-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MyG5UJOyvCCim2pyWNdvWT7sxmXgtQ3pOgdgUVvu5t7/mghLp0sc+UU/hwS033jK /X60LC7Cywzih7um5IqiXQ== 0000950144-99-003783.txt : 19990402 0000950144-99-003783.hdr.sgml : 19990402 ACCESSION NUMBER: 0000950144-99-003783 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 10 CONFORMED PERIOD OF REPORT: 19981231 FILED AS OF DATE: 19990331 FILER: COMPANY DATA: COMPANY CONFORMED NAME: RFS HOTEL INVESTORS INC CENTRAL INDEX KEY: 0000906408 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 621534743 STATE OF INCORPORATION: TN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: SEC FILE NUMBER: 001-12011 FILM NUMBER: 99582193 BUSINESS ADDRESS: STREET 1: 850 RIDGE LAKE BLVD STE 220 CITY: MEMPHIS STATE: TN ZIP: 38120 BUSINESS PHONE: 9017677005 MAIL ADDRESS: STREET 1: 850 RIDGE LAKE BLVD STE 220 CITY: MEMPHIS STATE: TN ZIP: 38120 10-K 1 RFS HOTEL INVESTORS, INC. 1 =============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------ FORM 10-K X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE - --- ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 1998 TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES - --- EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM ____________ TO ____________ Commission File Number 34-0-22164 RFS HOTEL INVESTORS, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) TENNESSEE 62-1534743 (STATE OR OTHER INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER) 850 RIDGE LAKE BOULEVARD, SUITE 220 MEMPHIS, TENNESSEE 38120 (901) 767-7005 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE AND TELEPHONE NUMBER) Securities registered pursuant to Section 12(b) of the Act: None Securities registered pursuant to Section 12(g) of the Act: Common Stock $0.01 par value (Title of Class) New York Stock Exchange (Name of Market) ----------------- Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months and (2) has been subject to such filing requirements for the past 90 days. X Yes No ------- ------ Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ------ The aggregate market value of the voting stock held by non-affiliates of the Registrant was approximately $274,705,659 based on the last sale price in the New York Stock Exchange for such stock on March 15, 1999. The number of shares of the Registrant's Common Stock outstanding was 25,115,946 as of March 15, 1999. Documents Incorporated by Reference Portions of the RFS Hotel Investors, Inc. Proxy Statement with respect to the Annual Meeting of Shareholders to be held on April 28, 1999 to be filed with the Securities and Exchange Commission within 120 days following the end of the year covered by the Form 10-K (the "Proxy Statement") are incorporated by reference into Part I and Part III. The financial statements and Management's Discussion and Analysis of Financial Condition and Results of Operations included in the Company's Annual Report to Shareholders' for the year ended December 31, 1998 are incorporated into Part II and Part IV. =============================================================================== 2 PART I This report contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, including, without limitation, statements containing the words "believes", "anticipates", "expects" and words of similar import. Such forward-looking statements relate to future events, the future financial performance of the Company, and involve known and unknown risks, uncertainties and other factors which may cause the actual results, performance or achievements of the Company or industry results to be materially different from any future results, performance or achievements expressed or implied by such forward looking statements. Readers should specifically consider the various factors identified in this report and in any other documents filed by the Company with the Securities and Exchange Commission which could cause actual results to differ. The Company disclaims any obligation to update any such factors or to publicly announce the result of any revisions to any of the forward-looking statements contained herein to reflect future events or developments. ITEM 1. BUSINESS (a) General Development of Business RFS Hotel Investors, Inc. (the "Company") was incorporated in Tennessee on June 1, 1993 and is a self-administered real estate investment trust ("REIT"). The Company has contributed substantially all of the net proceeds of its public offerings to RFS Partnership, L.P. (the "Partnership") and is the sole general partner of the Partnership. The Partnership began operations in August 1993. At December 31, 1998, the Company owned an approximately 90.4% interest in the Partnership. (b) Financial Information About Industry Segment The Company is in the business of acquiring equity interests in hotel properties. See the Consolidated Financial Statements and notes thereto included in Item 8 of this Annual Report on Form 10-K for certain financial information required in Item 1. (c) Narrative Description of Business General. At December 31, 1998, the Company owned, through the Partnership and other subsidiaries, 60 hotels (the "Hotels") containing 8,850 rooms located in 24 states. Reference herein to the "Partnership" includes these subsidiaries, where the context indicates. The Partnership leases all except four of its hotel properties to third parties (collectively, the "Lessees") pursuant to leases (the "Percentage Leases") as described below. Four Hotels are not leased and are operated by third parties (the "Operators") pursuant to management agreements between the Partnership and the Operators. 1 3 Strategies. The Company seeks to increase funds from operations and enhance shareholder value through its strategies for internal growth and acquisitions. Internal Growth Strategy. The Company's strategy for internal growth includes participating in increased revenue at the Hotels through Percentage Leases, limiting leverage, an extensive renovation program and affiliations with national franchises. The Percentage Leases provide for annual rent equal to the greater of (i) fixed base rent, or (ii) rent payments based on percentages of the Hotels' revenues. Base rent is payable monthly. Percentage rent is payable quarterly. The use of Percentage Leases allows the Company to participate in increased revenue at the Hotels. See Item 2 for further information with respect to the Percentage Leases. The Company recognizes the potential competitive advantage gained by owning hotel properties with limited leverage. High leverage may impair the ability of management to renovate, maintain and effectively manage properties. The Board of Directors of the Company has adopted a current policy limiting the amount of indebtedness that the Company will incur to an amount not in excess of approximately 40% of the Company's investment in hotel properties, at cost, after giving effect to the Company's use of proceeds from any indebtedness and accounting for all investments in hotel properties under the purchase method of accounting. The Board of Directors may change the policy relating to the debt limit at any time without shareholder approval. The Company budgeted $20.6 million for 1998 capital improvements at 55 of the Hotels owned at December 31, 1998. At December 31, 1998, the Partnership had spent $17.9 million of the budgeted amounts. The Company will use cash generated from operations to fund the remaining $2.7 million of expenditures. The Company intends to substantially complete these improvements by the second quarter of 1999. The Company has budgeted approximately $15.9 million for 1999 to be spent on capital improvements at 58 of the Hotels owned at December 31, 1998. The capital improvements are primarily designed to enhance revenues and the guests' experience and include replacing such items as carpets and drapes, renovating common areas and hotel exteriors. All but two of the Hotels are licensed to operate under nationally franchised brands. The Company believes that franchised properties generally have higher levels of occupancy and average daily rate ("ADR") than properties which are unfranchised due to access to national reservation systems and advertising and marketing programs provided by franchisors. Acquisition Strategy. The Company intends to acquire equity interests in existing hotel properties, to develop hotels and to enter into contracts to acquire properties from third parties after development. The Company considers investments in hotel properties which meet one or more of the following criteria: 2 4 - Favorable market characteristics - Long-term asset quality - Prospects of increasing profitability - National franchises - Diversification-geographically, by brand and by segment - Return on investment The Company's current investment and acquisition policies provide that no more than 25% of the Company's total assets may be invested in any one property at the time of investment. The Company's investment and acquisition policies may be changed by the Board of Directors without shareholder approval. Property Management. The Lessees operate 52 of the 56 Hotels they lease. The other four leased Hotels are operated by other third parties, (the "Lessee Operators"), pursuant to management agreements between the Lessees and the Lessee Operators. The Lessee Operators are paid a fee equal to 3% of gross revenue of the Hotels, plus reimbursement of out-of-pocket expenses. The Lessees and the Lessee Operators are generally required to perform all operational and management functions necessary to operate the Hotels. Such functions include but are not limited to ordering supplies, advertising and marketing, maid service, laundry and maintenance. The Lessees and the Lessee Operators manage other hotel properties in addition to the Hotels and are not required to devote all of their time and efforts to the Hotels. Competition. Substantially all of the Hotels are located in developed areas that include other hotel properties. The number of competitive hotel properties in a particular area could have a material adverse effect on occupancy and ADR of the Hotels or at hotel properties acquired in the future. New, competing hotels may be opened in the Company's markets which could materially and adversely affect hotel operations. Employees. At December 31, 