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EXHIBIT 10.20
THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT AND
AGREEMENT TO LEASE AND SIXTH AMENDMENT TO LEASE AGREEMENT
AND INCIDENTAL DOCUMENTS
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT AND AGREEMENT TO
LEASE AND SIXTH AMENDMENT TO LEASE AGREEMENT AND INCIDENTAL DOCUMENTS (this
"Amendment") is entered into as of this 23rd day of December, 1998, by and among
(i) HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust
("HPT"); (ii) HPT CW II PROPERTIES TRUST, a Maryland real estate investment
trust (the "Landlord"); (iii) CANDLEWOOD HOTEL COMPANY, INC., a Delaware
corporation, ("Candlewood"); (iv) the eighteen entities listed as "Sellers" on
the signature pages of this Agreement (collectively, the "Sellers"); and (v)
CANDLEWOOD LEASING NO. 2, INC., a Delaware corporation (the "Tenant").
W I T N E S S E T H:
WHEREAS, pursuant to a Purchase and Sale Agreement, dated as of May 14,
1998 (as amended, the "Purchase Agreement"), and an Agreement to Lease, dated as
of May 14, 1998 (as amended, the "Agreement to Lease"), HPT agreed to acquire
from Candlewood and the Sellers certain hotel properties and lease or cause the
Landlord to lease such properties to the Tenant, all as more particularly
described in and subject to and upon the terms and conditions set forth in the
Purchase Agreement and Agreement to Lease; and
WHEREAS, pursuant to the Purchase Agreement and Agreement to Lease, the
Landlord and the Tenant entered into a Lease Agreement, dated May 20, 1998 (as
amended, the "Lease"); and
WHEREAS, the obligations of the Tenant under the Lease are secured and
guaranteed by certain undertakings and agreements of Candlewood pursuant to the
Incidental Documents (this and other capitalized terms used and not otherwise
defined herein having the meanings ascribed to such terms in the Lease); and
WHEREAS, the parties wish to amend further certain terms and conditions
of the Purchase Agreement, the Agreement to Lease and the Lease and certain
incidental documents, all as more particularly set forth herein; and
WHEREAS, on the date hereof, a Closing (as defined in the Purchase
Agreement) is occurring with respect to certain hotel properties, the legal
descriptions of which are set forth in Exhibits A-1 through A-2 of this
Amendment; and
WHEREAS, the transactions contemplated by this Amendment are of direct
substantial and material benefit to Candlewood;
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NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the mutual receipt and
legal sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Section 1.3 of the Purchase Agreement is hereby amended by deleting
the dollar amount "One Hundred Thirty Five Million Dollars ($135,000,000)"
appearing therein and inserting the dollar amount "One Hundred Forty Two Million
Four Hundred Thousand Dollars ($142,400,000)" in its place.
2. Section 1.15 of the Purchase Agreement is hereby amended by deleting
the dollar amount "Seven Million Seventy Thousand Dollars ($7,070,000)"
appearing therein and inserting the dollar amount "Seven Million One Hundred
Twenty Six Thousand Two Hundred Fifty Dollars ($7,126,250)" in its place.
3. Section 1.24 of the Purchase Agreement is hereby amended by deleting
the dollar amount "One Hundred Forty One Million Four Hundred Thousand Dollars
($141,400,000)" appearing therein and inserting the dollar amount "One Hundred
Forty Two Million Four Hundred Thousand Dollars ($142,400,000)" in its place.
4. The Purchase Agreement is hereby further amended by (a) deleting
Schedule A thereto and inserting Schedule A to this Amendment in its place and
(b) deleting the legal description for Miami, Florida appearing therein and
inserting the legal description attached hereto in its place.
5. Each of the Sellers confirms, by execution of this Agreement that the
obligations of the Sellers under the Purchase Agreement, as amended by this
Amendment, are the joint and several obligations or each of the Sellers.
6. Exhibit C to the Agreement to Lease is hereby deleted and Exhibit B
to this Amendment inserted in its place.
7. The definition of "Minimum Rent" set forth in the Lease is hereby
deleted in its entirety and the following inserted in its place:
"MINIMUM RENT" shall mean an amount equal to One Million One
Hundred Twenty Thousand Two Hundred Nine Dollars ($1,120,209)
per Accounting Period.
8. The definition of "Retained Funds" set forth in the Lease is hereby
deleted in its entirety and the following inserted in its place:
"RETAINED FUNDS" shall mean a cash amount equal to Thirteen
Million Four Hundred Forty Two Thousand Five Hundred Dollars
($13,442,500).
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9. Exhibit A to the Lease is hereby amended by adding Exhibits A-15
through A-16 at the end thereof and all references in the Lease to "Exhibit A-1
through A-14" are hereby amended to refer to "Exhibit A-1 through A-16".
