Exhibit 10.25
LOAN AND SECURITY AGREEMENT
BETWEEN
1444 ASSOCIATES AND MEPS ASSOCIATES
AND
SOVEREIGN BANK
DATED AS OF AUGUST 9,1999
INDEX
Section Page
1. The Loan.............................................................1
2. Loan Term/Interest Rate..............................................1
3. The Properties.......................................................1
4. Use of Funds/Revolving Facility......................................2
5. Collateral; General Assignment.......................................2
6. Conditions Precedent.................................................3
7. Disbursement and Application of Loan Proceeds........................4
8. Representations and Warranties.......................................4
9. Advances.............................................................6
10. Extension of Maturity Date...........................................6
11. Other Obligations and Covenants of Borrower..........................7
12. Substitution of Collateral...........................................9
13. Compliance With Contracts............................................9
14. Compliance With All Laws.............................................9
15. Proof of Title.......................................................9
16. Warrant of Attorney.................................................10
17. Indemnity...........................................................10
18. Defaults............................................................10
19. Notices.............................................................10
20. Severability........................................................10
21. Third Parties.......................................................10
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22. Complete Agreement..................................................10
23. Governing Law.......................................................11
24. Waiver of Jury Trial................................................11
25. Counterparts........................................................11
26. Miscellaneous.......................................................11
LIST OF EXHIBITS
EXHIBIT A -.......LEGAL DESCRIPTION OF PROPERTY
EXHIBIT B -.......LOAN ADVANCE REQUISITION FORM
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LOAN AND SECURITY AGREEMENT
THIS AGREEMENT is made as of this 9th day of August, 1999 between 1444
ASSOCIATES ("1444"), a Pennsylvania limited partnership with an address at 148
Sheraton Drive, Box A, New Cumberland, Pennsylvania 17070 and MEPS ASSOCIATES, a
Pennsylvania limited partnership with an address at 148 Sheraton Drive, New
Cumberland, Pennsylvania 17070 ("MEPS") (individually, the "Borrower" and
collectively, the "Borrowers") and SOVEREIGN BANK, (the "Bank"), with an address
at Two Aldwyn Center, Lancaster Avenue and Route 320, Villanova, Pennsylvania
19085.
Intending to be legally bound, Borrower and Bank hereby agree as
follows:
1. The Loan. Subject to the terms and conditions of this
Agreement, Bank agrees to lend to the Borrowers up to Seven Million Dollars
($7,000,000) (the "Funds" or the "Loan" and as used in Section 12 herein, the
"Loan Commitment"). All capitalized terms used in this Agreement and not
otherwise defined shall have the meanings given to them in the Loan Documents
(as herein defined). Such documents include but are not limited to a Note in the
face amount of the Loan (the "Note"), two Mortgage and Security Agreements
(individually, the "Mortgage" and collectively, the "Mortgages"), two
Assignments of Rents and Leases (individually, the "Assignment of Leases" and
collectively, the "Assignments of Leases"), an Environmental Indemnity Agreement
(the "Environmental Indemnity"), a Guaranty and Surety Agreement (the
"Guaranty") from Hersha Hospitality Trust (the "Guarantor"), a Pledge and
Security Agreement (the "Pledge") and UCC- I Financing Statements (the "UCCs").
This Agreement, the Note, the Mortgage, the Assignment of Leases, the
Environmental Indemnity, the Guaranty, the Pledge and the UCCs and any other
documents executed and delivered in connection with closing of the Loan or
otherwise evidencing or securing the Loan are herein collectively referred to as
the "Loan Documents".
2. Loan Term/Interest Rate. Subject to the terms and conditions
contained in the Note, the term of the Loan shall be for a period of twenty-four
months from the date hereof, with a Maturity Date of August 8th, 2001. So long
as no Event of Default (as defined herein) has occurred, interest shall be
charged on the outstanding principal balance at a rate of the Wall Street
Journal published Prime Rate.
