Exhibit 10.9
LEASE AGREEMENT
DATED AS OF , 1996
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BY AND BETWEEN
HOSPITALITY PROPERTIES TRUST,
AS LANDLORD
AND
GARDEN HOTEL ASSOCIATES II LIMITED PARTNERSHIP,
AS TENANT
TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS.................................................... 1
1.1 Additional Rent..................................................... 1
1.2 Additional Charges.................................................. 1
1.3 Affiliated Person................................................... 2
1.4 Agreement........................................................... 2
1.5 Applicable Laws..................................................... 2
1.6 Award............................................................... 2
1.7 Base Total Hotel Sales.............................................. 3
1.8 Base Year........................................................... 3
1.9 Business Day........................................................ 3
1.10 Capital Addition.................................................... 4
1.11 Capital Expenditure................................................. 4
1.12 Claim............................................................... 4
1.13 Code................................................................ 4
1.14 Collective Leased Properties........................................ 4
1.15 Commencement Date................................................... 4
1.16 Condemnation........................................................ 4
1.17 Condemnor........................................................... 4
1.18 Consolidated Financials............................................. 4
1.19 Date of Taking...................................................... 4
1.20 Default............................................................. 5
1.21 Disbursement Rate................................................... 5
1.22 Distribution........................................................ 5
1.23 Encumbrance......................................................... 5
1.24 Entity.............................................................. 5
1.25 Environment......................................................... 5
1.26 Environmental Obligation............................................ 5
1.27 Environmental Notice................................................ 5
1.28 Event of Default.................................................... 5
1.29 Excess Total Hotel Sales............................................ 5
1.30 Extended Terms...................................................... 5
1.31 FF&E Estimate....................................................... 6
1.32 FF&E Reserve........................................................ 6
1.33 Financial Officer's Certificate..................................... 6
1.34 Fiscal Year......................................................... 6
1.35 Fixed Term.......................................................... 6
1.36 Fixtures............................................................ 6
1.37 GAAP................................................................ 6
[1.38 Ground Lease....................................................... 6
1.39 Government Agencies................................................. 6
1.40 Hazardous Substances................................................ 6
1.41 Hotel............................................................... 7
1.42 Hotel Mortgage...................................................... 7
1.43 Hotel Mortgagee..................................................... 7
1.44 Immediate Family.................................................... 8
1.45 Impositions......................................................... 8
1.46 Incidental Documents................................................ 9
1.47 Indebtedness........................................................ 9
1.48 Insurance Requirements.............................................. 9
1.49 Interest Rate....................................................... 9
1.50 Land................................................................ 9
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1.51 Landlord............................................................ 9
1.52 Landlord Liens...................................................... 9
1.53 Lease Year.......................................................... 9
1.54 Leased Improvements................................................. 9
1.55 Leased Intangible Property.......................................... 9
1.56 Leased Personal Property............................................ 10
1.57 Leased Property..................................................... 10
1.58 Leasehold Mortgage.................................................. 10
1.59 Leasehold Mortgagee................................................. 10
1.60 Legal Requirements.................................................. 10
1.61 Lending Institution................................................. 10
1.62 Lien................................................................ 11
1.63 Management Agreement................................................ 11
1.64 Manager............................................................. 11
1.65 Minimum Rent........................................................ 11
1.66 Notice.............................................................. 11
1.67 Officer's Certificate............................................... 11
1.68 Other Leases........................................................ 11
1.69 Overdue Rate........................................................ 11
1.70 Parent.............................................................. 11
1.71 Partnership Pledge Agreement........................................ 11
1.72 Permitted Encumbrances.............................................. 11
1.73 Permitted Liens..................................................... 12
1.74 Permitted Use....................................................... 12
1.75 Person.............................................................. 12
1.76 Pledge and Security Agreement....................................... 12
1.77 Purchase Agreement.................................................. 12
1.78 Records............................................................. 12
1.79 Rent................................................................ 12
1.80 SEC................................................................. 12
1.81 State............................................................... 12
1.82 Stock Pledge Agreement.............................................. 12
1.83 Subordinated Creditor............................................... 12
1.84 Subordination Agreement............................................. 12
1.85 Subsidiary.......................................................... 13
1.86 Successor Landlord.................................................. 13
1.87 Tangible Net Worth.................................................. 13
1.88 Tenant.............................................................. 13
1.89 Tenant's Personal Property.......................................... 13
1.90 Term................................................................ 13
1.91 Total Hotel Sales................................................... 13
1.92 Uniform System of Accounts.......................................... 14
1.93 Unsuitable for Its Permitted Use.................................... 14
1.94 WHC................................................................. 14
1.95 Work................................................................ 15
1.96 Wyndham............................................................. 15
ARTICLE 2 LEASED PROPERTY AND TERM....................................... 15
2.1 Leased Property...................................................... 15
2.2 Condition of Leased Property......................................... 16
2.3 Fixed Term........................................................... 17
2.4 Extended Term........................................................ 17
ARTICLE 3 RENT........................................................... 18
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3.1 Rent............................................................... 18
3.1.1 Minimum Rent....................................................... 18
3.1.2 Additional Rent.................................................... 19
3.1.3 Additional Charges................................................. 21
3.2 Late Payment of Rent, Etc............................................ 23
3.3 Net Lease............................................................ 23
3.4 No Termination, Abatement, Etc....................................... 23
3.5 Security for Tenant's Performance.................................... 24
ARTICLE 4 USE OF THE LEASED PROPERTY..................................... 25
4.1 Permitted Use........................................................ 25
4.1.1 Permitted Use...................................................... 25
4.1.2 Necessary Approvals................................................ 26
4.1.3 Lawful Use, Etc.................................................... 26
4.2 Compliance with Legal/Insurance Requirements, Etc.................... 26
4.3 Environmental Matters................................................ 26
4.3.1 Restriction on Use, Etc............................................ 26
4.3.3 Survival........................................................... 28
ARTICLE 5 MAINTENANCE AND REPAIRS........................................ 28
5.1 Maintenance and Repair............................................... 28
5.1.1 Tenant's General Obligations....................................... 28
5.1.2 FF&E Reserve....................................................... 29
5.1.3 Landlord's Obligations............................................. 31
5.1.4 Nonresponsibility of Landlord, Etc................................. 32
5.2 Tenant's Personal Property........................................... 32
5.3 Yield Up............................................................. 32
5.4 Management Agreement................................................. 33
ARTICLE 6 IMPROVEMENTS, ETC.............................................. 34
6.1 Improvements to the Leased Property.................................. 34
6.2 Salvage.............................................................. 35
ARTICLE 7 LIENS.......................................................... 35
7.1 Liens................................................................ 35
7.2 Landlord's Lien...................................................... 35
ARTICLE 8 PERMITTED CONTESTS............................................. 36
ARTICLE 9 INSURANCE AND INDEMNIFICATION.................................. 37
9.1 General Insurance Requirements....................................... 37
9.2 Replacement Cost..................................................... 38
9.3 Waiver of Subrogation................................................ 38
9.4 Form Satisfactory, Etc............................................... 39
9.5 Blanket Policy....................................................... 39
9.6 No Separate Insurance................................................ 40
9.7 Indemnification of Landlord.......................................... 40
ARTICLE 10 CASUALTY...................................................... 41
10.1 Insurance Proceeds.................................................. 41
10.2 Damage or Destruction............................................... 41
10.2.1 Damage or Destruction of Leased Property.......................... 41
10.2.2 Partial Damage or Destruction..................................... 41
10.2.3 Insufficient Insurance Proceeds................................... 42
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10.2.4 Disbursement of Proceeds.......................................... 42
10.3 Damage Near End of Term............................................. 43
10.4 Tenant's Property................................................... 43
10.5 Restoration of Tenant's Property.................................... 43
10.6 No Abatement of Rent................................................ 44
10.7 Waiver.............................................................. 44
10.8 Effect on Other Leases.............................................. 44
ARTICLE 11 CONDEMNATION.................................................. 44
11.1 Total Condemnation, Etc............................................. 44
11.2 Partial Condemnation................................................ 44
11.3 Abatement of Rent................................................... 45
11.4 Temporary Condemnation.............................................. 46
11.5 Allocation of Award................................................. 46
11.6 Effect on Other Leases.............................................. 46
ARTICLE 12 DEFAULTS AND REMEDIES......................................... 47
12.1 Events of Default................................................... 47
12.2 Remedies............................................................ 49
12.3 Tenant's Waiver..................................................... 51
12.4 Application of Funds................................................ 51
12.5 Landlord's Right to Cure Tenant's Default........................... 51
ARTICLE 13 HOLDING OVER.................................................. 52
ARTICLE 14 LANDLORD'S NOTICE OBLIGATIONS; LANDLORD DEFAULT............... 52
14.1 Landlord Notice Obligation.......................................... 52
14.2 Landlord's Default.................................................. 52
ARTICLE 15 PURCHASE RIGHTS............................................... 53
ARTICLE 16 SUBLETTING AND ASSIGNMENT..................................... 54
16.1 Subletting and Assignment........................................... 54
16.2 Required Sublease Provisions........................................ 55
16.3 Permitted Sublease.................................................. 56
16.4 Sublease Limitation................................................. 57
16.5 Required Assignment................................................. 57
ARTICLE 17 ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS................ 57
17.1 Estoppel Certificates............................................... 57
17.2 Financial Statements................................................ 58
17.3 General Operations.................................................. 59
ARTICLE 18 LANDLORD'S RIGHT TO INSPECT................................... 60
ARTICLE 19 LEASEHOLD MORTGAGES........................................... 60
19.1 Leasehold Mortgages Authorized...................................... 60
19.2 Notices to Landlord................................................. 60
ARTICLE 20 HOTEL MORTGAGES............................................... 61
20.1 Landlord May Grant Liens............................................ 61
20.2 Subordination of Lease.............................................. 61
20.3 Notice to Mortgagee and Ground Landlord............................. 63
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ARTICLE 21 ADDITIONAL COVENANTS OF TENANT................................ 63
21.1 Prompt Payment of Indebtedness...................................... 63
21.2 Conduct of Business................................................. 64
21.3 Maintenance of Accounts and Records................................. 64
21.4 Notice of Litigation, Etc........................................... 64
21.5 Indebtedness of Tenant.............................................. 65
21.6 Financial Condition of Tenant....................................... 66
21.7 Distributions, Payments to Affiliated
Persons, Etc....................................................... 66
21.8 Prohibited Transactions............................................. 66
21.9 Liens and Encumbrances.............................................. 66
21.10 Merger; Sale of Assets; Etc......................................... 66
ARTICLE 22 MISCELLANEOUS................................................. 67
22.1 Limitation on Payment of Rent....................................... 67
22.2 No Waiver........................................................... 67
22.3 Remedies Cumulative................................................. 67
22.4 Severability........................................................ 68
22.5 Acceptance of Surrender............................................. 68
22.6 No Merger of Title.................................................. 68
22.7 Conveyance by Landlord.............................................. 68
22.8 Quiet Enjoyment..................................................... 68
22.9 Memorandum of Lease................................................. 69
22.10 Notices............................................................. 69
22.11 Trade Area Restriction.............................................. 70
22.12 Construction........................................................ 71
22.13 Counterparts; Headings.............................................. 71
22.14 Applicable Law, Etc................................................. 71
22.15 Right to Make Agreement............................................. 72
22.16 Non-Liability of Trustees........................................... 72
EXHIBITS
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A - Annual Minimum Rent
B - Other Leases
C - The Land
D - Restricted Trade Area
LEASE AGREEMENT
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THIS LEASE AGREEMENT is entered into as of this day of , 1996,
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by and between HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment
trust, as landlord ("Landlord"), and GARDEN HOTEL ASSOCIATES II LIMITED
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PARTNERSHIP, a Texas limited partnership, as tenant ("Tenant").
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W I T N E S S E T H :
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WHEREAS, Landlord owns fee simple title to the Leased Property [holds the
tenant's interest under the Ground Lease] (this and other capitalized terms used
and not otherwise defined herein having the meanings ascribed to such terms in
Article 1); and
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WHEREAS, Landlord wishes to lease the Leased Property to Tenant and Tenant
wishes to lease the Leased Property from Landlord, all subject to and upon the
terms and conditions herein set forth;
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, Landlord and Tenant hereby agree
as follows:
ARTICLE 1
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DEFINITIONS
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For all purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires, (i) the terms defined in this Article
shall have the meanings assigned to them in this Article and include the plural
as well as the singular, (ii) all accounting terms not otherwise defined herein
shall have the meanings assigned to them in accordance with GAAP, (iii) all
references in this Agreement to designated "Articles," "Sections" and other
subdivisions are to the designated Articles, Sections and other subdivisions of
this Agreement, and (iv) the words "herein," "hereof," "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
1.1 "Additional Rent" shall have the meaning given such term in Section
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3.1.2(a).
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1.2 "Additional Charges" shall have the meaning given such term in Section
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3.1.3.
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1.3 "Affiliated Person" shall mean, with respect to any Person, in the
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case of any such Person which is a partnership, any partner in such partnership,
in the case of any such Person which is a limited liability company, any member
of such company, any other Person which is a Parent, a Subsidiary, or a
Subsidiary of a Parent with respect to such Person or to one or more of the
Persons referred to in the preceding clauses (a) and (b), any other Person who
is an officer, director, trustee or employee of, or partner in or member of,
such Person or any Person referred to in the preceding clauses (a), (b) and (c),
and any other Person who is a member of the Immediate Family of such Person or
of any Person referred to in the preceding clauses (a) through (d).
1.4 "Agreement" shall mean this Lease Agreement, including Exhibits A to D
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hereto, as it and they may be amended from time to time as herein provided.
1.5 "Applicable Laws" shall mean all applicable laws, statutes,
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regulations, rules, ordinances, codes, licenses, permits and orders, from time
to time in existence, of all courts of competent jurisdiction and Government
Agencies, and all applicable judicial and administrative and regulatory decrees,
judgments and orders, including common law rulings and determinations, relating
to injury to, or the protection of, real or personal property or human health
(except those requirements which, by definition, are solely the responsibility
of employers) or the Environment, including, without limitation, all valid and
lawful requirements of courts and other Government Agencies pertaining to
reporting, licensing, permitting, investigation, remediation and removal of
underground improvements (including, without limitation, treatment or storage
tanks, or water, gas or oil xxxxx), or emissions, discharges, releases or
threatened releases of Hazardous Substances, chemical substances, pesti cides,
petroleum or petroleum products, pollutants, contaminants or hazardous or toxic
substances, materials or wastes whether solid, liquid or gaseous in nature, into
the Environment, or relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Substances,
underground improvements (including, without limitation, treatment or storage
tanks, or water, gas or oil xxxxx), or pollutants, contaminants or hazardous or
toxic substances, materials or wastes, whether solid, liquid or gaseous in
nature.
1.6 "Award" shall mean all compensation, sums or other value awarded, paid
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or received by virtue of a total or partial Condemnation of the Leased Property
(after deduction of all reasonable legal fees and other reasonable costs and
expenses, including, without limitation, expert witness fees, incurred by
Landlord, in connection with obtaining any such award).
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1.7 "Base Total Hotel Sales" shall mean Total Hotel Sales for the Base
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Year; provided, however, that in the event that, with respect to any Lease Year,
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or portion thereof, for any reason (including, without limitation, a casualty or
Condemnation) there shall be, for two hundred seventy (270) days or more in any
Lease Year, a reduction in the number of rooms at the Hotel or any other Hotel
(as defined in the Other Leases) or a change in the services provided at the
Hotel or such other Hotels (including, without limitation, closing of
restaurants or the discontinuation of food or beverage services) from the number
of rooms or the services provided during the Base Year, in determining
Additional Rent payable with respect to such Lease Year, Base Total Hotel Sales
shall be reduced as follows: (a) in the event of the termination of any of the
Other Leases and following application of any business interruption or Award
proceeds collected with respect thereto, all Total Hotel Sales attributable to
the Leased Property demised thereunder during the Base Year shall be subtracted
from Base Total Hotel Sales; (b) in the event of a complete closing of a Hotel
and following application of any business interruption or Award proceeds
collected with respect thereto, all Total Hotel Sales attributable to such Hotel
during the Base Year shall be subtracted from Base Total Hotel Sales throughout
the period of such closing; (c) in the event of a partial closing of a Hotel
affecting any number of guest rooms in such Hotel and following application of
any business interruption or Award proceeds collected with respect thereto,
Total Hotel Sales attributable to guest room occupancy or guest room services at
such Hotel during the Base Year shall be ratably allocated among all guest rooms
in service at such Hotel during the Base Year and all such Total Hotel Sales
attributable to rooms no longer in service shall be subtracted from Base Total
Hotel Sales throughout the period of such closing; (d) in the event of a closing
of a restaurant and following application of any business interruption or Award
proceeds collected with respect thereto, all Total Hotel Sales attributable to
such restaurant during the Base Year shall be subtracted from Base Total Hotel
Sales throughout the period of such closing; and (e) in the event of any other
change in circumstances affecting any Hotel, Base Total Hotel Sales shall be
equitably adjusted in such manner as Landlord and Tenant shall reasonably agree.
1.8 "Base Year" shall mean the 1996 calendar year.
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1.9 "Business Day" shall mean any day other than Saturday, Sunday, or any
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other day on which banking institutions in The Commonwealth of Massachusetts or
the State of Texas are authorized by law or executive action to close.
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1.10 "Capital Addition" shall mean any renovation, repair or improvement
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to the Leased Property (or portion thereof), the cost of which constitutes a
Capital Expenditure.
1.11 "Capital Expenditure" shall mean any expenditure treated as capital
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in nature in accordance with GAAP.
1.12 "Claim" shall have the meaning given such term in Article 8.
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1.13 "Code" shall mean the Internal Revenue Code of 1986 and, to the
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extent applicable, the Treasury Regulations promulgated thereunder, each as from
time to time amended.
1.14 "Collective Leased Properties" shall mean, collectively, the Leased
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Property and every other Leased Property (as defined therein) under the Other
Leases.
1.15 "Commencement Date" shall mean the date of this Agreement.
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1.16 "Condemnation" shall mean (a) the exercise of any governmental power
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with respect to the Leased Property, whether by legal proceedings or otherwise,
by a Condemnor of its power of condemnation, (b) a voluntary sale or transfer of
the Leased Property by Landlord to any Condemnor, either under threat of
condemnation or while legal proceedings for condemnation are pending, or (c) a
taking or voluntary conveyance of all or part of the Leased Property, or any
interest therein, or right accruing thereto or use thereof, as the result or in
settlement of any Condemnation or other eminent domain proceeding affecting the
Leased Property, whether or not the same shall have actually been commenced.
1.17 "Condemnor" shall mean any public or quasi-public authority, or
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private corporation or individual, having the power of Condemnation.
1.18 "Consolidated Financials" shall mean, for any Fiscal Year or other
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accounting period of Tenant, annual audited and quarterly unaudited financial
statements of Wyndham prepared on a consolidated basis, including Wyndham's
consolidated balance sheet and the related statements of income and cash flows,
all in reasonable detail, and setting forth in comparative form the
corresponding figures for the corresponding period in the preceding Fiscal Year,
and prepared in accordance with GAAP throughout the periods reflected.
1.19 "Date of Taking" shall mean the date the Condemnor has the right to
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possession of the Leased Property, or any portion thereof, in connection with a
Condemnation.
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1.20 "Default" shall mean any event or condition which with the giving of
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notice and/or lapse of time may ripen into an Event of Default.
1.21 "Disbursement Rate" shall mean an annual rate of interest equal to
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the greater of, as of the date of determination, (i) the Interest Rate and (ii)
the per annum rate for ten (10) year U.S. Treasury Obligations as published in
The Wall Street Journal plus three hundred fifty (350) basis points.
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1.22 "Distribution" shall mean (a) any declaration or payment of any
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dividend (except dividends payable in common stock of Tenant) on or in respect
of any shares of any class of capital stock of Tenant, (b) any purchase,
redemption retirement or other acquisition of any shares of any class of capital
stock of a corporation, (c) any other distribution on or in respect of any
shares of any class of capital stock of a corporation, or (d) any return of
capital to shareholders.
1.23 "Encumbrance" shall have the meaning given such term in Section 20.1.
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1.24 "Entity" shall mean any corporation, general or limited partnership,
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limited liability company or partnership, stock company or association, joint
venture, association, company, trust, bank, trust company, land trust, business
trust, cooperative, any government or agency or political subdivision thereof or
any other entity.
1.25 "Environment" shall mean soil, surface waters, ground waters, land,
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stream, sediments, surface or subsurface strata and ambient air.
1.26 "Environmental Obligation" shall have the meaning given such term in
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Section 4.3.1.
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1.27 "Environmental Notice" shall have the meaning given such term in
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Section 4.3.1.
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1.28 "Event of Default" shall have the meaning given such term in Section
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12.1.
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1.29 "Excess Total Hotel Sales" shall mean, with respect to any Lease
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Year, or portion thereof, the amount of Total Hotel Sales for such Lease Year
with respect to the Collective Leased Properties, or portion thereof, in excess
of Base Total Hotel Sales with respect to the Collective Leased Properties for
the equivalent period.
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1.30 "Extended Terms" shall have the meaning given such term in Section
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2.4.
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1.31 "FF&E Estimate" shall have the meaning given such term in Section
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5.1.2(c).