1998, the Company had a total of 19 employees. Seasonality. The hotel industry is seasonal in nature. Generally, hotel revenues are greater in the second and third quarters than in the first and fourth quarters. This seasonality can be expected to cause quarterly fluctuations in the percentage rent. Business Issues. The Hotels are subject to all operating risks common to the hotel industry. These risks include, among other things: competition from other hotels; recent over-building in the hotel industry which has adversely affected occupancy and room rates; increases in operating costs due to inflation and other factors; significant dependence on business and commercial travelers and tourism; increases in energy costs and other expenses of travel; and adverse effects of general and local economic conditions. These factors could adversely affect the Lessees' ability to make lease payments and therefore the Company's ability to make 3 5 distributions to shareholders. Further, decreases in room revenues of the Hotels will result in decreased revenues to the Partnership under the Percentage Leases. The Company must rely on the Lessees to generate sufficient cash flow from the operation of the Hotels to enable the Lessees to meet the rent obligations under the Percentage Leases. The rent obligations under the Percentage Leases are unsecured and are not guaranteed. At December 31, 1998, the Lessees were in compliance with the provisions of the Percentage Leases. The Company's investments are subject to varying degrees of risk generally incident to the ownership of real property. The underlying value of the Company's real estate investments and the Company's income and ability to make distributions to its shareholders is dependent upon the ability of the Lessees to operate the Hotels in a manner sufficient to maintain or increase revenues and to generate sufficient income in excess of operating expenses to make rent payments under the Percentage Leases. Income from the Hotels may be adversely affected by adverse changes in national economic conditions, adverse changes in local market conditions due to changes in general or local economic conditions and neighborhood characteristics, competition from other hotel properties, the impact of present or future environmental legislation and compliance with environmental laws, the ongoing need for capital improvements, particularly in older structures, changes in real estate tax rates and other operating expenses, adverse changes in governmental rules and fiscal policies, civil unrest, acts of God, including earthquakes and other natural disasters (which may result in uninsured losses), acts of war, adverse changes in zoning laws, and other factors which are beyond the control of the Company and the Lessees. Environmental Issues. Under various federal, state and local laws and regulations, an owner or operator of real estate may be liable for the costs of removal or remediation of certain hazardous or toxic substances on such property. Such laws often impose such liability without regard to whether the owner knew of, or was responsible for, the presence of hazardous or toxic substances. Furthermore, a person that arranges for the disposal or transports for disposal or treatment a hazardous substance at another property may be liable for the costs of removal or remediation of hazardous substances released into the environment at the property. The costs of remediation or removal of such substances may be substantial, and the presence of such substances, or the failure to promptly remediate such substances, may adversely affect the owner's ability to sell such real estate or to borrow using such real estate as collateral. Thus, if such liability were to arise in connection with the ownership and operation of the Hotels, the Company, the Partnership, the Lessees, the Lessee Operators, as the case may be, may be potentially liable for such costs. Phase I Environmental Survey Assessments ("ESA's") were obtained on all of the Hotels from independent environmental engineering firms at the time of acquisition (and, for some Hotels, in connection with subsequent financing transactions). The Phase I ESA's were intended to identify potential sources of contamination for which the Hotels may be responsible and to assess the status of environmental regulatory compliance. No assurance can be given that the Phase I ESA's identified all significant environmental problems or that no additional environmental liabilities exist. The Phase I ESA's included historical reviews of the Hotels, 4 6 reviews of certain public records, preliminary investigations of the sites and surrounding properties, screening for the presence of asbestos, PCBs, wetlands and underground storage tanks, and the preparation and issuance of a written report. The Phase I ESA's did not include invasive procedures, such as soil or ground water sampling and analysis. The Phase I ESA for the Hampton Inn - Airport in Indianapolis, indicated that the Indianapolis Hotel disposes of approximately 10% of its solid waste at a facility that is a state Superfund site. Such a site may be subject to investigation and remediation under the federal and state Superfund laws, and persons that sent hazardous substances to the site may be jointly and severally liable for the costs of the that work. The Phase I ESA report states that solid waste from the Indianapolis Hotel was disposed of into a domestic waste cell of the facility. A state official informed the engineering firm conducting the Phase I ESA that this domestic waste cell is segregated by a containment structure and is adjacent to, but not part of, the Superfund site. The Phase I audit did not indicate that the Indianapolis Hotel has arranged for the disposal of any hazardous substances at this facility. If the Indianapolis Hotel in fact arranged for such disposal, however, it could be found liable for at least a part of any response costs. Each former owner of the Hotels has represented to the Company that it knows of no hazardous substance or PCBs in, on, or under the hotels or the real property upon which the Hotels are situated. With respect to the Hotels each such former owner will remain liable for all claims and costs arising from a breach of such representation. In addition, the seller of the Hotel will remain liable for all costs and claims incurred by the Partnership with respect to which the Phase I ESA reports recommended corrective or remedial action, specifically removal by the former owner of the Hotel in Clayton, Missouri of asbestos materials. The Company believes the former owners of the Hotels have, and will have, sufficient assets to satisfy their obligations to the Partnership which might reasonably be expected to arise under the contacts pursuant to which such properties were acquired by the Partnership. There can be no assurances, however, that such former owners will be able to satisfy any of such obligations. Except as noted specifically above, the Phase I ESA reports have not revealed an environmental liability or compliance concerns that the Company believes would have a material adverse effect on the Company's business, assets or results of operations, nor is the Company aware of an such liability or compliance concerns. Nevertheless, it is possible that these reports do not reveal all environmental liabilities or compliance concerns or that there are material environmental liabilities or compliance concerns of which the Company is unaware. Moreover, no assurances can be given that (i) future laws, ordinances or regulations will not impose any material environmental liability or (ii) the current environmental condition of the Hotels will not be affected by the condition of the properties in the vicinity of the Hotels (such as the presence of leaking underground storage tanks) or by third parties unrelated to the Partnership or the Company. The Company believes that the Hotels are in compliance in all material respects with all federal, state and local laws, ordinances and regulations regarding hazardous or toxic substances and other environmental matters. Except as noted above with respect to the hotels in Columbia, South Carolina and Indianapolis, Indiana, neither the Company nor, to the knowledge of the Company, any of the former owners of the Hotels has been notified by any governmental 5 7 authority of any material noncompliance, liability or claim relating to hazardous or toxic substances or other environmental substances in connection with any of its present or former properties. Tax Status. The Company elected to be taxed as a REIT under Section 856 through 860 of the Internal Revenue Code. The Company generally will not be subject to federal income tax to the extent it distributes at least 95% of its REIT taxable income to its shareholders. If the Company fails to qualify as a REIT in any taxable year, the Company will be subject to Federal income tax (including any applicable alternative minimum tax) on its taxable income at regular corporate tax rates. The Company is subject to certain state and local taxes on its income and property and to Federal income and excise taxes on its undistributed income. Executive Officers. Information with respect to Robert M. Solmson (age 51), Chairman of the Board, Chief Executive Officer of the Company and J. William Lovelace (age 61), President of the Company, is incorporated by reference to the Company's Proxy Statement. See Item 10. Michael J. Pascal (age 40) is Secretary, Treasurer and Chief Financial Officer of the Company. From 1991 to June 1994, he was Chief Financial Officer of RFS, Inc., one of the Lessees. From 1990 to 1991, he was Controller and General Counsel for Dominion Hospitality Management, Inc., a hotel management company. From 1985 to 1990, he was General Counsel and Chief Financial Officer for The McDowell Company, a real estate development firm. Mr. Pascal holds a B.S. and a J.D. degree from Memphis State University. Mr. Lovelace is Mr. Pascal's father-in-law. 6 8 ITEM 2. PROPERTIES The following table sets forth certain information for the year ended December 31, 1998 with respect to the Hotels. For hotels acquired during 1998, this information includes the actual operating results both prior and subsequent to acquisition by the Partnership.