3. The Properties. 1444 owns certain real property and the
improvements thereon situated at 1010 Race Street, Philadelphia, Pennsylvania
(the "1444 Property") and MEPS owns certain real property and the improvements
thereon situated at Interstate 80 and U.S. Highway 220, Milesburg, Centre
County, Pennsylvania (the "MEPS Property"). The 1444 Property and the MEPS
Property are sometimes collectively herein referred to as the "Properties". The
Properties are more fully described in Exhibit A attached hereto.
4. Use of Funds/Revolving Facility. A Borrower shall use the
Funds as a revolving working capital facility. A Borrower shall notify Bank
three (3) regular business days in advance of an anticipated draw of a
Borrower's request to incur a revolving advance under the Note. Borrower's
request to draw shall include a description of the proposed use of the Funds.
Further, either Borrower, or a representative of either Borrower, shall have the
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power and right to act on behalf of and bind both Borrowers, including the right
to notify Bank of a requested draw, and Bank may rely on such notice or other
communication. During the term of the Loan, Borrower may use the Funds by
borrowing, prepaying and reborrowing, all in accordance with the terms and
conditions herein. The Funds be made available to the applicable Borrower on the
day so requested by way of credit to such Borrower's operating account at Bank
in immediately available federal funds or other immediately available funds.
5. Collateral, General Assignment. Each Borrower hereby grants to
Bank, as security for the performance of this Agreement and payment of the
principal of and interest on the Note and all advances now or hereafter made by
Bank to or for the benefit of Borrower under this Agreement, the Mortgage or any
instrument delivered to Bank pursuant to this Agreement or any other evidence of
indebtedness, a security interest in (a) all materials delivered to the site of
the Property but not yet incorporated therein, now owned or hereafter acquired,
(b) all machinery, equipment, fixtures, furnishings, furniture, appliances,
general intangibles, accounts, accounts receivable and other personalty of
Borrower, now owned or hereafter acquired, and intended to be incorporated into
or used in connection with the Improvements, (c) all insurance on all the
foregoing and the proceeds of any sale or exchange of the foregoing in whole or
in part, and (d) all property of Borrower which at any time Bank shall have or
have the right to have in its possession, or which is in transit to it,
including without limitation, any balance or share of any deposit, trust,
agency, escrow or other account with Bank and any amounts which may be owing
from time to time by Bank to Borrower. Borrower hereby also assigns and grants
to Bank a security interest in, and agrees Bank shall have and be able to
exercise, until all amounts payable to Bank under the Note, the Mortgage or this
Agreement have been paid in full, all of Borrower's right, title and interest
in, to and under all contracts, instruments, documents, licenses, permits,
surveys, approvals and agreements of any kind relating to the Property or the
Improvements or marketing, sale, leasing, financing or operation of all or any
part of the Property, now owned or hereafter acquired, and the proceeds of any
of the foregoing provided that so long as no Event of Default shall have
occurred and be continuing hereunder, Borrower shall have the benefits of such
right, title and interest, except Borrower shall not terminate, cancel or amend
or suffer or permit the termination, cancellation or amendment or default or
expiration of any assigned instrument without Bank's prior approval, except for
any amendment (i) for which Bank's consent is not otherwise expressly required
by the terms of the Loan Documents, (ii) which does not increase the cost of the
Property or otherwise jeopardize or adversely affect the completion or operation
of the Property or Bank's security for the Loan and (iii) of which Bank is given
a copy. Borrower shall continue to be solely liable for all obligations of
Borrower under any assigned instrument and neither Borrower nor any other party
thereto shall look to Bank to pay or perform any of such obligations unless and
until Bank shall have notified such party in writing that Bank has elected to
assume such obligations, and then only to the extent set forth in such
assumption. In the event of foreclosure of a Mortgage, the purchaser at such
foreclosure shall also acquire all of the right, title and interest of Borrower
in, to and under said contracts, instruments, documents, licenses, permits,
surveys, approvals and agreements, but such purchaser shall be liable only for
the obligations expressly assumed by such purchaser. The foregoing constitutes a
security agreement under the Uniform Commercial Code.