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1.32 "FF&E Reserve" shall have the meaning given such term in Section
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5.1.2(a).
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1.33 "Financial Officer's Certificate" shall mean, as to any Person, a
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certificate of the chief financial officer or chief accounting officer (or such
officers' authorized designee) of such Person, duly authorized, accompanying the
financial statements required to be delivered by such Person pursuant to Section
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17.2, in which such officer shall certify (a) that such statements have been
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properly prepared in accordance with GAAP and are true, correct and complete in
all material respects and fairly present the consolidated financial condition of
such Person at and as of the dates thereof and the results of its and their
operations for the periods covered thereby, and (b) certify that no Event of
Default has occurred and is continuing hereunder.
1.34 "Fiscal Year" shall mean the calendar year.
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1.35 "Fixed Term" shall have the meaning given such term in Section 2.3.
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1.36 "Fixtures" shall have the meaning given such term in Section 2.1(d).
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1.37 "GAAP" shall mean generally accepted accounting principles
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consistently applied.
1.38 "Ground Lease" shall mean .]
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1.39 "Government Agencies" shall mean any court, agency, authority, board
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(including, without limitation, environmental protection, planning and zoning),
bureau, commission, department, office or instrumentality of any nature
whatsoever of any governmental or quasi-governmental unit of the United States
or the State or any county or any political subdivision of any of the foregoing,
whether now or hereafter in existence, having jurisdiction over Tenant or the
Leased Property or any portion thereof or the Hotel operated thereon.
1.40 "Hazardous Substances" shall mean any substance:
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(a) the presence of which requires or may hereafter require notification,
investigation or remediation under any
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federal, state or local statute, regulation, rule, ordinance, order, action or
policy; or
(b) which is or becomes defined as a "hazardous waste", "hazardous
material" or "hazardous substance" or "pollutant" or "contaminant" under any
present or future federal, state or local statute, regulation, rule or ordi
xxxxx or amendments thereto including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. et seq.) and
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the Resource Conservation and Recovery Act (42 U.S.C. section 6901 et seq.) and
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the regulations promulgated thereunder; or
(c) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous and is or becomes
regulated by any governmental authority, agency, department, commission, board,
agency or instrumentality of the United States, any state of the United States,
or any political subdivision thereof; or
(d) the presence of which on the Leased Property causes or materially
threatens to cause an unlawful nuisance upon the Leased Property or to adjacent
properties or poses or materially threatens to pose a hazard to the Leased
Property or to the health or safety of persons on or about the Leased Property;
or
(e) without limitation, which contains gasoline, diesel fuel or other
petroleum hydrocarbons or volatile organic compounds; or
(f) without limitation, which contains polychlorinated biphenyls (PCBs) or
asbestos or urea formaldehyde foam insulation; or
(g) without limitation, which contains or emits radioactive particles,
waves or material; or
(h) without limitation, constitutes materials which are now or may
hereafter be subject to regulation pursuant to the Material Waste Tracking Act
of 1988, or any Applicable Laws promulgated by any Government Agencies.
1.41 "Hotel" shall mean the Wyndham Garden Hotel being operated on the
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Leased Property.
1.42 "Hotel Mortgage" shall mean any Encumbrance placed upon the Leased
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Property in accordance with Article 20.
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1.43 "Hotel Mortgagee" shall mean the holder of any Hotel Mortgage.
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1.44 "Immediate Family" shall mean, with respect to any individual, such
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individual's spouse, parents, brothers, sisters, children (natural or adopted),
stepchildren, grandchildren, grandparents, parents-in-law, brothers-in-law,
sisters-in-law, nephews and nieces.
1.45 "Impositions" shall mean collectively, all taxes (including, without
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limitation, all taxes imposed under the laws of the State, as such laws may be
amended from time to time, and all ad valorem, sales and use, or similar taxes
as the same relate to or are imposed upon Landlord, Tenant or the business
conducted upon the Leased Property), assessments (including, without limitation,
all assessments for public improvements or benefit, whether or not commenced or
completed prior to the date hereof), water, sewer or other rents and charges,
excises, tax levies, fees (including, without limitation, license, permit,
inspection, authorization and similar fees), and all other governmental charges,
in each case whether general or special, ordinary or extraordinary, or foreseen
or unforeseen, of every character in respect of the Leased Property or the
business conducted thereon by Tenant (including all interest and penalties
thereon due to any failure in payment by Tenant), which at any time prior to,
during or in respect of the Term hereof may be assessed or imposed on or in
respect of or be a lien upon (a) Landlord's interest in the Leased Property, (b)
the Leased Property or any part thereof or any rent therefrom or any estate,
right, title or interest therein, or (c) any occupancy, operation, use or
possession of, or sales from, or activity conducted on, or in connection with
the Leased Property or the leasing or use of the Leased Property or any part
thereof by Tenant; provided, however, that nothing contained herein shall be
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construed to require Tenant to pay (i) any tax based on net income imposed on
Landlord, (ii) any net revenue tax of Landlord, (iii) any transfer fee or other
tax imposed with respect to the sale, exchange or other disposition by Landlord
of the Leased Property or the proceeds thereof, (iv) any single business, gross
receipts tax, transaction privilege, rent or similar taxes as the same relate to
or are imposed upon Landlord, (v) any interest or penalties imposed on Landlord
as a result of the failure of Landlord to file any return or report timely and
in the form prescribed by law or to pay any tax or imposition, except to the
extent such failure is a result of a breach by Tenant of its obligations
pursuant to Section 3.1.3, (vi) any Impositions imposed on Landlord that are a
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result of Landlord not being considered a "United States person" as defined in
Section 7701(a)(30) of the Code, (vii) any Impositions that are enacted or
adopted by their express terms as a substitute for any tax that would not have
been payable by Tenant pursuant to the terms
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of this Agreement or (viii) any Impositions imposed as a result of a breach of
covenant or representation by Landlord in any agreement governing Landlord's
conduct or operation or as a result of the gross negligence or willful
misconduct of Landlord.
1.46 "Incidental Documents" shall mean the Pledge and Security Agreement,
--------------------
the Stock Pledge Agreement and the Partnership Interest Pledge Agreement.
1.47 "Indebtedness" shall mean all obligations, contingent or otherwise,
------------
which in accordance with GAAP should be reflected on the obligor's balance sheet
as liabilities.
1.48 "Insurance Requirements" shall mean all terms of any insurance policy
----------------------
required by this Agreement and all requirements of the issuer of any such policy
and all orders, rules and regulations and any other requirements of the National
Board of Fire Underwriters (or any other body exercising similar functions)
binding upon Landlord, Tenant or the Leased Property.
1.49 "Interest Rate" shall mean ten percent (10%) per annum.
-------------
1.50 "Land" shall have the meaning given such term in Section 2.1(a).
---- --------------
1.51 "Landlord" shall have the meaning given such term in the preambles to
--------
this Agreement.
1.52 "Landlord Liens" shall mean liens on or against the Leased Property
--------------
or any payment of Rent (a) which result from any act of, or any claim against,
Landlord or any owner of a direct or indirect interest in the Leased Property,
or which result from any violation by Landlord of any terms of this Agreement or
the Purchase Agreement, or (b) which result from liens in favor of any taxing
authority by reason of any tax owed by Landlord or any fee owner of a direct or
indirect interest in the Leased Property; provided, however, that "Landlord
-------- ------- --------
Lien" shall not include any lien resulting from any tax for which Tenant is
obligated to pay or indemnify Landlord against until such time as Tenant shall
have already paid to or on behalf of Landlord the tax or the required indemnity
with respect to the same.
1.53 "Lease Year" shall mean any Fiscal Year or portion thereof,
----------
commencing with the 1996 Fiscal Year, during the Term.
1.54 "Leased Improvements" shall have the meaning given such term in
-------------------
Section 2.1(b).
--------------
1.55 "Leased Intangible Property" shall mean all hotel licensing
--------------------------
agreements and other service contracts, equipment
- 10 -
leases, booking agreements and other arrangements or agreements affecting the
ownership, repair, maintenance, management, leasing or operation of the Leased
Property to which Landlord is a party; all books, records and files relating to
the leasing, maintenance, management or operation of the Leased Property
belonging to Landlord; all transferable or assignable permits, certificates of
occupancy, operating permits, sign permits, development rights and approvals,
certificates, licenses, warranties and guarantees, rights to deposits, trade
names, service marks, telephone exchange numbers identified with the Leased
Property, and all other transferable intangible property, miscellaneous rights,
benefits and privileges of any kind or character belonging to Landlord with
respect to the Leased Property.
1.56 "Leased Personal Property" shall have the meaning given such term in
------------------------
Section 2.1(e).
--------------
1.57 "Leased Property" shall have the meaning given such term in Section
--------------- -------
2.1.
---
1.58 "Leasehold Mortgage" shall mean a mortgage, a deed to secure debt, or
------------------
other security instrument by which the leasehold estate or any other rights of
Tenant created by this Agreement is mortgaged, conveyed, assigned, or otherwise
transferred by Tenant, to secure a loan or loans obtained, or obligations
incurred or guaranteed, by Tenant to a Lending Institution.
1.59 "Leasehold Mortgagee" shall mean the holder of any Leasehold
-------------------
Mortgage.
1.60 "Legal Requirements" shall mean all federal, state, county, municipal
------------------
and other governmental statutes, laws, rules, orders, regulations, ordinances,
judgments, decrees and injunctions affecting the Leased Property or the
maintenance, construction, alteration or operation thereof, whether now or
hereafter enacted or in existence, including, without limitation, (a) all
permits, licenses, authorizations, certificates and regulations necessary to
operate the Leased Property for its Permitted Use, and (b) all covenants,
agreements, restrictions and encumbrances contained in any instruments at any
time in force affecting the Leased Property, including those which may (i)
require material repairs, modifications or alterations in or to the Leased
Property or (ii) in any way materially and adversely affect the use and
enjoyment thereof, but excluding any requirements arising as a result of
Landlord's status as a real estate investment trust.
1.61 "Lending Institution" shall mean any United States insurance company,
-------------------
banking corporation, federally insured commercial or savings bank, national
banking association, United
- 11 -
States savings and loan association, employees' welfare, pension or retirement
fund or system, corporate profit sharing or pension trust, college or
university, or real estate investment trust, including any corporation qualified
to be treated for federal tax purposes as a real estate investment trust, such
trust having a net worth of at least $100,000,000 and shall also mean and
include Bankers Trust Company and any Person participating in a loan syndicate
with Bankers Trust Company.
1.62 "Lien" shall mean any mortgage, security interest, pledge, collateral
----
assignment, or other encumbrance, lien or charge of any kind, or any transfer of
property or assets for the purpose of subjecting the same to the payment of
Indebtedness or performance of any other obligation in priority to payment of
its general creditors.
1.63 "Management Agreement" shall mean , together with all
-------------------- ---------------
amendments, modifications and supplements thereto.
1.64 "Manager" shall mean Wyndham or an Affiliated Person with respect to
-------
Wyndham and permitted assignees.
1.65 "Minimum Rent" shall mean, with respect to each calendar year, the
------------
sum set forth on Exhibit A.
---------
1.66 "Notice" shall mean a notice given in accordance with Section 22.10.
------ -------------
1.67 "Officer's Certificate" shall mean a certificate signed by an officer
---------------------
of the certifying Entity duly authorized by the board of directors of the
certifying Entity.
1.68 "Other Leases" shall mean, collectively, the Lease Agreements between
------------
Landlord and Tenant described on Exhibit B.
---------
1.69 "Overdue Rate" shall mean, on any date, a per annum rate of interest
------------ --- -----
equal to the lesser of fifteen percent (15%) and the maximum rate then permitted
under applicable law.
1.70 "Parent" shall mean, with respect to any Person, any Person which
------
owns directly, or indirectly through one or more Subsidiaries or Affiliated
Persons, five percent (5%) or more of the voting or beneficial interest in, or
otherwise has the right or power (whether by contract, through ownership of
securities or otherwise) to control, such Person.
1.71 "Partnership Pledge Agreement" shall mean the Partnership Interest
----------------------------
Pledge Agreement, dated as of the date hereof, made by the partners of Tenant to
Landlord.
- 12 -
1.72 "Permitted Encumbrances" shall mean all rights, restrictions, and
----------------------
easements of record set forth on Schedule B to the applicable owner's or
leasehold title insurance policy issued to Landlord on the date hereof, plus any
other such encumbrances as may have been consented to in writing by Landlord
from time to time.
1.73 "Permitted Liens" shall mean any Liens granted in accordance with
---------------
Section 21.9(a).
---------------
1.74 "Permitted Use" shall mean any use of the Leased Property permitted
-------------
pursuant to Section 4.1.1.
-------------
1.75 "Person" shall mean any individual or Entity, and the heirs,
------
executors, administrators, legal representatives, successors and assigns of such
Person where the context so admits.
1.76 "Pledge and Security Agreement" shall mean the Pledge and Security
-----------------------------
Agreement, dated as of the date hereof, made by Tenant for the benefit of
Landlord.
1.77 "Purchase Agreement" shall mean the Purchase and Sale Agreement,
------------------
dated as of March 5, 1996, by and between Landlord and Garden Hotel Associates
Limited Partnership, as amended.
1.78 "Records" shall have the meaning given such term in Section 7.2.
------- -----------
1.79 "Rent" shall mean, collectively, the Minimum Rent, Additional Rent
----
and Additional Charges.
1.80 "SEC" shall mean the Securities and Exchange Commission.
---
1.81 "State" shall mean the state or commonwealth or district in which the
-----
Leased Property is located.
1.82 "Stock Pledge Agreement" shall mean the Stock Pledge Agreement made
----------------------
by Wyndham to Landlord with respect to the stock of the required assignee of
Tenant pursuant to Section 16.5.
------------
1.83 "Subordinated Creditor" shall mean any creditor of Tenant which is a
---------------------
party to a Subordination Agreement in favor of Landlord.
1.84 "Subordination Agreement" shall mean any agreement executed by a
-----------------------
Subordinated Creditor pursuant to which the payment and performance of Tenant's
obligations to such Subordinated Creditor are subordinated to the payment and
performance of Tenant's obligations to Landlord under this Agreement.
- 13 -
1.85 "Subsidiary" shall mean, with respect to any Person, any Entity (a)
----------
in which such Person owns directly, or indirectly through one or more
Subsidiaries, forty-nine percent (49%) or more of the voting or beneficial
interest or (b) which such Person otherwise has the right or power to control
(whether by contract, through ownership of securities or otherwise).
1.86 "Successor Landlord" shall have the meaning given such term in
------------------
Section 20.2.
------------
1.87 "Tangible Net Worth" shall mean the excess of total assets over total
------------------
liabilities, total assets and total liabilities each to be determined in
accordance with GAAP, excluding, however, from the determination of total
assets: (a) goodwill, organizational expenses, research and development
expenses, trademarks, trade names, copyrights, patents, patent applications,
licenses and rights in any thereof, and other similar intangibles; (b) all
deferred charges or unamortized debt discount and expense; (c) all reserves
carried and not deducted from assets; (d) treasury stock and capital stock,
obligations or other securities of, or capital contributions to, or investments
in, any Subsidiary; (e) securities which are not readily marketable; (f) any
write-up in the book value of any asset resulting from a revaluation thereof
subsequent to the Commencement Date; (g) deferred gain; and (h) any items not
included in clauses (a) through (g) above that are treated as intangibles in
conformity with GAAP; and excluding, however, from the determination of total
liabilities deferred fees payable to the Manager in accordance with the
Management Agreement.
1.88 "Tenant" shall have the meaning given such term in the preambles to
------
this Agreement.
1.89 "Tenant's Personal Property" shall mean all motor vehicles and
--------------------------
consumable inventory and supplies, furniture, furnishings, movable walls and
partitions, equipment and machinery and all other tangible personal property of
Tenant, if any, acquired by Tenant on and after the date hereof and located at
the Leased Property or used in Tenant's business at the Leased Property and all
modifications, replacements, alterations and additions to such personal property
installed at the expense of Tenant, other than any items included within the
definition of Fixtures or Leased Personal Property.
1.90 "Term" shall mean, collectively, the Fixed Term and the Extended
----
Terms, to the extent properly exercised pursuant to the provisions of Section
-------
2.4, unless sooner terminated pursuant to the provisions of this Agreement.
---
- 14 -
1.91 "Total Hotel Sales" shall mean, for each Fiscal Year during the Term,
-----------------
all revenues and receipts of every kind derived by Tenant from operating the
Leased Property and parts thereof, including, but not limited to: income (from
both cash and credit transactions), after deductions for bad debts, and
discounts for prompt or cash payments and refunds, from rental of rooms, stores,
offices, meeting, exhibit or sales space of every kind; license, lease and
concession fees and rentals (not including gross receipts of licensees, lessees
and concessionaires); income from vending machines; health club membership fees;
food and beverage sales; wholesale and retail sales of merchandise (other than
proceeds from the sale of furnishings, fixture and equipment no longer necessary
to the operation of the Hotel, which shall be deposited in the FF&E Reserve);
service charges, to the extent not distributed to the employees at the Hotel as
gratuities; and proceeds, if any, from business interruption or other loss of
income insurance; provided, however, that Total Hotel Sales shall not include
-------- -------
the following: gratuities to Hotel employees; federal, state or municipal
excise, sales, use or similar taxes collected directly from patrons or guests or
included as part of the sales price of any goods or services; insurance proceeds
(other than proceeds from business interruption or other loss of income
insurance); Award proceeds (other than for a temporary Condemnation); any
proceeds from any sale of the Leased Property or from the refinancing of any
debt encumbering the Leased Property; proceeds from the disposition of
furnishings, fixture and equipment no longer necessary for the operation of the
Hotel; and interest which accrues on amounts deposited in the FF&E Reserve.
1.92 "Uniform System of Accounts" shall mean A Uniform System of Accounts
-------------------------- ----------------------------
for Hotels, Eighth Revised Edition, 1986, as published by the Hotel Association
----------
of New York City, as the same may be further revised from time to time.
1.93 "Unsuitable for Its Permitted Use" shall mean a state or condition of
--------------------------------
the Hotel such that (a) following any damage or destruction involving the Hotel,
the Hotel cannot be operated in the good faith judgment of Tenant on a
commercially practicable basis for its Permitted Use and it cannot reasonably be
expected to be restored to substantially the same condition as existed
immediately before such damage or destruction, and as otherwise required by
Section 10.2.4, within twelve (12) months following such damage or destruction
--------------
or such shorter period of time as to which business interruption insurance is
available to cover Rent and other costs related to the Leased Property following
such damage or destruction, or (b) as the result of a partial taking by
Condemnation, the Hotel cannot be operated, in the good faith judgment of Tenant
or the Manager on a commercially practicable basis for its Permitted Use.
- 15 -
1.94 "WHC" shall mean Wyndham Hotel Corporation, a Delaware corporation,
---
which it is currently contemplated will, directly or indirectly, succeed to
substantially all of the business and assets of Wyndham Hotel Company, Ltd.,
certain shares of which will be publicly traded on a nationally recognized
exchange and all permitted successors and assigns of such corporation.
1.95 "Work" shall have the meaning given such term in Section 10.2.4.
---- --------------
1.96 "Wyndham" shall mean, prior to the assignment described in Section
------- -------
16.5, Wyndham Hotel Company, Ltd., a Texas limited partnership, and following
----
the assignment described in Section 16.5, WHC.
------------
ARTICLE 2
---------
LEASED PROPERTY AND TERM
------------------------
2.1 Leased Property. Upon and subject to the terms and conditions
---------------
hereinafter set forth, Landlord leases to Tenant and Tenant leases from Landlord
all of Landlord's right, title and interest in and to all of the following
(collectively, the "Leased Property"):
---------------
(a) those certain tracts, pieces and parcels of land, as more
particularly described in Exhibit C, attached hereto and made a part hereof
---------
(the "Land");
----
(b) all buildings, structures and other improvements of every kind
including, but not limited to, alleyways and connecting tunnels, sidewalks,
utility pipes, conduits and lines (on-site and off-site), parking areas and
roadways appurtenant to such buildings and structures presently situated
upon the Land (collectively, the "Leased Improvements");
-------------------
(c) all easements, rights and appurtenances relating to the Land and
the Leased Improvements;
(d) all equipment, machinery, fixtures, and other items of property,
now or hereafter permanently affixed to or incorporated into the Leased
Improvements, including, without limitation, all furnaces, boilers,
heaters, electrical equipment, heating, plumbing, lighting, ventilating,
refrigerating, incineration, air and water pollution control, waste
disposal, air-cooling and air-conditioning systems and apparatus, sprinkler
systems and fire and theft protection equipment, all of which, to the
maximum extent permitted by law, are hereby deemed by the
- 16 -
parties hereto to constitute real estate, together with all replacements,
modifications, alterations and additions thereto, but specifically
excluding all items included within the category of Tenant's Personal
Property (collectively, the "Fixtures");
--------
(e) all machinery, equipment, furniture, furnishings, moveable walls
or partitions, computers or trade fixtures or other personal property of
any kind or description used or useful in Tenant's business on or in the
Leased Improvements, and located on or in the Leased Improvements, and all
modifications, replacements, alterations and additions to such personal
property, except items, if any, included within the category of Fixtures,
but specifically excluding all items included within the category of
Tenant's Personal Property (collectively, the "Leased Personal Property");
------------------------
(f) all of the Leased Intangible Property; and
(g) any and all leases of space (including any security deposits held
by Tenant or the Manager pursuant thereto) in the Leased Improvements to
tenants thereof.