FOR THE YEAR ENDED DECEMBER 31, 1998 --------------------------------------------------------------------- AVERAGE REVENUE PER DATE NUMBER ROOM DAILY AVAILABLE OPENED OF ROOMS REVENUE OCCUPANCY RATE ROOM ------- -------- ------- --------- ---- ---- (in thousands) HAMPTON INN HOTELS: Denver, CO (Airport) 1985 138 $ 2,025 71.1% $56.54 $40.21 Detroit (Warren), MI 1988 124 1,811 64.4% 62.11 40.01 Ft. Lauderdale, FL 1986 122 2,168 68.2% 71.40 48.69 Hattiesburg, MS 1988 154 2,315 72.3% 56.94 41.18 Houston, TX (Hobby) 1996 119 2,000 81.2% 56.71 46.06 Indianapolis, IN 1988 131 2,462 74.7% 68.93 51.49 Jacksonville, FL (1) 1998 118 1,637 58.5% 77.22 45.18 Lakewood (Denver), CO 1987 150 2,609 68.8% 69.31 47.65 Laredo, TX 1995 119 2,269 82.1% 63.65 52.24 Lincoln, NE 1983 111 2,106 81.7% 63.61 51.99 Memphis, TN 1992 120 2,293 76.0% 68.91 52.35 Minneapolis, MN (Airport) 1985 135 2,966 80.4% 74.82 60.19 Minneapolis (Minnetonka), MN 1990 127 2,193 69.9% 67.69 47.31 Oklahoma City, OK 1986 134 2,207 72.7% 62.08 45.12 Omaha, NE 1985 129 2,194 72.0% 64.75 46.59 Plano, TX 1996 131 2,098 70.6% 62.15 43.87 Tulsa, OK 1986 148 2,261 70.6% 59.33 41.86 Sedona, AZ 1997 56 1,114 65.2 83.53 54.49 Chandler, AZ 1997 65 1,768 62.2 77.15 47.95 RESIDENCE INN HOTELS: Ann Arbor, MI 1985 114 3,102 80.1% 93.04 74.54 Charlotte, NC 1984 89 2,457 79.5% 95.02 75.58 Fishkill, NY 1988 136 4,437 91.2% 97.98 89.39 Fort Worth, TX 1983 120 3,489 84.0% 94.79 79.66 Jacksonville, FL 1997 120 2,791 73.78 86.44 63.72 Kansas City, MO 1987 96 2,461 76.4% 91.96 70.23 Orlando, FL 1984 176 5,001 78.3% 99.48 77.85 Perimeter West (Atlanta), GA 1987 128 3,228 76.3% 90.51 69.10 Providence, RI 1989 96 3,295 90.1% 104.36 94.03 Sacramento, CA 1987 176 5,068 82.3% 95.91 78.88 Torrance, CA 1984 247 7,774 92.0% 93.72 86.22 Tyler, TX 1985 128 2,625 82.5% 68.10 56.18 West Palm Beach, FL (1) 1998 78 1,716 78.1% 84.39 65.88 Wilmington, DE 1989 120 3,799 87.5% 99.10 86.72
7 9
FOR THE YEAR ENDED DECEMBER 31, 1998 --------------------------------------------------------------------- AVERAGE REVENUE PER DATE NUMBER ROOM DAILY AVAILABLE OPENED OF ROOMS REVENUE OCCUPANCY RATE ROOM ------- -------- ------- --------- ---- ---- (in thousands) HOLIDAY INN HOTELS: Clayton, MO 1965 255 $4,878 60.9% $86.06 $52.41 Columbia, SC 1969 175 2,665 67.8% 61.50 41.72 Crystal Lake (Chicago), IL 1988 196 4,906 75.6% 90.75 68.58 Flint, MI 1990 171 4,527 78.3% 92.65 72.54 Lafayette, LA 1983 242 4,364 79.9% 61.82 49.41 Louisville, KY 1970 169 2,408 74.8% 52.20 39.04 COMFORT INN HOTELS: Detroit (Farmington Hills), MI 1987 135 2,225 63.3% 71.34 45.15 Fort Mill, SC (Charlotte, NC) 1987 153 2,253 65.7% 61.43 40.34 Marietta, GA 1989 185 2,349 68.5% 51.02 34.97 HOLIDAY INN EXPRESS HOTELS: Austin, TX 1992 125 2,165 71.9% 66.01 47.46 Chicago (Arlington Heights), IL 1989 125 2,773 72.7% 83.64 60.77 Chicago (Downers Grove), IL 1984 123 2,528 66.8% 84.31 56.31 Milwaukee (Wauwatosa), WI 1984 122 2,215 77.2% 64.48 49.74 Minneapolis, MN 1987 142 3,007 76.6% 75.69 58.01 SHERATON AND SHERATON FOUR POINTS HOTELS: Bakersfield, CA 1983 197 3,556 69.5% 71.15. 49.46 Birmingham, AL 1984 202 4,457 62.0% 96.11 59.57 Pleasanton, CA 1985 214 6,157 71.0% 111.04 78.83 Milpitas, CA 1988 229 9,010 72.2% 149.32 107.79 Sunnyvale, CA 1980 174 6,549 77.9% 132.50 103.26 HOTEL REX: San Francisco, CA 1998 94 3,910 78.4% 144.13 113.04 RAMADA PLAZA HOTEL: San Francisco, CA 1998 234 8,624 76.7% 133.50 102.45 HAWTHORN SUITES HOTEL: Atlanta, GA 1984 280 6,269 70.0% 87.60 61.34 DOUBLETREE HOTEL: Del Mar, CA 1990 220 6,787 80.0% 105.67 84.56 HOMEWOOD SUITES HOTEL: Chandler, AZ (1) 1998 83 971 49.7% 85.51 42.53 TOWNEPLACE SUITES HOTEL: Ft. Worth, TX (1) 1998 95 45 13.2% 58.10 7.69
8 10 BEVERLY HERITAGE HOTEL: Milpitas, CA 1988 196 6,737 67.1% 140.25 94.18 COURTYARD BY MARRIOTT HOTEL: Flint, MI 1996 102 2,337 81.2% 77.26 62.76
(1) Represents operations since the opening of the hotel in February 1998 for the Residence Inn in West Palm Beach, FL, in March 1998 for the Hampton Inn in Jacksonville, FL, April 1998 for the Homewood Suites in Chandler, AZ and November 1998 for the TownePlace Suites in Ft. Worth, TX. Acquisitions, Sales and Pending Developments. During 1998, the Partnership acquired two hotels and opened four newly-developed properties. Also, during 1998, the Partnership sold six hotels. The Partnership is developing the following hotel properties:
Estimated Estimated Number of Development Opening Location Franchise Rooms/Suites Costs Quarter -------- --------- ------------ ----- ------- Miami Lakes, FL TownePlace Suites 95 $6.5 million 2Q99 Tampa, FL TownePlace Suites 95 $6.3 million 3Q99 Miami Airport TownePlace Suites 95 $6.5 million 3Q99 West, FL Crystal Lake, IL Courtyard by Marriott 90 $7.5 million 1Q00 (Chicago)
The Partnership is constructing a 40-room addition to the Beverly Heritage Hotel in Milpitas, CA. Construction costs are estimated at $3.8 million. Completion of the addition is expected in the fourth quarter of 1999. Master Agreement. The Company and the Partnership have entered into a master agreement (the "Master Agreement"), with one of the Lessees, RFS, Inc., a wholly owned subsidiary of Promus Hotel Corporation. Under the Master Agreement, the Company and the Partnership have granted to RFS, Inc., a right of first offer and right of first refusal (the "Right of First Refusal") to lease hotels acquired by the Partnership or the Company prior to February 27, 2006 (the "Term"), subject to certain exceptions described below. During the Term, the Partnership and the Company must deliver to RFS, Inc. a written notice specifying the proposed Base Rent and Percentage Rent upon which the Partnership would be willing to lease a proposed acquisition or development hotel to RFS, Inc. In the event RFS, Inc. does not agree within 15 days to lease the particular hotel pursuant to the rent terms set forth in the notice, the Partnership may seek an alternative lessee; provided, however, that before executing a lease with such alternative lessee, the Partnership must send a second notice to RFS, Inc. setting forth the final rent terms of the proposed lease between the Partnership and such alternative lessee. RFS, Inc. will then have 5 days to elect to lease the hotel from the Partnership upon the terms set forth in the second notice. If RFS, Inc. does not make such 9 11 election, the Partnership may enter into a lease with the alternative lessee upon the terms set forth in the second notice. The Partnership may terminate the Right of First Refusal at any time following February 27, 2003, in the event the hotels leased by RFS, Inc. throughout such seven-year period fail to meet certain financial performance goals. The Partnership may also terminate the Right of First Refusal: (i) upon the occurrence under a lease of an "Event of Default" by the Lessee; (ii) in the event the Company's status as a real estate investment trust is terminated and the leases are terminated by the Company, and the Company (a) redeems all outstanding Series A Preferred Stock owned by the RFS, Inc. at a price per share equal to the greater of (A) $19.00 or (B) the average sales prices for the Company's Common Stock for the ten trading days prior to the closing date, (b) the Partnership pays RFS, Inc. the fair market value of the remaining terms of the leases and (c) if such termination occurs prior to February 27, 2006, the Partnership pays RFS, Inc. an amount equal to $5,000,000 minus $41,667 for each calendar month which has expired since February 27, 1996; or (iii) if RFS, Inc. fails to maintain a minimum net worth of $15,000,000 during the term of any lease or defaults under the terms of the Master Agreement. The Right of First Refusal will not apply to hotels acquired or developed by the Partnership where the seller requires, after the Partnership's reasonable efforts to obtain a price at which the lease or management of the hotel could be bought out or to obtain a price for the hotel without the seller's continued management, that the seller or an affiliate of the seller be the lessee or the manager of the hotel following acquisition by the Partnership ("Excluded Hotels"). The aggregate purchase prices for the Excluded Hotels cannot, in the aggregate, exceed 20% of the aggregate purchase prices for all hotels acquired by the Partnership during the Term. The Right of First Refusal also will not apply to the acquisition by the Partnership of any hotel (a "Subject Hotel") located in proximity to a hotel (a "Competing Hotel") owned, leased, managed or franchised by RFS, Inc. or an affiliate of RFS, Inc. such that the ownership, lease, management or franchise of the Competing Hotel would violate the five-mile radius non-competition provisions of the lease with respect to the Subject Hotel if a lease were entered into between the Partnership and RFS, Inc. The foregoing exception to the Right of First Refusal will not apply if the ownership, lease, management or franchise of the Competing Hotel is pursuant to a lease or other agreement with the Partnership. Even if the exception is applicable, the Partnership must notify RFS, Inc. of its proposed acquisition of the Subject Hotel so that RFS, Inc. has the opportunity to terminate its ownership, lease, management or franchise of the Competing Hotel, or take such other action as is necessary, in order to allow RFS, Inc. to enter into a percentage lease with respect to the Subject Hotel without violating the non-competition restrictions. The Right of First Refusal is also inapplicable to any hotels acquired by the Partnership from a real estate investment trust other than the Company in connection with the acquisition by the Partnership of substantially all of the hotels of such other real estate investment trust, whether by merger, purchase of assets or otherwise. 