as
may be required to remedy the objectionable matters, the ShoLodge Parties shall
give the Purchaser prompt notice thereof; it being understood and agreed that
the failure of the ShoLodge Parties to give such notice within ten (10) Business
Days after the Purchaser's notice of objection shall be deemed an election by
the ShoLodge Parties to remedy such matters. If the ShoLodge Parties shall be
unwilling or unable to remove any survey defect to which the Purchaser has
reasonably objected, the Purchaser may elect (i) to terminate this Agreement
with respect to the affected Property, in which event, the Purchase Price shall
be reduced by the Allocable Purchase Price of the affected Properties and this
Agreement shall terminate and be of no further force or effect with respect to
the affected Properties or (ii) to consummate the transactions contemplated
hereby, notwithstanding such defect, without any abatement or reduction in the
Purchase Price on account thereof. The Purchaser shall make any such election by
written notice to the ShoLodge Parties given on or prior to the fifth Business
Day after the ShoLodge Parties' notice of their inability to cure such defect
and time shall be of the essence with respect to the giving of such notice.
Failure of the Purchaser to give such notice shall be deemed an election by the
Purchaser to proceed in accordance with clause (ii) above and such matter shall
be deemed a Permitted Encumbrance.
SECTION 3
PURCHASE AND SALE
3.1 CLOSING. The purchase and sale of the Properties shall be
consummated at a closing (the "Closing") to be held at the offices of Sullivan &
Worcester LLP, One Post Office Square,
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Boston, Massachusetts, or at such other location as the ShoLodge Parties and the
Purchaser may agree, at 10:00 a.m. local time, on a date (the "Closing Date")
which is the later to occur of (i) May 11, 2000 and (ii) the date as of which
all conditions precedent to the Closing herein set forth have either been
satisfied or waived by the party in whose favor such conditions run, but in all
events not later than June 30, 2001. In the event that the Closing shall not
have occurred on or before June 30, 2000, either party shall have the right,
provided such party is not in default under this Agreement, by the giving of
written notice thereof to the other, to terminate this Agreement.
3.2 PURCHASE PRICE. (a) At the Closing, the Purchaser shall pay to the
ShoLodge Parties, for the Properties, a purchase price (the "Purchase Price") in
the amount of Thirty-Eight Million Three Hundred Fifty Thousand Dollars
($38,350,000), less the amount of the Retained Funds, which amount shall be held
and paid in accordance with the applicable provisions of the Lease, except that
there shall be added to or deducted from the Purchase Price such amounts as may
be required pursuant to Section 9.
(b) The Purchase Price shall be payable at the Closing by wire
transfer of immediately available funds on the Closing Date to an account or
accounts to be designated by the ShoLodge Parties prior to the Closing.
SECTION 4
CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE
The obligation of the Purchaser to acquire the Properties on the
Closing Date shall be subject to the satisfaction of the following conditions
precedent on and as of the Closing Date:
4.1 CLOSING DOCUMENTS. The ShoLodge Parties or the Tenant (as
applicable) shall have delivered to the Purchaser:
(a) A good and sufficient warranty deed with covenants against
grantor's acts, or its local equivalent, in proper statutory form for recording,
duly executed and acknowledged by the Sellers, conveying good and marketable
title to the applicable Property, free from all liens and encumbrances other
than the Permitted Encumbrances;
(b) A bill of sale and assignment agreement, in form and substance
reasonably satisfactory to the Sellers and the Purchaser, duly executed and
acknowledged by the Sellers, with respect to all of the Sellers' right, title
and interest in, to and under the FF&E, the Contracts, the Documents, the
Intangible Property and the Tenant Leases with respect to the Properties;
(c) A duly executed copy of the Amendment and all other documents
and sums required to be delivered by the ShoLodge Parties and/or the Tenant
pursuant to the Agreement to Lease;
(d) Certified copies of all charter documents, applicable corporate
resolutions and certificates of incumbency with respect to the ShoLodge Parties
and the Tenant; and
(e) Such other conveyance documents, certificates, deeds,
affidavits and other instruments as the Purchaser or the Title Company may
reasonably require to effectuate the transactions contemplated by this
Agreement.
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4.2 CONDITION OF PROPERTIES. (a) All the Improvements located on the
Real Property shall, except as otherwise provided in Section 2.3, be in
substantially the same physical condition as on the date of this Agreement,
ordinary wear and tear excepted;
(b) No material default or event which with the giving of notice
and/or lapse of time could constitute a material default shall have occurred and
be continuing under any material agreement benefiting or affecting the
Properties in any respect;
(c) No action shall be pending or threatened for the condemnation
or taking by power of eminent domain of all or any material portion of the
Properties which would render any Property a Defective Property; and
(d) All material licenses, permits and other authorizations
necessary for the current use, occupancy and operation of the Properties shall
be in full force and effect.
4.3 TITLE POLICIES. The Title Company shall be prepared, subject only
to payment of the customary applicable premium and endorsement fees and delivery
of all conveyance documents in recordable form, to issue title insurance
policies to the Purchaser, in form and substance reasonably satisfactory to the
Purchaser in accordance with Section 2.4, together with such affirmative
coverages as the Purchaser may reasonably require and shall have been determined
by the Title Company as available prior to the expiration of the Review Period.
4.4 OPINIONS OF COUNSEL. (a) The Purchaser shall have received one or
more written opinions from counsel to the ShoLodge Parties and the Tenant, which
counsel shall be reasonably acceptable to the Purchaser, in form and substance
reasonably satisfactory to the Purchaser, regarding the organization and
authority of the ShoLodge Parties, the Tenant and the other parties to the
Incidental Documents (as defined in the Lease), the enforceability of this
Agreement, the Lease and the Incidental Documents, as amended by the Amendment,
and such other matters with respect to the transactions contemplated by this
Agreement as the Purchaser may reasonably require.
(b) The Purchaser shall have received a zoning diligence memorandum
from local counsel to the Purchaser, in form and substance reasonably
satisfactory to the Purchaser, regarding the compliance of the Properties with
respect to zoning, licensing and such other matters as the Purchaser may
reasonably require.
4.5 MARKET STUDIES. As of the Closing Date, the Purchaser shall have
received and approved original market study reports, dated within sixty (60)
days prior to the Closing Date, addressed to the Purchaser, prepared by a
qualified real estate appraiser reasonably satisfactory to the Purchaser, such
market studies to be otherwise in form and substance reasonably acceptable to
the Purchaser.
4.6 FF&E RESERVE. The bank at which the FF&E Reserve is maintained
shall have executed and delivered a Deposit Account Control Agreement in form
and substance satisfactory to the Purchaser.
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SECTION 5
CONDITIONS TO SHOLODGE PARTIES' OBLIGATION TO CLOSE
The obligation of the ShoLodge Parties to convey the Properties on the
Closing Date to the Purchaser is subject to the satisfaction of the following
conditions precedent on and as of the Closing Date:
5.1 PURCHASE PRICE. The Purchaser shall deliver to the ShoLodge Parties
the Purchase Price payable hereunder, adjusted as herein provided, less the
amount of the Retained Funds.
5.2 CLOSING DOCUMENTS. The Purchaser shall have delivered to the
Sellers:
(a) Duly executed and acknowledged counterparts of the documents
described in Section 4.1, where applicable; and
(b) Certified copies of all charter documents, applicable
resolutions and certificates of incumbency with respect to the Purchaser.
5.3 OPINION OF COUNSEL. The ShoLodge Parties shall have received a
written opinion from Sullivan & Worcester LLP, counsel to the Purchaser, in form
and substance reasonably satisfactory to the ShoLodge Parties, regarding the
organization and authority of the Purchaser and such other matters with respect
to the transactions contemplated by this Agreement as the ShoLodge Parties may
reasonably require.