2.2 Condition of Leased Property. Tenant acknowledges receipt and
----------------------------
delivery of possession of the Leased Property and Tenant accepts the Leased
Property in its "as is" condition, subject to the rights of parties in
possession, the existing state of title, including all covenants, conditions,
restrictions, reservations, mineral leases, easements and other matters of
record or that are visible or apparent on the Leased Property, all applicable
Legal Requirements, the lien of any financing instruments, mortgages and deeds
of trust existing prior to the Commencement Date or permitted by the terms of
this Agreement, and such other matters which would be disclosed by an inspection
of the Leased Property and the record title thereto or by an accurate survey
thereof. TENANT REPRESENTS THAT IT HAS INSPECTED THE LEASED PROPERTY AND ALL OF
THE FOREGOING AND HAS FOUND THE CONDITION THEREOF SATISFACTORY AND IS NOT
RELYING ON ANY REPRESENTATION OR WARRANTY OF LANDLORD OR LANDLORD'S AGENTS OR
EMPLOYEES WITH RESPECT THERETO AND TENANT WAIVES ANY CLAIM OR ACTION AGAINST
LANDLORD IN RESPECT OF THE CONDITION OF THE LEASED PROPERTY. LANDLORD MAKES NO
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, IN RESPECT OF THE LEASED
PROPERTY OR ANY PART THEREOF, EITHER AS TO ITS FITNESS FOR USE, DESIGN OR
CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE, AS TO THE QUALITY OF
THE MATERIAL OR WORKMANSHIP THEREIN, LATENT OR PATENT, IT BEING AGREED THAT ALL
SUCH RISKS ARE TO BE BORNE BY TENANT. To the maximum extent permitted by law,
however, Landlord hereby assigns to Tenant all of Landlord's rights to proceed
against any predecessor in title for breaches of warranties or
- 17 -
representations or for latent defects in the Leased Property. Landlord shall
fully cooperate with Tenant in the prosecution of any such claims, in Landlord's
or Tenant's name, all at Tenant's sole cost and expense. Tenant shall
indemnify, defend, and hold harmless Landlord from and against any loss, cost,
damage or liability (including reasonable attorneys' fees) incurred by Landlord
in connection with such cooperation.
2.3 Fixed Term. The initial term of this Agreement (the "Fixed
---------- -----
Term") shall commence on the Commencement Date and shall expire December 31,
2012.
2.4 Extended Term. Provided that no Event of Default shall have
-------------
occurred and be continuing, this Agreement shall be in full force and effect,
and the term of all of the Other Leases shall be simultaneously extended (unless
any such Other Leases shall have been terminated pursuant to the provisions of
Articles 10 or 11 thereof), the Term shall be automatically extended for four
-----------------
(4) consecutive renewal terms of twelve (12) years each (collectively, the
"Extended Terms"), unless Tenant shall give Landlord Notice, not later than two
---------------
(2) years prior to the scheduled expiration of the then current Term of this
Agreement (Fixed or Extended, as the case may be), that Tenant elects not so to
extend the term of this Agreement and the Other Leases (and time shall be of the
essence with respect to the giving of such Notice). It is expressly understood
and agreed that such Notice from Tenant shall be void and of no effect and the
Term shall be automatically extended unless Tenant shall simultaneously elect
not to extend the term of the Other Leases.
Each Extended Term shall commence on the day succeeding the expiration of
the Fixed Term or the preceding Extended Term, as the case may be. All of the
terms, covenants and provisions of this Agreement shall apply to each such
Extended Term, except that Tenant shall have no right to extend the Term beyond
the expiration of the Extended Terms. If Tenant shall give Notice that it
elects not to extend the Term in accordance with this Section 2.4, this
-----------
Agreement shall automatically terminate at the end of the Term then in effect
and Tenant shall have no further option to extend the Term of this Agreement.
Otherwise, the extension of this Agreement shall be automatically effected
without the execution of any additional documents; it being understood and
agreed, however, that Tenant and Landlord shall execute such documents and
agreements as either party shall reasonably require to evidence the same.
[Notwithstanding the foregoing, if Landlord has the right, under the
provisions of the Ground Lease, to elect to renew or extend the term of the
Ground Lease, unless Tenant shall notify Landlord at least one hundred eighty
(180) days prior to the expiration of the period within which Landlord is
obligated to
- 18 -
notify the landlord under the Ground Lease of its election to renew or extend
the term of the Ground Lease that Tenant intends not to renew the Term, Landlord
shall extend the Ground Lease and the Term of this Agreement shall be deemed to
be automatically extended to the expiration of the term of the Ground Lease, as
renewed or extended.
ARTICLE 3
---------
RENT
----
3.1 Rent. Tenant shall pay, in lawful money of the United States of
----
America which shall be legal tender for the payment of public and private debts,
without offset, abatement, demand or deduction (unless otherwise expressly
provided in this Agreement), Minimum Rent and Additional Rent to Landlord and
Additional Charges to the party to whom such Additional Charges are payable,
during the Term. All payments to Landlord shall be made by wire transfer of
immediately available federal funds or by other means acceptable to Landlord in
its sole discretion. Rent for any partial Accounting Period shall be prorated on
a per diem basis.
3.1.1 Minimum Rent.
------------
(a) Minimum Rent shall be paid in advance on the first Business Day of
each month; provided, however, that the first payment of Minimum Rent shall
-------- -------
be payable on the Com mencement Date (and, if applicable, such payment
shall be prorated as provided in the last sentence of the first paragraph
of Section 3.1).
-----------
(b) Adjustments of Minimum Rent Following Disbursements Under Sections
------------------------------------------------------------------
5.1.3(b), 10.2.4 or 11.2. Effective on the date of each disbursement to
------------------------
pay for the cost of any repairs, maintenance, renovations or replacements
pursuant to Sections 5.1.3(b), 10.2.4 or 11.2, the Minimum Rent shall be
---------------------------------
increased by a per annum amount equal to the Disbursement Rate times the
---------
amount so disbursed. If any such disbursement is made during any month on a
day other than the first day of a month, Tenant shall pay to Landlord on
the first day of the immediately following month (in addition to the amount
of Minimum Rent payable with respect to such month, as adjusted pursuant to
this paragraph (b)) the amount by which Minimum Rent for the preceding
month, as adjusted for such disbursement on a per diem basis, exceeded the
amount of Minimum Rent paid by Tenant for such preceding month.
- 19 -
3.1.2 Additional Rent.
--------------
(a) Amount. Commencing with the Second Lease Year, for each Lease
------
Year or portion thereof, Tenant shall pay an aggregate amount of additional
rent ("Additional Rent") with respect to such Lease Year, pursuant to this
-----------------
Agreement and the Other Leases, in an amount, not less than zero, equal to
eight percent (8%) of Excess Total Hotel Sales.
(b) Monthly Installments. Commencing with the Second Lease Year,
--------------------
installments of Additional Rent for each Lease Year or portion thereof
shall be calculated and paid monthly in arrears, together with an Officer's
Certificate setting forth the calculation of Additional Rent due and
payable for such month.
(c) Reconciliation of Additional Rent. In addition, on or before
---------------------------------
April 30, of each year, commencing April 30, 1997, Tenant shall deliver to
Landlord an Officer's Certificate setting forth the Total Hotel Sales for
the Collective Leased Properties for such preceding Lease Year, together
with an audit of Tenant's revenues for the preceding Lease Year, conducted
by Xxxxxx Xxxxxxxx and Co., or another "Big Six", so-called, firm of
independent certified public accountants proposed by Tenant and approved by
Landlord (which approval shall not be unreasonably withheld or delayed).
If the annual Additional Rent for such preceding Lease Year as shown
in the Officer's Certificate exceeds the amount previously paid with
respect thereto by Tenant, Tenant shall pay such excess to Landlord at such
time as the Officer's Certificate is delivered, together with interest at
the Interest Rate, which interest shall accrue from the close of such
preceding Lease Year until the date that such certificate is required to be
delivered and, thereafter, such interest shall accrue at the Overdue Rate,
until the amount of such difference shall be paid or otherwise discharged.
If the annual Additional Rent for such preceding Lease Year as shown in the
Officer's Certificate is less than the amount previously paid with respect
thereto by Tenant, provided that no Event of Default shall have occurred
and be continuing, Landlord shall grant Tenant a credit against the Rent
next coming due in the amount of such difference, together with interest at
the Interest Rate, which interest shall accrue from the date of payment by
Tenant until the date such credit is applied or paid, as the case may be.
If such credit cannot be made because the Term has expired prior to
application in full thereof, provided no Event of Default has occurred and
is continuing, Landlord shall pay the unapplied balance of such credit to
- 20 -
Tenant, together with interest at the Interest Rate, which interest shall
accrue from the date of payment by Tenant until the date of payment by
Landlord.
(d) Confirmation of Additional Rent. Tenant shall utilize, or cause
-------------------------------
to be utilized, an accounting system for the Collective Leased Properties
in accordance with its usual and customary practices and in accordance with
GAAP, which will accurately record all Total Hotel Sales and Tenant shall
retain, for at least three (3) years after the expiration of each Lease
Year, reasonably adequate records conforming to such accounting system
showing all Total Hotel Sales for such Lease Year. Landlord, at its own
expense, except as provided hereinbelow, shall have the right, exercisable
by Notice to Tenant within one (1) year after receipt of the applicable
Officer's Certificate, by its accountants or representatives to audit the
information set forth in the Officer's Certificate referred to in
subparagraph (c) above and, in connection with such audits, to examine
Tenant's and the Manager's books and records with respect thereto
(including supporting data and sales and excise tax returns). If any such
audit discloses a deficiency in the payment of Additional Rent and, either
Tenant agrees with the result of such audit or the matter is otherwise
compromised with Landlord, Tenant shall forthwith pay to Landlord the
amount of the deficiency, as finally agreed or determined, together with
interest at the Interest Rate, from the date such payment should have been
made to the date of payment thereof. If such deficiency, as agreed upon or
compromised as aforesaid, is more than four percent (4%) of the Total Hotel
Sales reported by Tenant for such Lease Year and, as a result, Landlord did
not receive at least ninety-five percent (95%) of the Additional Rent
payable with respect to such Lease Year, Tenant shall pay the reasonable
cost of such audit and examination. If any such audit discloses that Tenant
paid more Additional Rent for any Lease Year than was due hereunder, and
either Landlord agrees with the result of such audit or the matter is
otherwise determined, provided no Event of Default has occurred and is
continuing, Landlord shall grant Tenant a credit equal to the amount of
such overpayment against the Rent next coming due in the amount of such
difference, as finally agreed or determined, together with interest at the
Interest Rate, which interest shall accrue from the time of payment by
Tenant until the date such credit is applied or paid, as the case may be.
If such a credit cannot be made because the Term has expired before the
credit can be applied in full, provided no Event of Default has occurred
and is continuing, Landlord shall pay the unapplied balance of such credit
to Tenant, together with interest at the
- 21 -
Interest Rate, which interest shall accrue from the date of payment by
Tenant until the date of payment from Landlord.
Any proprietary information obtained by Landlord with respect to
Tenant pursuant to the provisions of this Agreement shall be treated as
confidential, except that such information may be used, subject to
appropriate confidentiality safeguards, in any litigation between the
parties and except further that Landlord may disclose such information to
its prospective lenders, provided that Landlord shall direct and obtain the
agreement of such lenders to maintain such information as confidential. The
obligations of Tenant and Landlord contained in this Section 3.1.2 shall
-------------
survive the expiration or earlier termination of this Agreement.
3.1.3 Additional Charges. In addition to the Minimum Rent and
------------------
Additional Rent payable hereunder, Tenant shall pay to the appropriate
parties and discharge as and when due and payable the following
(collectively, "Additional Charges"):
-------------------
(a) Impositions. Subject to Article 8 relating to permitted contests,
----------- ---------
Tenant shall pay, or cause to be paid, all Impositions before any fine,
penalty, interest or cost (other than any opportunity cost as a result of a
failure to take advantage of any discount for early payment) may be added
for non-payment, such payments to be made directly to the taxing
authorities where feasible, and shall promptly, upon request, furnish to
Landlord copies of official receipts or other reasonably satisfactory proof
evidencing such payments. If any such Imposition may, at the option of the
taxpayer, lawfully be paid in installments (whether or not interest shall
accrue on the unpaid balance of such Imposition), Tenant may exercise the
option to pay the same (and any accrued interest on the unpaid balance of
such Imposition) in installments and, in such event, shall pay such
installments during the Term as the same become due and before any fine,
penalty, premium, further interest or cost may be added thereto. Landlord,
at its expense, shall, to the extent required or permitted by Applicable
Law, prepare and file all tax returns and pay all taxes due in respect of
Landlord's net income, gross receipts, sales and use, single business,
transaction privilege, rent, ad valorem, franchise taxes and taxes on its
capital stock, and Tenant, at its expense, shall, to the extent required or
permitted by Applicable Laws and regulations, prepare and file all other
tax returns and reports in respect of any Imposition as may be required by
Government Agencies. Provided no Event of Default shall have occurred and
be continuing, if any refund shall be due from any taxing authority in
respect of any Imposition paid by Tenant, the same shall be paid over to or
- 22 -
retained by Tenant. Landlord and Tenant shall, upon request of the other,
provide such data as is maintained by the party to whom the request is made
with respect to the Leased Property as may be necessary to prepare any
required returns and reports. In the event Government Agencies classify any
property covered by this Agreement as personal property, Tenant shall file
all personal property tax returns in such jurisdictions where it may
legally so file. Each party shall, to the extent it possesses the same,
provide the other, upon request, with cost and depreciation records
necessary for filing returns for any property so classified as personal
property. Where Landlord is legally required to file personal property tax
returns for property covered by this Agreement, Landlord shall provide
Tenant with copies of assessment notices in sufficient time for Tenant to
file a protest. All Impositions assessed against such personal property
shall be (irrespective of whether Landlord or Tenant shall file the
relevant return) paid by Tenant not later than the last date on which the
same may be made without interest or penalty.
Landlord shall give prompt Notice to Tenant of all Impositions payable
by Tenant hereunder of which Landlord at any time has knowledge; provided,
--------
however, that Landlord's failure to give any such notice shall in no way
-------
diminish Tenant's obligation hereunder to pay such Impositions, unless such
failure continues for more than twelve (12) months after the date Landlord
learned of such Imposition.
(b) Utility Charges. Tenant shall pay or cause to be paid all charges
---------------
for electricity, power, gas, oil, water and other utilities used in
connection with the Leased Property.
(c) Insurance Premiums. Tenant shall pay or cause to be paid all
------------------
premiums for the insurance coverage required to be maintained pursuant to
Article 9.
---------
(d) Other Charges. Tenant shall pay or cause to be paid all other
-------------
amounts, liabilities and obligations, including, without limitation,
[ground rents and other sums payable under the Ground Lease] and all
amounts payable under any equipment leases and all agreements to indemnify
Landlord under Sections 4.3.2 and 9.7.
----------------------
(e) Reimbursement for Additional Charges. If Tenant pays or causes
------------------------------------
to be paid property taxes or similar or other Additional Charges
attributable to periods after the end of the Term, whether upon expiration
or sooner termination of this Agreement (other than termination by reason
of an Event of Default), Tenant may, within a reasonable time after the end
of the Term, provide Notice to Landlord of its estimate
- 23 -
of such amounts. Landlord shall promptly reimburse Tenant for all payments
of such taxes and other similar Additional Charges that are attributable to
any period after the Term of this Agreement.
3.2 Late Payment of Rent, Etc., If any installment of Minimum Rent,
--------------------------
Additional Rent or Additional Charges (but only as to those Additional Charges
which are payable directly to Landlord) shall not be paid within ten (10) days
after its due date, Tenant shall pay Landlord, on demand, as Additional Charges,
a late charge (to the extent permitted by law) computed at the Overdue Rate on
the amount of such installment, from the due date of such installment to the
date of payment thereof. To the extent that Tenant pays any Additional Charges
directly to Landlord or any Hotel Mortgagee pursuant to any requirement of this
Agreement, Tenant shall be relieved of its obligation to pay such Additional
Charges to the Entity to which they would otherwise be due. If any payments due
from Landlord to Tenant shall not be paid within ten (10) days after its due
date, Landlord shall pay to Tenant, on demand, a late charge (to the extent
permitted by law) computed at the Overdue Rate on the amount of such installment
from the due date of such installment to the date of payment thereof.
In the event of any failure by Tenant to pay any Additional Charges when
due, Tenant shall promptly pay and discharge, as Additional Charges, every fine,
penalty, interest and cost which is added for non-payment or late payment of
such items. Landlord shall have all legal, equitable and contractual rights,
powers and remedies provided either in this Agreement or by statute or otherwise
in the case of non-payment of the Additional Charges as in the case of non-
payment of the Minimum Rent and Additional Rent.
3.3 Net Lease. The Rent shall be absolutely net to Landlord so that this
---------
Agreement shall yield to Landlord the full amount of the installments or amounts
of the Rent throughout the Term, subject to any other provisions of this
Agreement which expressly provide otherwise, including those provisions for
adjustment or abatement of such Rent.
3.4 No Termination, Abatement, Etc. Except as otherwise specifically
-------------------------------
provided in this Agreement, each of Landlord and Tenant, to the maximum extent
permitted by law, shall remain bound by this Agreement in accordance with its
terms and shall not take any action without the consent of the other to modify,
surrender or terminate this Agreement. In addition, except as otherwise
expressly provided in this Agreement, Tenant shall not seek, or be entitled to,
any abatement, deduction, deferment or reduction of the Rent, or set-off against
the Rent, nor shall the respective obligations of Landlord and Tenant be
otherwise
- 24 -
affected by reason of (a) any damage to or destruction of the Leased Property or
any portion thereof from whatever cause or any Condemnation, (b) the lawful or
unlawful prohibition of, or restriction upon, Tenant's use of the Leased
Property, or any portion thereof, or the interference with such use by any
Person or by reason of eviction by paramount title; (c) any claim which Tenant
may have against Landlord by reason of any default (other than a monetary
default) or breach of any warranty by Landlord under this Agreement or any other
agreement between Landlord and Tenant, or to which Landlord and Tenant are
parties; (d) any bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, winding up or other proceedings
affecting Landlord or any assignee or transferee of Landlord; or (e) for any
other cause whether similar or dissimilar to any of the foregoing (other than a
monetary default by Landlord); provided, however, that the foregoing shall not
-------- -------
apply or be construed to restrict Tenant's rights in the event of any act or
omission by Landlord constituting gross negligence or willful misconduct.
Except as otherwise specifically provided in this Agreement, Tenant hereby
waives all rights arising from any occurrence whatsoever, which may now or
hereafter be conferred upon it by law (a) to modify, surrender or terminate this
Agreement or quit or surrender the Leased Property or any portion thereof, or
(b) which would entitle Tenant to any abatement, reduction, suspension or
deferment of the Rent or other sums payable or other obligations to be performed
by Tenant hereunder. The obligations of each party hereunder shall be separate
and independent covenants and agreements, and the Rent and all other sums
payable by Tenant hereunder shall continue to be payable in all events unless
the obligations to pay the same shall be terminated pursuant to the express
provisions of this Agreement. In any instance where, after the occurrence of an
Event of Default, Landlord retains funds which, but for the occurrence of such
Event of Default, would be payable to Tenant, Landlord shall refund such funds
to Tenant to the extent the amount thereof exceeds the amount necessary to
compensate Landlord for any cost, loss or damage incurred in connection with
such Event of Default.
3.5 Security for Tenant's Performance. Tenant acknowledges that the
---------------------------------
Retained Funds (as defined in the Purchase Agreement) constitute security for
the faithful observance and performance by Tenant of all the terms, covenants
and conditions of this Agreement by Tenant to be observed and performed. If any
Event of Default shall occur and be continuing, Landlord may, at its option and
without prejudice to any other remedy which Landlord may have on account
thereof, appropriate and apply so much of the Retained Funds as may be necessary
to compensate Landlord toward the payment of the Rent or other sums or loss or
damage sustained by Landlord due to such breach by Tenant. It is understood and
agreed that the amount of the Retained Funds is not to be considered as prepaid
rent, nor shall damages be limited to the
- 25 -
amount of the amount of the Retained Funds. Provided this Agreement shall not
be terminated as a result of an Event of Default, the Retained Funds shall be
paid as provided in the Purchase Agreement.
ARTICLE 4
---------
USE OF THE LEASED PROPERTY
--------------------------
4.1 Permitted Use.
-------------
4.1.1 Permitted Use.
-------------
(a) Tenant shall, at all times during the Term and at any other time
that Tenant shall be in possession of the Leased Property, continuously use
and operate, and cause the Manager to use and operate, the Leased Property
as a Wyndham Garden hotel and any uses incidental thereto. Tenant shall not
use (and shall direct the Manager not to use) the Leased Property or any
portion thereof for any other use without the prior written consent of
Landlord. No use shall be made or permitted to be made of the Leased
Property and no acts shall be done thereon which will cause the
cancellation of any insurance policy covering the Leased Property or any
part thereof (unless another adequate policy is available), nor shall
Tenant sell or otherwise provide or permit to be kept, used or sold in or
about the Leased Property any article which may be prohibited by law or by
the standard form of fire insurance policies, or any other insurance
policies required to be carried hereunder, or fire underwriter's
regulations. Tenant shall, at its sole cost (except as expressly provided
in Section 5.1.2(b)), comply (or direct the Manager to comply) with all
----------------
Insurance Requirements. Tenant shall not take or omit to take (and Tenant
shall direct the Manager not to take or omit to take) any action, the
taking or omission of which materially impairs the value or the usefulness
of the Leased Property or any part thereof for its Permitted Use.