10 12 RFS, Inc. is required to maintain a $15,000,000 tangible net worth during the terms of the Leases. The Master Agreement provides that there can be no change in control of RFS, Inc. without prior consent of the Partnership. The Percentage Leases. All but four of the hotels owned by the Partnership are separately leased to the Lessees under a Percentage Lease. Effective February 27, 1996, each of the Percentage Leases between the Partnership and RFS, Inc. was amended to provide the following among other things: (i) the term of each Percentage Lease was increased to 15 years from the date of inception; (ii) the non-compete provisions were amended to preclude the Lessees or their Affiliates from owning, leasing, operating, managing or franchising any hotel or motel within a five-mile radius of any hotel in which the Partnership or an Affiliate of the Partnership has an interest, as compared to a previous 20-mile radius restriction; (iii) events of default shall include, among others, (a) the failure of the Lessees to pay quarterly percentage rent when due and payable and continuing for a 10-day period after receipt of notice from the Partnership, as compared to the previous 90-day period and (b) occurrence of an event of default under the Master Agreement (iv) the Lessees shall be required, not later than 60 days prior to commencement of each lease year, to prepare and submit to the Partnership an operating budget and marketing plan; (v) the termination of any Percentage Lease due to total condemnation will not affect any other Percentage Leases then in effect between the Lessee and the Partnership; (vi) any management fee payable to an Affiliate of the Lessees shall be subordinate to the payment of rent to the Partnership under the leases; (vii) future leases entered into between the Lessees and the Partnership will not be subject to cross-default provisions in regard to the existing percentage leases or other future leases; (viii) the Lessees will have an extended right (120 days as compared to 90 days) to cure defaults under the franchise agreements; (ix) the respective obligations of the parties relating to capital expenditures and repairs and maintenance were clarified and amended, (x) the Partnership will have 120 days to tender a substitute lease to the Lessee upon sale of a hotel by the Partnership, as compared to 90 days previously, and, (xi) percentage rent is payable within 35 days following the end of the first three calendar quarters and on or before February 10 with respect to the fourth calendar quarter. Percentage Lease Terms. Each Percentage Lease has an initial term of fifteen years from the date of inception, and is subject to earlier termination upon the occurrence of certain contingencies described in the Percentage Lease. Amounts Payable Under the Percentage Leases. During the term of each Percentage Lease, the Lessee is obligated to pay (i) the greater of Base Rent or Percentage Rent and (ii) certain other amounts, including interest accrued on any late payments or charges (the "Additional Charges"). Base Rent accrues and is required to be paid monthly; Percentage Rent is payable quarterly, on or before the 35th day following the end of each of the first three calendar quarters in each fiscal year and on or before February 10 of the next year, with respect to the fourth calendar quarter of each fiscal year, and is calculated by multiplying fixed percentages by room revenue and, with respect to the full service Hotels, beverage revenue and food revenue. For the year ended December 31, 1998, room revenue for each of the Hotels exceeded the amount required to trigger the top tier of room revenue payable as Percentage 11 13 Rent. The following table summarizes the percentages of room revenues in excess of certain levels payable as Percentage Rent under the Percentage Leases.
PROPERTY TYPE FIRST TIER MIDDLE TIER TOP TIER - ------------- ---------- ----------- -------- Full Service (1)................. 17% to 53.1% 30% to 70% 50% to 75% Extended Stay.................... 24% to 41% 45% to 50% 60% to 72% Limited Service.................. 20% to 47.2% N/A 50% to 76.5%
(1) Percentage Rent formula also includes 20% of beverage revenue and 5% of food revenue. The specific rent terms for each Percentage Lease for each Hotel are set forth in Exhibit 10.2(a) to this Form 10-K. Under the Percentage Leases for all of the hotels acquired since March 1994, beginning in 1995 and for each year thereafter, the Base Rent and Percentage Rent thresholds for each year will be adjusted to reflect any year-to-year changes in the consumer price index ("CPI") in the two preceding years. Additionally, the Company anticipates the Percentage Leases for hotels acquired in the future will have a similar provision. Other than real estate taxes, casualty insurance and maintenance of underground utilities and structural elements, which are obligations of the Partnership, the Percentage Leases require the Lessees to pay rent, personal property taxes, all costs and expenses and all utility and other charges incurred in the operation of the Hotels. The Percentage Leases also provide for rent reductions and abatements in the event of a partial taking of any Hotel or six months after occurrence of an event causing damage or destruction to any Hotel. Maintenance and Modifications. Under the Percentage Leases, the Partnership is required to maintain the underground utilities and the structural elements of the improvements, including exterior walls (excluding plate glass) and the roof of each Hotel. The Partnership is required to fund capital improvements at the Hotels subject to (i) the Partnership's right to approve capital budgets and (ii) the Partnership's right in its sole discretion to refuse to make any capital expenditures required by a franchisor. Otherwise, the Lessees are required, at their expense, to maintain the Hotels in good order and repair, except for ordinary wear and tear, and to make non-structural, foreseen and unforeseen, and ordinary and extraordinary, repairs which may be necessary and appropriate to keep the Hotels in good order and repair. The Lessees, at their expense and with the Lessor's prior consent, may make non-capital and capital additions, modifications or improvements to the Hotels, provided that such action does not significantly alter the character or purposes of the Hotels or significantly detract from the value or operating efficiencies of the Hotels. All such alterations, replacements and improvements are subject to all the terms and provisions of the Percentage Leases and will become the property of the Partnership upon termination of the Percentage Leases. The 12 14 Partnership owns substantially all personal property (other than inventory, linens, and other nondepreciable personal property) not affixed to or deemed a part of, the real estate or improvements thereon comprising the Hotels, except to the extent that ownership of such personal property would cause the rents under the Percentage Leases not to qualify as "rents from real property" for REIT income test purposes. Insurance and Property Taxes. The Partnership is responsible for paying real estate taxes and casualty insurance premiums on the Hotels. The Lessees are required to pay or reimburse the Partnership for all other insurance on the Hotels, which must include extended coverage, comprehensive general public liability, workers' compensation and other insurance appropriate and customary for properties similar to the Hotels and name the Partnership as an additional insured. Indemnification. Under each of the Percentage Leases, the Lessees have agreed to indemnify, and are obligated to hold harmless, the Partnership and its affiliates, including the Company, from and against all liabilities, costs and expenses (including reasonable attorneys' fees and expenses) incurred by, imposed upon or asserted against the Partnership or its affiliates, on account of, among other things, (i) any accident or injury to person or property on or about the Hotels; (ii) any misuse by the Lessees or any of its agents of the leased property; (iii) any environmental liability resulting from conditions caused or resulting from any action or negligence of the Lessees; (iv) taxes and assessments in respect of the Hotels (other than real estate taxes and income taxes of the Company or Partnership on income attributable to the Hotels); (v) liability resulting from the sale or consumption of alcoholic beverages on or in the real property or improvements thereon; or (vi) any breach of the Percentage Leases by Lessees; provided, however, that such indemnification will not be construed to require the Lessees to indemnify the Company and the Partnership against the Company's or Partnership's own grossly negligent acts or omissions or willful misconduct. Assignment and Subleasing. The Lessees are not permitted to sublet all or any part of the Hotels or assign its interest under any of the Percentage Leases, other than to an affiliate of the Lessees, without the prior written consent of the Partnership. Damage to Hotels. In the event of damage to or destruction of any Hotel covered by insurance, whether or not such damage or destruction renders the Hotel unsuitable for the Lessees' use and occupancy , the Lessees are obligated to the extent of any insurance proceeds made available to the Lessee and any other sums advanced by the Partnership, to repair, rebuild, or restore the Hotel on the terms set forth in the applicable Percentage Lease. If the insurance proceeds are not adequate to restore the