SECTION 6
REPRESENTATIONS AND WARRANTIES OF SHOLODGE PARTIES
To induce the Purchaser to enter into this Agreement, the ShoLodge
Parties represent and warrant to the Purchaser as follows:
6.1 STATUS AND AUTHORITY OF THE SHOLODGE PARTIES. Each of the ShoLodge
Parties is a corporation duly organized, validly existing and in corporate good
standing under the laws of its state of incorporation, and has all requisite
power and authority under the laws of such state and its respective charter
documents to enter into and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. Each of the ShoLodge Parties
has duly qualified to transact business in each jurisdiction in which the nature
of the business conducted by it requires such qualification, except where
failure to do so could not reasonably be expected to have a material adverse
effect.
6.2 ACTION OF THE SHOLODGE PARTIES. Each of the ShoLodge Parties has
taken all necessary action to authorize the execution, delivery and performance
of this Agreement, and upon the execution and delivery of any document to be
delivered by any of the ShoLodge Parties on or prior to the Closing Date, such
document shall constitute the valid and binding obligation and agreement of such
ShoLodge Party, enforceable against such ShoLodge Party in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application affecting the
rights and remedies of creditors.
6.3 NO VIOLATIONS OF AGREEMENTS. Neither the execution, delivery or
performance of this Agreement by any of the ShoLodge Parties, nor compliance
with the terms and provisions hereof, will result in any breach of the terms,
conditions or provisions of, or conflict with or
<PAGE> 11
constitute a default under, or result in the creation of any lien, charge or
encumbrance upon any Property pursuant to the terms of any indenture, mortgage,
deed of trust, note, evidence of indebtedness or any other agreement or
instrument by which any of the ShoLodge Parties is bound.
6.4 LITIGATION. None of the ShoLodge Parties has received written
notice of and, to each of the ShoLodge Party's knowledge, no action or
proceeding is pending or threatened and no investigation looking toward such an
action or proceeding has begun, which (a) questions the validity of this
Agreement or any action taken or to be taken pursuant hereto, (b) will result in
any material adverse change in the business, operation, affairs or condition of
any of the Properties, (c) will result in or subject the Properties to a
material liability, or (d) involves condemnation or eminent domain proceedings
against any material part of the Properties.
6.5 EXISTING LEASES, AGREEMENTS, ETC. Other than any agreements
provided to the Purchaser not less than ten (10) days prior to the expiration of
the Review Period, there are no other material agreements affecting the
Properties which will be binding on the Purchaser subsequent to the Closing Date
which the Purchaser cannot terminate on thirty (30) days notice without payment
of premium or penalty.
6.6 DISCLOSURE. To each of the ShoLodge Party's knowledge, there is no
fact or condition which materially and adversely affects the business or
condition of the Properties which has not been set forth in this Agreement or in
the other documents, certificates or statements furnished to the Purchaser in
connection with the transactions contemplated hereby.
6.7 UTILITIES, ETC. To each of the ShoLodge Party's knowledge, all
utilities and services necessary for the use and operation of the Properties
(including, without limitation, road access, gas, water, electricity and
telephone) are available thereto and are of sufficient capacity to meet
adequately all needs and requirements necessary for the current use and
operation of the Properties. To each of the ShoLodge Party's knowledge, no fact,
condition or proceeding exists which would result in the termination or material
impairment of the furnishing of such utilities to the Properties.
6.8 COMPLIANCE WITH LAW. To each of the ShoLodge Party's knowledge,
except as disclosed to the Purchaser in writing not less than ten (10) days'
prior to the expiration of the Review Period, including in any engineering
report, (i) the Properties and the current use and operation thereof do not
violate any material federal, state, municipal and other governmental statutes,
ordinances, by-laws, rules, regulations or any other legal requirements,
including, without limitation, those relating to construction, occupancy,
zoning, adequacy of parking, environmental protection, occupational health and
safety and fire safety applicable thereto; and (ii) there are presently in
effect all material licenses, permits and other authorizations necessary for the
current use, occupancy and operation thereof. Except as disclosed to the
Purchaser in writing not less than ten (10) days' prior to the expiration of the
Review Period, none of the ShoLodge Parties has received written notice of any
threatened request, application, proceeding, plan, study or effort which would
materially adversely affect the present use or zoning of any of the Properties
or which would modify or realign any adjacent street or highway in a material
and adverse way.
6.9 TAXES. To each of the ShoLodge Party's knowledge, other than the
amounts disclosed by tax bills, no taxes or special assessments of any kind
(special, bond or otherwise) are or have been levied with respect to any of the
Properties, or any portion thereof, which are outstanding or unpaid, other than
amounts not yet due and payable or, if due and payable, not yet delinquent.
<PAGE> 12
6.10 NOT A FOREIGN PERSON. None of the ShoLodge Parties is a "foreign
person" within the meaning of Section 1445 of the United States Internal Revenue
Code of 1986, as amended, and the treasury regulations promulgated thereunder.
6.11 HAZARDOUS SUBSTANCES. Except as disclosed to the Purchaser or as
described in any environmental report delivered to the Purchaser prior to the
expiration of the Review Period, to each of the ShoLodge Party's knowledge, none
of the ShoLodge Parties nor any tenant or other occupant or user of any of the
Properties, or any portion thereof, has stored or disposed of (or engaged in the
business of storing or disposing of) or has released or caused the release of
any hazardous waste, contaminants, oil, radioactive or other material on any of
the Properties, or any portion thereof, the removal of which is required or the
maintenance of which is prohibited or penalized by any applicable Federal, state
or local statutes, laws, ordinances, rules or regulations, and, to each of the
ShoLodge Party's knowledge, except as disclosed to the Purchaser or as described
in any environmental report delivered to the Purchaser prior to the expiration
of the Review Period, the Properties are free from any such hazardous waste,
contaminants, oil, radioactive and other materials, except any such materials
maintained in accordance with applicable law.
6.12 INSURANCE. None of the ShoLodge Parties has received written
notice from any insurance carrier of defects or inadequacies in the Properties
which, if uncorrected, would result in a termination of insurance coverage or a
material increase in the premiums charged therefor.
6.13 OWNERSHIP OF SELLERS. ShoLodge is the sole owner, directly or
indirectly, of all of the issued and outstanding beneficial interests in the
Sellers and the Tenant and the transactions contemplated by this Agreement are
of direct material benefit to ShoLodge.
6.14 ADJACENT LAND. No ShoLodge Party or any of its affiliates owns any
property adjacent to the Properties which is not being conveyed to the Purchaser
pursuant to this Agreement or is not subject to a binding agreement for sale to
an unaffiliated third party except as disclosed in writing by the Sellers to the
Purchaser.
The representations and warranties made in this Agreement by the
ShoLodge Parties shall be continuing and shall be deemed remade by the ShoLodge
Parties as of the Closing Date with the same force and effect as if made on, and
as of, such date; provided, however, that, the ShoLodge Parties shall have the
right, from time to time prior to the Closing Date, to modify the
representations and warranties as a result of changes in condition of the
Properties by notice to the Purchaser and, in such event, the Purchaser shall
have the rights provided in Section 2.3. The ShoLodge Parties' liability with
respect to all representations and warranties made in this Agreement by the
ShoLodge Parties with respect to the Properties shall survive the Closing for a
period of one (1) year, after which the ShoLodge Parties shall have no liability
with respect thereto other than as to any matters for which claims have been
asserted prior to the expiration of such one (1) year period.