(b) In the event that, in the reasonable determination of Tenant, it
shall no longer be economically practical to operate the Leased Property as
a Wyndham Garden hotel, Tenant shall give Landlord Notice thereof, which
Notice shall set forth in reasonable detail the reasons therefor.
Thereafter, Landlord and Tenant shall negotiate in good faith to agree on
an alternative use for the Leased Property, appropriate adjustments to the
Additional Rent and other related matters; provided, however, in no such
-------- -------
event shall the Minimum Rent be reduced or abated.
- 26 -
4.1.2 Necessary Approvals. Tenant shall proceed with all due
-------------------
diligence and exercise best efforts to obtain and maintain, and shall
direct the Manager to obtain and maintain, all approvals necessary to use
and operate, for its Permitted Use, the Leased Property and the Hotel
located thereon under applicable law.
4.1.3 Lawful Use, Etc. Tenant shall not, and shall direct the
----------------
Manager not to, use or suffer or permit the use of the Leased Property or
Tenant's Personal Property, if any, for any unlawful purpose. Tenant shall
not, and shall direct the Manager not to, commit or suffer to be committed
any waste on the Leased Property, or in the Hotel, nor shall Tenant cause
or permit any unlawful nuisance thereon or therein. Tenant shall not, and
shall direct the Manager not to, suffer nor permit the Leased Property, or
any portion thereof, to be used in such a manner as (i) might reasonably
impair Landlord's title thereto or to any portion thereof, or (ii) may
reasonably allow a claim or claims for adverse usage or adverse possession
by the public, as such, or of implied dedication of the Leased Property or
any portion thereof.
4.2 Compliance with Legal/Insurance Requirements, Etc. Subject to the
--------------------------------------------------
provisions of Article 8 and Section 5.1.3(b), Tenant, at its sole expense, shall
------------------------------
(or shall direct the Manager to) (i) comply with all material Legal Requirements
and Insurance Requirements in respect of the use, operation, maintenance,
repair, alteration and restoration of the Leased Property and with the terms and
conditions of any ground lease affecting the Leased Property and (ii) procure,
maintain and comply with all appropriate licenses, and other authorizations and
agreements required for any use of the Leased Property and Tenant's Personal
Property, if any, then being made, and for the proper erection, installation,
operation and maintenance of the Leased Property or any part thereof.
4.3 Environmental Matters.
---------------------
4.3.1 Restriction on Use, Etc. During the Term and any other time
------------------------
that Tenant shall be in possession of the Leased Property, Tenant shall not
(and shall direct the Manager not to) store, spill upon, dispose of or
transfer to or from the Leased Property any Hazardous Substance, except in
compliance with all Applicable Laws. During the Term and any other time
that Tenant shall be in possession of the Leased Property, Tenant shall
maintain (and shall direct the Manager to maintain) the Leased Property at
all times free of any Hazardous Substance (except in compliance with all
Applicable Laws). Tenant shall promptly: (a) upon receipt of notice or
knowledge and shall direct the Manager upon receipt of notice or knowledge
promptly to, notify Landlord in writing of any material change in the
nature or
- 27 -
extent of Hazardous Substances at the Leased Property, (b) transmit to
Landlord a copy of any Community Right to Know report which is required to
be filed by Tenant or the Manager with respect to the Leased Property
pursuant to XXXX Title III or any other Applicable Law, (c) transmit to
Landlord copies of any citations, orders, notices or other governmental
communications received by Tenant or the Manager or their respective
agents or representatives with respect thereto (collectively,
"Environmental Notice"), which Environmental Notice requires a written
--------------------
response or any action to be taken and/or if such Environmental Notice
gives notice of and/or presents a material risk of any material violation
of any Applicable Law and/or presents a material risk of any material
cost, expense, loss or damage (an "Environmental Obligation"), (d)
------------------------
observe and comply (and direct the Manager to observe and comply) with all
Applicable Laws relating to the use, maintenance and disposal of Hazardous
Substances and all orders or directives from any of ficial, court or
agency of competent jurisdiction relating to the use or maintenance or
requiring the removal, treatment, contain ment or other disposition
thereof, and (e) pay or otherwise dispose of any fine, charge or
Imposition related thereto, unless Tenant or the Manager shall contest the
same in good faith and by appropriate proceedings and the right to use and
the value of the Leased Property is not materially and adversely affected
thereby.
If, at any time prior to the termination of this Agreement, Hazardous
Substances (other than those maintained in accordance with Applicable Laws)
are discovered on the Leased Property, subject to Tenant's and the
Manager's right to contest the same in accordance with Article 8, Tenant
---------
shall take (and shall direct the Manager to take) all actions and incur any
and all expenses, as are required by any Government Agency and by
Applicable Law, (i) to clean up and remove from and about the Leased
Property all Hazardous Substances thereon, (ii) to contain and prevent any
further release or threat of release of Hazardous Substances on or about
the Leased Property and (iii) to use good faith efforts to eliminate any
further release or threat of release of Hazardous Substances on or about
the Leased Property.
4.3.2 Indemnification of Landlord. Tenant shall protect, indemnify
---------------------------
and hold harmless Landlord and each Hotel Mortgagee, their trustees,
officers, agents, employees and beneficiaries, and any of their respective
successors or assigns with respect to this Agreement (collectively, the
"Indemnitees" and, individually, an "Indemnitee") for, from and against any
----------- ----------
and all debts, liens, claims, causes of action, administrative orders or
notices, costs, fines, penalties or expenses (including, without
limitation, reasonable attorney's fees and expenses) imposed upon, incurred
by or asserted against any Indemnitee resulting from, either directly or
indirectly, the presence during the Term (or any other time Tenant shall be
possession of
- 28 -
the Leased Property) in, upon or under the soil or ground water of the
Leased Property or any properties surrounding the Leased Property of any
Hazardous Substances in violation of any Applicable Law or otherwise,
provided that any of the foregoing arises by reason of any failure by
Tenant, the Manager or any Person claiming by, through or under Tenant or
the Manager to perform or comply with any of the terms of this Section 4.3,
-----------
except to the extent the same arise from the acts or omissions of Landlord
or any other Indemnitee or during any period that Landlord or a Person
designated by Landlord (other than Tenant) is in possession of the Leased
Property. Tenant's duty herein includes, but is not limited to, costs
associated with personal injury or property damage claims as a result of
the presence prior to the expiration or sooner termination of the Term and
the surrender of the Leased Property to Landlord in accordance with the
terms of this Agreement of Hazardous Substances in, upon or under the soil
or ground water of the Leased Property in violation of any Applicable Law.
Upon Notice from Landlord and any other of the Indemnitees, Tenant shall
undertake the defense, at Tenant's sole cost and expense, of any
indemnification duties set forth herein, in which event, Tenant shall not
be liable for payment of any duplicative attorneys' fees incurred by any
Indemnitee.
Tenant shall, upon demand, pay to Landlord, as an Additional Charge,
any cost, expense, loss or damage (including, without limitation,
reasonable attorneys' fees) reasonably incurred by Landlord and arising
from a failure of Tenant to observe and perform the requirements of this
Section 4.3, which amounts shall bear interest from the date ten (10) days
-----------
after written demand therefor is given to Tenant until paid by Tenant to
Landlord at the Overdue Rate.
4.3.3 Survival. The provisions of this Section 4.3 shall survive the
-------- -----------
expiration or sooner termination of this Agreement.
ARTICLE 5
---------
MAINTENANCE AND REPAIRS
-----------------------
5.1 Maintenance and Repair.
----------------------
5.1.1 Tenant's General Obligations. Tenant shall, at its sole cost
----------------------------
and expense (except as expressly provided in Section 5.1.3(b)), or shall
----------------
direct the Manager to, keep the Leased Property and all private roadways,
sidewalks and curbs appurtenant thereto (and Tenant's Personal Property) in
good order and repair, reasonable wear and tear excepted (whether or not
the need for such repairs occurs as a result of Tenant's or
- 29 -
the Manager's use, any prior use, the elements or the age of the Leased
Property or Tenant's Personal Property or any portion thereof), and shall
promptly make (or cause the Manager to make) all necessary and appropriate
repairs and replacements thereto of every kind and nature, whether interior
or exterior, structural or nonstructural, ordinary or extraordinary,
foreseen or unforeseen or arising by reason of a condition existing prior
to the commencement of the Term (concealed or otherwise). All repairs shall
be made in a good, workmanlike manner, consistent with the Manager's and
industry standards for like hotels in like locales, in accordance with all
applicable federal, state and local statutes, ordinances, by-laws, codes,
rules and regulations relating to any such work. Tenant shall not take or
omit to take (and shall direct the Manager not to take or omit to take) any
action, the taking or omission of which would materially and adversely
impair the value or the usefulness of the Leased Property or any part
thereof for its Permitted Use. Tenant's obligations under this Section
-------
5.1.1(a) shall be limited in the event of any casualty or Condemnation as
--------
set forth in Sections 10.2 and 11.2 and also as set forth in Section
---------------------- -------
5.1.3(b) and Tenant's obligations with respect to Hazardous Substances
--------
are as set forth in Section 4.3.
-----------
5.1.2 FF&E Reserve.
------------
(a) Upon execution of this Agreement, the FF&E Funded Amount (as
defined in the Purchase Agreement) has been deposited in a reserve account
(the "FF&E Reserve") in a bank designated by Tenant and approved by
------------
Landlord. The purpose of the FF&E Reserve is to cover the cost of:
(i) Replacements and renewals to the Hotel's furnishings, fixtures
and equipment;
(ii) Certain routine repairs and maintenance to the Hotel building
which are normally capitalized under GAAP such as exterior and
interior repainting, resurfacing building walls, floors, roofs
and parking areas, and replacing folding walls and the like; and
(iii) Major repairs, alterations, improvements, renewals or
replacements to the Hotel's buildings' structure, roof, or
exterior facade, or to its mechanical, electrical, heating,
ventilating, air conditioning, plumbing or vertical
transportation systems.
Tenant agrees that it will, from time to time, execute such reasonable
documentation as may be requested by Landlord and any Hotel Mortgagee to
assist Landlord and such
- 30 -
Hotel Mortgagee in establishing or perfecting its security interest in
Landlord's residual interest in the funds which are in the FF&E Reserve, it
being acknowledged and agreed that the funds in the FF&E Reserve are the
property of Tenant; provided, however, that no such documentation shall
-------- -------
contain any amendment or modification of any of the provisions of this
Agreement. It is understood and agreed that, during the Term, the FF&E
Reserve may not be applied against debts secured by a Hotel Mortgage nor
shall any Hotel Mortgagee have the right to approve the release of such
funds pursuant to the terms of this Agreement unless and until Landlord
shall default in its obligations to such Hotel Mortgagee.
(b) Throughout the Term, Tenant shall transfer (as of the end of each
month of the Term) into the FF&E Reserve an amount equal to five percent
(5%) of Total Hotel Sales for such month. Together with the documentation
provided to Landlord pursuant to Section 3.1.2(c), Tenant shall deliver to
----------------
Landlord an Officer's Certificate setting forth the total amount of
deposits made to and expenditures from the FF&E Reserve for the preceding
Fiscal Year, together with a reconciliation of such expenditures with the
applicable FF&E Estimate.
(c) Each year, on or before December 1 of the preceding year, Tenant
shall prepare an estimate (the "FF&E Estimate") of FF&E Reserve
-------------
expenditures necessary during the ensuing Fiscal Year, and shall submit
such FF&E Estimate to Landlord for its review and approval, which approval
shall not be unreasonably withheld or delayed. In the event Landlord shall
fail to respond within thirty (30) days after receipt of the FF&E Estimate,
such FF&E Estimate shall be deemed approved by Landlord. All expenditures
from the FF&E Reserve shall be (as to both the amount of each such
expenditure and the timing thereof) both reasonable and necessary, given
the objective that the Hotel will be maintained and operated to a standard
comparable to competitive hotels.
(d) Tenant shall, consistent with the FF&E Estimate approved by
Landlord, from time to time make expenditures from the FF&E Reserve as it
deems necessary provided that Tenant shall not materially deviate from the
FF&E Estimate approved by Landlord without the prior approval of Landlord,
except in the case of emergency where immediate action is necessary to
prevent imminent danger to person or property.
(e) Upon the expiration or sooner termination of this Agreement, funds
in the FF&E Reserve and all property purchased with funds from the FF&E
Reserve during the Term
- 31 -
shall be paid, granted and assigned to Landlord as Additional Charges.
(f) It is understood and agreed that the FF&E Reserve pursuant to this
Agreement and the Other Leases shall be maintained on a consolidated basis.
5.1.3 Landlord's Obligations.
----------------------
(a) Except as otherwise expressly provided in this Agreement, Landlord
shall not, under any circumstances, be required to build or rebuild any
improvement on the Leased Property, or to make any repairs, replacements,
alterations, restorations or renewals of any nature or description to the
Leased Property, whether ordinary or extraordinary, structural or
nonstructural, foreseen or unforeseen, or, except as provided in Section
-------
5.1.3(b), to make any expenditure whatsoever with respect thereto, or to
--------
maintain the Leased Property in any way. Except as otherwise expressly
provided in this Agreement, Tenant hereby waives, to the maximum extent
permitted by law, the right to make repairs at the expense of Landlord
pursuant to any law in effect on the date hereof or hereafter enacted.
Landlord shall have the right to give, record and post, as appropriate,
notices of nonresponsibility under any mechanic's lien laws now or
hereafter existing.
(b) If, at any time, funds in the FF&E Reserve shall be insufficient
for necessary and permitted expenditures thereof or, pursuant to the terms
of this Agreement, Tenant is required to make any expenditures in
connection with any repair, maintenance or renovation with respect to the
Leased Property and the amount of such disbursements or expenditures
exceeds the amount on deposit in the FF&E Reserve or such repair,
maintenance or renovation is not a permitted expenditure from the FF&E
Reserve as described in Section 5.1.2(a)(i) and (ii), Tenant may, at its
----------------------------
election, give Landlord Notice thereof, which Notice shall set forth, in
reasonable detail, the nature of the required repair, renovation or
replacement, the estimated cost thereof and such other information with
respect thereto as Landlord may reasonably require. Provided that no Event
of Default shall have occurred and be continuing and Tenant shall otherwise
comply with the applicable provisions of Article 6, Landlord shall, within
---------
ten (10) Business Days after such Notice, subject to and in accordance with
the applicable provisions of Article 6, disburse such required funds to
---------
Tenant (or, if Tenant shall so elect, directly to the Manager or any other
Person performing the required work) and, upon such disbursement, the
Minimum Rent shall be adjusted as provided in Section 3.1.1(b); provided,
---------------- --------
however, that, in the event
-------
- 32 -
that Landlord shall elect not to disburse any funds pursuant to this
Section 5.1.3(b), Tenant's sole recourse shall be to elect not to make the
----------------
applicable repair, maintenance or renovation.
5.1.4 Nonresponsibility of Landlord, Etc. All materialmen,
-----------------------------------
contractors, artisans, mechanics and laborers and other persons contracting
with Tenant with respect to the Leased Property, or any part thereof, are
hereby charged with notice that liens on the Leased Property or on
Landlord's interest therein are expressly prohibited and that they must
look solely to Tenant to secure payment for any work done or material
furnished by Tenant, the Manager or for any other purpose during the term
of this Agreement.
Nothing contained in this Agreement shall be deemed or construed in
any way as constituting the consent or request of Landlord, express or
implied, by inference or otherwise, to any contractor, subcontractor,
laborer or materialmen for the performance of any labor or the furnishing
of any materials for any alteration, addition, improvement or repair to the
Leased Property or any part thereof or as giving Tenant any right, power or
authority to contract for or permit the rendering of any services or the
furnishing of any materials that would give rise to the filing of any lien
against the Leased Property or any part thereof nor to subject Landlord's
estate in the Leased Property or any part thereof to liability under any
Mechanic's Lien Law of the State in any way, it being expressly understood
Landlord's estate shall not be subject to any such liability.
5.2 Tenant's Personal Property. Tenant shall provide and maintain
--------------------------
throughout the Term all such Tenant's Personal Property as shall be necessary in
order to operate in compliance with applicable Legal Requirements and Insurance
Requirements and otherwise in accordance with customary practice in the industry
for the Permitted Use and all of such Personal Property shall, upon the
expiration or earlier termination of this Agreement, shall become the property
of Landlord. If, from and after the Commencement Date, Tenant acquires an
interest in any item of tangible personal property (other than motor vehicles)
on, or in connection with, the Leased Property which belongs to anyone other
than Tenant, Tenant shall require the agreements permitting such use to provide
that Landlord or its designee may assume Tenant's rights and obligations under
such agreement upon the termination of this Agreement and the assumption of
management or operation of the Hotel by Landlord or its designee.
5.3 Yield Up. Upon the expiration or sooner termination of this
--------
Agreement, Tenant shall vacate and surrender the Leased Property to Landlord in
substantially the same condition in which the Leased Property was in on the
Commencement Date, except as
- 33 -
repaired, rebuilt, restored, altered or added to as permitted or required by the
provisions of this Agreement, reasonable wear and tear excepted (and casualty
damage and Condemnation, in the event that this Agreement is terminated
following a casualty or total Condemnation in accordance with Article 10 or
----------
Article 11 excepted).
----------
In addition, upon the expiration or earlier termination of this Agreement,
Tenant shall, at Landlord's sole cost and expense, use its good faith efforts to
transfer to and cooperate with Landlord or Landlord's nominee in connection with
the processing of all applications for licenses, operating permits and other
governmental authorizations and all contracts, including contracts with
governmental or quasi-governmental Entities which may be necessary for the use
and operation of the Hotel as then operated. If requested by Landlord, Tenant
will direct the Manager to continue to manage the Hotel after the expiration of
the Term and for up to one hundred twenty (120) days, on such reasonable terms
(which shall include a market rate management fee and an agreement to reimburse
the Manager for its reasonable out-of-pocket costs and expenses, and reasonable
administrative costs), as Landlord shall reasonably request.
5.4 Management Agreement. Tenant shall not, without Landlord's prior
--------------------
written consent, amend or modify the provisions of the Management Agreement
which provide (i) that, from and after the occurrence of any Default or Event of
Default, all amounts due from Tenant to the Manager shall be subordinate to all
amounts due from Tenant to Landlord, (ii) for operation of the Leased Property
under the "Wyndham" and "Wyndham Garden" names, (iii) that Wyndham, the Manager
and their Affiliated Persons are prohibited from operating, managing or
franchising another Wyndham Gardens hotel within the designated area on Exhibit
-------
D and (iv) for termination thereof, at Landlord's option, upon the termination
-
of this Agreement. Tenant shall not take any action, grant any consent or
permit any action under the Management Agreement which might have a material
adverse effect on Landlord, without the prior written consent of Landlord;
provided, however, that Landlord's consent shall not be required in connection
-------- -------
with any assignment of the Manager's rights under the Management Agreement to
(x) any Affiliated Person of Wyndham having the full power, right and authority
to provide all services and organizational expertise as contemplated and
required by the Management Agreement or (y) any Person (including, but not
limited to, any Lending Institution) who acquires all or substantially all of
the management contracts of Wyndham (including, without limitation, all of the
Management Agreements with respect to the Collective Leased Properties that have
not been theretofore cancelled or terminated pursuant to the terms thereof),
provided that, in either such case, the Leased Property will retain the right to
use the "Wyndham" and "Wyndham
- 34 -
Garden" names. In the event of an assignment pursuant to clause (y) preceding,
provided that the successor Manager (i) assumes, in writing all obligations of
the Manager under the Management Agreement, and (ii) has a Tangible Net Worth,
as of the date of assignment, equal to the greater of the Tangible Net Worth of
Wyndham as of the date of this Agreement, and the Tangible Net Worth of Wyndham
as of the date of such assignment, Wyndham shall be released from all
liabilities arising under the Management Agreement from and after the effective
date of such assignment. Tenant shall not agree to any change in the Manager
(except as provided in the preceding sentences), to any change in the Management
Agreement (except as provided in the preceding sentences), terminate the
Management Agreement or permit the Manager to assign the Management Agreement
(except as provided in the preceding sentences) without the prior written
approval of Landlord in each instance; provided, however, that the Manager may
-------- -------
grant a security interest in its right to receive payments under the Management
Agreement without Landlord's prior written approval.
ARTICLE 6
---------
IMPROVEMENTS, ETC.