Hotel, each of the Lessees and the Partnership has the right to terminate the Percentage Lease without affecting any other Percentage Leases in effect between the Lessees and the Partnership, by giving notice to the other. The Partnership will retain the insurance proceeds. If the Lessees terminate the Percentage Lease due to the inadequacy of the insurance proceeds, the Partnership may nullify the termination and keep the Percentage Lease in full force by providing within 30 days after receipt of notice of termination the Partnership's unconditional, legally binding obligation to be responsible for restoration costs in excess of the insurance proceeds. If the Percentage Lease is terminated by either the Lessees or the Partnership due to the inadequacy of the insurance proceeds and the inadequacy of 13 15 insurance proceeds was the result of the Partnership's failure to maintain the proper insurance coverage as required, the Partnership must, within 180 days, pay the Lessee the fair market value of the applicable Percentage Lease on the date of termination or offer other percentage leases to the Lessees having an aggregate fair market value of no less than the fair market value of the applicable Percentage Lease. If damage or destruction of a Hotel is not covered by insurance, the provisions of the Percentage Lease which govern inadequacy of coverage apply. The Percentage Lease shall remain in full force and effect during the first six months of any period required for repair or restoration of any damaged or destroyed Hotel, after which time, rent will be equitably abated. Condemnation of Hotels. In the event of a total condemnation of a Hotel, the relevant Percentage Lease will terminate with respect to such Hotel as of the date of taking the Partnership and the Lessees will be entitled to their shares of any condemnation award in accordance with the provision of the Percentage Lease. In the event of a partial taking which does not render the Hotel unsuitable for the Lessees' use, the Lessees shall restore the untaken portion of the Hotel to a complete architectural unit but only to the extent of any condemnation awards made available to Lessee or amounts advanced by Partnership. If the condemnation award is not adequate to restore a Hotel, each of the Lessees and Partnership have the right to terminate the Percentage Lease on the Hotel without affecting the other leases between the Lessees and the Partnership then in effect.. Events of Default. Events of Default under the Percentage Leases include, among others, the following: (i) the occurrence of an Event of Default under any other lease between the Partnership and the Lessees or any Affiliate of the Lessees (with respect to the leases entered into prior to February 27, 1996); (ii) The failure by the Lessees to pay Base Rent when due and the continuation of such failure for a period of 10 days after receipt by the Lessees of notice from the Partnership thereof; (iii) the failure by the Lessees to pay the excess of Percentage Rent over Base Rent when due and continuation of such failure for a period of 10 days after receipt by the Lessee of Notice from the Partnership thereof; (iv) the failure by the Lessees to observe or perform any other term of a Percentage Lease and the continuation of such failure for a period of 30 days after receipt by the Lessees of notice from the Partnership thereof, unless such failure cannot be cured within such period and the Lessees commence appropriate action to cure such failure within said 30 days and thereafter acts, with diligence, to correct such failure within such time as is necessary; (v) if the Lessees shall file a petition in bankruptcy or reorganization pursuant to any federal or state bankruptcy law or any similar federal or state law, or shall be adjudicated a bankrupt or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the adjudication of the Lessees as a bankrupt or its reorganization pursuant to any federal or state 14 16 bankruptcy law or any similar federal or state law shall be filed in any court and the Lessees shall be adjudicated a bankrupt and such adjudication shall not be vacated or set aside or stayed within 60 days after the entry of an order in respect thereof, or if a receiver of the Lessees or of the whole or substantially all of the assets of the Lessees shall be appointed in any proceeding brought by the Lessees or if any such receiver, trustee or liquidator shall be appointed in any proceeding brought against the Lessees shall not be vacated or set aside or stayed within 60 days after such appointment; (vi) if the Lessees voluntarily discontinue operations of a Hotel for more than 30 days, except as a result of damage, destruction, or condemnation; or (vii) if the franchise agreement with respect to a Hotel is terminated by the franchisor as a result of any action or failure to act by the Lessees or its agents, other than a failure to complete a capital improvement required by the franchisor as a result of the Company's failure to fund the capital improvement; or (viii) if the Lessees default under the Master Agreement. If an Event of Default occurs and continues beyond any curative period, the Partnership will have the option of terminating the Percentage Lease and may terminate any other Percentage Lease which is subject to a cross-default with such Percentage Lease by giving the Lessees ten days' written notice of the date for termination of the Percentage Leases and, unless such Event of Default is cured prior to the termination date set forth in said notice, the Percentage Leases shall terminate on the date specified in the Company's notice and the Lessee is required to surrender possession of the affected Hotels. Termination of Percentage Leases on Disposition of the Hotels. In the event the Partnership enters into an agreement to sell or otherwise transfer a Hotel, the Partnership will have the right to terminate the Percentage Lease with respect to such Hotel and either (i) pay the Lessees the fair market value of the Lessee's leasehold interest in the remaining term of the Percentage Lease to be terminated or (ii) within 120 days of termination of the lease, offer to lease to the Lessee a substitute hotel on terms that would create a leasehold interest in such Hotel with a fair market value equal to or exceeding the fair market value of the Lessee's remaining leasehold interest under the Percentage Lease to be terminated. Franchise License. The Lessees are the licensee under the franchise licenses on the hotels currently owned by the Partnership and are expected to hold the franchise licenses for future hotels leased from the Partnership. Upon the occurrence of certain events of default by the Lessees under a franchise license, each franchisor has agreed to transfer the franchise license for the hotel to the Partnership (or its designee). The Company anticipates that the franchisors of the hotels currently under contract will agree to a similar arrangement. In exchange, the Partnership has guaranteed all of the Lessees' franchise payments under the franchise agreements. Other Lease Covenants. RFS, Inc. has agreed during the term of the Percentage Leases to maintain a ratio of total debt to consolidated net worth (as defined in the Percentage Leases) 15 17 of not more than 50%, exclusive of capitalized leases. Management fees paid to affiliates of the Lessees are subordinated to the lease payments. Breach by Partnership. If the Partnership fails to cure a breach by it under a Percentage Lease, the Lessees may purchase the relevant Hotel from the Partnership for a purchase price equal to the Hotel's then fair market value. Upon notice from the Lessees that the Partnership has breached the Lease, the Partnership has 30 days to cure the breach or proceed to cure the breach, which period may be extended in the event of certain specified, unavoidable delays. Inventory. All inventory required in the operation of the Hotels is purchased and owned by the Lessee at its expense. The Partnership has the option to purchase all inventory related to a particular Hotel at its fair market value upon termination of the related Percentage Lease. Franchise Agreements. All but two of the Hotels, the Hotel Rex in San Francisco, CA and the Beverly Heritage in Milpitas, CA, are licensed to operate under a franchise license. Nineteen Hotels are licensed as Hampton Inn hotels, fourteen are licensed as Residence Inn hotels, three are licensed as Comfort Inn hotels, five are licensed as Holiday Inn Express hotels, six are licensed as Holiday Inn hotels, one is licensed as a Hawthorn Suites hotel, one is licensed as a Doubletree hotel, one is licensed as a Courtyard by Marriott, one is licensed as a Ramada hotel, one is licensed as a Homewood Suites hotel, one is licensed as a TownePlace Suites hotel, one is licensed as a Sheraton hotel and four are licensed as Sheraton Four Points hotels. Holiday Inn and Holiday Inn Express are registered trademarks of Holiday Inn, Inc. Comfort Inn is a registered trademark of Choice Hotels International, Inc. Residence Inn and Courtyard by Marriott are registered trademarks of Marriott Corporation. Hampton Inn is registered a trademark of The Promus Companies, Inc. Hawthorn Suites is a registered trademark of Hawthorn Suites Hotels. Doubletree is a registered trademark of Doubletree Corporation. Sheraton and Sheraton Four Points are registered trademarks of ITT Sheraton Corporation. The franchise licenses generally specify certain management, operational, record keeping, accounting, reporting and marketing standards and procedures with which the Lessees or the Lessee Operators, as applicable, must comply. The