Except as otherwise expressly provided in this Agreement or any
documents to be delivered to the Purchaser at the Closing, the ShoLodge Parties
disclaim the making of any representations or warranties, express or implied,
regarding the Properties or matters affecting the Properties, whether made by
the ShoLodge Parties, on the ShoLodge Parties' behalf or otherwise, including,
without limitation, the physical condition of the Properties, title to or the
boundaries of the Real Property, pest control matters, soil conditions, the
presence, existence or absence of hazardous wastes, toxic substances or other
environmental matters, compliance with building, health, safety, land use and
<PAGE> 13
zoning laws, regulations and orders, structural and other engineering
characteristics, traffic patterns, market data, economic conditions or
projections, and any other information pertaining to the Properties or the
market and physical environments in which they are located. The Purchaser
acknowledges (i) that the Purchaser has entered into this Agreement with the
intention of making and relying upon its own investigation or that of third
parties with respect to the physical, environmental, economic and legal
condition of each Property and (ii) that the Purchaser is not relying upon any
statements, representations or warranties of any kind, other than those
specifically set forth in this Agreement or in any document to be delivered to
the Purchaser at the Closing made by the ShoLodge Parties. The Purchaser further
acknowledges that it has not received from or on behalf of the ShoLodge Parties
any accounting, tax, legal, architectural, engineering, property management or
other advice with respect to this transaction and is relying solely upon the
advice of third party accounting, tax, legal, architectural, engineering,
property management and other advisors. Subject to the provisions of this
Agreement, the Purchaser shall purchase the Properties in their "as is"
condition on the Closing Date.
SECTION 7
REPRESENTATIONS AND WARRANTIES OF PURCHASER
To induce the ShoLodge Parties to enter in this Agreement, the
Purchaser represents and warrants to the ShoLodge Parties as follows:
7.1 STATUS AND AUTHORITY OF THE PURCHASER. The Purchaser is a Maryland
real estate investment trust duly organized, validly existing and in trust good
standing under the laws of the State of Maryland, and has all requisite power
and authority under the laws of such state and under its charter documents to
enter into and perform its obligations under this Agreement and to consummate
the transactions contemplated hereby. The Purchaser has duly qualified and is in
good standing as a trust or unincorporated business association in each
jurisdiction in which the nature of the business conducted by it requires such
qualification, except where the failure to do so could not reasonably be
expected to have a material adverse effect.
7.2 ACTION OF THE PURCHASER. The Purchaser has taken all necessary
action to authorize the execution, delivery and performance of this Agreement,
and upon the execution and delivery of any document to be delivered by the
Purchaser on or prior to the Closing Date such document shall constitute the
valid and binding obligation and agreement of the Purchaser, enforceable against
the Purchaser in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of
general application affecting the rights and remedies of creditors.
7.3 NO VIOLATIONS OF AGREEMENTS. Neither the execution, delivery or
performance of this Agreement by the Purchaser, nor compliance with the terms
and provisions hereof, will result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any property or assets of the
Purchaser pursuant to the terms of any indenture, mortgage, deed of trust, note,
evidence of indebtedness or any other agreement or instrument by which the
Purchaser is bound.
7.4 LITIGATION. No investigation, action or proceeding is pending and,
to the Purchaser's knowledge, no action or proceeding is threatened and no
investigation looking toward such an action or proceeding has begun, which
questions the validity of this Agreement or any action taken or to be taken
pursuant hereto.
<PAGE> 14
The representations and warranties made in this Agreement by the
Purchaser shall be continuing and shall be deemed remade by the Purchaser as of
the Closing Date with the same force and effect as if made on, and as of, such
date. The Purchaser's liability with respect to all representations and
warranties made in this Agreement by the Purchaser shall survive the Closing for
a period of one (1) year, after which the Purchaser shall have no liability with
respect thereto other than as to any matters for which claims have been asserted
prior to the expiration of such one (1) year period.
SECTION 8
COVENANTS OF THE SHOLODGE PARTIES
The ShoLodge Parties hereby covenant with the Purchaser between the
date of this Agreement and the Closing Date as follows:
8.1 COMPLIANCE WITH LAWS, ETC. To comply or to cause compliance with in
all material respects with (i) all applicable laws, regulations and other
requirements from time to time of every governmental body having jurisdiction of
the Properties or the use or occupancy of the Improvements located on the Real
Property and (ii) all terms, covenants and conditions of all instruments of
record and other agreements affecting Properties.
8.2 APPROVAL OF AGREEMENTS. Except as otherwise authorized by this
Agreement or in the ordinary course of business, not to enter into, modify,
amend or terminate any agreement with respect to the Properties which would
encumber or be binding upon such Properties from and after the Closing Date
without in each instance obtaining the prior written consent of the Purchaser,
which consent shall not be unreasonably withheld, delayed or conditioned.
8.3 NOTICE OF MATERIAL CHANGES OR UNTRUE REPRESENTATIONS. Upon learning
of any material change in any condition with respect to any of the Properties or
of any event or circumstance which makes any representation or warranty of the
ShoLodge Parties to the Purchaser under this Agreement untrue or misleading in
any material respect, promptly to notify the Purchaser thereof (the Purchaser
agreeing, on learning of any such fact or condition, promptly to notify the
ShoLodge Parties thereof).
8.4 OPERATION OF PROPERTIES. To continue to operate each of the
Properties as a Sumner Suite hotel, in a good and businesslike fashion
consistent with their past practices and to cause each of the Properties to be
maintained in good working order and condition in a manner consistent with their
past practice.
8.5 FINANCIAL INFORMATION. To provide to the Purchaser, promptly upon
request at the ShoLodge Parties' sole cost and expense, such audited and
unaudited financial and other information and certifications of the ShoLodge
Parties with respect to the ShoLodge Parties and the Properties as the Purchaser
may from time to time reasonably request in order to comply with any applicable
securities laws and/or any rules, regulations or requirements of the Securities
and Exchange Commission and, if required or requested, to permit the Purchaser
to incorporate by reference any information included in filings made by ShoLodge
with the Securities and Exchange Commission.
<PAGE> 15
SECTION 9
APPORTIONMENTS
9.1 REAL PROPERTY APPORTIONMENTS. Representatives of the Purchaser and
the ShoLodge Parties shall perform any and all of the adjustments and
apportionments which are appropriate and usual for a transaction of this nature
and taking into account the simultaneous execution of the Amendment. The
adjustments hereunder shall be calculated or paid in an amount based upon a fair
and reasonable estimated accounting performed and agreed to by representatives
of the ShoLodge Parties and the Purchaser at or prior to the Closing. Subsequent
final adjustments and payments shall be made in cash or other immediately
available funds as soon as practicable after the Closing Date and in any event
within ninety (90) days after such Closing Date, based upon an agreed accounting
performed by representatives of the ShoLodge Parties and the Purchaser. In the
event the parties have not agreed with respect to the adjustments required to be
made pursuant to this Section 9.1 within such ninety-day period, upon
application by either party, Ernst & Young LLP or other certified public
accountants reasonably acceptable to the Purchaser and the ShoLodge Parties
shall determine any such adjustments which have not theretofore been agreed to
between the ShoLodge Parties and the Purchaser. The charges of such accountant
shall be borne by the ShoLodge Parties.
9.2 CLOSING COSTS. The ShoLodge Parties shall pay all costs and
expenses associated with the transactions contemplated hereby, including,
without limitation, recording costs, title insurance premiums, the costs and
expenses of preparing engineering and environmental reports, market studies and
appraisals and the reasonable costs and expenses of legal counsel retained by
the Purchaser.
The obligations of the parties under this Section 9 shall survive the
Closing.
SECTION 10
DEFAULT
10.1 DEFAULT BY THE SHOLODGE PARTIES. If the ShoLodge Parties shall
have made any representation or warranty herein which shall be untrue or
misleading in any material respect, or if the ShoLodge Parties shall fail to
perform any of the material covenants and agreements contained herein to be
performed by the ShoLodge Parties and such failure continues for a period of ten
(10) days after notice thereof from the Purchaser or if the Tenant shall default
in its obligations under the Agreement to Lease or the Lease and such default
shall continue beyond the expiration of any applicable cure period, the
Purchaser may terminate this Agreement and/or the Purchaser may pursue any and
all remedies available to it at law or in equity, including, but not limited to,
a suit for specific performance or other equitable relief.