------------------
6.1 Improvements to the Leased Property. Tenant shall not make, construct
-----------------------------------
or install (and shall direct the Manager not to construct or install) any
Capital Additions (other than Capital Additions of the type described in Section
-------
5.1.2(a)(ii) and approved pursuant to Section 5.1.2(c)) without, in each
------------ ----------------
instance, obtaining Landlord's prior written consent, which consent shall not be
unreasonably withheld, delayed or conditioned provided that (a) construction or
installation of the same would not adversely affect or violate any Legal
Requirement or Insurance Requirement applicable to the Leased Property and (b)
Landlord shall have received an Officer's Certificate certifying as to the
satisfaction of the conditions set out in clause (a) above; provided, however,
-------- -------
that no such consent shall be required in the event immediate action is required
to prevent imminent danger to person or property. Prior to commencing
construction of any Capital Addition, Tenant shall submit, or shall direct the
Manager to submit, to Landlord, in writing, a proposal setting forth, in
reasonable detail, any such proposed improvement and shall provide to Landlord
such plans and specifications, and such permits, licenses, contracts and such
other information concerning the same as Landlord may reasonably request.
Landlord shall have thirty (30) days to review all materials submitted to
Landlord in connection with any such proposal. Failure of Landlord to respond
to Tenant's or the Manager's proposal within thirty (30) days after receipt of
all information and materials requested by Landlord in connection with the
proposed improvement
- 35 -
shall be deemed to constitute approval of the same. Without limiting the
generality of the foregoing, such proposal shall indicate the approximate
projected cost of constructing such proposed improvement and the use or uses to
which it will be put. No Capital Addition shall be made which would tie in or
connect any Leased Improvement with any other improvements on property adjacent
to the Leased Property (and not part of the Land) including, without limitation,
tie-ins of buildings or other structures or utilities. Tenant shall not
finance, and shall direct the Manager not to finance, the cost of any
construction of such improvement by the granting of a lien on or security
interest in the Leased Property or such improvement, or Tenant's interest
therein, without the prior written consent of Landlord, which consent may be
withheld by Landlord in Landlord's sole discretion. Any such improvements
shall, upon the expiration or sooner termination of this Agreement, remain or
pass to and become the property of Landlord, free and clear of all encumbrances
other than Permitted Encumbrances.
6.2 Salvage. All materials which are scrapped or removed in connection
-------
with the making of either Capital Additions or non-Capital Additions or repairs
required by Article 5 shall be or become the property of the party that paid for
---------
such work.
ARTICLE 7
---------
LIENS
-----
7.1 Liens. Subject to Article 8, Tenant shall not, directly or
----- ---------
indirectly, create or allow to remain and shall promptly discharge, at its
expense, any lien, encumbrance, attachment, title retention agreement or claim
upon the Leased Property or Tenant's leasehold interest therein or any attach
ment, levy, claim or encumbrance in respect of the Rent, other than (a)
Permitted Encumbrances, (b) restrictions, liens and other encumbrances which are
consented to in writing by Landlord, (c) liens for those taxes of Landlord which
Tenant is not required to pay hereunder, (d) subleases permitted by Article 17,
----------
(e) liens for Impositions or for sums resulting from noncompliance with Legal
Requirements so long as (i) the same are not yet due and payable, or (ii) are
being contested in accordance with Article 8, (f) liens of mechanics, laborers,
---------
materialmen, suppliers or vendors incurred in the ordinary course of business
that are not yet due and payable or are for sums that are being contested in
accordance with Article 8, (g) any Hotel Mortgages or other liens which are the
---------
responsibility of Landlord pursuant to the provisions of Article 21, (h)
----------
Landlord Liens and any other voluntary liens created by Landlord and (i)
Leasehold Mortgages.
- 36 -
7.2 Landlord's Lien. In addition to any statutory landlord's lien and in
---------------
order to secure payment of the Rent and all other sums payable hereunder by
Tenant, and to secure payment of any loss, cost or damage which Landlord may
suffer by reason of Tenant's breach of this Agreement, Tenant hereby grants unto
Landlord a security interest in and an express contractual lien upon Tenant's
Personal Property (except motor vehicles and liquor licenses and permits), and
Tenant's interest in all ledger sheets, files, records, documents and
instruments (including, without limitation, computer programs, tapes and related
electronic data processing) relating to the operation of the Hotels (the
"Records") and all proceeds therefrom, subject to any Permitted Encumbrances;
--------
and such Tenant's Personal Property shall not be removed from the Leased
Property at any time when a Default or an Event of Default has occurred and is
continuing.
Upon Landlord's request, Tenant shall execute and deliver to Landlord
financing statements in form sufficient to perfect the security interest of
Landlord in Tenant's Personal Property and the proceeds thereof in accordance
with the provisions of the applicable laws of the State. Tenant hereby grants
Landlord an irrevocable limited power of attorney, coupled with an interest, to
execute all such financing statements in Tenant's name, place and stead. The
security interest herein granted is in addition to any statutory lien for the
Rent.
ARTICLE 8
---------
PERMITTED CONTESTS
------------------
Tenant shall have the right to contest the amount or validity of any
Imposition, Legal Requirement, Insurance Requirement, Environmental Obligation,
lien, attachment, levy, encumbrance, charge or claim (collectively, "Claims") as
------
to the Leased Property, by appropriate legal proceedings, conducted in good
faith and with due diligence, provided that (a) the foregoing shall in no way be
construed as relieving, modifying or extending Tenant's obligation to pay any
Claims as finally determined, (b) such contest shall not cause Landlord or
Tenant to be in default under any mortgage or deed of trust encumbering the
Leased Property (Landlord agreeing that any such mortgage or deed of trust shall
permit Tenant to exercise the rights granted pursuant to this Article 8) or any
---------
interest therein or result in or reasonably be expected to result in a lien
attaching to the Leased Property, (c) no part of the Leased Property nor any
Rent therefrom shall be in any immediate danger of sale, forfeiture, attachment
or loss, and (d) Tenant shall indemnify and hold harmless Landlord from and
against any cost, claim, damage, penalty or reasonable expense, including
reasonable attorneys' fees, incurred by Landlord in connection therewith or as a
result
- 37 -
thereof. Landlord agrees to join in any such proceedings if required legally to
prosecute such contest, provided that Landlord shall not thereby be subjected to
any liability therefor (including, without limitation, for the payment of any
costs or expenses in connection therewith) unless Tenant agrees by agreement in
form and substance reasonably satisfactory to Landlord, to assume and indemnify
Landlord with respect to the same. Tenant shall be entitled to any refund of
any Claims and such charges and penalties or interest thereon which have been
paid by Tenant or paid by Landlord to the extent that Landlord has been fully
reimbursed by Tenant. If Tenant shall fail (x) to pay or cause to be paid any
Claims when finally determined, (y) to provide reasonable security therefor, or
(z) to prosecute or cause to be prosecuted any such contest diligently and in
good faith, Landlord may, upon reasonable notice to Tenant (which notice shall
not be required if Landlord shall reasonably determine that the same is not
practicable), pay such charges, together with interest and penalties due with
respect thereto, and Tenant shall reimburse Landlord therefor, upon demand, as
Ad ditional Charges.
ARTICLE 9
---------
INSURANCE AND INDEMNIFICATION
-----------------------------
9.1 General Insurance Requirements. Tenant shall, at all times during the
------------------------------
Term and at any other time Tenant shall be in possession of the Leased Property,
keep the Leased Property and all property located therein or thereon, insured
against the risks and in the amounts as follows and shall maintain the following
insurance:
(a) "All-risk" property insurance, including insurance against loss or
damage by fire, vandalism and malicious mischief, earthquake, explosion of
steam boilers, pressure vessels or other similar apparatus, now or
hereafter installed in the Hotel located at the Leased Property, with the
usual extended coverage endorsements, in an amount equal to one hundred
percent (100%) of the then full Replacement Cost thereof (as defined in
Section 9.2);
------------
(b) Business interruption insurance covering risk of loss during the lesser
of the first twelve (12) months of reconstruction or the actual
reconstruction period necessitated by the occurrence of any of the hazards
described in subparagraph (a) above, in such amounts as may be customary
for comparable properties in the area and in an amount sufficient to
prevent Landlord or Tenant from becoming a co-insurer;
- 38 -
(c) Comprehensive general liability insurance, including bodily injury and
property damage in a form reasonably satisfactory to Landlord (and
including, without limitation, broad form contractual liability,
independent contractor's hazard and completed operations coverage) in an
amount not less than One Million Dollars ($1,000,000) per occurrence, Three
Million Dollars ($3,000,000) in the aggregate and umbrella coverage of all
such claims in an amount not less than Fifty Million Dollars ($50,000,000);
(d) Flood (if the Leased Property is located in whole or in part within an
area identified as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance Act of
1968, as amended, or the Flood Disaster Protection Act of 1973, as amended
(or any successor acts thereto)) and such other hazards and in such amounts
as may be customary for comparable properties in the area;
(e) Worker's compensation insurance coverage if required by applicable law
for all persons employed by Tenant on the Leased Property with statutory
limits and otherwise with limits of and provisions in accordance with the
requirements of applicable local, State and federal law, and employer's
liability insurance as is customarily carried by similar employers; and
(f) Such additional insurance as may be reasonably required, from time to
time, by Landlord or any Hotel Mortgagee and which is customarily carried
by comparable lodging properties in the area.
9.2 Replacement Cost. "Replacement Cost" as used herein, shall mean the
---------------- ----------------
actual replacement cost of the property requiring replacement from time to time,
including an increased cost of construction endorsement, less exclusions
provided in the standard form of fire insurance policy. In the event either
party believes that the then full Replacement Cost has increased or decreased at
any time during the Term, such party, at its own cost, shall have the right to
have such full Replacement Cost redetermined by an independent accredited
appraiser approved by the other, which approval shall not be unreasonably
withheld or delayed. The party desiring to have the full Replacement Cost so
redetermined shall forthwith, on receipt of such determination by such
appraiser, give Notice thereof to the other. The determina tion of such
appraiser shall be final and binding on the parties hereto until any subsequent
determination under this Section 9.2, and Tenant shall forthwith conform the
-----------
amount of the insurance carried to the amount so determined by the appraiser.
- 39 -
9.3 Waiver of Subrogation. Landlord and Tenant agree that (insofar as
---------------------
and to the extent that such agreement may be effective without invalidating or
making it impossible to secure insurance coverage from responsible insurance
companies doing business in the State) with respect to any property loss which
is covered by insurance then being carried by Landlord or Tenant, respectively,
the party carrying such insurance and suffering said loss releases the other of
and from any and all claims with respect to such loss; and they further agree
that their respective insurance companies shall have no right of subrogation
against the other on account thereof, even though extra premium may result
therefrom. In the event that any extra premium is payable by Tenant as a result
of this provision, Landlord shall not be liable for reimbursement to Tenant for
such extra premium.
9.4 Form Satisfactory, Etc. All insurance policies and endorsements
-----------------------
required pursuant to this Article 9 shall be fully paid for, nonassessable and
---------
be issued by insurance carriers authorized to do business in the State, having a
general policy holder's rating of no less than B++ in Best's latest rating
guide. All such policies described in Sections 9.1(a) through (d) shall include
---------------------------
no deductible in excess of Two Hundred Fifty Thousand Dollars ($250,000) and,
with the exception of the insurance described in Sections 9.1(e), shall name
---------------
Landlord and any Hotel Mortgagee as additional insureds, as their interests may
appear. All loss adjustments shall be payable as provided in Article 10.
----------
Tenant shall cause all insurance premiums to be paid and shall deliver policies
or certificates thereof to Landlord prior to their effective date (and, with
respect to any renewal policy, prior to the expiration of the existing policy).
All such policies shall provide Landlord (and any Hotel Mortgagee if required by
the same) thirty (30) days prior written notice of any material change or
cancellation of such policy. In the event Tenant shall fail to effect such
insurance as herein required, to pay the premiums therefor or to deliver such
policies or certificates to Landlord or any Hotel Mortgagee at the times
required, Landlord shall have the right, but not the obligation, subject to the
provisions of Section 12.5, to acquire such insurance and pay the premiums
therefor, which amounts shall be payable to Landlord, upon demand, as Additional
Charges, together with interest accrued thereon at the Overdue Rate from the
date such payment is made until (but excluding) the date repaid.
9.5 Blanket Policy. Notwithstanding anything to the contrary contained in
--------------
this Article 9, Tenant's obligation to maintain the insurance herein required
---------
may be brought within the coverage of a so-called blanket policy or policies of
insurance carried and maintained by Tenant, provided, that (a) the coverage
thereby afforded will not be reduced or diminished from that which would exist
under a separate policy meeting all other requirements of this Agreement, and
(b) the requirements of this
- 40 -
Article 9 are otherwise satisfied. Without limiting the foregoing, the amounts
---------
of insurance that are required to be maintained pursuant to Section 9.1 shall be
-----------
on a Hotel by Hotel basis, and shall not be subject to an aggregate limit,
except for flood, earthquake and umbrella coverages.
9.6 No Separate Insurance. Tenant shall not take out separate insurance,
---------------------
concurrent in form or contributing in the event of loss with that required by
this Article 9, or increase the amount of any existing insurance by securing an
---------
additional policy or additional policies, unless all parties having an insurable
interest in the subject matter of such insurance, including Landlord and all
Hotel Mortgagees, are included therein as additional insureds and the loss is
payable under such insurance in the same manner as losses are payable under this
Agreement. In the event Tenant shall take out any such separate insurance or
increase any of the amounts of the then existing insurance, Tenant shall give
Landlord prompt Notice thereof.
9.7 Indemnification of Landlord. Notwithstanding the existence of any
---------------------------
insurance provided for herein and without regard to the policy limits of any
such insurance, Tenant shall protect, indemnify and hold harmless Landlord for,
from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and reasonable expenses (including, without limitation,
reasonable attorneys' fees), to the maximum extent permitted by law, imposed
upon or incurred by or asserted against Landlord by reason of: (a) any
accident, injury to or death of persons or loss of or damage to property
occurring on or about the Leased Property or adjoining sidewalks or rights of
way, (b) any past, present or future use, misuse, non-use, condition,
management, maintenance or repair by Tenant or anyone claiming under Tenant of
the Leased Property or Tenant's Personal Property or any litigation, proceeding
or claim by governmental entities or other third parties to which Landlord is
made a party or participant relating to the Leased Property or Tenant's Personal
Property or such use, misuse, non-use, condition, management, maintenance, or
repair thereof including, failure to perform obligations (other than
Condemnation proceedings) to which Landlord is made a party, (c) any Impositions
that are the obligations of Tenant to pay pursuant to the applicable provisions
of this Agreement, and (d) any failure on the part of Tenant or anyone claiming
under Tenant to perform or comply with any of the terms of this Agreement.
Tenant, at its expense, shall contest, resist and defend any such claim, action
or proceeding asserted or instituted against Landlord (and shall not be
responsible for any duplicative attorneys' fees incurred by Landlord) or may
compromise or otherwise dispose of the same, with Landlord's prior written
consent (which consent may not be unreasonably withheld or delayed). In the
event Landlord shall unreasonably withhold or delay its consent, Tenant shall
not be
- 41 -
liable pursuant to this Section 9.7 for any incremental increase in costs or
-----------
expenses resulting therefrom. The obligations of Tenant under this Section 9.7
-----------
are in addition to the obligations set forth in Section 4.3 and shall survive
-----------
the termination of this Agreement.
ARTICLE 10
-----------
CASUALTY
--------
10.1 Insurance Proceeds. Except as provided in the last clause of this
------------------
sentence, all proceeds payable by reason of any loss or damage to the Leased
Property, or any portion thereof, and insured under any policy of insurance
required by Article 9 (other than the proceeds of any business interruption
---------
insurance) shall be paid directly to Landlord (subject to the provisions of
Section 10.2) and all loss adjustments with respect to losses payable to
------------
Landlord shall require the prior written consent of Landlord; provided, however,
-------- -------
that, so long as no Event of Default shall have occurred and be continuing, all
such proceeds less than or equal to Two Hundred Fifty Thousand Dollars
($250,000) shall be paid directly to Tenant and such losses may be adjusted
without Landlord's consent. If Tenant is required to reconstruct or repair the
Leased Property as provided herein, such proceeds shall be paid out by Landlord
from time to time for the reasonable costs of reconstruction or repair of the
Leased Property necessitated by such damage or destruction, subject to and in
accordance with the provisions of Section 10.2.4. Provided no Default or Event
--------------
of Default has occurred and is continuing, any excess proceeds of insurance
remaining after the completion of the restoration shall be paid to Tenant. In
the event that the provisions of Section 10.2.1 are applicable, the insurance
--------------
proceeds shall be retained by the party entitled thereto pursuant to Section
-------
10.2.1. All salvage resulting from any risk covered by insurance shall belong
------
to Landlord, provided any rights to the same have been waived by the insurer.
10.2 Damage or Destruction.
---------------------
10.2.1 Damage or Destruction of Leased Property. If, during the
----------------------------------------
Term, the Leased Property shall be totally or partially destroyed and the Hotel
located thereon is thereby rendered Unsuitable for Its Permitted Use, either
Landlord or Tenant may, by the giving of Notice thereof to the other, terminate
this Agreement, whereupon, this Agreement shall terminate and Landlord shall be
entitled to retain the insurance proceeds payable on account of such damage.
10.2.2 Partial Damage or Destruction. If, during the Term, the
-----------------------------
Leased Property shall be totally or partially destroyed
- 42 -
but the Hotel is not rendered Unsuitable for Its Permitted Use, Tenant shall,
subject to Section 10.2.3, promptly restore the Hotel as provided in Section
-------------- -------
10.2.4.
------
10.2.3 Insufficient Insurance Proceeds. If this Agreement is not
-------------------------------
otherwise terminated pursuant to this Article 10 and the cost of the repair or
----------
restoration of the Leased Property exceeds the amount of insurance proceeds
received by Landlord and Tenant pursuant to Article 9(a), (c), (d) or, if
-----------------------------
applicable, (e), Tenant shall give Landlord Notice thereof which notice shall
---------------
set forth in reasonable detail the nature of such deficiency and whether Tenant
shall pay and assume the amount of such deficiency (Tenant having no obligation
to do so, except that, if Tenant shall elect to make such funds available, the
same shall become an irrevocable obligation of Tenant pursuant to this
Agreement). In the event Tenant shall elect not to pay and assume the amount of
such deficiency, Landlord shall have the right (but not the obligation),
exercisable at Landlord's sole election by Notice to Tenant, given within sixty
(60) days after Tenant's notice of the deficiency, to elect to make available
for application to the cost of repair or restoration the amount of such
deficiency; provided, however, in such event, upon any disbursement by Landlord
-------- -------
thereof, the Minimum Rent shall be adjusted as provided in Section 3.1.1(b). In
----------------
the event that neither Landlord nor Tenant shall elect to make such deficiency
available for restoration, either Landlord or Tenant may terminate this
Agreement by Notice to the other, whereupon, this Agreement shall terminate as
provided in Section 10.2.1. It is expressly understood and agreed, however,
--------------
that, notwithstanding anything in this Agreement to the contrary, Tenant shall
be strictly liable and solely responsible for the amount of any deductible and
shall, upon any insurable loss, pay over the amount of such deductible to
Landlord at the time and in the manner herein provided for payment of the
applicable proceeds to Landlord.
10.2.4 Disbursement of Proceeds. In the event Tenant is required to
------------------------
restore the Leased Property pursuant to Section 10.2, Tenant shall (or shall
------------
direct the Manager to) commence promptly and continue diligently to perform the
repair and restoration of the Leased Property (hereinafter called the "Work"),
----
so as to restore the Leased Property in compliance with all Legal Requirements
and so that the Leased Property shall be, to the extent practicable,
substantially equivalent in value and general utility to its general utility and
value immediately prior to such damage or destruction. Subject to the terms
hereof, Landlord shall advance the insurance proceeds and any additional amounts
payable by Landlord pursuant to Section 10.2.3 to Tenant regularly during the
--------------
repair and restoration period so as to permit payment for the cost of any such
restoration and repair. Any such advances shall be made not more than monthly
within ten (10) Business Days after Tenant submits to Landlord a
- 43 -
written requisition and substantiation therefor on AIA Forms G702 and G703 (or
on such other form or forms as may be reasonably acceptable to Landlord).
Landlord may, at its option, condition advancement of said insurance proceeds
and other amounts on (i) the absence of any Event of Default, (ii) its approval
of plans and specifications of an architect satisfactory to Landlord (which
approval shall not be unreasonably withheld, delayed or conditioned), (iii)
general contractors' estimates, (iv) architect's certificates, (v) unconditional
lien waivers of general contractors, if available, (vi) evidence of approval by
all governmental authorities and other regulatory bodies whose approval is
required and (vii) such other certificates as Landlord may, from time to time,
reasonably require.
Landlord's obligation to disburse insurance proceeds under this Article 10
----------
during the last two (2) years of the Term shall be subject to the release of
such proceeds by any Hotel Mortgagee to Landlord. If any Hotel Mortgagee shall
be unwilling to disburse insurance proceeds in accordance with this Agreement,
Tenant shall have the right to terminate this Agreement.
Tenant's obligation to restore the Leased Property pursuant to this Article
-------
10 shall be subject to the release of available insurance proceeds by the
--
applicable Hotel Mortgagee to Landlord or directly to Tenant and, in the event
such proceeds are insufficient, Landlord electing to make such deficiency
available therefor (and disbursement of such deficiency).
10.3 Damage Near End of Term. Notwithstanding any provisions of Section
----------------------- -------
10.1 or 10.2 to the contrary, if damage to or destruction of the Leased Property
------------
occurs during the last twelve (12) months of the Term (including any exercised
Extended Terms) and if such damage or destruction cannot reasonably be expected
to be fully repaired and restored prior to the date that is six (6) months prior
to the end of such Term, the provisions of Section 10.2.1 shall apply as if the
--------------
Leased Property had been totally or partially destroyed and the Hotel rendered
Unsuitable for its Permitted Use.