Further, in the event of foreclosure of a Mortgage, Bank shall
have the absolute right to collect and enforce any and all remedies available to
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it and may, by means of illustration, foreclose on either or both Mortgages and
may do so in any order it chooses. Bank shall have the right, in its sole
discretion, to release either of the Borrowers or Guarantor from its obligations
under this Agreement or the Loan Documents and to proceed against the remaining
Borrower or Guarantor, as applicable.
For purposes of this Agreement, the term "Collateral" shall
mean the right, title and interest of Bank in the property described in the
Mortgage and the property described in this Section.
Borrower will execute or join with Bank in executing such
financing statements and continuation statements under the Uniform Commercial
Code or other applicable law as Bank may specify in order to perfect and
maintain perfection of Bank's security interest in any of the Collateral and
will pay the costs of filing the same in such public offices as Bank may
designate.
6. Conditions Precedent. The obligation of Bank to advance the
Funds hereunder is subject to the following conditions precedent:
(a) The Bank shall have satisfactorily reviewed Phase I
and Phase II (if the latter is applicable) environmental studies;
(b) Borrower shall have received and satisfactorily
reviewed an MAI appraisal of the 1444 Property and the MEPS Property, which
appraisals shall evidence, in the aggregate a 60% loan-to-value for each
Property (the "Loan-to-Value");
(c) Bank shall have received and satisfactorily reviewed
Guarantor's financial statements and tax returns;
(d) Borrowers shall establish all Property-related
operating and deposit accounts with the Bank, which accounts shall be pledged to
the Bank as security for the Loan. Further, Borrower shall;
(e) Borrowers shall have delivered to Bank a commitment
for title insurance in form and substance satisfactory to Bank, insuring each
Mortgage as a first lien, subject only to such exceptions as may be approved in
writing by Bank and containing any endorsements required by Bank;
(f) Bank shall have received and satisfactorily reviewed
evidence of insurance as stipulated by Section 1.4 of the Mortgage;
(g) Borrower shall have delivered to Bank a commitment
fee in the amount of one-half percent (1/2%) of the Loan amount, or $35,000;
(h) Bank shall have received and satisfactorily reviewed
an ALTA/ASCM metes and bounds survey for the Property;
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(i) Borrower shall deliver to Bank a written opinion of
Borrower's counsel, dated the date of Closing and addressed to Bank, in form and
substance satisfactory to Bank;
(j) Borrower shall have delivered to Bank the Loan
Documents and any other documents reasonably required by Bank in connection with
the closing or funding of the Loan.
7. Disbursement and Application of Loan Proceeds. So long as
there has occurred no Event of Default or any event or condition which, with the
passage of time or giving of notice or both could become an Event of Default,
Bank shall be obligated to advance the Funds against the Note.
Each request for an advance shall be made by a loan advance
requisition in the form attached hereto as Exhibit B.
All conditions to the obligation of Bank to make advances
hereunder are imposed solely and exclusively for the benefit of Bank and its
assigns, and no other person shall have standing to require satisfaction of such
conditions in accordance with their terms or be entitled to assume that Bank
will make or not make advances in the absence of strict compliance with any or
all thereof, and no other person shall, under any circumstances, be deemed to be
a beneficiary of such conditions, any or all of which may be freely waived in
whole or in part by the Bank at any time if, in its sole discretion, it deems it
advisable to do so. In no event shall any other party be deemed to be a
beneficiary of the Funds that may be advanced to Borrower pursuant to the terms
hereof or have any right to an accounting therefor. Bank shall not in any way or
for any purpose be deemed to be or to become a partner of or a joint venturer or
a member of a joint enterprise with Borrower in connection with the ownership or
operation of the Property or the Loan contemplated herein.
8. Representations and Warranties. Borrowers represent and
warrant that:
(a) Each Borrower is a limited partnership duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Pennsylvania, is duly qualified and in good standing to conduct business in
those jurisdictions in which its ownership of property or the conduct of its
business requires such qualification, and has the requisite power and authority
to make and perform its obligations under this Agreement, the Note and the Loan
Documents and under all other documents delivered to Bank pursuant hereto and to
carry out the transactions contemplated hereby and thereby.