10.2 DEFAULT BY THE PURCHASER. If the Purchaser shall have made any
representation or warranty herein which shall be untrue or misleading in any
material respect, or if the Purchaser shall fail to perform any of the covenants
and agreements contained herein to be performed by it and such failure shall
continue for a period of ten (10) days after notice thereof from the ShoLodge
Parties or if the Purchaser shall default in its obligations under the Agreement
to Lease or the Lease and such default shall continue beyond the expiration of
any applicable cure period, the ShoLodge Parties may, as its sole and exclusive
remedy at law and in equity, terminate this Agreement. In the event that the
ShoLodge Parties shall so terminate this Agreement, the Purchaser shall
thereupon pay to the ShoLodge Parties, as liquidated damages and not as a
penalty, the sum of One Million Dollars
<PAGE> 16
($1,000,000), whereupon, the Purchaser shall have no further monetary or, except
as expressly provided herein, nonmonetary obligations hereunder.
SECTION 11
MISCELLANEOUS
11.1 AGREEMENT TO INDEMNIFY. (a) Subject to any express provisions of
this Agreement to the contrary, (i) the ShoLodge Parties shall indemnify and
hold harmless the Purchaser from and against any and all obligations, claims,
losses, damages, liabilities, and expenses (including, without limitation,
reasonable attorneys' and accountants' fees and disbursements) arising out of
(x) events, contractual obligations, acts or omissions of the ShoLodge Parties
that occurred in connection with the ownership or operation of any Property
prior to the Closing or (y) any damage to property of others or injury to or
death of any person or any claims for any debts or obligations occurring on or
about or in connection with any Property or any portion thereof at any time or
times prior to the Closing, and (ii) the Purchaser shall indemnify and hold
harmless the ShoLodge Parties from and against any and all obligations, claims,
losses, damages, liabilities and expenses (including, without limitation,
reasonable attorneys' and accountants' fees and disbursements) arising out of
(x) events, contractual obligations, acts or omissions of Purchaser that occur
in connection with the ownership or operation of any Property on or after the
Closing, or (y) any damage to property of others or injury to or death of any
person or any claims for any debts or obligations occurring on or about any
Property or any portion thereof at any time or times after the Closing.
(b) Whenever it is provided in this Agreement that an obligation
of the ShoLodge Parties will be assumed by the Purchaser on or after the
Closing, the Purchaser shall be deemed to have also agreed to indemnify and hold
harmless the ShoLodge Parties and their respective successors and assigns from
and against all claims, losses, damages, liabilities, costs, and expenses
(including, without limitation, reasonable attorneys' and accountants' fees and
expenses) arising from any failure of the Purchaser to perform the obligation so
assumed on or after the Closing.
(c) Whenever either party shall learn through the filing of a
claim or the commencement of a proceeding or otherwise of the existence of any
liability for which the other party is or may be responsible under this
Agreement, the party learning of such liability shall notify the other party
promptly and furnish such copies of documents (and make originals thereof
available) and such other information as such party may have that may be used or
useful in the defense of such claims and shall afford said other party full
opportunity to defend the same in the name of such party and shall generally
cooperate with said other party in the defense of any such claim.
(d) The provisions of this Section 11.1 shall survive the Closing
and the termination of this Agreement.
11.2 BROKERAGE COMMISSIONS. Each of the parties hereto represents to
the other parties that it dealt with no broker, finder or like agent in
connection with this Agreement or the transactions contemplated hereby. Each
party shall indemnify and hold harmless the other and its respective legal
representatives, heirs, successors and assigns from and against any loss,
liability or expense, including, reasonable attorneys' fees, arising out of any
claim or claims for commissions or other compensation for bringing about this
Agreement or the transactions contemplated hereby
<PAGE> 17
made by any broker, finder or like agent claiming to have dealt with the
indemnifying party. The provisions of this Section 11.2 shall survive the
Closing and any termination of this Agreement.
11.3 PUBLICITY. The parties agree that no party shall, with respect to
this Agreement and the transactions contemplated hereby, contact or conduct
negotiations with public officials, make any public pronouncements, issue press
releases or otherwise furnish information regarding this Agreement or the
transactions contemplated to any third party without the consent of the other
parties, which consent shall not be unreasonably withheld, delayed or
conditioned, except as required by law or unless such action is taken based on
advice of counsel given in good faith. No party, or its employees shall trade in
the securities of any parent or affiliate of the Sellers or of the Purchaser
until a public announcement of the transactions contemplated by this Agreement
has been made. No party shall record this Agreement or any notice thereof,
except as required by law or unless such action is taken based on advice of
counsel given in good faith.
11.4 NOTICES. (a) Any and all notices, demands, consents, approvals,
offers, elections and other communications required or permitted under this
Agreement shall be deemed adequately given if in writing and the same shall be
delivered either in hand, by telecopier with written acknowledgment of receipt,
or by mail or Federal Express or similar expedited commercial carrier, addressed
to the recipient of the notice, postpaid and registered or certified with return
receipt requested (if by mail), or with all freight charges prepaid (if by
Federal Express or similar carrier).
(b) All notices required or permitted to be sent hereunder shall
be deemed to have been given for all purposes of this Agreement upon the date of
acknowledged receipt, in the case of a notice by telecopier, and, in all other
cases, upon the date of receipt or refusal, except that whenever under this
Agreement a notice is either received on a day which is not a Business Day or is
required to be delivered on or before a specific day which is not a Business
Day, the day of receipt or required delivery shall automatically be extended to
the next Business Day.
(c) All such notices shall be addressed,
if to the ShoLodge Parties to:
ShoLodge, Inc.
130 Maple Drive North
Hendersonville, Tennessee 37075
Attn: Mr. Leon L. Moore
[Telecopier No. (615) 264-1758]
with a copy to:
Boult Cummings Conners & Berry, PLC
414 Union Street, Suite 1600
Nashville, Tennessee 37219
Attn: Patrick L. Alexander, Esq.
[Telecopier No. (615) 252-6362]
<PAGE> 18
If to the Purchaser, to:
Hospitality Properties Trust
400 Centre Street
Newton, Massachusetts 02458
Attn: Mr. John G. Murray
[Telecopier No. (617) 969-5730]
with a copy to:
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
Attn: Sander E. Ash, Esq.
[Telecopier No. (617) 338-2880]
(d) By notice given as herein provided, the parties hereto and
their respective successors and assigns shall have the right from time to time
and at any time during the term of this Agreement to change their respective
addresses effective upon receipt by the other parties of such notice and each
shall have the right to specify as its address any other address within the
United States of America.
11.5 WAIVERS, ETC. Any waiver of any term or condition of this
Agreement, or of the breach of any covenant, representation or warranty
contained herein, in any one instance, shall not operate as or be deemed to be
or construed as a further or continuing waiver of any other breach of such term,
condition, covenant, representation or warranty or any other term, condition,
covenant, representation or warranty, nor shall any failure at any time or times
to enforce or require performance of any provision hereof operate as a waiver of
or affect in any manner such party's right at a later time to enforce or require
performance of such provision or any other provision hereof. This Agreement may
not be amended, nor shall any waiver, change, modification, consent or discharge
be effected, except by an instrument in writing executed by or on behalf of the
party against whom enforcement of any amendment, waiver, change, modification,
consent or discharge is sought.
11.6 ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Agreement and all rights
and obligations hereunder shall not be assignable by any party without the
written consent of the other parties, except that (x) Purchaser may assign this
Agreement to an affiliate of the Purchaser and (y) after the Closing, the
Sellers may assign its surviving rights, if any, under this Agreement to the
Tenant. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective legal representatives, successors and
permitted assigns. This Agreement is not intended and shall not be construed to
create any rights in or to be enforceable in any part by any other persons.