10.4 Tenant's Property. All insurance proceeds payable by reason of any
-----------------
loss of or damage to any of Tenant's Personal Property shall be paid to Tenant
and, to the extent necessary to repair or replace Tenant's Personal Property in
accordance with Section 10.5, Tenant shall hold such proceeds in trust to pay
------------
the cost of repairing or replacing damaged Tenant's Personal Property.
10.5 Restoration of Tenant's Property. If Tenant is required to restore
--------------------------------
the Leased Property as hereinabove provided, Tenant shall either (a) restore all
alterations and improvements made by Tenant and Tenant's Personal Property, or
(b) replace
- 44 -
such alterations and improvements and Tenant's Personal Property with
improvements or items of the same or better quality and utility in the operation
of the Leased Property.
10.6 No Abatement of Rent. This Agreement shall remain in full force and
--------------------
effect and Tenant's obligation to make all payments of Rent and to pay all other
charges as and when required under this Agreement shall remain unabated during
the Term notwithstanding any damage involving the Leased Property (provided that
Landlord shall credit against such payments any amounts paid to Landlord as a
consequence of such damage under any business interruption insurance obtained by
Tenant hereunder). The provisions of this Article 10 shall be considered an
----------
express agreement governing any cause of damage or destruction to the Leased
Property and, to the maximum extent permitted by law, no local or State statute,
laws, rules, regulation or ordinance in effect during the Term which provide for
such a contingency shall have any application in such case.
10.7 Waiver. Tenant hereby waives any statutory rights of termination
------
which may arise by reason of any damage or destruction of the Leased Property.
10.8 Effect on Other Leases. Any termination of this Agreement pursuant
----------------------
to this Article 10 shall not terminate or otherwise affect the Other Leases or
----------
Tenant's ability to extend the Other Leases pursuant to the terms and provisions
thereof.
ARTICLE 11
-----------
CONDEMNATION
------------
11.1 Total Condemnation, Etc. If either (i) the whole of the Leased
------------------------
Property shall be taken by Condemnation or (ii) a Condemnation of less than the
whole of the Leased Property renders the Leased Property Unsuitable for Its
Permitted Use, this Agreement shall terminate and Tenant and Landlord shall seek
the Award for their interests in the Leased Property as provided in Section
-------
11.5.
----
11.2 Partial Condemnation. In the event of a Condemnation of less than
--------------------
the whole of the Leased Property such that the Leased Property is still suitable
for its Permitted Use, Tenant shall, to the extent of the Award actually
received by Tenant and any additional amounts disbursed by Landlord as
hereinafter provided, commence promptly and continue diligently to restore the
untaken portion of the Leased Improvements so that such Leased Improvements
shall constitute a complete architectural unit of the same general character and
condition (as nearly as may be possible under the circumstances) as the Leased
- 45 -
Improvements existing immediately prior to such Condemnation, in full compliance
with all Legal Requirements, subject to the provisions of this Section 11.2. If
------------
the cost of the repair or restoration of the Leased Property exceeds the amount
of the Award, Tenant shall give Landlord Notice thereof which notice shall set
forth in reasonable detail the nature of such deficiency and whether Tenant
shall pay and assume the amount of such deficiency (Tenant having no obligation
to do so, except that if Tenant shall elect to make such funds available, the
same shall become an irrevocable obligation of Tenant pursuant to this
Agreement). In the event Tenant shall elect not to pay and assume the amount of
such deficiency, Landlord shall have the right (but not the obligation),
exercisable at Landlord's sole election by Notice to Tenant given within sixty
(60) days after Tenant's Notice of the deficiency, to elect to make available
for application to the cost of repair or restoration the amount of such
deficiency; provided, however, in such event, upon any disbursement by Landlord
-------- -------
thereof, the Minimum Rent shall be adjusted as provided in Section 3.1.1(b). In
----------------
the event that neither Landlord nor Tenant shall elect to make such deficiency
available for restoration, either Landlord or Tenant may terminate this
Agreement and the entire Award shall be retained by Landlord.
Subject to the terms hereof, Landlord shall contribute to the cost of
restoration that part of the Award necessary to complete such repair or
restoration, together with severance and other damages awarded for the taken
Leased Improvements and any deficiency Landlord has agreed to disburse, to
Tenant regularly during the restoration period so as to permit payment for the
cost of such repair or restoration. Landlord may, at its option, condition
advancement of such Award and other amounts on (i) the absence of any Event of
Default, (ii) its approval of plans and specifications of an architect
satisfactory to Landlord (which approval shall not be unreasonably withheld or
delayed), (iii) general contractors' estimates, (iv) architect's certificates,
(v) unconditional lien waivers of general contractors, if available, (vi)
evidence of approval by all governmental authorities and other regulatory bodies
whose approval is required and (vii) such other certificates as Landlord may,
from time to time, reasonably require. Landlord's obligation under this Section
-------
11.2 to disburse the Award and such other amounts shall be subject to (x) the
----
collection thereof by Landlord and (y) during the last two (2) years of the
Term, the release of such Award by the applicable Hotel Mortgagee. Tenant's
obligation to restore the Leased Property shall be subject to the release of the
Award by the applicable Hotel Mortgagee to Landlord. If any Hotel Mortgagee
shall be unwilling to release such Award in accordance with this Agreement,
Tenant shall have the right to terminate this Agreement.
- 46 -
11.3 Abatement of Rent. Other than as specifically provided in this
-----------------
Agreement, this Agreement shall remain in full force and effect and Tenant's
obligation to make all payments of Rent and to pay all other charges as and when
required under this Agreement shall remain unabated during the Term
notwithstanding any Condemnation involving the Leased Property. The provisions
of this Article 11 shall be considered an express agreement governing any
----------
Condemnation involving the Leased Property and, to the maximum extent permitted
by law, no local or State statute, law, rule, regulation or ordinance in effect
during the Term which provides for such a contingency shall have any application
in such case.
11.4 Temporary Condemnation. In the event of any temporary Condemnation
----------------------
of the Leased Property or Tenant's interest therein, this Agreement shall
continue in full force and effect and Tenant shall continue to pay, in the
manner and on the terms herein specified, the full amount of the Rent. Tenant
shall continue to perform and observe all of the other terms and conditions of
this Agreement on the part of the Tenant to be performed and observed. Provided
no Event of Default has occurred and is continuing, the entire amount of any
Award made for such temporary Condemnation allocable to the Term, whether paid
by way of damages, rent or otherwise, shall be paid to Tenant. Tenant shall,
promptly upon the termination of any such period of temporary Condemnation, at
its sole cost and expense, restore the Leased Property to the condition that
existed immediately prior to such Condemnation, in full compliance with all
Legal Requirements, unless such period of temporary Condemnation shall extend
beyond the expiration of the Term, in which event Tenant shall not be required
to make such restoration. For purposes of this Section 11.4, a Condemnation
------------
shall be deemed to be temporary if the period of such Condemnation is not
expected to, and does not, exceed twelve (12) months.
11.5 Allocation of Award. Except as provided in Section 11.4 and the
------------------- ------------
second sentence of this Section 11.5, the total Award shall be solely the
------------
property of and payable to Landlord. Any portion of the Award made for the
taking of Tenant's leasehold interest in the Leased Property, loss of business
during the remainder of the Term, the taking of Tenant's Personal Property, or
Tenant's removal and relocation expenses shall be the sole property of and
payable to Tenant (subject to the provisions of Section 11.2). In any
------------
Condemnation proceedings, Landlord and Tenant shall each seek its own Award in
conformity herewith, at its own expense.
11.6 Effect on Other Leases. Any termination of this Agreement pursuant
----------------------
to this Article 11 shall not terminate or otherwise affect the Other Leases or
----------
Tenant's ability to extend the Other Leases pursuant to the terms and provisions
thereof.
- 47 -
ARTICLE 12
-----------
DEFAULTS AND REMEDIES
---------------------
12.1 Events of Default. The occurrence of any one or more of the
-----------------
following events shall constitute an "Event of Default" hereunder:
----------------
(a) should Tenant fail to make any payment of the Rent or any other
sum (including, but not limited to, funding of the FF&E Reserve) payable
hereunder when due; or
(b) should Tenant fail to maintain the insurance coverages required
under Article 9 and such failure shall continue for ten (10) Business Days
---------
after Notice thereof (except that no Notice shall be required if any such
insurance coverages shall have lapsed); or
(c) should Tenant default in the due observance or performance of
any of the terms, covenants or agreements contained herein to be performed
or observed by it (other than as specified in clauses (a) and (b) above)
and such default shall continue for a period of fifteen (15) Business Days
after Notice thereof from Landlord to Tenant; provided, however, that if
-------- -------
such default is susceptible of cure but such cure cannot be accomplished
with due diligence within such period of time and if, in addition, Tenant
commences to cure or cause to be cured such default within fifteen (15)
Business Days after Notice thereof from Landlord and thereafter prosecutes
the curing of such default with all due diligence, such period of time
shall be extended to such period of time (not to exceed an additional one
hundred eighty (180) days in the aggregate) as may be necessary to cure
such default with all due diligence; or
(d) should an event of default by Tenant or any Affiliated Person as
to Tenant occur and be continuing beyond the expiration of any applicable
cure period under any of the Incidental Documents, the Other Leases or the
Management Agreement; or
(e) should there occur a final unappealable determination by
applicable state authorities of the revocation or limitation of any
material license, permit, certification or approval required for the lawful
operation of the Hotel in accordance with its Permitted Use or the loss or
material limitation of any material license, permit, certification or
approval under any other circumstances under which Tenant is required to
cease its operation of the
- 48 -
Hotel in accordance with its Permitted Use at the time of such loss or
limitation; or
(f) should any material representation or warranty made by Tenant
or, at any time prior to the required assignment pursuant to Section 16.5,
------------
by the Seller (as defined in the Purchase Agreement) under or in connection
with this Agreement, any Incidental Document, the Other Leases or the
Purchase Agreement, or in any document, certificate or agreement delivered
in connection herewith or therewith prove to have been false or misleading
in any material respect on the date when made or deemed made and the same
shall continue for five (5) Business Days after Notice thereof from
Landlord; or
(g) should Tenant generally not be paying its debts as they become
due or should Tenant make a general assignment for the benefit of
creditors; or
(h) should any petition be filed by or against Tenant under the
Federal bankruptcy laws, or should any other proceeding be instituted by or
against Tenant seeking to adjudicate either a bankrupt or insolvent, or
seeking liquidation, reorganization, arrangement, adjustment or composition
of either or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other
similar official for Tenant or for any substantial part of the property of
Tenant and such proceeding is not dismissed within ninety (90) days after
institution thereof, or should Tenant take any action to authorize or
effect any of the actions set forth above in this paragraph; or
(i) should Tenant cause or institute any proceeding for its
dissolution or termination, except as contemplated by or in connection with
the assignment contemplated by Section 16.5; or
------------
(j) should the estate or interest of Tenant in the Leased Property or
any part thereof be levied upon or attached in any proceeding and the same
shall not be vacated or discharged within the later of (x) one hundred and
twenty (120) days after commencement thereof, unless the amount in dispute
is less than $250,000, in which case Tenant shall give notice to Landlord
of the dispute but Tenant may defend in any suitable way, and (y) thirty
(30) days after receipt by Tenant of Notice thereof from Landlord (unless
Tenant shall be contesting such lien or attachment in good faith in
accordance with Article 8); or
---------
- 49 -
(k) at any time after the assignment required by Section16.5, should
-----------
Tenant at any time cease to be a wholly owned direct or indirect
Subsidiary of Wyndham;
then, and in any such event, Landlord, in addition to all other remedies
available to it, may terminate this Agreement by giving Notice thereof to Tenant
and upon the expiration of the time, if any, fixed in such Notice, this
Agreement shall terminate and all rights of Tenant under this Agreement shall
cease. Landlord shall have and may exercise all rights and remedies available
at law and in equity to Landlord as a result of Tenant's breach of this
Agreement.
Upon the occurrence of an Event of Default, Landlord may, in addition to
any other remedies provided herein, enter upon the Leased Property or any
portion thereof and take possession of any and all of Tenant's Personal
Property, if any, and the Records, without liability for trespass or conversion
(Tenant hereby waiv ing any right to notice or hearing prior to such taking of
possession by Landlord) and sell the same at public or private sale, after
giving Tenant reasonable Notice of the time and place of any public or private
sale, at which sale Landlord or its assigns may purchase all or any portion of
Tenant's Personal Property, if any, unless otherwise prohibited by law. Unless
otherwise provided by law and without intending to exclude any other manner of
giving Tenant reasonable notice, the requirement of reasonable Notice shall be
met if such Notice is given at least ten (10) days before the date of sale. The
proceeds from any such disposition, less all expenses incurred in connection
with the taking of possession, holding and selling of such property (including,
reasonable attorneys' fees) shall be applied as a credit against the
indebtedness which is secured by the security interest granted in Section 7.2.
-----------
Any surplus shall be paid to Tenant or as otherwise required by law and Tenant
shall pay any deficiency to Landlord, as Additional Charges, upon demand.
12.2 Remedies. None of (a) the termination of this Agreement pursuant to
--------
Section 12.1, (b) the repossession of the Leased Property or any portion
------------
thereof, (c) the failure of Landlord to re-let the Leased Property or any
portion thereof, nor (d) the reletting of all or any of portion of the Leased
Property, shall relieve Tenant of its liability and obligations hereunder, all
of which shall survive any such termination, repossession or re-letting. In the
event of any such termination, Tenant shall forthwith pay to Landlord all Rent
due and payable with respect to the Leased Property through and including the
date of such termination. Thereafter, Tenant, until the end of what would have
been the Term of this Agreement in the absence of such termination, and whether
or not the Leased Property or any portion thereof shall have been re-let, shall
be liable to Landlord for, and shall pay to Landlord, as current
- 50 -
damages, the Rent and other charges which would be payable hereunder for the
remainder of the Term had such termination not occurred, less the net proceeds,
if any, of any re-letting of the Leased Property, after deducting all reasonable
expenses in connection with such reletting, including, without limitation, all
repossession costs, brokerage commissions, legal expenses, attorneys' fees,
advertising, expenses of employees, alteration costs and expenses of preparation
for such reletting. Tenant shall pay such current damages to Landlord monthly
on the days on which the Minimum Rent would have been payable hereunder if this
Agreement had not been so terminated with respect to such of the Leased
Property.
At any time after such termination, whether or not Landlord shall have
collected any such current damages, as liquidated final damages beyond the date
of such termination, at Landlord's election, Tenant shall pay to Landlord an
amount equal to the present value (discounted at the Interest Rate) of the
excess, if any, of the Rent and other charges which would be payable hereunder
from the date of such termination (assuming that, for the purposes of this
paragraph, annual payments by Tenant on account of Impositions and Additional
Rent would be the same as payments required for the immediately preceding twelve
calendar months, or if less than twelve calendar months have expired since the
Commencement Date, the payments required for such lesser period projected to an
annual amount) for what would be the then unexpired term of this Agreement if
the same remained in effect, over the fair market rental for the same period.
Nothing contained in this Agreement shall, however, limit or prejudice the right
of Landlord to prove and obtain in proceedings for bankruptcy or insolvency an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, the damages are to be
proved, whether or not the amount be greater than, equal to, or less than the
amount of the loss or damages referred to above.
In case of any Event of Default, re-entry, expiration and dispossession by
summary proceedings or otherwise, Landlord may (a) relet the Leased Property or
any part or parts thereof, either in the name of Landlord or otherwise, for a
term or terms which may at Landlord's option, be equal to, less than or exceed
the period which would otherwise have constituted the balance of the Term and
may grant concessions or free rent to the extent that Landlord considers
advisable and necessary to relet the same, and (b) may make such reasonable
alterations, repairs and decorations in the Leased Property or any portion
thereof as Landlord, in its sole and absolute discretion, considers advisable
and necessary for the purpose of reletting the Leased Property; and the making
of such alterations, repairs and decorations shall not operate or be construed
to release Tenant from liability hereunder as aforesaid. Subject to the last
- 51 -
sentence of this paragraph, Landlord shall in no event be liable in any way
whatsoever for any failure to relet all or any portion of the Leased Property,
or, in the event that the Leased Property is relet, for failure to collect the
rent under such reletting. To the maximum extent permitted by law, Tenant hereby
expressly waives any and all rights of redemption granted under any present or
future laws in the event of Tenant being evicted or dispossessed, or in the
event of Landlord obtaining possession of the Leased Property, by reason of the
occurrence and continuation of an Event of Default hereunder. Landlord
covenants and agrees, in the event of any termination of this Agreement as a
result of an Event of Default, to use reasonable efforts to mitigate its
damages.
12.3 Tenant's Waiver. IF THIS AGREEMENT IS TERMINATED PURSUANT TO SECTION
--------------- -------
12.1 OR 12.2, TENANT WAIVES, TO THE EXTENT PERMITTED BY LAW, ANY RIGHT TO A
------------
TRIAL BY JURY IN THE EVENT OF SUMMARY PROCEEDINGS TO ENFORCE THE REMEDIES SET
FORTH IN THIS ARTICLE 12, AND THE BENEFIT OF ANY LAWS NOW OR HEREAFTER IN FORCE
----------
EXEMPTING PROPERTY FROM LIABILITY FOR RENT OR FOR DEBT. IN ADDITION, TENANT
UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT, IN THE EVENT THIS AGREEMENT IS
TERMINATED PURSUANT TO SECTION 12.1 OR 12.2, NEITHER THE RETAINED FUNDS (AS SUCH
--------------------
TERM IS DEFINED IN THE PURCHASE AGREEMENT) SHALL NOT BE PAID OR PAYABLE (TENANT
WAIVING, ON BEHALF OF ITSELF AND ITS AFFILIATED PERSONS, ALL CLAIMS AND CAUSES
OF ACTION WITH RESPECT THERETO).
12.4 Application of Funds. Any payments received by Landlord under any of
--------------------
the provisions of this Agreement during the existence or continuance of any
Event of Default (and any payment made to Landlord rather than Tenant due to the
existence of any Event of Default) shall be applied to Tenant's current and past
due obligations under this Agreement in such order as Landlord may determine or
as may be prescribed by the laws of the State.
12.5 Landlord's Right to Cure Tenant's Default. If an Event of Default
-----------------------------------------
shall have occurred and be continuing, Landlord, after Notice to Tenant (which
Notice shall not be required if Landlord shall reasonably determine immediate
action is necessary to protect person or property), without waiving or releasing
any obligation of Tenant and without waiving or releasing any Event of Default,
may (but shall not be obligated to), at any time thereafter, make such payment
or perform such act for the account and at the expense of Tenant, and may, to
the maximum extent permitted by law, enter upon the Leased Property or any
portion thereof for such purpose and take all such action thereon as, in
Landlord's sole and absolute discretion, may be necessary or appropriate
therefor. No such entry shall be deemed an eviction of Tenant. All reasonable
costs and expenses (including, without limitation, reasonable attorneys' fees)
incurred by Landlord in connection therewith, together with interest thereon (to
the
- 52 -
extent permitted by law) at the Overdue Rate from the date such sums are paid by
Landlord until repaid, shall be paid by Tenant to Landlord, on demand.
ARTICLE 13
-----------
HOLDING OVER
------------
Any holding over by Tenant after the expiration or sooner termination of
this Agreement shall be treated as a daily tenancy at sufferance at a rate equal
to two (2) times the Minimum Rent and other charges herein provided (prorated on
a daily basis). Tenant shall also pay to Landlord all damages (direct or
indirect) sustained by reason of any such holding over. Otherwise, such holding
over shall be on the terms and conditions set forth in this Agreement, to the
extent applicable. Nothing contained herein shall constitute the consent,
express or implied, of Landlord to the holding over of Tenant after the
expiration or earlier termination of this Agreement.
ARTICLE 14
-----------
LANDLORD'S NOTICE OBLIGATIONS; LANDLORD DEFAULT
-----------------------------------------------
14.1 Landlord Notice Obligation. Landlord shall give prompt Notice to
--------------------------
Tenant of any matters affecting the Leased Property of which Landlord receives
written notice or actual knowledge and, to the extent Tenant otherwise has no
notice or actual knowledge thereof, Landlord shall be liable for any liabilities
arising from the failure to deliver such Notice to Tenant.
14.2 Landlord's Default. If Landlord shall default in the performance or
------------------
observance of any of its covenants or obligations set forth in this Agreement or
any obligation of Landlord, if any, under any agreement affecting the Leased
Property, the performance of which is not Tenant's obligation pursuant to this
Agreement, and any such default shall continue for a period of ten (10) days
after Notice thereof with respect to monetary defaults and thirty (30) days
after Notice thereof with respect to non-monetary defaults from Tenant to
Landlord and any applicable Hotel Mortgagee, or such additional period as may be
reasonably required to correct the same, Tenant may declare the occurrence of a
"Landlord Default" by a second Notice to Landlord and to such Hotel Mortgagee.