(b) The execution, delivery and performance of this Agreement
and the execution and delivery of the Note and the Loan Documents have been duly
authorized by all requisite partnership action of each Borrower and will not
violate any provision of law or any judgment, order or regulation of any court
or of any public or governmental agency or authority applicable to each Borrower
or the partnership agreement of each Borrower or conflict with or result in a
breach of any of the terms, conditions or provisions of or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the properties or assets of each Borrower pursuant to
the terms of any agreement, indenture or instrument to which each Borrower or
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any of either Borrower's constituent general partners is a party or by which
each Borrower or any of such partners or any of their properties are bound.
(c) This Agreement, the Note and the Loan Documents when
executed and delivered by each Borrower will be the legal, valid and binding
obligations of the parties thereto in accordance with their respective terms.
(d) There is no claim, litigation or governmental proceeding
against either Borrower or any of either Borrower's constituent general partners
now pending or, to the knowledge of either Borrower, threatened, which is
substantial in amount or which, if adversely determined would have a material
adverse effect on the financial condition or business of either Borrower or any
of such partners, or would adversely affect the Property or the ability of
either Borrower to perform its respective obligations under this Agreement, the
Note or the Loan Documents, except such as are adequately covered by insurance
and have been disclosed in the financial statements hereinafter referred to or
except such as have been disclosed to Bank in writing.
(e) The balance sheet and profit, loss and surplus statement
of each Borrower as of 12/31/97 are complete and correct, were prepared in
accordance with generally accepted accounting principles consistently applied
and fairly set forth the financial condition of each Borrower as of the date
thereof and the result of its operations for the period covered thereby, and
said balance sheet reflects all liabilities of each Borrower direct or
contingent as of the date thereof.
(f) Each Borrower has filed all federal, state and local
tax returns required to be filed and has paid all taxes as shown on said returns
to be due.
(g) There has been no material adverse change which has
not been disclosed to Bank in the condition of either Borrower, financial or
otherwise, from that shown on its balance sheet and profit, loss and surplus
statement referred to in paragraph (e) above.
(h) Neither Borrower has knowledge of any violation, nor
is there any notice or other record of any violation, of any zoning,
subdivision, environmental, building or other statute, ordinance, regulation,
restrictive covenant or other restriction applicable to the Property or the
Property.
(i) The use of the Property and the Improvements for the
purpose contemplated hereby and the operation of the Property do and shall, in
all respects, comply with, and are lawful, permitted and conforming uses under,
all applicable building, fire, safety, subdivision, zoning, sewer,
environmental, securities, health, insurance and other laws, ordinances, rules,
regulations and plan approval conditions of any governmental or public body or
authority and each Borrower has obtained all permits, licenses or approvals from
such governmental or public bodies or authorities.
(j) No approval, consent or authorization of, or registration,
declaration or filing with, any governmental or public body or authority is
required in connection with the valid execution, delivery and performance of
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this Agreement or the Loan Documents, the issuance of the Note or the carrying
out by each Borrower of the transactions contemplated hereby, except such as
have been or will, prior to the first advance hereunder, be obtained.
(k) There exist no liens, encumbrances or other charges
against the Property, the Improvements or any property relating thereto other
than the Mortgage and the security interests created hereby or pursuant hereto,
including statutory and other liens of mechanics, workmen, contractors,
subcontractors, suppliers, taxing authorities and others, except those disclosed
to and approved by Bank.
(1) All utility services necessary for the operation of
the Property, including water supply, storm and sanitary sewer facilities, gas,
electricity and telephone facilities are available within the boundaries of the
Property.
(m) All roads necessary for the full utilization of the
Property and the Improvements for their intended purposes have either been
completed or the necessary rights-of-way therefor have been acquired by the
appropriate governmental authority.
All of the above representations and warranties shall be
continuing and survive the making of this Agreement and the issuance of the
Note.
9. Advances. Notwithstanding anything herein to the contrary,
Bank shall not advance more than the amount of the Designated Loan-to-Value for
each Property on an individual basis.