11.7 SEVERABILITY. If any provision of this Agreement shall be held or
deemed to be, or shall in fact be, invalid, inoperative or unenforceable as
applied to any particular case in any jurisdiction or jurisdictions, or in all
jurisdictions or in all cases, because of the conflict of any provision with any
constitution or statute or rule of public policy or for any other reason, such
circumstance shall not have the effect of rendering the provision or provisions
in question invalid, inoperative or unenforceable in any other jurisdiction or
in any other case or circumstance or of rendering any other provision or
provisions herein contained invalid, inoperative or unenforceable
<PAGE> 19
to the extent that such other provisions are not themselves actually in conflict
with such constitution, statute or rule of public policy, but this Agreement
shall be reformed and construed in any such jurisdiction or case as if such
invalid, inoperative or unenforceable provision had never been contained herein
and such provision reformed so that it would be valid, operative and enforceable
to the maximum extent permitted in such jurisdiction or in such case.
11.8 COUNTERPARTS, ETC. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof and shall supersede and take the place of any other
instruments purporting to be an agreement of the parties hereto relating to the
subject matter hereof.
11.9 GOVERNING LAW. This Agreement shall be interpreted, construed,
applied and enforced in accordance with the laws of The Commonwealth of
Massachusetts applicable to contracts between residents of Massachusetts which
are to be performed entirely within Massachusetts, regardless of (i) where this
Agreement is executed or delivered; or (ii) where any payment or other
performance required by this Agreement is made or required to be made; or (iii)
where any breach of any provision of this Agreement occurs, or any cause of
action otherwise accrues; or (iv) where any action or other proceeding is
instituted or pending; or (v) the nationality, citizenship, domicile, principal
place of business, or jurisdiction of organization or domestication of any
party; or (vi) whether the laws of the forum jurisdiction otherwise would apply
the laws of a jurisdiction other than The Commonwealth of Massachusetts; or
(vii) any combination of the foregoing.
To the maximum extent permitted by applicable law, any action to
enforce, arising out of, or relating in any way to, any of the provisions of
this Agreement may be brought and prosecuted in such court or courts located in
The Commonwealth of Massachusetts as is provided by law; and the parties consent
to the jurisdiction of said court or courts located in The Commonwealth of
Massachusetts and to service of process by registered mail, return receipt
requested, or by any other manner provided by law.
11.10 PERFORMANCE ON BUSINESS DAYS. In the event the date on which
performance or payment of any obligation of a party required hereunder is other
than a Business Day, the time for payment or performance shall automatically be
extended to the first Business Day following such date.
11.11 ATTORNEYS' FEES. If any lawsuit or arbitration or other legal
proceeding arises in connection with the interpretation or enforcement of this
Agreement, the prevailing party therein shall be entitled to receive from the
other party the prevailing party's costs and expenses, including reasonable
attorneys' fees incurred in connection therewith, in preparation therefor and on
appeal therefrom, which amounts shall be included in any judgment therein.
11.12 SECTION AND OTHER HEADINGS. The headings contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
11.13 NONLIABILITY OF TRUSTEES. THE DECLARATION OF TRUST ESTABLISHING
THE PURCHASER, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE
"DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF
THE STATE OF MARYLAND, PROVIDES THAT THE
<PAGE> 20
NAME "HPT SUITE PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION
COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO
TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE PURCHASER SHALL BE HELD
TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM
AGAINST, THE PURCHASER. ALL PERSONS DEALING WITH THE PURCHASER, IN ANY WAY,
SHALL LOOK ONLY TO THE ASSETS OF THE PURCHASER FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as a sealed instrument as of the date first above written.
SHOLODGE PARTIES:
SHOLODGE, INC.
By: /s/ Leon Moore
Its President
MIDWEST INNS, INC.
By: /s/ Leon Moore
Its President
CAROLINA INNS, INC.
By: /s/ Leon Moore
Its President
<PAGE> 21
SUNSHINE INNS, INC.
By: /s/ Leon Moore
Its President
PURCHASER:
HPT SUITE PROPERTIES TRUST
By: /s/ John G. Murray
Its President
<PAGE> 22
SCHEDULE A
THE PROPERTIES
Location Allocable Purchase Price
-------- ------------------------
Pine Knoll Shores, NC $8,500,000
Indianapolis, IN $9,450,000
Kansas City, MO $9,800,000
Orlando, FL $10,600,000
<PAGE> 23
SCHEDULE B-1 THROUGH B-4
LEGAL DESCRIPTIONS OF PROPERTIES
[See attached copies.]
<PAGE> 24
SCHEDULE C
FORM OF SURVEYOR'S CERTIFICATE
SURVEYOR'S CERTIFICATE
TO: Hospitality Properties Trust
and its assignees or nominees
400 Centre Street
Newton, MA 02458
RE: Survey Entitled "__________________________________________"
dated _________________, 2000, prepared by ___________
The undersigned hereby certifies that the above-referenced survey was
prepared from an actual on-the-ground instrument survey of the subject premises;
that the same accurately shows the location of the boundaries of the subject
premises and the location of all streets, highways, alleys and public ways
crossing or abutting said premises; that the dimensions of the improvements and
the locations thereof with respect to the boundaries are accurately shown as the
same were situated on ___________ ___, 2000; that there are no encroachments by
improvements appurtenant to adjoining premises upon the subject premises, nor
from the subject premises, unless shown thereon; that all buildings and
structures, if any, lie wholly within all applicable building restriction lines,
if any, and do not violate any restriction or other recorded agreements set
forth in the title insurance commitment for the subject premises dated
__________ __, 2000, issued to you by _________ Title Insurance Company,
Commitment No. _______ (the "Title Policy"); that all easements and rights of
way which are appurtenant to or burden the subject premises and (i) are referred
to in the Title Commitment or (ii) are apparent from a visual inspection are
delineated thereon, and are located other than through the existing building
shown hereon; that all parking spaces, if any, are delineated thereon; and that,
except as otherwise shown thereon, the subject premises are not located (x)
within any flood hazard or flood way area or district as designed by Federal,
state or municipal authority or (y) within any area subject to regulation by
Federal, state or municipal authority as inland or coastal wetlands, beach,
estuary or the like.
Access to and egress from the subject premises and the improvements and
structures thereon to ________ Street, a public way, are provided by the means
indicated thereon. Municipal water, storm sewer facilities and telephone, gas
and electric services of public utilities are available in the locations
indicated thereon.
<PAGE> 25
The undersigned hereby certifies that the square footage of each parcel
delineated on the above-referenced survey is as set forth thereon, that all such
parcels are contiguous without any strips, gaps or gores existing between any of
said parcels, and that said parcels, when combined, form and create one complete
and uninterrupted parcel without any strips, gaps or gores.
This survey is made in accordance with the "Minimum Standard Detail
Requirements for Land Title Surveys" jointly established and adopted by ALTA and
ACSM in 1992.
Dated: _________ ___, 2000 __________________________
Registered Land Surveyor
__________#_______________
[Surveyor's Seal]
<PAGE> 1
Exhibit 10.2
AGREEMENT TO LEASE
THIS AGREEMENT TO LEASE (this "Agreement") is entered into as of May
11, 2000, by and between HPT SUITE PROPERTIES TRUST, a Maryland real estate
investment trust (the "Landlord"), and SUITE TENANT, INC., a Tennessee
corporation (the "Tenant").
W I T N E S S E T H:
WHEREAS, pursuant to a Purchase and Sale Agreement, dated as of the
date hereof (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "Purchase Agreement"), by and among the Landlord
and ShoLodge, Inc., a Tennessee corporation ("Sho"), and certain of its wholly
owned subsidiaries, the Landlord is planning to acquire four Sumner Suite hotel
properties, as more particularly described in the Purchase Agreement; and
WHEREAS, the Landlord and the Tenant previously entered into a Lease
Agreement, dated as of November 19, 1997, as amended by the First Amendment to
Lease Agreement, dated as of March 5, 1999, the Second Amendment to Lease
Agreement and First Amendment to Incidental Documents, dated as of June 29, 1999
and the Third Amendment to Lease Agreement dated as of March 3, 2000 (as so
amended, the "Lease"); and
WHEREAS, the Tenant is a wholly owned subsidiary of Sho; and
WHEREAS, subject to and upon the terms and conditions set forth in this
Agreement, pursuant to a Fourth Amendment to Lease Agreement and Amendment to
Incidental Documents in the form attached hereto as Exhibit A (the "Amendment"),
the Landlord and the Tenant wish to amend the Lease to include the properties
covered by the Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. AGREEMENT TO LEASE. Subject to and upon the terms and conditions
hereinafter set forth, on the date on which the Landlord acquires fee simple
title to each of the Properties (this and other capitalized terms used and not
otherwise defined herein having the meaning ascribed to such terms in the
Purchase Agreement and/or the Lease), the Landlord and the Tenant shall each
execute and deliver the Amendment.