10. Exhibit B to the Lease is hereby deleted in its entirety and Exhibit
C to this Amendment inserted in its place.
11. Exhibit C to the Lease is hereby deleted and Exhibit D to this
Amendment inserted in its place.
12. Section 11 of the Guaranty is hereby amended by deleting the dollar
amount "Six Million Seven Hundred Fifty Thousand Dollars ($6,750,000)" appearing
therein and inserting the dollar amount "Seven Million One Hundred Twenty Six
Thousand Two Hundred Fifty Dollars ($7,126,250)" in its place.
13. All references in the Lease to the Incidental Documents are hereby
amended to refer to the Incidental Documents as amended by this Amendment.
14. Each of the Incidental Documents is hereby amended so that each
reference therein to the Lease, the Purchase Agreement, the Agreement to Lease
or to any other Incidental Document shall mean the Lease, such Agreement and
such Incidental Document as amended by this Amendment.
15. The Tenant and Candlewood represent and warrant that no Default or
Event of Default has occurred and is continuing under the Lease or any other
Incidental Document.
16. Candlewood and the Sellers hereby grant HPT and/or the Landlord the
option to acquire that certain property located in Miami, Florida upon
Substantial Completion (as defined in the Purchase Agreement) thereof for a
purchase price of Nine Million Three Hundred Thousand Dollars ($9,300,000) and
to lease the same to Tenant all subject to and upon the terms and conditions set
forth in the Purchase Agreement and Agreement to Lease. Such option shall be
exercisable by HPT and/or Landlord by notice given to Candlewood within 30 days
after HPT receives notice from Candlewood that Substantial Completion has
occurred. To evidence the aforesaid option, upon execution of this Amendment,
the parties hereto have executed and delivered and caused to be recorded a
Notice of Purchase Option in the form attached hereto as Exhibit E.
17. Candlewood, the Sellers and the Tenant shall cause the separate
assessment of the Property located in Braintree, Massachusetts within a
reasonable period of time after the date hereof but in no event later than May
28, 1999. Candlewood represents to HPT and the Landlord that it owns the parcel
adjacent to the Braintree Property which is a single assessed parcel with the
Braintree Property, shall pay, when due, all taxes related thereto and shall not
sell, transfer or dispose of such property, or any interest therein, unless and
until the Braintree Property shall be a separately assessed tax lot. Any default
by Candlewood or its Affiliated Persons under this paragraph shall be an Event
of Default under the Lease. Candlewood shall indemnify and hold harmless HPT and
the Landlord from and against any and all obligations, claims, losses, damages,
liabilities and expenses (including, without limitation, reasonable attorneys'
fees)
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arising out of the failure of Candlewood to obtain a separate tax parcel for the
Property located in Braintree, Massachusetts.
18. As amended hereby, the Purchase Agreement, the Agreement to Lease,
the Lease and the Incidental Documents shall remain in full force and effect in
accordance with their respective terms and provisions.
19. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment under seal
as of the date above first written.
HOSPITALITY PROPERTIES TRUST
By: /S/ John G. Murray
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Its President
HPT CW II PROPERTIES TRUST
By: /S/ John G. Murray
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Its President
CANDLEWOOD HOTEL COMPANY, INC.
By: /S/ Thomas Kennalley
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Its Assistant Secretary
CANDLEWOOD LEASING NO. 2, INC.
By: /S/ Thomas Kennalley
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Its Assistant Secretary
CANDLEWOOD JACKSONVILLE, FL, LLC
CANDLEWOOD HOUSTON, TX-CLEARLAKE, LLC
CANDLEWOOD HUNTSVILLE, AL, LLC
CANDLEWOOD TEMPE, AZ, LLC
CANDLEWOOD DETROIT, MI-WARREN, LLC
CANDLEWOOD AUSTIN, TX-NORTHWEST, LLC
CANDLEWOOD IRVING, TX, LLC
CANDLEWOOD PITTSBURGH, PA-AIRPORT, LLC
CANDLEWOOD MIAMI, FL-INTL. PKWY., LLC
CANDLEWOOD CHARLOTTE, NC-UNIVERSITY, LLC
CANDLEWOOD SOMERSET, NJ, LLC
CANDLEWOOD NASHVILLE, TN-BRENTWOOD, LLC
CANDLEWOOD ALBUQUERQUE, NM, LLC
CANDLEWOOD HOUSTON, TX-WESTCHASE, LLC
CANDLEWOOD DENVER, CO-LAKEWOOD, LLC
CANDLEWOOD BOSTON, MA-BRAINTREE, LLC
CANDLEWOOD WEST DES MOINES, IA, LLC
CANDLEWOOD MINNEAPOLIS, MN, LLC
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By: CANDLEWOOD HOTEL COMPANY, INC.,
MANAGER
By: /S/ Thomas Kennalley
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Its: Assistant Secretary
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