10. Extension of Maturity Date. Borrower shall have the option of
extending the Maturity Date of the Loan for up to twelve additional months (the
"Extension Period") upon satisfaction of the following terms and conditions:
(a) Borrower shall give not less than sixty (60) days'
prior written notice to Bank of Borrower's request to extend the Maturity Date.
(b) At and as of the time any such extension is to take
effect, there shall have occurred no Event of Default, or any event or condition
which, with the passage of time or giving of notice or both could become an
Event of Default, provided that if Borrower cures any such event or condition
existing at such time, within the applicable grace period set forth herein, if
any, this condition shall be deemed satisfied as of the date of such cure.
(c) On or before the commencement date of the Extension
Period, Borrower shall pay to the Bank an extension fee of twenty thousand
dollars ($20,000).
(d) On or before the commencement date of the Extension
Period, Borrower shall execute any other documents reasonably requested by Bank,
including but not limited to a reaffirmation of the Guaranty.
11. Other Obligations and Covenants of Borrower.
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(a) Borrower will forward to Bank promptly after receipt,
copies of all notices, permits or other documents (excepting only notices for
non-delinquent taxes due) received by Borrower from any governmental authority
relating to the Property or the Improvements or from any person claiming a
mechanic's or materialmen's lien against the Property or the Property.
(b) Beginning on October 1, 1999, and on a quarterly
basis thereafter during the term of the Loan, Borrower shall deliver to Bank
operating statements for the Property;
(c) Beginning on May 1, 2000, and on an annual basis
thereafter, Borrower and Guarantor shall deliver to Bank a copy of Borrower's
and Guarantor's federal and state tax returns and accountant-prepared financial
statements;
(d) Borrower will forward to Bank promptly after receipt,
copies of all notices, permits or other documents (excepting only notices for
non-delinquent taxes due) received by Borrower from any governmental authority
relating to the Property or the Improvements or from any person claiming a
mechanic's or materialmen's lien against the Property or the Property;
(e) Borrower shall ensure the maintenance of a minimum
Property Cash Flow (as herein defined) of $950,000, measured annually on a
combined basis, as follows:
(i) "Property Cash Flow" shall mean the sum of
Property Operating Income, and unearned income of Borrower (such as dividends
and interest) projected to be received by Borrower, less Property Operating
Expenses.
(ii) "Property Operating Expenses" means all
expenses incurred by Borrower for such period in the normal course of operating
the Property (excluding Debt Service and other charges payable on the Loan),
including but not limited to maintenance fees, real estate taxes and insurance
premiums, expenses and the expensed portion of capitalized expenditures related
to the repair and maintenance of the Property, expenses related to the
management and marketing of the Property and all legal and accounting expenses.
Property Operating Expenses shall be determined on a cash basis method, except
that any expense otherwise defined as a Property Operating Expense which is
regularly incurred on a yearly, quarterly, bimonthly, semiannually or biannual
basis, or at any other regular interval spanning more than one month, shall be
amortized over the number of months included within that interval for the
purpose of calculating Property Operating Expenses. Legal, accounting and other
professional fees which are directly incurred on account of a capital
expenditure may be amortized over time in accordance with, and not to exceed the
period prescribed by, GAAP. The Property Operating Expenses shall not include
non-cash items and prepaid expenses that are not prepaid in the ordinary course
of business. Property Operating Expenses shall include a 5% management fee.
(iii) "Property Operating Income" shall mean the
gross income or revenues for such period (determined on a cash basis method)
derived in any manner whatsoever for the operation of the Property, including
but not limited to room rentals (fixed, minimum, guaranteed, additional,
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overage, percentage, participation or any other type or kind, including premiums
paid for short term or month-to-month leases), food and beverage income,
laundry, concession and gift shop income, fees, charges, late charges, business
interruption insurance, or otherwise for the use or occupancy of all or any part
of the Property, or for any services, equipment or furnishings provided in
connection with such use or occupancy, including without limitation vending,
washer and dryer machine income, forfeited deposits, fees from amenities offered
at the Property, utility income and reimbursement for Property Operating
Expenses. Property Operating Income shall specifically exclude any unearned
income (such as dividends and interest), proceeds from hazard insurance or
condemnation awards, security deposits, prepaid rent, and any payment received
by Borrower representing proceeds of borrowed money.