<PAGE> 2
-2-
2. REPRESENTATIONS OF THE TENANT, ETC. As an inducement to the Landlord
to enter into the Amendment, the Tenant represents and warrants to the Landlord,
as of the Closing Date, that:
(a) STATUS AND AUTHORITY OF THE TENANT, ETC. The Tenant is a
corporation duly organized and validly existing under the laws of its state of
incorporation and has all requisite power and authority (corporate and other)
under the laws of such state and its respective charter documents to own its
property and assets, to enter into and to perform its obligations under the
Lease, as amended by the Amendment (as so amended, the "Amended Lease"), and to
transact the business in which it is engaged or presently proposes to engage.
The Tenant is duly qualified in each jurisdiction in which the nature of the
business conducted or to be conducted by it requires such qualification, except
where failure to do so could not reasonably be expected to have a material
adverse effect.
(b) CORPORATE ACTION OF THE TENANT, ETC. The Tenant has taken all
necessary action (corporate or other) under its charter documents to authorize
the execution and delivery of the Amended Lease and the performance of the
Amended Lease, and the Amended Lease constitutes the valid and binding
obligation and agreement of the Tenant enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization or similar laws of
general application affecting the rights and remedies of creditors.
(c) NO VIOLATIONS OF OTHER AGREEMENTS, ETC. Neither the execution and
delivery of the Amended Lease by the Tenant, nor compliance with the terms and
provisions thereof, will result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any property or assets of the
Tenant pursuant to the terms of any indenture, mortgage, deed of trust, note,
evidence of indebtedness, agreement or other instrument to which the Tenant may
be a party or by which it or its property is bound, or violate any provisions of
laws, or any applicable order, writ, injunction, judgment or decree of any
court, or any order or other public regulation of any governmental commission,
bureau or administrative agency.
(d) JUDGMENTS; LITIGATION. There are no judgments presently outstanding
and unsatisfied against the Tenant or any of its properties, and none of the
Tenant or any of its properties are involved in any material litigation at law
or in equity, or any proceeding before any court, or by or before any
governmental or administrative agency, which litigation or proceeding could
materially and adversely affect the Tenant, and no such material litigation or
proceeding is, to the knowledge of the Tenant, threatened against the Tenant,
and no investigation looking toward such a proceeding has begun or is
contemplated.
(e) DISCLOSURE. To the knowledge of the Tenant, neither this Agreement
nor any other document, certificate or statement furnished to the Landlord by or
on behalf of the Tenant in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein or therein not
misleading. To the knowledge of the Tenant, there is no fact or condition which
materially and adversely affects the business, operations, affairs, properties
or condition of
<PAGE> 3
-3-
the Tenant which has not been set forth in this Agreement or in the other
documents, certificates or statements furnished to the Landlord in connection
with the transactions contemplated hereby.
(f) SURVIVAL. The Tenant's liability with respect to the
representations and warranties set forth in this Agreement shall survive without
limitation.
3. REPRESENTATIONS OF THE LANDLORD. As an inducement to the Tenant to
enter into the Amendment, the Landlord represents to the Tenant, as of the
Closing Date, that:
(a) STATUS AND AUTHORITY OF THE LANDLORD. The Landlord is a Maryland
real estate investment trust duly organized, validly existing and in trust good
standing under the laws of the State of Maryland, and has all requisite power
and authority under the laws of such state and under its charter documents to
enter into and perform its obligations under this Agreement and to consummate
the transactions contemplated hereby. The Landlord has duly qualified and is in
good standing as a trust or unincorporated business association in each
jurisdiction in which the nature of the business conducted by it requires such
qualification, except where failure to do so could not reasonably be expected to
have a material adverse effect.
(b) ACTION OF THE LANDLORD. The Landlord has taken all necessary action
to authorize the execution and delivery of the Amended Lease and the performance
of the Amended Lease, and the Amended Lease constitutes the valid and binding
obligation and agreement of the Landlord, enforceable against the Landlord in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application affecting the rights and remedies of creditors.
(c) NO VIOLATIONS OF AGREEMENTS. Neither the execution and delivery of
the Amended Lease or the performance of the Amended Lease by the Landlord, nor
compliance with the terms and provisions hereof or thereof, will result in any
breach of the terms, conditions or provisions of, or conflict with or constitute
a default under, or result in the creation of any lien, charge or encumbrance
upon any property or assets of the Landlord pursuant to the terms of any
indenture, mortgage, deed of trust, note, evidence of indebtedness or any other
agreement or instrument by which the Landlord or its property is bound, or
violate any provisions of laws, or any applicable order, writ, injunction,
judgment or decree of any court, or any order or other public regulation of any
governmental commission, bureau or administrative agency.
(d) JUDGMENTS; LITIGATION. There are no judgments presently outstanding
and unsatisfied against the Landlord or any of its properties, and neither the
Landlord nor any of its properties are involved in any material litigation at
law or in equity, or any proceeding before any court, or by or before any
governmental or administrative agency, which litigation or proceeding could
materially and adversely affect the Landlord, and no such material litigation or
proceeding is, to the knowledge of the Landlord, threatened against the
Landlord, and no investigation looking toward such a proceeding has begun or is
contemplated.
(e) SURVIVAL. The Landlord's liability with respect to the
representations and warranties set forth in this Agreement shall survive without
limitation.
<PAGE> 4
-4-
4. CONDITION PRECEDENT. The obligations of the parties hereunder shall
be subject to the consummation of the transactions contemplated by the Purchase
Agreement.
5. NOTICES. All notices required or desired to be given hereunder shall
be given in the manner provided in Section 11.4 of the Purchase Agreement.
6. ASSIGNMENT. The Tenant shall not assign or transfer, directly or
indirectly, its rights under this Agreement without the prior written consent of
the Landlord, which consent may be given or withheld by the Landlord in the
Landlord's sole discretion. The Landlord shall not assign or transfer, directly
or indirectly, its rights under this Agreement other than to a wholly owned
subsidiary of the Landlord without the prior written consent of the Tenant,
which consent may be given or withheld by the Tenant in the Tenant's sole
discretion.
7. DEFAULT.
(a) DEFAULT BY THE TENANT. If the Tenant shall fail to perform any of
the covenants and agreements contained herein to be performed by the Tenant and
such failure continues for a period of ten (10) days after notice thereof from
the Landlord, the Landlord may terminate this Agreement and/or pursue any and
all remedies available to the Landlord at law or in equity, including, but not
limited to, a suit for specific performance or other equitable relief. A default
by the ShoLodge Parties under the Purchase Agreement shall be deemed a default
by the Tenant under this Agreement.
(b) DEFAULT BY THE LANDLORD. If the Landlord shall fail to perform any
of the covenants and agreements contained herein to be performed by it and such
failure shall continue for a period of ten (10) days after notice thereof from
the Tenant, the Tenant may terminate this Agreement and/or pursue any and all
remedies available to the Tenant at law or in equity, including, but not limited
to, a suit for specific performance or other equitable relief. A default by the
Purchaser under the Purchase Agreement shall be deemed a default by the Landlord
under this Agreement.
8. MISCELLANEOUS.
(a) EXPENSES. The Tenant shall pay its and the Landlord's expenses
incident to the negotiation, preparation and carrying out of this Agreement,
including, without limitation, all reasonable fees and expenses of the
Landlord's counsel. The Tenant shall also pay the cost of all recording fees,
transfer fees and other like costs and expenses incident to this Agreement.