----------------
Thereafter, Tenant may forthwith cure the same and, subject to the provisions of
the following paragraph, invoice Landlord for costs and expenses (including
reasonable attorneys' fees and court costs) incurred by Tenant in curing the
same, together with interest thereon from the date
- 53 -
Landlord receives Tenant's invoice, at the Overdue Rate. Tenant shall have no
right to terminate this Agreement for any default by Landlord hereunder and no
right, for any such default, to offset or counterclaim against any Rent or other
charges due hereunder.
If Landlord shall in good faith dispute the occurrence of any Landlord
Default and Landlord, before the expiration of the applicable cure period, shall
give Notice thereof to Tenant, setting forth, in reasonable detail, the basis
therefor, no Landlord Default shall be deemed to have occurred and Landlord
shall have no obligation with respect thereto until final adverse determination
thereof; provided, however, that in the event of any such adverse determination,
-------- -------
Landlord shall pay to Tenant interest on any disputed funds at the Interest
Rate, from the date demand for such funds was made by Tenant until the date of
final adverse determination and, thereafter, at the Overdue Rate until paid. If
Tenant and Landlord shall fail, in good faith, to resolve any such dispute
within ten (10) days after Landlord's Notice of dispute, either may submit the
matter for resolution to a court of competent jurisdiction.
ARTICLE 15
-----------
PURCHASE RIGHTS
---------------
15.1 First Refusal to Purchase. Provided, (a) no Default or Event of
-------------------------
Default shall have occurred and be continuing, (b) this Agreement shall be of
full force and effect, and (c) other than as expressly permitted by Section 16,
----------
Tenant shall not have assigned this Agreement (other than a collateral
assignment to or from a Leasehold Mortgagee or as contemplated by Section 16.5)
------------
or subleased all or any portion of the Leased Property, Tenant shall have a
first refusal option to purchase the Leased Property upon the same price, terms
and conditions as Landlord shall propose to sell the Leased Property, or upon
the same price, terms and conditions of any offer from a third party to purchase
the Leased Property which Landlord intends to accept (or has accepted subject to
Tenant's right of first refusal herein provided); provided, however, that, if
-------- -------
the proposed purchase price is for other than cash, Tenant shall have the right
to purchase the Leased Property on cash equivalent terms determined by the
agreement of the parties or, if they cannot agree within ten (10) Business Days,
by arbitration in accordance with the rules of the American Arbitration
Association then in effect. If, during the Term, Landlord reaches such
agreement with a third party or proposes to offer the Leased Property for sale,
Landlord shall promptly give written notice to Tenant of the purchase price and
all other material terms and conditions of such agreement or proposed sale and
Tenant shall have sixty (60) days thereafter to
- 54 -
exercise Tenant's option to purchase by written notice to Landlord thereof.
Failure of Tenant to respond within such 60-day period shall be deemed a waiver
of Tenant's right to purchase the Leased Property with respect to such offer
pursuant to this Section 15.1. If Tenant exercises its option, the sale to
------------
Tenant shall be consummated upon the same terms and conditions as contained in
such agreement or Landlord's notice of the proposed sale. If Tenant shall not
exercise its option to purchase within the time period and in the manner above
provided, Landlord shall be free to sell the Leased Property to such third party
at the price and upon terms substantially similar to those offered to Tenant.
The rights granted to Tenant pursuant to this Section 15.1 shall not apply to
------------
any financing or sale-leaseback transaction or any transaction pursuant to which
Landlord is merged or consolidated with another Person; provided, however, that
-------- -------
any Person who shall acquire the Leased Premises shall acquire them subject to,
and shall be bound by, the provisions of this Section 15.1.
------------
15.2 Landlord's Option to Purchase the Tenant's Personal Property;
-------------------------------------------------------------
Transfer of Licenses. Landlord shall have the option to purchase Tenant's
--------------------
Personal Property, at the expiration or termination of this Agreement, for an
amount equal to the then net market value thereof (current replacement cost as
determined by appraisal less accumulated depreciation on Tenant's books
pertaining thereto), subject to, and with appropriate price adjustments for, all
equipment leases, conditional sale contracts, UCC-1 financing statements and
other encumbrances to which such Personal Property is subject. Upon the
expiration or sooner termination of this Agreement, Tenant shall use its best
efforts to transfer and assign to Landlord or its designee, or assist Landlord
or its designee in obtaining, any contracts, licenses, and certificates required
for the then operation of the Leased Property.
ARTICLE 16
-----------
SUBLETTING AND ASSIGNMENT
-------------------------
16.1 Subletting and Assignment. Except as provided in Section 16.3 and
------------------------- ------------
Article 19, Tenant shall not, without Landlord's prior written consent (which
----------
consent may be given or withheld in Landlord's sole and absolute discretion),
assign, mortgage, pledge, hypothecate, encumber or otherwise transfer this
Agreement or sublease (which term shall be deemed to include the granting of
concessions, licenses and the like), all or any part of the Leased Property or
suffer or permit this Agreement or the leasehold estate created hereby or any
other rights arising under this Agreement to be assigned, transferred,
mortgaged, pledged, hypothecated or encumbered, in whole or in part, whether
- 55 -
voluntarily, involuntarily or by operation of law, or permit the use or
operation of the Leased Property by anyone other than Tenant and the Manager, or
the Leased Property to be offered or advertised for assignment or subletting.
From and after the assignment required by Section 16.5, for purposes of this
------------
Section 16.1, an assignment of this Agreement shall be deemed to include any
------------
direct or indirect transfer of any interest in Tenant such that Tenant shall
cease to be a wholly owned direct or indirect Subsidiary of Wyndham or any
transaction pursuant to which Tenant is merged or consolidated with another
Entity or pursuant to which all or substantially all of Tenant's assets are
transferred to any other Entity, as if such change in control or transaction
were an assignment of this Agreement; provided, however, that the foregoing
-------- -------
shall not be construed to prohibit collateral assignments or pledges of the
capital stock of Tenant to Lending Institutions otherwise permitted by this
Agreement.
If this Agreement is assigned or if the Leased Property or any part thereof
are sublet (or occupied by anybody other than Tenant, the Manager and their
respective employees or hotel guests) Landlord may collect the rents from such
assignee, subtenant or occupant, as the case may be, and apply the net amount
collected to the Rent herein reserved, but no such col lection shall be deemed a
waiver of the provisions set forth in the first paragraph of this Section 16.1,
------------
the acceptance by Landlord of such assignee, subtenant or occupant, as the case
may be, as a tenant, or a release of Tenant from the future performance by
Tenant of its covenants, agreements or obligations contained in this Agreement.
No subletting or assignment shall in any way impair the continuing primary
liability of Tenant hereunder (unless Landlord and Tenant expressly otherwise
agree that Tenant shall be released from all obligations hereunder), and no
consent to any subletting or assignment in a particular instance shall be deemed
to be a waiver of the prohibition set forth in this Section 16.1. No assignment,
------------
subletting or occupancy shall affect any Permitted Use. Any subletting,
assignment or other transfer of Tenant's interest under this Agreement in
contravention of this Section 16.1 shall be voidable at Landlord's option.
------------
16.2 Required Sublease Provisions. Any sublease of all or any portion of
----------------------------
the Leased Property entered into on or after the date hereof shall provide (a)
that it is subject and subordinate to this Agreement and to the matters to which
this Agreement is or shall be subject or subordinate; (b) that in the event of
termination of this Agreement or reentry or dispossession of Tenant by Landlord
under this Agreement, Landlord may, at its option, terminate such sublease or
take over all of the right, title and interest of Tenant, as sublessor under
such sublease, and such subtenant shall, at Landlord's option, attorn to
- 56 -
Landlord pursuant to the then executory provisions of such sublease, except that
neither Landlord nor any Hotel Mortgagee, as holder of a mortgage or as Landlord
under this Agreement, if such mortgagee succeeds to that position, shall (i) be
liable for any act or omission of Tenant under such sublease, (ii) be subject to
any credit, counterclaim, offset or defense which theretofore accrued to such
subtenant against Tenant, (iii) be bound by any previous modification of such
sublease not consented to in writing by Landlord or by any previous prepayment
of more than one (1) month's Rent, (iv) be bound by any covenant of Tenant to
undertake or complete any construction of the Leased Property or any portion
thereof, (v) be required to account for any security deposit of the subtenant
other than any security deposit actually delivered to Landlord by Tenant, (vi)
be bound by any obligation to make any payment to such subtenant or grant any
credits, except for services, repairs, maintenance and restoration provided for
under the sublease that are performed after the date of such attornment, (vii)
be responsible for any monies owing by Tenant to the credit of such subtenant,
or (viii) be required to remove any Person occupying any portion of the Leased
Property; and (c), in the event that such subtenant receives a written Notice
from Landlord or any Hotel Mortgagee stating that an Event of Default has
occurred and is continuing, such subtenant shall thereafter be obligated to pay
all rentals accruing under such sublease directly to the party giving such
Notice or as such party may direct. All rentals received from such subtenant by
Landlord or the Hotel Mortgagee, as the case may be, shall be credited against
the amounts owing by Tenant under this Agreement and such sublease shall provide
that the subtenant thereunder shall, at the request of Landlord, execute a
suitable instrument in confirmation of such agreement to attorn. An original
counterpart of each such sublease and assignment and assumption, duly executed
by Tenant and such subtenant or assignee, as the case may be, in form and
substance reasonably satisfactory to Landlord, shall be delivered promptly to
Landlord and (a) in the case of an assignment, the assignee shall assume in
writing and agree to keep and perform all of the terms of this Agreement on the
part of Tenant to be kept and performed and shall be, and become, jointly and
severally liable with Tenant for the performance thereof and (b) in case of
either an assignment or subletting, Tenant shall remain primarily liable, as
principal rather than as surety, for the prompt payment of the Rent and for the
performance and observance of all of the covenants and conditions to be
performed by Tenant hereunder.
The provisions of this Section 16.2 shall not be deemed a waiver of the
------------
provisions set forth in the first paragraph of Section 16.1.
------------
16.3 Permitted Sublease. Notwithstanding the foregoing, including,
------------------
without limitation, Section 16.2, but subject to the
------------
- 57 -
provisions of Section 16.4 and any other express conditions or limitations set
------------
forth herein, Tenant may, in each instance after Notice to Landlord, sublease
space at the Leased Property for newsstand, gift shop, parking garage, health
club, restaurant, bar or commissary purposes or similar concessions in
furtherance of the Permitted Use, so long as such subleases do not demise, in
the aggregate, in excess of two thousand (2,000) square feet, will not violate
or affect any Legal Requirement or Insurance Requirement, and Tenant shall
provide such additional insurance coverage applicable to the activities to be
conducted in such subleased space as Landlord and any Hotel Mortgagee may
reasonably require.
16.4 Sublease Limitation. For so long as Landlord or any Affiliated
-------------------
Person as to Landlord shall seek to qualify as a real estate investment trust,
anything contained in this Agreement to the contrary notwithstanding, Tenant
shall not sublet the Leased Property on any basis such that the rental to be
paid by any sublessee thereunder would be based, in whole or in part, on the
income or profits derived by the business activities of such sublessee any other
formula such that any portion of such sublease rental would fail to qualify as
"rents from real property" within the meaning of Section 856(d) of the Code, or
any similar or successor provision thereto or would otherwise disqualify
Landlord for treatment as a real estate investment trust.
16.5 Required Assignment. Upon the consummation of the initial public
-------------------
offering of the shares of WHC as currently contemplated for at least Twenty Five
Million Dollars ($25,000,000), the initial Tenant named herein shall be required
to assign its interest under this Agreement, directly or indirectly, to a
corporate subsidiary of WHC, wholly owned by WHC. Simultaneously with the
foregoing assignment, Wyndham shall execute and deliver to Landlord the Stock
Pledge Agreement, which pledge Landlord agrees to subordinate to the lien of a
Lending Institution as provided in this Agreement.
ARTICLE 17
-----------
ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS
----------------------------------------------
17.1 Estoppel Certificates. At any time and from time to time, upon
---------------------
not less than ten (10) Business Days prior Notice by either party, the party
receiving such Notice shall furnish to the other an Officer's Certificate
certifying that this Agreement is unmodified and in full force and effect (or
that this Agreement is in full force and effect as modified and setting forth
the modifications), the date to which the Rent has been paid, that no Default or
an Event of Default has occurred and is
- 58 -
continuing or, if a Default or an Event of Default shall exist, specifying in
reasonable detail the nature thereof, and the steps being taken to remedy the
same, and such additional information as the requesting party may reasonably
request. Any such certificate furnished pursuant to this Section 17.1 may be
------------
relied upon by the requesting party, its lenders and any prospective purchaser
or mortgagee of the Leased Property or the leasehold estate created hereby.
17.2 Financial Statements.
--------------------
(a) Prior to the assignment contemplated by Section 16.5, Tenant shall
------------
furnish the following statements to Landlord:
(i) within ninety (90) days after the end of each Fiscal Year, an
audited balance sheet and operating statement for such year,
certified by an independent certified public accountant
reasonably satisfactory to Landlord and accompanied by a
Financial Officer's Certificate;
(ii) within thirty (30) days after the end of each month, an
unaudited operating statement prepared on a Hotel by Hotel
basis, including occupancy percentages and average rate,
accompanied by a Financial Officer's Certificate;
(iii) at any time and from time to time upon not less than twenty
(20) days Notice from Landlord, any financial reporting
information required to be filed by Landlord with any securities
and exchange commission, the SEC or any successor agency, or any
other governmental authority or required pursuant to any order
issued by any court, governmental authority or arbitrator in any
litigation to which Landlord is a party, for purposes of
compliance therewith; and
(iv) promptly, upon Notice from Landlord, such other information
concerning the business, financial condition and affairs of
Tenant and Wyndham as Landlord reasonably may request from time
to time.
(b) From and after the assignment contemplated by Section 16.5, Tenant
------------
shall furnish the following statements to Landlord:
(i) within forty-five (45) days after each of the first three
quarters of any Fiscal Year, the most recent Consolidated
Financials, accompanied by the Financial Officer's Certificate;
- 59 -
(ii) within ninety (90) days after the end of each Fiscal Year, the
most recent Consolidated Financials for such year, certified by
an independent certified public accountant reasonably
satisfactory to Landlord and accompanied by a Financial
Officer's Certificate;
(iii) within thirty (30) days after the end of each month, an
unaudited operating statement prepared on a Hotel by Hotel
basis, including occupancy percentages and average rate,
accompanied by a Financial Officer's Certificate;
(iv) promptly after the sending or filing thereof, copies of all
reports which Tenant or Wyndham sends to its security holders
generally, and copies of all periodic reports which Tenant or
Wyndham files with the SEC or any stock exchange on which its
shares are listed or traded;
(v) at any time and from time to time upon not less than twenty (20)
days Notice from Landlord, any Consolidated Financials or any
other financial reporting information required to be filed by
Landlord with any securities and exchange commission, the SEC or
any successor agency, or any other governmental authority, or
required pursuant to any order issued by any court, governmental
authority or arbitrator in any litigation to which Landlord is a
party, for purposes of compliance therewith; and
(vi) promptly, upon Notice from Landlord, such other information
concerning the business, financial condition and affairs of
Tenant and Wyndham as Landlord reasonably may request from time
to time.
Landlord may at any time, and from time to time, provide any Hotel Mortgagee
with copies of any of the foregoing statements.
In addition, Landlord shall have the right, from time to time at
Landlord's sole cost and expense, upon reasonable Notice, during Tenant's
customary business hours, to cause Tenant's books and records with respect to
the Leased Property to be audited by auditors selected by Landlord at the place
where such books and records are customarily kept.
17.3 General Operations. Tenant shall furnish to Landlord:
------------------
(a) Within thirty (30) days after receipt or modification thereof,
copies of all licenses authorizing
- 60 -
Tenant and/or the Manager to operate the Hotel for its Permitted Use;
(b) Not less than thirty (30) days after the commencement of any
Fiscal Year, proposed annual income and ordinary expense and capital
improvement budgets setting forth projected income and costs and expenses
projected to be incurred by Tenant in managing, owning, maintaining and
operating the Hotel during the next succeeding Fiscal Year; and
(c) Promptly after receipt or sending thereof, copies of all notices
given or received by Tenant under the Management Agreement.
ARTICLE 18
----------
LANDLORD'S RIGHT TO INSPECT
---------------------------
Tenant shall permit, and shall direct the Manager to permit, Landlord
and its authorized representatives to inspect the Leased Property during usual
business hours upon not less than twenty-four (24) hours' notice and to make
such repairs as Landlord is permitted or required to make pursuant to the terms
of this Agreement, provided that any inspection or repair by Landlord or its
representatives will not unreasonably interfere with Tenant's use and operation
of the Leased Property and further provided that in the event of an emergency,
as determined by Landlord in its reasonable discretion, prior Notice shall not
be necessary.
ARTICLE 19
-----------
LEASEHOLD MORTGAGES
-------------------
19.1 Leasehold Mortgages Authorized. Notwithstanding anything to the
------------------------------
contrary contained herein, on one or more occasions, without Landlord's prior
consent, Tenant may grant one or more Leasehold Mortgages on its leasehold
interest to one or more Lending Institutions to secure Indebtedness permitted
hereunder.
19.2 Notices to Landlord. Promptly upon the granting of any
-------------------
Leasehold Mortgage, Tenant or the applicable Leasehold Mortgagee shall give
Notice thereof to Landlord, such notice to identify the name and address of the
Leasehold Mortgagee and to be accompanied by a copy of the applicable Leasehold
Mortgage, as recorded. In the event of a change of address of a Leasehold
Mortgagee or of any amendment to or assignment of a Leasehold Mortgage, Tenant
or the applicable Leasehold Mortgagee shall
- 61 -
promptly provide notice of such new address, amendment or assignment to
Landlord, together with a copy of each such amendment or assignment.
19.3 Cure by Leasehold Mortgagee. Any Leasehold Mortgagee shall have
---------------------------
the right, at any time during the Term hereof, while this Agreement is in full
force and effect:
(a) To do any act required by Tenant hereunder, and all such acts done or
performed shall be effective as to prevent a forfeiture of Tenant's rights
hereunder as if the same had been done or performed by Tenant; and
(b) To rely on the security afforded by the leasehold estate, and to
acquire and to succeed to the interest of Tenant hereunder by foreclosure,
whether by judicial sale, by power of sale contained in any security
instrument, or by assignment of leasehold interest given in lieu of
foreclosure, and thereafter convey or assign title to the leasehold estate
so required to any other person, firm or corporation.
If the Leasehold Mortgagee or Tenant shall have furnished, in writing,
to Landlord a request for Notice of any Event of Default, in the event of any
Event of Default by Tenant, Landlord will not terminate this Lease by reason of
such Event of Default if the Leasehold Mortgagee shall, prior to the expiration
of the applicable cure period, cure any monetary Event of Default or, if such
Event of Default cannot be cured by the payment of money, provide Landlord with
a written undertaking, in form and substance satisfactory to Landlord, to
perform all covenants and obligations of Tenant under this Agreement upon
foreclosure and, thereafter, such Leasehold Mortgagee shall proceed in a timely
and diligent manner to accomplish the foreclosure of Tenant's interest under
this Agreement.
ARTICLE 20
----------
HOTEL MORTGAGES
---------------
20.1 Landlord May Grant Liens. Without the consent of Tenant,
------------------------
Landlord may, subject to the terms and conditions set forth in this Section
-------
20.1, from time to time, directly or indirectly, create or otherwise cause to
----
exist any lien, encumbrance or title retention agreement ("Encumbrance") upon
-----------
the Leased Property, or any portion thereof or interest therein, whether to
secure any borrowing or other means of financing or refinancing. Notwithstanding
anything to the contrary set forth in Section 20.2, any such Encumbrance shall
------------
include the right to prepay (whether or not subject to a prepayment penalty) and
shall
- 62 -
provide (subject to Section 20.2) that it is subject to the rights of Tenant
------------
under this Agreement.
20.2 Subordination of Lease. Subject to Section 20.1 and this
---------------------- ------------
Section 20.2, this Agreement, any and all rights of Tenant hereunder, are and
------------
shall be subject and subordinate to any ground or master lease, and all
renewals, extensions, modifications and replacements thereof, and to all
mortgages and deeds of trust, which may now or hereafter affect the Leased
Property or any improvements thereon and/or any of such leases, whether or not
such mortgages or deeds of trust shall also cover other lands and/or buildings
and/or leases, to each and every advance made or hereafter to be made under such
mortgages and deeds of trust, and to all renewals, modifications, replacements
and extensions of such leases and such mortgages and deeds of trust and all
consolidations of such mortgages and deeds of trust. This section shall be
self-operative and no further instrument of subordination shall be required
provided that Tenant has received a nondisturbance and attornment agreement from
each Superior Mortgagee, consistent with the provisions of this Section 20.2 and
------------
otherwise in form and substance reasonably satisfactory to Tenant, the benefits
of which agreement shall also extend to any Leasehold Mortgagee. In
confirmation of such subordination, Tenant shall promptly execute, acknowledge
and deliver any instrument that Landlord, the lessor under any such lease or the
holder of any such mortgage or the trustee or beneficiary of any deed of trust
or any of their respective successors in interest may reasonably request to
evidence such subordination. Any lease to which this Agreement is, at the time
referred to, subject and subordinate is herein called "Superior Lease" and the
--------------
lessor of a Superior Lease or its successor in interest at the time referred to,
is herein called "Superior Landlord" and any mortgage or deed of trust to which
-----------------
this Agreement is, at the time referred to, subject and subordinate, is herein
called "Superior Mortgage" and the holder, trustee or beneficiary of a Superior
-----------------
Mortgage is herein called "Superior Mortgagee". Tenant shall have no
------------------
obligations under any Superior Lease or Superior Mortgage other than those
expressly set forth in this Section 20.2.