(f) Borrower shall be prohibited from placing obtaining
additional financing secured by a Property or Properties, or to otherwise
encumbers a Property or the Properties without Bank's prior written consent.
(g) In the event of any lien being filed against the Property
or final judgment for the payment of money involving more than $50,000 against
Borrower or any Guarantor, Borrower or Guarantor shall cause the same to be
discharged or bonded off to the satisfaction of Lender within sixty (60) days
from the filing of the lien or the entry of the order, decree or process;
(h) From time to time upon the request of the Bank, borrower
shall promptly and duly execute, acknowledge and deliver any and all such
further instruments and documents as Bank may reasonably deem necessary or
desirable to confirm this Agreement and the Note, to carry out the purpose in it
and intent hereof and thereof or to enable Bank to enforce any of its rights
hereunder or thereunder.
12. Substitution of Collateral. Bank, in its sole discretion,
shall review requests from Borrower to substitute new collateral (the "New
Collateral") for the existing Collateral, upon satisfaction of the following
terms and conditions:
(a) Borrower shall deliver to Bank a written request for
the collateral substitution not less than sixty (60) days prior to such
substitution taking effect;
(b) the proposed New Collateral shall be of equal or
greater value, as determined by Bank in its sole discretion, provided, however,
that if the New Collateral shall be of lesser value, Bank shall review
Borrower's request for substitution in exchange for a corresponding reduction in
the Loan Commitment;
(c) Borrower shall deliver to Bank any and all documents
requested by Bank to evidence the taking of the New Collateral, including but
not limited to an M.A.I. appraisal in form and substance satisfactory to Bank, a
Phase I environmental report and property operating statements, an Assignment of
Rents and Leases related to the substituted property and Open-End Mortgage and
Security Agreement related to the substituted property; and
(d) if Borrower requests Bank to allow the substitution
of a new borrowing entity, such substitution shall be subject to all of Bank's
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underwriting requirements and documentation procedures and any decision to
accept a new borrowing entity shall be at Bank's sole discretion.
13. Compliance With Contracts. Borrower will comply with all
requirements and satisfy all conditions of all contracts, bonds or insurance
which insure or relate to all or any part of this Agreement, the Property, the
Improvements or Borrower. The foregoing includes without limitation compliance
with all the terms and satisfaction of all the conditions of the General
Contract. In the event of a failure by Borrower to comply with any of such terms
or satisfy any of such conditions, Bank may undertake such compliance or
satisfaction on Borrower's behalf and any sums expended by Bank in connection
therewith shall be deemed advances hereunder against the Note and secured by the
Loan Documents.
14. Compliance With All Laws. Borrower will comply with all laws
applicable to Borrower or the Property or the Improvements, including without
limitation zoning and use laws and building restrictions and regulations.
15. Proof of Title. Borrower will deliver to Bank, upon demand,
any contracts, bills of sale, statements, receipted vouchers or agreements under
which Borrower claims title to any materials, fixtures, equipment, machinery,
appliances, furniture, furnishings or other personal property incorporated in
the Improvements or subject to the lien of the Mortgage or included in the
Collateral.
16. Warrant of Attorney. Borrower hereby irrevocably appoints Bank
as attorney-in-fact to do in Borrower's stead all things believed by Bank
reasonably necessary to effect performance of this Agreement, including without
limitation filing notices in public records and endorsing checks or drafts
payable to Borrower and Bank jointly. The foregoing appointment is coupled with
an interest and is solely for protection of Bank's security and, therefore, is
not intended to confer any right of action on any third party.
17. Indemnity. Borrower hereby indemnifies Bank and agrees to hold
Bank harmless from any loss, expense or damage on account of anything arising
out of or in connection with this Agreement, the Note, the Collateral Documents,
the Property, the Improvements or any of the documents and instruments delivered
to Bank in compliance with this Agreement unless caused solely by the Bank's
gross negligence or willful misconduct. This indemnity shall survive the
completion of the Improvements and payment of the Note.