(b) PUBLICITY. The parties agree that no party shall, with respect to
this Agreement and the transactions contemplated hereby, contact or conduct
negotiations with public officials, make any public pronouncements, issue press
releases or otherwise furnish information regarding this Agreement or the
transactions contemplated to any third party without the consent of the other
party, which consent shall not be unreasonably withheld, delayed or conditioned,
except as required by law or unless such action is taken based on advice of
counsel given in good faith. No party or its employees shall trade in the
securities of Hospitality Properties Trust or ShoLodge,
<PAGE> 5
-5-
Inc. until a public announcement of the transactions contemplated by this
Agreement has been made.
(c) PERFORMANCE ON BUSINESS DAYS. In the event the date on which
performance or payment of any obligation of a party required hereunder is other
than a Business Day, the time for payment or performance shall automatically be
extended to the first Business Day following such date.
9. APPLICABLE LAW, ETC. (a) This Agreement shall be interpreted,
construed, applied and enforced in accordance with the laws of The Commonwealth
of Massachusetts applicable to contracts between residents of Massachusetts
which are to be performed entirely within Massachusetts, regardless of (i) where
this Agreement is executed or delivered; or (ii) where any payment or other
performance required by this Agreement is made or required to be made; or (iii)
where any breach of any provision of this Agreement occurs, or any cause of
action otherwise accrues; or (iv) where any action or other proceeding is
instituted or pending; or (v) the nationality, citizenship, domicile, principal
place of business, or jurisdiction of organization or domestication of any
party; or (vi) whether the laws of the forum jurisdiction otherwise would apply
the laws of a jurisdiction other than The Commonwealth of Massachusetts; or
(vii) any combination of the foregoing.
(b) To the maximum extent permitted by applicable law, any action to
enforce, arising out of, or relating in any way to, any of the provisions of
this Agreement may be brought and prosecuted in such court or courts located in
The Commonwealth of Massachusetts as is provided by law; and the parties consent
to the jurisdiction of said court or courts located in The Commonwealth of
Massachusetts and to service of process by registered mail, return receipt
requested, or by any other manner provided by law.
10. MODIFICATION OF AGREEMENT. No modification or waiver of any
provision of this Agreement, nor any consent to any departure by any party
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the other, and such modification, waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice to or demand on any party in any case shall entitle such party to any
other or further notice or demand in the same, similar or other circumstances.
11. WAIVER OF RIGHTS. Neither any failure nor any delay on the part of
any party in exercising any right, power, or privilege under this Agreement
shall operate as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or further exercise or the exercise of any right,
power or privilege.
12. SEVERABILITY. In case any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and this
Agreement shall thereupon be reformed and construed and enforced to the maximum
extent permitted by laws.
<PAGE> 6
-6-
13. ENTIRE CONTRACT. This Agreement, including all annexes and exhibits
hereto, constitutes the entire agreement between the parties hereto with respect
to the subject matter hereof and thereof and shall supersede and take the place
of any other instruments purporting to be an agreement of the parties hereto
relating to the transactions contemplated hereby, including, without limitation,
any letter of intent or commitment letter.
14. COUNTERPARTS; HEADINGS. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but which, when
taken together, shall constitute but one instrument and shall become effective
as of the date hereof when copies hereof, which, when taken together, bear the
signatures of each of the parties hereto shall have been signed. Headings in
this Agreement are for purposes of reference only and shall not limit or affect
the meaning of the provisions hereof.
15. BINDING EFFECT. All the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
16. NONLIABILITY OF TRUSTEES, ETC. THE DECLARATION OF TRUST
ESTABLISHING THE LANDLORD, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO
(THE "DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HPT SUITE PROPERTIES
TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES,
BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF THE LANDLORD SHALL BE HELD TO ANY PERSONAL LIABILITY,
JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE LANDLORD. ALL
PERSONS DEALING WITH THE LANDLORD, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF
THE LANDLORD FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
IN WITNESS WHEREOF, the Landlord and the Tenant have executed this
Agreement under seal as of the date above first written.
HPT SUITE PROPERTIES TRUST
By: /s/ John G. Murray
Its President
SUITE TENANT, INC.
By: /s/ Leon Moore
Its President
<PAGE> 7
EXHIBIT A
FORM OF AMENDMENT
[See attached copy.]
<PAGE> 1
EXHIBIT 10.3
FOURTH AMENDMENT TO LEASE AGREEMENT
AND AMENDMENT TO INCIDENTAL DOCUMENTS
THIS FOURTH AMENDMENT TO LEASE AGREEMENT AND AMENDMENT TO INCIDENTAL
DOCUMENTS (this "Amendment") is entered into as of May 11, 2000, by and among
(i) HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust
("HPT"); (ii) HPT SUITE PROPERTIES TRUST, a Maryland real estate investment
trust (the "Landlord"); (iii) SHOLODGE, INC., a Tennessee corporation, ("Sho");
and (iv) SUITE TENANT, INC., a Tennessee corporation (the "Tenant").
W I T N E S S E T H:
WHEREAS, pursuant to a Purchase and Sale Agreement, dated as of October
24, 1997 (the "Original Purchase Agreement"), and an Agreement to Lease, dated
as of October 24, 1997 (the "Original Agreement to Lease"), HPT acquired from
Sho and certain of its affiliates certain hotel properties and the Landlord and
the Tenant entered into a Lease Agreement, dated as of November 19, 1997 (the
"Original Lease"); and
WHEREAS, pursuant to a Purchase and Sale Agreement dated June 29, 1999
(the "Second Purchase Agreement") and an Agreement to Lease of even date
therewith (the "Second Agreement to Lease"), Landlord acquired from Sho and
certain of its affiliates certain hotel properties and Landlord and Tenant
amended the Original Lease to, inter alia, add such properties to the Leased
Property; and
WHEREAS, the obligations of the Tenant under the Original Lease, as
amended by the First Amendment to Lease Agreement, dated as of March 5, 1999,
the Second Amendment to Lease and First Amendment to Incidental Documents, dated
as of June 29, 1999 (the "Second Amendment"), and the Third Amendment to Lease
Agreement dated as of March 3, 2000 (as so amended, the "Lease") are secured and
guaranteed by certain undertakings and agreements of Sho and the Tenant pursuant
to the Incidental Documents (this and other capitalized terms used and not
otherwise defined herein having the meanings ascribed to such terms in the
Lease); and
WHEREAS, on the date hereof, the Landlord is acquiring from Sho and
certain of its affiliates four additional Sumner Suites hotels pursuant to a
Purchase and Sale Agreement dated as of the date hereof (the "New Purchase
Agreement"); and
WHEREAS, pursuant to the New Purchase Agreement and an Agreement to
Lease, dated as of the date hereof (the "New Agreement to Lease"), the parties
wish to amend certain terms and conditions of the Lease and Incidental Documents
to subject such additional Sumner Suites hotel properties to the terms and
conditions thereof, all as more particularly set forth herein; and
WHEREAS, the transactions contemplated by this Amendment are of direct
substantial and material benefit to Sho;
<PAGE> 2
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the mutual receipt and
legal sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. The definition of "Applicable Percentage" set forth in the Lease is
hereby deleted in its entirety and the following inserted in its place:
"Applicable Percentage" shall mean (i) with respect to the Properties
described in Exhibit A-1 through A-14, (a) three percent (3%) with respect to
the 1998 Fiscal Year; (b) four percent (4%) with respect to the 1999 Fiscal
Year; and (c) five percent (5%) with respect to each Fiscal Year thereafter
during the Term; (ii) with respect to the Properties located in Colorado
Springs, Colorado and Overland Park, Kansas, (a) four percent (4%) with respect
to any portion of the 1999 Fiscal Year occurring during the Term and (c) five
percent (5%) with respect to each Fiscal year thereafter during the Term; (iii)
with respect to the Properties located in Charlotte, North Carolina, Alpharetta,
Georgia, Irving, Texas and Dulles/Sterling, Virginia, (a) three percent (3%)
with respect to any portion of the 1999 Fiscal Year occurring during the Term;
(b) four percent (4%) with respect to the 2000 Fiscal Year; and (c) five percent
(5%) with respect to each Fiscal Year thereafter during the Term; (iv) with
respect to the Properties located in Pine Knoll Shores, North Carolina and
Indianapolis, Indiana, (a) four percent (4%) with respect to any portion of the
2000 Fiscal Year occurring during the Term; and (b) (5%) with respect to any
portion of a Fiscal Year occurring thereafter during the Term; and (v) with
respect to the Properties located in Kansas City, Missouri and Orlando, Florida,
(a) three percent (3%) with respect to any portion of the 2000 Fiscal Year
occurring during the Term; (b) four percent (4%) with respect to the 2001 Fiscal
Year; and (c) five percent (5%) with respect to each Fiscal Year thereafter
during the Term.