franchise licenses obligate the Lessees to comply with the franchisor' standards and requirements with respect to training of operational personnel, safety, maintaining specified insurance, the types of services and products ancillary to guest room services that may be provided by the Lessee, display of signage, and the type, quality and age of furniture, fixtures and equipment included in guest rooms, lobbies and other common areas. The Lessees hold the franchise license for each Hotel. The Partnership paid the franchise license application fees with respect to the Hotels. The franchisors may require the Partnership to complete certain capital improvements to certain of the Hotels. The Partnership will fund the costs of the improvements and will own the improvements. The franchisors of any Hotels on which improvements have been required will permit the operation of such Hotels prior to completion of the improvements under conditional franchise license. Each franchise license gives the Lessees the right to operate the particular Hotel under a franchise for a period of from ten to 20 years. The franchise agreements provide for termination 16 18 at the franchisor's option upon the occurrence of certain events, including the Lessees' failure to pay royalties and fees or perform its other covenants under the license agreement, bankruptcy, abandonment of the franchise, commission of a felony, assignment of the license without the consent of the franchisor, or failure to comply with applicable law in the operation of the relevant hotel. The Lessees are entitled to terminate the franchise license only by giving at least 12 months notice and paying a specified amount of liquidated damages and only with the Company's prior consent. The license agreements will not renew automatically upon expiration. The Lessees are responsible for making all payments under the franchise agreements to the franchisors. Under the Holiday Inn franchise agreements, the Lessees are required to pay a franchise fee of 4% of room revenue (plus additional fees) from the Holiday Inn hotels and a franchise fee ranging from 4-5% of room revenue (plus additional fees) from the Hotels operating as Holiday Inn Express hotels. Under the Comfort Inn franchise agreements, the Lessees are required to pay a franchise fee ranging from 4-5% of revenue for the Hotels operating as Comfort Inn hotels plus fees for use of the reservation system and other miscellaneous fees. Under the Promus Companies, Inc. franchise agreements, the Lessees are required to pay a franchise fee ranging from 4-5% of room revenue (plus additional fees) from the Hotels operating as Hampton Inn hotels and 5% from the Hotels operating as Homewood Suites hotels. Under the Marriott Corporation franchise agreement, the Lessees are required to pay a franchise fee ranging from 3-5% of room revenue (plus additional fees) from the Hotels operating as Residence Inn hotels and 5% from the Hotels operating as Courtyard by Marriott and TownePlace Suites hotels. Under the Hawthorn Suites franchise agreement, the Lessees are required to pay a franchise fee of 4% of room revenue (plus additional fees) from the Hotels operating as Hawthorn Suites. Under the Doubletree Corporation franchise agreement, the Lessees are required to pay 3% from the Hotels operating as Doubletree hotels. Under the ITT Sheraton Corporation franchise agreements, the Lessees are required to pay a franchise fee of 5% of gross room sales (plus additional fees) for the hotels operating as Sheraton and Sheraton Four Points. The franchisors have agreed that, in the event of a default by the Lessees under a franchise agreement with respect to a franchised Hotel currently owned by the Partnership, the franchise license for that Hotel will be assigned to the Partnership or a designee of the Partnership acceptable to the franchisor. The Partnership will be obligated to pay the franchisor's actual costs of investigating the Partnership's designee and processing the transfer, but will pay no transfer fee. In consideration of the franchisors' agreements to transfer the franchise licenses upon default by the Lessees as described above, the Partnership has agreed to guarantee the Lessees' obligations to make the franchise fee payments to the franchisors under the franchise agreements. The Partnership anticipates that the franchisors of future hotels acquired will agree to similar arrangements. ITEM 3. LEGAL PROCEEDINGS Neither the Company nor the Partnership currently is involved in any material litigation nor, to the Company's knowledge, is any material litigation currently threatened against the Company or the Partnership. 17 19 ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS No matters were submitted to the Company's shareholders during the fourth quarter of 1998. PART II ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED SHAREHOLDER MATTERS (A) MARKET INFORMATION The Company's common stock is traded on the New York Stock Exchange ("NYSE") under the symbol "RFS". Sales prices for the shares and the dividends declared per share, are as follows:
Stock Price Dividend Declared High Low Per Share ---- --- --------- First Quarter 1997 19.75 16.75 0.36 Second Quarter 1997 18.875 17.25 0.36 Third Quarter 1997 19.9375 17.875 0.375 Fourth Quarter 1997 21.25 18.125 0.375 First Quarter 1998 $20.13 $17.50 0.375 Second Quarter 1998 21.4374 17.9375 0.375 Third Quarter 1998 20.1875 12.00 0.385 Fourth Quarter 1998 14.4375 9.5 0.385
(b) Holders The number of holders of record of shares of common stock was 296 as of March 15, 1999. (c) Dividend The Company intends to pay regular quarterly dividends, which are dependent upon receipt of distributions from the Partnership, in order to maintain its REIT status under the Internal Revenue Code. 18 20 ITEM 6. SELECTED FINANCIAL DATA The following tables set forth selected historical financial data for the Company. The following selected financial information should be read in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations" and all of the financial statements and notes thereto included elsewhere, and incorporated by reference.
(in thousands, except per share data) THE COMPANY -------------------------------------------------------------------- 1998 1997 1996 1995 1994 ---- ---- ---- ---- ---- Total revenue $ 96,927 $ 83,069 $ 61,986 $ 48,307 $ 23,354 Income before minority interest 37,723 37,847 35,087 31,085 14,351 Net income 34,068 34,232 34,587 30,646 14,156 Diluted earnings per share 1.31 1.34 1.37 1.26 0.94 Cash dividends declared per share 1.52 1.47 1.42 1.23 1.02 Total assets 683,991 617,128 499,129 376,962 346,870 Total debt 272,799 208,909 133,064 30,186 2,420 OTHER DATA: Funds from operations 63,030 55,263 45,723 39,663 18,109 Cash provided by operating activities 55,092 58,590 46,448 38,896 17,321 Cash used by investing activities (65,932) (140,751) (74,518) (74,028) (235,296) Cash provided (used) by financing 8,723 28,357 83,325 (7,838) 242,296 activities
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (DOLLARS IN THOUSANDS, UNLESS OTHERWISE STATED) THE COMPANY Incorporated herein by reference to the Company's Annual Report to Shareholders for the year ended December 31, 1998 filed as Exhibit 13.1 to this Form 10-K. RFS, INC. AND SUBSIDIARY RESULTS OF OPERATIONS Year Ended December 31, 1998 Compared with Year Ended December 31, 1997 Total revenues increased $6.3 million or 3.2% to $203.1 million for the year ended December 31, 1998 compared to $196.8 million for the year ended December 31, 1997. The increase in hotel revenues was attributable, on a same store basis, as compared to the 1997 period, to the average daily rate increasing approximately $4 to $80 while occupancy declined 1.0 percentage point to 74.8%. The margin on hotel results (hotel revenues less hotel expenses and lease expenses) decreased $0.7 million or 4.9% from $15.2 million to $14.5 million 19 21 reflecting improved operating performance of the hotels on a same store basis offset by the loss of six hotels sold during 1998. Management and consulting fees decreased 21% to $1.3 million reflecting the termination of five management contracts during 1998 that were active throughout 1997, partially offset by the impact of two new contracts. Other fees and income increased $3.2 million primarily reflecting $2.7 million of revenue attributable to lease termination fees on the hotels that were sold in 1998, and $0.5 million of revenue generated through various partnership interests. General and administrative expenses, as well as, depreciation and amortization expense increased nominally. The provision for income taxes in 1998 reflects a 39.1% effective tax rate (the consolidated effective tax rate for Promus Hotel Corporation in 1998) as compared to a 38.3% effective tax rate in 1997. The Company files a consolidated tax return with Promus Hotel Corporation. Year Ended December 31, 1997 Compared with Year Ended December 31, 1996 Total revenues increased $45.3 million or 30% to $196.8 million for the year ended December 31, 1997 compared to $151.5 million for the year ended December 31, 1996. The increase in hotel revenues of $44.6 million was attributable to the net addition of four leased properties in 1996 that generated a full year of revenues in 1997 and the addition of eight leased properties in 1997. Additionally, on a same store basis as compared to the 1996 period, the average daily rate increased approximately $2 to $71 while occupancy declined 1.6 percentage points to 75.4%. The margin on hotel results (hotel revenues less hotel expenses and lease expenses) increased $4.1 million or 37% from $11.2 million to $15.2 million reflecting the addition of new properties and the improved operating performance of the hotels on a same store basis offset by increased lease payments to the Lessor attributable to increased revenues. Management and consulting fees increased 97% to $1.6 million principally reflecting the full year impact of eight management contracts that commenced in the first half of 1996. Other fees and income decreased nominally. General and administrative expenses increased 16% or $0.5 million primarily due increased staffing necessary to support the additional hotels. Depreciation and amortization increased reflecting the amortization of certain pre-opening costs associated with the leased hotels and a full year of amortization on the franchise application fees paid in 1996. The provision for income taxes in 1997 reflects a 38.3% effective tax rate (the consolidated effective tax rate for Doubletree Corporation in 1997) as compared to a 35% effective tax rate in 1996. The Company files a consolidated tax return with Doubletree. 