18. Defaults. The occurrence of an "Event of Default" as defined
in the Mortgage shall constitute an event of default hereunder and under the
Note and the Loan Documents.
19. Notices. Any notice, demand or request under this Agreement
shall be made in accordance with Section 6.03 of the Mortgage.
20. Severability. If any provision hereof or of the Note is found
by a court of competent jurisdiction to be prohibited or unenforceable, it shall
be ineffective only to the extent of such prohibition or unenforceability, and
such prohibition or unenforceability shall not invalidate the balance of such
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provision to the extent it is not prohibited or unenforceable, nor invalidate
the other provisions hereof.
21. Third Parties. This Agreement shall be binding upon and inure
to the benefit of Bank and Borrower and their respective successors and assigns.
Borrower may not, without the prior written consent of Bank, assign any of its
rights or obligations under this Agreement. The parties intend that no other
person or entity is to have any claim or any interest under this Agreement, and
no other person or entity is to have any right of action hereon or hereunder.
22. Complete Agreement. Taken together with the Note, the Loan
Documents and the other instruments, contracts and documents delivered in
compliance herewith, this Agreement is a complete memorandum of the agreement of
Borrower and Bank. Waivers or modifications of any provision hereof must be in
writing signed by the party to be charged with the effect thereof.
23. Governing Law. Except to the extent applicable law may require
otherwise, this Agreement shall be construed in accordance with and governed by
the substantive laws of the Commonwealth of Pennsylvania.
24. Waiver of Jury Trial. Borrower and Bank hereby waive the
right to trial by jury in any action arising hereunder.
25. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
26. Miscellaneous.
(a) The captions preceding the text of the Sections of
this Agreement are for convenience of reference and shall not constitute a part
of this Agreement, nor shall they in any way affect its meaning, construction or
effect. Unless the context clearly indicates a contrary intent.
(b) The terms "Borrower" and "Borrowers" shall mean the
person or persons specifically named herein as "Borrower" or "Borrowers" and
their respective heirs, executors, administrators, successors and assigns.
(c) The term "Bank" shall mean the person specifically
named herein as "Bank" or any successor to or assignee of its rights hereunder
and under the Note.
(d) The word "person" shall mean individual, corporation,
partnership, Joint venture or unincorporated association.
(e) The use of any gender shall include all genders.
(f) The singular number shall include the plural and the
plural the singular as the context may require.
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(g) If Borrower is more than one person, all agreements,
conditions, covenants, provisions, stipulations, warrants of attorney,
authorizations, waivers, releases, options, undertakings, indemnities, rights
and benefits made or given by Borrower shall be joint and several and shall
legally bind and affect all persons who are defined as "Borrower" as fully as
though all of them were specifically named herein wherever the term "Borrower"
is used, and each of them shall be deemed to have made the representations and
warranties of herein set forth.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
BORROWERS:
1444 Associates, a Pennsylvania limited partnership
By: Hersha Hospitality Limited Liability Company ("HHLLC"), a
Virginia limited liability company, as sole general partner of 1444
Associates
By: Hersha Hospitality Limited Partnership, a Virginia limited
partnership, as sole member of HHLLC
(signatures continued on next page)
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(signatures continued from previous page)
By: Hersha Hospitality Trust, a Maryland Business Trust,
as sole general partner of HHLP
By: /s/ Hasu P. Shah
------------------------------------
Name: Hasu P. Shah
Title: President
MEPS Associates, a Pennsylvania limited partnership
By: Hersha Hospitality Limited Liability Company ("HHLLC"), a
Virginia limited liability company, as sole general partner of 1444
Associates
By: Hersha Hospitality Limited Partnership, a Virginia limited
partnership, as sole member of HHLLC
By: Hersha Hospitality Trust, a Maryland Business Trust,
as sole general partner of HHLP
By: /s/ Hasu P. Shah
------------------------------------
Name: Hasu P. Shah
Title: President
BANK:
SOVEREIGN BANK
By: /s/ Richard J. Narkiewicz
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Name: Richard J. Narkiewicz
Title: Vice President
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