2. The definition of "Base Year" set forth in the Lease is hereby
deleted in its entirety and the following inserted in its place:
"BASE YEAR" shall mean (i) with respect to each Property described
in Exhibit A-1 through A-14 other than any Property located in
Arizona, the 1998 Fiscal Year; (ii) with respect to each Property
described in Exhibit A-1 through A-14 and located in Arizona, the
thirteen (13) Accounting Periods commencing July 13, 1998; (iii)
with respect to each Property described in Exhibit A-15 through
A-20, the 2000 Fiscal Year, and (iv) with respect to each Property
described in Exhibit A-21 through A-24, the twelve (12) months,
commencing July 1, 2000.
3. The definition of "Minimum Rent" set forth in the Lease is hereby
deleted in its entirety and the following inserted in its place:
"MINIMUM RENT" shall mean an amount equal to One Million Nine
Hundred Sixty-Seven Thousand Three Hundred Twenty-Three Dollars
($1,967,323) per Accounting Period.
<PAGE> 3
4. The definition of "Purchase Agreement" set forth in the Lease is
hereby deleted in its entirety and the following inserted in its place:
"PURCHASE AGREEMENT" shall mean, collectively, the Purchase and Sale
Agreement, dated as of October 24, 1997, the Purchase and Sale
Agreement, dated as of June 29, 1999, and the Purchaser and Sale
Agreement, dated as of May 11, 2000, as they may be amended,
restated, supplemented or otherwise modified from time to time.
5. The definition of "Retained Funds" set forth in the Lease is hereby
deleted in its entirety and the following inserted in its place:
"RETAINED FUNDS" shall mean a cash amount equal to Twenty-Five
Million Five Hundred Seventy-Five Thousand Two Hundred Dollars
($25,575,200).
6. Exhibit A to the Lease is hereby amended by adding Exhibits A-21
through A-24 attached hereto as Exhibit A at the end thereof and all references
in the Lease to "Exhibit A-1 through A-20" are hereby amended to refer to
"Exhibit A-1 through A-24".
7. Exhibit B to the Lease is hereby deleted in its entirety and Exhibit
B to this Amendment inserted in its place.
8. Exhibit C to the Lease is hereby deleted and Exhibit C to this
Amendment inserted in its place.
9. Notwithstanding anything to the contrary set forth in the Lease, the
first Officer's Certificate and audit of the properties under the New Purchase
Agreement shall not be required until April 30, 2001.
10. Section 10(b) of the Guaranty is hereby amended by deleting the
dollar amount "Twenty-Eight Million Five Hundred Thousand Dollars ($28,500,000)"
appearing therein and inserting the dollar amount "Thirty-Four Million Fifteen
Thousand Dollars ($34,015,000)" in its place.
11. The Security Agreement is hereby amended by adding Exhibits A-21
through A-24 attached hereto as Exhibit A at the end thereof and all references
in the Security Agreement to "Exhibit A-1 through A-20" are hereby amended to
refer to "Exhibit A-1 through A-24".
<PAGE> 4
12. All references in the Lease to the Incidental Documents are hereby
amended to refer to the Incidental Documents as amended from time to time in
accordance with their terms.
13. Each of the Incidental Documents is hereby amended so that each
reference therein to the Lease, the Original Purchase Agreement, the Second
Purchase Agreement, the Original Agreement to Lease, the Second Agreement to
Lease or to any other Incidental Document shall mean the Lease, such Original
Purchase Agreement, such Second Purchase Agreement and such Incidental Document
as amended by this Amendment and shall include the New Purchase Agreement and
the New Agreement to Lease.
14. The Tenant and Sho represent and warrant that no Default or Event
of Default has occurred and is continuing under the Lease or any other
Incidental Document.
15. As amended hereby the Lease and the Incidental Documents shall
remain in full force and effect in accordance with their respective terms and
provisions.
16. This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
17. Tenant and Sho agree, jointly and severally, to reimburse HPT and
Landlord for all reasonable fees and expenses, including without limitation,
legal fees and expenses, incurred by HPT and Landlord in connection with the
execution and delivery of this Amendment and the consummation of the
transactions contemplated hereby.
<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
under seal as of the date above first written.
HOSPITALITY PROPERTIES TRUST
By: /s/ John G. Murray
Its President
HPT SUITE PROPERTIES TRUST
By: /s/ John G. Murray
Its President
SHOLODGE, INC.
By: /s/ Leon Moore
Its President
SUITE TENANT, INC.
By: /s/ Leon Moore
Its President
<PAGE> 6
EXHIBIT A
EXHIBITS A-21 THROUGH A-24 OF THE LEASE
[See attached copies.]
<PAGE> 7
EXHIBIT B
RESTRICTED TRADE AREA
<TABLE>
<CAPTION>
Property Area
- -------- ----
<S> <C>
Tampa, FL 3 miles
San Antonio, Riverwalk, TX 3 miles
Fort Wayne, IN 10 miles
Albuquerque, NM 3 miles
El Paso, TX 3 miles
Hendersonville, TN 5 miles
Cumberland, GA 3 miles
Gwinett, GA 3 miles
Columbus, OH 3 miles
Atlanta Airport, GA 3 miles
Dallas, Galleria, TX 3 miles
Austin, TX 5 miles
Tempe, AZ 3 miles
Tucson, AZ 3 miles
Overland Park, KS 3 miles
Dulles Airport/Sterling, VA 3 miles
Charlotte, NC 5 miles
Colorado Springs, CO 5 miles
Las Colinas/Irving, TX 5 miles
Alpharetta, GA 3 miles
Pine Knoll Shores, NC 5 miles
Indianapolis, IN 5 miles
Kansas City, MO 5 miles
Orlando, FL 5 miles
</TABLE>
<PAGE> 8
EXHIBIT C
ALLOCATION OF MINIMUM RENT
<TABLE>
<CAPTION>
Property Allocable Rent Per Accounting Period
- -------- ------------------------------------
<S> <C>
Tampa, FL $ 33,168
San Antonio, Riverwalk, TX 108,706
Fort Wayne, IN 74,560
Albuquerque, NM 88,600
El Paso, TX 70,376
Tempe, AZ 77,446
Tucson, AZ 65,657
Hendersonville, TN 57,782
Cumberland, Smyrna, GA 73,835
Gwinett, Duluth, GA 87,156
Columbus, OH 103,195
Atlanta Airport, GA 79,360
Dallas, Galleria, TX 86,074
Austin, TX 71,008
Overland Park, KS 95,631
Dulles Airport/Sterling, VA 98,215
Charlotte, NC 87,877
Colorado Springs, CO 94,769
Las Colinas/Irving, TX 94,769
Alpharetta, GA 88,739
Pine Knoll Shores, NC 73,231
Indianapolis, IN 81,415
Kansas City, MO 84,431
Orlando, FL 91,323
</TABLE>