20 22 LIQUIDITY AND CAPITAL RESOURCES The principal source of cash to the Lessee, other than capital contributions from Promus Hotel Corporation, will come from operations. Since inception, the Lessee has been able to meet its rent obligations under the Percentage Leases. During 1998, the Lessee generated cash flow from operations of $8.0 million as compared to $10.4 million during 1997, excluding the effect of a cash flow sharing agreement between Lessee and Promus Hotel Corporation. The decrease was principally attributable to a decrease in the Lessee's working capital, partially offset by a $1.1 million increase in net income. The Lessee expects that its cash flow from operations will be sufficient to meet its liquidity and capital requirements. ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK. Pursuant to the general instructions to Rule 305 of SEC Regulation S-K, the quantitative and qualitative disclosures called for by this Item 7a and by Rule 305 of Regulation S-K are inapplicable to the Company at this time. 21 23 ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA THE COMPANY Incorporated herein by reference to the Company's Annual Report to Shareholders for the year ended December 31, 1998. RFS, INC. Report of Independent Public Accountants To the Board of Directors and Stockholder of RFS, Inc. and Subsidiary: We have audited the accompanying consolidated balance sheet of RFS, INC. AND SUBSIDIARY (a wholly-owned subsidiary of Promus Hotel Corporation) (the "Company") as of December 31, 1998 and the related consolidated statements of operations, stockholder's equity and cash flows for the year then ended. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these consolidated financial statements based on our audit. The consolidated financial statements of RFS, Inc. and subsidiary as of December 31, 1997 and for each of the two years then ended were audited by other auditors whose report dated January 23, 1998, expressed an unqualified opinion on those statements. We conducted our audit in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion. In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of RFS, Inc. and subsidiary as of December 31, 1998 and the results of their operations and cash flows for the year then ended in conformity with generally accepted accounting principles. Arthur Andersen LLP Memphis, Tennessee, February 5, 1999. 22 24 RFS, INC. AND SUBSIDIARY (a wholly-owned subsidiary of Promus Hotel Corporation) CONSOLIDATED BALANCE SHEETS AS OF DECEMBER 31 (in thousands)
1998 1997 -------- -------- ASSETS CURRENT ASSETS: Cash and cash equivalents $ 3,986 $ 7,322 Trade receivables, net of estimated uncollectible accounts of $80 and $110 6,854 4,300 Inventory 203 206 Prepaid expenses 1,094 943 Due from Parent 24,883 13,567 -------- -------- TOTAL CURRENT ASSETS 37,020 26,338 Investments 19,964 19,724 Note receivable 1,529 1,529 Leasehold improvements and office equipment, net of $616 and $526 accumulated depreciation 253 284 Capitalized franchise costs, net 2,032 2,303 Deferred costs and other assets, net 720 790 -------- -------- TOTAL ASSETS $ 61,518 $ 50,968 ======== ======== LIABILITIES AND STOCKHOLDER'S EQUITY CURRENT LIABILITIES: Accounts payable and accrued expenses $ 7,576 $ 7,723 Percentage lease payable 9,425 8,901 -------- -------- TOTAL CURRENT LIABILITIES 17,001 16,624 DEFERRED INCOME TAXES 442 70 COMMITMENTS AND CONTINGENCIES (Note 7) STOCKHOLDER'S EQUITY: Common stock, no par value; 5,000 shares authorized; 100 shares issued and outstanding 282 282 Additional paid-in capital 18,500 18,500 Unearned employee compensation -- (70) Accumulated other comprehensive income, net of income taxes (54) 112 Retained earnings 25,347 15,450 -------- -------- TOTAL STOCKHOLDER'S EQUITY 44,075 34,274 -------- -------- TOTAL LIABILITIES AND STOCKHOLDER'S EQUITY $ 61,518 $ 50,968 ======== ========
The accompanying notes are an integral part of these consolidated balance sheets. 23 25 RFS, INC. AND SUBSIDIARY (a wholly-owned subsidiary of Promus Hotel Corporation) CONSOLIDATED STATEMENTS OF OPERATIONS YEARS ENDED DECEMBER 31 (in thousands)
1998 1997 1996 -------- -------- -------- REVENUES: Hotel revenue $196,749 $193,282 $148,699 Management and consulting fees 1,267 1,611 817 Other 5,061 1,868 1,987 -------- -------- -------- Total revenues 203,077 196,761 151,503 -------- -------- -------- COSTS AND EXPENSES: Hotel expenses: Salaries and benefits 42,790 43,173 35,355 Franchise costs 13,874 13,183 10,153 Advertising and promotions 3,075 3,199 2,089 Utilities 7,962 8,368 7,090 Repairs and maintenance 4,159 4,240 3,631 Leases, insurance and taxes 1,331 1,317 1,018 Other operating costs 25,515 24,518 18,063 -------- -------- -------- 98,706 97,998 77,399 General and administrative 4,027 3,972 3,430 Depreciation and amortization 554 460 266 Percentage lease expense 83,550 80,049 60,148 -------- -------- -------- Total operating expenses 186,837 182,479 141,243 -------- -------- -------- Income before income taxes 16,240 14,282 10,260 Income taxes 6,343 5,470 3,592 -------- -------- -------- NET INCOME $ 9,897 $ 8,812 $ 6,668 ======== ======== ========
The accompanying notes are an integral part of these consolidated financial statements. 24 26 RFS, INC. AND SUBSIDIARY (a wholly-owned subsidiary of Promus Hotel Corporation) STATEMENTS OF STOCKHOLDER'S EQUITY YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996 (in thousands)
Additional Unearned Comprehensive Common Paid-in Employee Income Stock Capital Compensation ------------ ------ ---------- ------------ Balances, December 31, 1995 $282 $ -- $(211) Contribution of paid-in capital -- 18,500 -- Amortization of unearned employee compensation -- -- 70 Comprehensive income - 1996 - Net income $6,668 -- -- -- Other comprehensive income, net of tax: Change in unrealized gain on marketable equity securities, net of tax of $61 92 -- -- -- ------ ---- ------- ----- Balances, December 31, 1996 6,760 282 18,500 (141) ====== Amortization of unearned employee compensation -- -- 71 Comprehensive income - 1997 - Net income 8,812 -- -- -- Other comprehensive income, net of tax: Change in unrealized gain on marketable equity securities, net of tax of $9 (2) -- -- -- ------ ---- ------- ----- Balances, December 31, 1997 8,810 282 18,500 (70) ====== Amortization of unearned employee compensation -- -- 70 Comprehensive income - 1998 - Net income 9,897 -- -- -- Other comprehensive income, net of tax: Change in unrealized gain on marketable equity securities, net of tax of $(104) (166) -- -- -- ------ ---- ------- ----- Balances, December 31, 1998 $9,731 $282 $18,500 $ -- ====== ==== ======= ===== Accumulated Other Retained Comprehensive Earnings Income (Deficit) Total ------------ -------- ------- Balances, December 31, 1995 $ 22 $ (30) $ 63 Contribution of paid-in capital -- -- 18,500 Amortization of unearned employee compensation -- -- 70 Comprehensive income - 1996 - Net income -- 6,668 6,668 Other comprehensive income, net of tax: Change in unrealized gain on marketable equity securities, net of tax of $61 92 -- 92 ------ ------- ------- Balances, December 31, 1996 114 6,638 25,393 Amortization of unearned employee compensation -- -- 71 Comprehensive income - 1997 - Net income -- 8,812 8,812 Other comprehensive income, net of tax: Change in unrealized gain on marketable equity securities, net of tax of $9 (2) -- (2) ------ ------- ------- Balances, December 31, 1997 112 15,450 34,274 Amortization of unearned employee compensation -- -- 70 Comprehensive income - 1998 - Net income -- 9,897 9,897 Other comprehensive income, net of tax: Change in unrealized gain on marketable equity securities, net of tax of $(104) (166) -- (166) ------ ------- ------- Balances, December 31, 1998 $ (54) $25,347 $44,075 ====== ======= =======
The accompanying notes are an integral part of these consolidated financial statements. 27 RFS, INC. AND SUBSIDIARY (a wholly-owned subsidiary of Promus Hotel Corporation) CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE YEARS ENDED DECEMBER 31 (in thousands)