------------
If any Superior Landlord or Superior Mortgagee or the nominee or
designee of any Superior Landlord or Superior Mortgagee shall succeed to the
rights of Landlord under this Agreement (any such person, "Successor Landlord"),
------------------
whether through possession or foreclosure action or delivery of a new lease or
deed, or otherwise, such Successor Landlord shall recognize Tenant's rights
under this Agreement as herein provided and Tenant shall attorn to and recognize
the Successor Landlord as Tenant's landlord under this Agreement and Tenant
shall promptly execute and deliver any instrument that such Successor Landlord
may reasonably request to evidence such attornment (provided that such
instrument does not alter the terms of this
- 63 -
Agreement), whereupon, this Agreement shall continue in full force and effect as
a direct lease between the Successor Landlord and Tenant upon all of the terms,
conditions and covenants as are set forth in this Agreement, except that the
Successor Landlord (unless formerly the landlord under this Agreement or its
nominee or designee) shall not be (a) liable in any way to Tenant for any act or
omission, neglect or default on the part of any prior Landlord under this
Agreement, (b) responsible for any monies owing by or on deposit with any prior
Landlord to the credit of Tenant (except to the extent actually paid or
delivered to the Successor Landlord), (c) subject to any counterclaim or setoff
which theretofore accrued to Tenant against any prior Landlord, (d) bound by any
modification of this Agreement subsequent to such Superior Lease or Mortgage, or
by any previous prepayment of Minimum Rent or Additional Rent for more than one
(1) month in advance of the date due hereunder, which was not approved in
writing by the Superior Landlord or the Superior Mortgagee thereto, (e) liable
to Tenant beyond the Successor Landlord's interest in the Leased Property and
the rents, income, receipts, revenues, issues and profits issuing from the
Leased Property, (f) responsible for the performance of any work to be done by
the Landlord under this Agreement to render the Leased Property ready for
occupancy by Tenant (subject to Landlord's obligations under Section 5.1.2(b) or
----------------
with respect to any insurance or Condemnation proceeds), or (g) required to
remove any Person occupying the Leased Property or any part thereof, except if
such person claims by, through or under the Successor Landlord. Tenant agrees
at any time and from time to time to execute a suitable instrument in
confirmation of Tenant's agreement to attorn, as aforesaid and Landlord agrees
to provide Tenant with an instrument of nondisturbance and attornment from each
such Superior Mortgagee and Superior Landlord in form and substance reasonably
satisfactory to Tenant. Nothing contained in this Section 20.2 shall relieve
------------
Landlord from any liability to Tenant under this Agreement following the
exercise of remedies by a Superior Mortgage.
20.3 Notice to Mortgagee and Ground Landlord. Subsequent to the
---------------------------------------
receipt by Tenant of Notice from Landlord as to the identity of any Hotel
Mortgagee or ground lessor under a lease with Landlord, as ground lessee, which
includes the Leased Property as part of the demised premises and which complies
with Section 20.1 and 20.2 (which Notice shall be accompanied by a copy of the
---------------------
applicable mortgage or lease), no notice from Tenant to Landlord as to the
Leased Property shall be effective unless and until a copy of the same is given
to such Hotel Mortgagee or ground lessor at the address set forth in the above
described Notice, and the curing of any of Landlord's defaults by such Hotel
Mortgagee or ground lessor shall be treated as performance by Landlord.
- 64 -
ARTICLE 21
----------
ADDITIONAL COVENANTS OF TENANT
------------------------------
21.1 Prompt Payment of Indebtedness. Tenant shall (a) pay or cause
------------------------------
to be paid when due all payments of principal of and premium and interest on
Tenant's Indebtedness for money borrowed and shall not permit or suffer any such
Indebtedness to become or remain in default beyond any applicable grace or cure
period, (b) pay or cause to be paid when due all lawful claims for labor and
rents with respect to the Leased Property, (c) pay or cause to be paid when due
all trade payables and (d) pay or cause to be paid when due all other of
Tenant's Indebtedness upon which it is or becomes obligated, except, in each
case, other than that referred to in clause (a), to the extent payment is being
contested in good faith by appropriate proceedings in accordance with Article 8
---------
and if Tenant shall have set aside on its books adequate reserves with respect
thereto in accordance with GAAP, if appropriate, or unless and until
foreclosure, distraint sale or other similar proceedings shall have been
commenced.
21.2 Conduct of Business. Tenant shall not engage in any business
-------------------
other than the leasing and operation of the Collective Leased Properties and
shall do or cause to be done all things necessary to preserve, renew and keep in
full force and effect and in good standing its corporate or partnership
existence, as applicable, and its rights and licenses necessary to conduct such
business.
21.3 Maintenance of Accounts and Records. Tenant shall keep true
-----------------------------------
records and books of account of Tenant in which full, true and correct entries
will be made of dealings and transactions in relation to the business and
affairs of Tenant in accordance with GAAP, where applicable, Tenant shall apply
accounting principles in the preparation of the financial statements of Tenant
which, in the judgment of and the opinion of its independent public accountants,
are in accordance with GAAP, where applicable, except for changes approved by
such independent public accountants. Tenant shall provide to Landlord either in
a footnote to the financial statements delivered under Section 17.2 which relate
------------
to the period in which such change occurs, or in separate schedules to such
financial statements, information sufficient to show the effect of any such
changes on such financial statements.
21.4 Notice of Litigation, Etc. Tenant shall give prompt Notice to
--------------------------
Landlord of any litigation or any administrative proceeding to which it may
hereafter become a party of which Tenant has notice or actual knowledge which
involves a potential uninsured liability equal to or greater than Two Hundred
Fifty Thousand Dollars ($250,000) or which, in Tenant's reasonable
- 65 -
opinion, may otherwise result in any material adverse change in the business,
operations, property, prospects, results of operation or condition, financial or
other, of Tenant. Forthwith upon Tenant obtaining knowledge of any Default,
Event of Default or any default or event of default under any agreement relating
to Indebtedness for money borrowed in an aggregate amount exceeding, at any one
time, Two Hundred Fifty Thousand Dollars ($250,000), or any event or condition
that would be required to be disclosed in a current report filed by Tenant on
Form 8-K or in Part II of a quarterly report on Form 10-Q if Tenant were
required to file such reports under the Securities Exchange Act of 1934, as
amended, Tenant shall furnish Notice thereof to Landlord specifying the nature
and period of existence thereof and what action Tenant has taken or is taking or
proposes to take with respect thereto.
21.5 Indebtedness of Tenant. Tenant shall not create, incur, assume
----------------------
or guarantee, or permit to exist, or become or remain liable directly or
indirectly upon, any Indebtedness except the following:
(a) Indebtedness of Tenant to Landlord;
(b) Indebtedness of Tenant for Impositions, to the extent that payment
thereof shall not at the time be required to be made in accordance with the
provisions of Article 8;
---------
(c) Indebtedness of Tenant in respect of judgments or awards (i) which
have been in force for less than the applicable appeal period and in
respect of which execution thereof shall have been stayed pending such
appeal or review, or (ii) which are fully covered by insurance payable to
Tenant, or (iii) which are for an amount not in excess of $250,000 in the
aggregate at any one time outstanding and (x) which have been in force for
not longer than the applicable appeal period, so long as execution is not
levied thereunder or (y) in respect of which an appeal or proceedings for
review shall at the time be prosecuted in good faith in accordance with the
provisions of Article 8, and in respect of
---------
which execution thereof shall have been stayed pending such appeal or
review;
(d) unsecured borrowings of Tenant from its Affiliated Persons which
are by their terms expressly subordinate pursuant to a Subordination
Agreement to the payment and performance of Tenant's obligations under this
Agreement;
(e) Indebtedness for purchase money financing in accordance with
Section 21.9(a) and other operating
---------------
- 66 -
liabilities incurred in the ordinary course of Tenant's business;
(f) Deferred fees to the Manager as provided in the Management
Agreement, provided that such fees shall be, from and after the occurrence
of a Default or Event of Default, subordinate to all amounts owing to
Landlord; or
(g) Indebtedness of any Affiliated Persons as to Tenant secured by a
Leasehold Mortgage or otherwise guaranteed by Tenant.
21.6 Financial Condition of Tenant. Tenant shall at all times
-----------------------------
maintain Tangible Net Worth (except as provided in the last clause of this
sentence) in an amount at least equal to the aggregate of one year's Minimum
Rent payable pursuant to this Agreement and the Other Leases in effect from time
to time; it being expressly understood and agreed that the sum of the Retained
Funds (as defined in the Purchase Agreement) may for such purpose be counted as
equity at the full amount thereof if such amounts are contributed to Tenant.
21.7 Distributions, Payments to Affiliated Persons, Etc. Tenant shall
---------------------------------------------------
not declare, order, pay or make, directly or indirectly, any Distributions or
any payment to any Affiliated Person of Tenant (including payments in the
ordinary course of business and payments pursuant to management agreements with
any such Affiliated Person) or set apart any sum or property therefor, or agree
to do so, if, at the time of such proposed action, or immediately after giving
effect thereto, any Event of Default shall exist.
21.8 Prohibited Transactions. Tenant shall not permit to exist or
-----------------------
enter into any agreement or arrangement whereby it engages in a transaction of
any kind with any Affiliated Person as to Tenant, except on terms and conditions
which are commercially reasonable or as otherwise described in Wyndham's draft
prospectus for its initial public offering.
21.9 Liens and Encumbrances. Except as permitted by Section 7.1,
---------------------- -----------
Article 19 and Section 21.5, Tenant shall not create or incur or suffer to be
---------- ------------
created or incurred or to exist any Lien on this Agreement or any of Tenant's
assets, properties, rights or income, or any of its interest therein, now or at
any time hereafter owned, other than:
(a) Security interests securing the purchase price of equipment or
personal property whether acquired before or after the Commencement Date;
provided, however, that (i) such Lien shall at all times be confined solely
-------- -------
to the asset in question and (ii) the aggregate principal amount of
- 67 -
Indebtedness secured by any such Lien shall not exceed the cost of
acquisition or construction of the property subject thereto;
(b) Permitted Encumbrances; and
(c) As permitted pursuant to Article 19 and Section 21.5.
---------- ------------
21.10 Merger; Sale of Assets; Etc. Except as otherwise permitted by
---------------------------
this Agreement, Tenant shall not (i) sell, lease (as lessor or sublessor),
transfer or otherwise dispose of, or abandon, all or any material portion of its
assets (including capital stock) or business to any Person, (ii) merge into or
with or consolidate with any other Entity, or (iii) sell, lease (as lessor or
sublessor), transfer or otherwise dispose of, or abandon, any personal property
or fixtures or any real property; provided, however, that, notwithstanding the
-------- -------
provisions of clause (iii) preceding, Tenant may dispose of equipment or
fixtures which have become inadequate, obsolete, worn-out, unsuitable,
undesirable or unnecessary, provided substitute equipment or fixtures having
equal or greater value and utility (but not necessarily having the same
function) have been provided.
ARTICLE 22
-----------
MISCELLANEOUS
-------------
22.1 Limitation on Payment of Rent. All agreements between Landlord
-----------------------------
and Tenant herein are hereby expressly limited so that in no contingency or
event whatsoever, whether by reason of acceleration of Rent, or otherwise, shall
the Rent or any other amounts payable to Landlord under this Agreement exceed
the maximum permissible under applicable law, the benefit of which may be
asserted by Tenant as a defense, and if, from any circumstance whatsoever,
fulfillment of any provision of this Agreement, at the time performance of such
provision shall be due, shall involve transcending the limit of validity
prescribed by law, or if from any circumstances Landlord should ever receive as
fulfillment of such provision such an excessive amount, then, ipso facto, the
---- -----
amount which would be excessive shall be applied to the reduction of the
installment(s) of Minimum Rent next due and not to the payment of such excessive
amount. This provision shall control every other provision of this Agreement
and any other agreements between Landlord and Tenant.
22.2 No Waiver. No failure by Landlord or Tenant to insist upon the
---------
strict performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach thereof, and no acceptance of full or partial payment
of Rent during the
- 68 -
continuance of any such breach, shall constitute a waiver of any such breach or
of any such term. To the maximum extent permitted by law, no waiver of any
breach shall affect or alter this Agreement, which shall continue in full force
and effect with respect to any other then existing or subsequent breach.
22.3 Remedies Cumulative. To the maximum extent permitted by law,
-------------------
each legal, equitable or contractual right, power and remedy of Landlord or
Tenant, now or hereafter provided either in this Agreement or by statute or
otherwise, shall be cumulative and concurrent and shall be in addition to every
other right, power and remedy and the exercise or beginning of the exercise by
Landlord or Tenant (as applicable) of any one or more of such rights, powers and
remedies shall not preclude the simultaneous or subsequent exercise by Landlord
of any or all of such other rights, powers and remedies.
22.4 Severability. Any clause, sentence, paragraph, section or
------------
provision of this Agreement held by a court of competent jurisdiction to be
invalid, illegal or ineffective shall not impair, invalidate or nullify the
remainder of this Agreement, but rather the effect thereof shall be confined to
the clause, sentence, paragraph, section or provision so held to be invalid,
illegal or ineffective, and this Agreement shall be construed as if such
invalid, illegal or ineffective provisions had never been contained therein.
22.5 Acceptance of Surrender. No surrender to Landlord of this
-----------------------
Agreement or of the Leased Property or any part thereof, or of any interest
therein, shall be valid or effective unless agreed to and accepted in writing by
Landlord and no act by Landlord or any representative or agent of Landlord,
other than such a written acceptance by Landlord, shall constitute an acceptance
of any such surrender.
22.6 No Merger of Title. It is expressly acknowledged and agreed
------------------
that it is the intent of the parties that there shall be no merger of this
Agreement or of the leasehold estate created hereby by reason of the fact that
the same Person may acquire, own or hold, directly or indirectly this Agreement
or the leasehold estate created hereby and the fee estate or ground landlord's
interest in the Leased Property.
22.7 Conveyance by Landlord. If Landlord or any successor owner of
----------------------
all or any portion of the Leased Property shall convey all or any portion of the
Leased Property in accordance with the terms hereof other than as security for a
debt, and the grantee or transferee of such of the Leased Property shall
expressly assume all obligations of Landlord hereunder arising or accruing from
and after the date of such conveyance or transfer, Landlord or such successor
owner, as the case may be, shall, provided such
- 69 -
successor owner shall have a Tangible Net Worth of not less than Fifty Million
($50,000,000) Dollars thereupon be released from all future liabilities and
obligations of Landlord under this Agreement with respect to such of the Leased
Property arising or accruing from and after the date of such conveyance or other
transfer and all such future liabilities and obligations shall thereupon be
binding upon the new owner.
22.8 Quiet Enjoyment. Provided that no Event of Default shall have
---------------
occurred and be continuing, Tenant shall peaceably and quietly have, hold and
enjoy the Leased Property for the Term, free of hindrance or molestation by
Landlord or anyone claiming by, through or under Landlord, but subject to (a)
any Encumbrance permitted under Article 20 or otherwise permitted to be created
----------
by Landlord hereunder provided that the holder of such Encumbrance has, to the
extent appropriate, executed a nondisturbance agreement pursuant to Section 20.2
------------
or a subordination agreement in form and substance reasonably acceptable to
Tenant, (b) all Permitted Encumbrances, (c) liens as to obligations of Landlord
that are either not yet due or which are being contested in good faith and by
proper proceedings, provided the same do not materially interfere with Tenant's
ability to operate the Hotel and (d) liens that have been consented to in
writing by Tenant. Except as otherwise provided in this Agreement, no failure
by Landlord to comply with the foregoing covenant shall give Tenant any right to
cancel or terminate this Agreement or xxxxx, reduce or make a deduction from or
offset against the Rent or any other sum payable under this Agreement, or to
fail to perform any other obligation of Tenant hereunder.
22.9 Memorandum of Lease. Neither Landlord nor Tenant shall record
-------------------
this Agreement. However, Landlord and Tenant shall promptly, upon the request
of the other, enter into a short form memorandum of this Agreement, in form
suitable for recording under the laws of the State in which reference to this
Agreement, and all options contained herein, shall be made. The parties shall
share equally all costs and expenses of recording such memorandum.
22.10 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
- 70 -
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 Landlord to:
Hospitality Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx
[Telecopier No. (000) 000-0000]
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
[Telecopier No. (000) 000-0000]
if to Tenant to:
Wyndham Hotels and Resorts
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxx X. Xxxxxxx
[Telecopier No. (000) 000-0000]
with a copy to:
Locke, Purnell, Rain, Xxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx Xxxx, Esq.
[Telecopier No. (000) 000-0000]
(d) By notice given as herein provided, the parties hereto and their
respective successor and assigns shall have the right from time to time and
at any time during the term
- 71 -
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.
22.11 Trade Area Restriction. Neither Tenant nor any of its
----------------------
Affiliated Persons shall own, build, franchise, manage or operate any Wyndham
Garden hotel within the designated area on Exhibit D, at any time during the
---------
Term; it being expressly understood and agreed that hotels other than Wyndham
Garden hotels (e.g. full service hotels or resort hotels) are not subject to the
foregoing restriction.
22.12 Construction. Anything contained in this Agreement to the
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contrary notwithstanding, all claims against, and liabilities of, Tenant or
Landlord arising prior to any date of termination or expiration of this
Agreement with respect to the Leased Property shall survive such termination or
expiration. In no event shall Landlord be liable for any consequential damages
suffered by Tenant as the result of a breach of this Agreement by Landlord.
Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated except by an instrument in writing signed by the party
to be charged. 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. Each term or provision of this Agreement to be performed
by Tenant shall be construed as an independent covenant and condition. Time is
of the essence with respect to the exercise of any rights of Tenant under this
Agreement. Except as otherwise set forth in this Agreement, any obligations of
Tenant (including without limitation, any monetary, repair and indemnification
obligations) and Landlord shall survive the expiration or sooner termination of
this Agreement. Whenever it is provided in this Agreement that Tenant shall
direct the Manager to take any action, Tenant shall not be deemed to have
satisfied such obligation unless Tenant shall have exhausted all applicable
rights and remedies of Tenant as "Owner" under the Management Agreement.
22.13 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.
22.14 Applicable Law, Etc. This Agreement shall be interpreted,
--------------------
construed, applied and enforced in accordance with
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the laws of the State applicable to contracts between residents of the State
which are to be performed entirely within the State, 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 State; 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 State as is provided by law; and the parties consent to the jurisdiction of
said court or courts located in the State and to service of process by
registered mail, return receipt requested, or by any other manner provided by
law.
22.15 Right to Make Agreement. Each party warrants, with respect to
-----------------------
itself, that neither the execution of this Agreement, nor the consummation of
any transaction contemplated hereby, shall violate any provision of any law, or
any judgment, writ, injunction, order or decree of any court or governmental
authority having jurisdiction over it; nor result in or constitute a breach or
default under any indenture, contract, other commitment or restriction to which
it is a party or by which it is bound; nor require any consent, vote or approval
which has not been given or taken, or at the time of the transaction involved
shall not have been given or taken. Each party covenants that it has and will
continue to have throughout the term of this Agreement and any extensions
thereof, the full right to enter into this Agreement and perform its obligations
hereunder.
22.16 Non-Liability of Trustees. The Declaration of Trust of
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Landlord, a copy of which is duly filed with the Department of Assessments and
Taxation of the State of Maryland, provides that the name "Hospitality
Properties Trust" refers to the trustees under the Declaration of Trust
collectively as trustees, but not individually or personally, and that no
trustee, officer, shareholder, employee or agent of Landlord shall be held to
any personal liability, jointly or severally, for any obligation of, or claim
against, Landlord. All persons dealing with Landlord, in any way, shall look
only to the assets of Landlord for the payment of any sum or the performance of
any obligation.
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22.17 Nonrecourse. Nothing contained in this Agreement shall be
-----------
construed to impose any liabilities or obligations on Wyndham or any of its
shareholders for the payment or performance of the obligations or liabilities of
Tenant under this Agreement.
22.18 Confidentiality. Except to prospective lenders and purchasers
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or as may be required by law, the SEC or any securities and exchange commission,
Landlord shall not disclose any of Tenant's confidential or proprietary
information to any Person.
IN WITNESS WHEREOF, the parties have executed this Agreement as a sealed
instrument as of the date above first written.
LANDLORD:
HOSPITALITY PROPERTIES TRUST
By:
--------------------------
Its:
-------------------------
TENANT:
GARDEN HOTEL ASSOCIATES II LIMITED PARTNERSHIP
By: Garden Hotel Partners L.P.,
General Partner
By: Garden Hotel Corporation
No. 2, General Partner
By:
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Its:
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EXHIBIT A
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Annual Minimum Rent
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$ , of which $ is allocable to Leased Personal Property and
---- -----
$ of which is allocable to Leased Intangible Property.
-----
EXHIBIT B
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Other Leases
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[See attached copy.]
EXHIBIT C
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The Land
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[See attached copy.]
EXHIBIT D
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Restricted Trade Area
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[See attached copy.]