1998 1997 1996 --------- --------- --------- CASH FLOWS FROM OPERATING ACTIVITIES: Net income $ 9,897 $ 8,812 $ 6,668 Adjustments to reconcile net income to net cash provided by operating activities: Depreciation and amortization 554 460 290 Provision for bad debts (30) 48 22 Equity in earnings of unconsolidated affiliates (509) -- -- Changes in operating assets and liabilities: Increase in accounts receivable (2,524) (668) (1,159) Increase in due from parent (11,316) (11,818) (1,749) Increase in other assets (202) (737) (127) Increase in accounts payable and accrued expenses 853 2,497 270 --------- --------- --------- Net cash (used in) provided by operating activities (3,277) (1,406) 4,215 --------- --------- --------- CASH FLOWS FROM INVESTING ACTIVITIES: Investment in RFS Hotel Investors, Inc. -- -- (18,500) Investments in partnerships and ventures -- -- (175) Distributions from partnerships and ventures -- 1 2 Franchise application fees -- -- (2,626) Purchase of furniture and equipment (59) (79) (79) Loan to owners of managed hotels -- -- (3,000) Collection of loan to owners of managed hotels -- 1,471 -- Increase in deferred cost and other assets -- -- (90) --------- --------- --------- Net cash (used in) provided by investing activities (59) 1,393 (24,468) --------- --------- --------- CASH FLOWS FROM FINANCING ACTIVITIES: Contribution of paid-in capital from parent -- -- 18,500 Payments on notes payable -- (325) 175 --------- --------- --------- Net cash (used in) provided by financing activities -- (325) 18,675 --------- --------- --------- Net decrease in cash (3,336) (338) (1,578) CASH AND CASH EQUIVALENTS: Beginning of year 7,322 7,660 9,238 --------- --------- --------- End of year $ 3,986 $ 7,322 $ 7,660 ========= ========= =========
The accompanying notes are an integral part of these consolidated financial statements. 26 28 RFS, INC. AND SUBSIDIARY (a wholly-owned subsidiary of Promus Hotel Corporation) NOTES TO FINANCIAL STATEMENTS DECEMBER 31, 1998 1. ORGANIZATION AND PRESENTATION: Effective February 27, 1996, RFS, Inc. (the "Company") became a wholly-owned subsidiary of Doubletree Corporation ("Doubletree") in a transaction accounted for as a pooling of interests. The Company generates substantially all of its revenue from operating and managing leased hotels owned by RFS Partnership, L.P. (the "Partnership"). The Partnership is 90.5% owned by RFS Hotel Investors, Inc. (the "REIT"). On December 19, 1997, Doubletree became a wholly-owned subsidiary of Promus Hotel Corporation ("Promus" or "Parent") pursuant to a merger transaction in which each outstanding share of Doubletree common stock was exchanged for one share of Promus common stock. The Company's wholly-owned subsidiary, RFS Leasing, Inc., leases and manages 15 hotels owned by RFS Financing Partnership, L.P., a special purpose entity wholly-owned by RFS Hotel Investors, Inc. Substantially all of the hotels owned by the Partnership (the "Hotels") are separately leased by the Partnership to the Company under individual lease agreements (collectively, the "Percentage Leases"). The Percentage Leases provide for the payment of annual rent equal to the greater of (i) fixed base rent or (ii) percentage rent based on a percentage of gross room revenue, food revenue and beverage revenue at the Hotels. In connection with the February 27, 1996 merger with Doubletree, the Company amended each of the individual Percentage Leases. The significant amendments include extending the terms of the leases, clarifying the Company's and the Partnership's responsibilities with respect to repairs and maintenance at the hotels and clarifying certain other provisions of the Percentage Leases. These provisions include the Partnership granting the Company a 10-year right of first refusal to manage and lease future hotels acquired or developed by the Partnership. At December 31, 1998, the Company leased 51 hotels from the Partnership and operated 65 hotels. Four hotels leased by the Company are operated by other third party management companies. Two of the hotels operated by the Company are for unrelated entities. The Company leases and/or manages hotel properties in 26 states, primarily in the Southeast and Midwest and substantially all are affiliated with a nationally recognized franchise. 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES: Cash, Cash Equivalents and Short-Term Investments- The Company considers all highly liquid investments with a maturity of three months or less when purchased to be cash equivalents for purposes of the statement of cash flows. Inventories- Inventories consisting of food and beverages are stated at the lower of cost (generally first-in, first-out) or market. Receivable/Payable with Parent- The Company maintains an intercompany balance with its Parent based on available cash flows. This balance is due on demand and is non-interest bearing. 27 29 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued): Investments- Investments in partnerships and joint ventures are accounted for using the equity method when the Company has a general partnership interest or its limited partnership interest exceeds 5% and the Company does not exercise control over the venture. Preferred stock investments are accounted for using the cost method. Marketable equity securities are classified as available-for-sale and recorded at fair value with unrealized gains or losses reflected in stockholder's equity. Leasehold Improvements and Office Equipment- Maintenance and repairs are charged to operations as incurred; major renewals and betterments at the hotels are the responsibility of the Partnership. Improvements to office leaseholds are amortized over the shorter of the lives of the assets or the terms of the related leases. Office furniture and equipment is depreciated using the straight-line basis over their estimated useful lives, which is 7 years for furniture and 5 years for equipment. Capitalized Franchise Costs- In connection with the Company's acquisition by Doubletree, franchise application fees were paid to franchisors of the Hotels. These fees are being amortized over the remaining lives of the franchise agreements. The recoverability of the franchise application fees is periodically evaluated to determine whether such costs will be realized from future operations. The initial cost of obtaining any new franchise licenses is paid by the Partnership, and the ongoing franchise fees are paid by the Company. These fees are usually computed as a percentage of room revenue in accordance with each hotel's franchise agreements and are expensed as incurred. Revenue Recognition- Revenue is recognized as earned. Ongoing credit evaluations are performed and an allowance for potential credit losses is provided against the portion of accounts receivable which is estimated to be uncollectible. Percentage Lease Expenses- Lease expense is recognized as due to the Partnership under the Percentage Leases commencing on the date a lease is executed between the Partnership and the Company. Income Taxes- Under the asset and liability method of accounting for income taxes, deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between the financial statement carrying amounts of existing assets, including net operating loss carryforwards, and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates in effect for the year in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period when the new rate is enacted. The Company's parent, Promus Hotel Corporation, files a consolidated federal income tax return. Beginning in 1996, the intercompany settlement of taxes paid is based on an informal tax sharing agreement which allocates taxes to the Company based upon a proportionate allocation of Promus' consolidated current and deferred tax expenses in 1998 and 1997, and Doubletree's in 1996. 28 30 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued): Use of Estimates- The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Reclassifications- Certain prior year amounts have been reclassified to conform to the current year presentation. Recent Accounting Pronouncements- During 1998, the Company adopted the provisions of Statement of Financial Accounting Standards No. 130, "Reporting on Comprehensive Income." This statement establishes standards for reporting and display of comprehensive income and its components in a financial statement that is displayed with the same prominence as other financial statements. The change in the components of other comprehensive income is reported net of income taxes in the accompanying financial statements. Accumulated other comprehensive income is comprised solely of unrealized gains and losses on marketable equity securities. 3. INVESTMENTS- Investments in RFS Hotel Investors, Inc.- The Company has the following investments in the REIT and its related entity, the Partnership (in thousands):
1998 1997 ------- ------- RFS Hotel Investors, Inc. Series A Convertible Preferred Stock $18,500 $18,500 Common Stock 429 698 RFS Partnership, L.P. Partnership Units 841 841 ------- ------- $19,770 $20,039 ======= =======
29 31 3. INVESTMENTS (Continued): On February 27, 1996, the Company bought from the REIT 973,684 shares of Series A Convertible Preferred Stock for $18,500,000 or $19.00 per share. The Series A Preferred Stock has an initial preference value of $19.00 per share ("Stated Value"), a par value of $.01, and is senior to the REIT's common stock as to dividends and upon liquidation of the REIT. Each share of Series A Preferred Stock has one vote and is convertible into one share of the REIT's common stock after the seventh anniversary of issuance. The owners of Series A Preferred Stock are entitled to a $1.45 annual cumulative dividend per share. The Series A Preferred Stock has mandatory redemption rights upon the occurrence of certain events which are under the REIT's control. The REIT can redeem the Series A Preferred Stock after the seventh anniversary of issuance at the Stated Value, together with all accrued and unpaid dividends. The Company's investment in the Partnership units is carried at cost which is approximately $841,000 on 77,904 units owned. At present, there is no quoted market for the Partnership units. However, the Partnership units are convertible into REIT common stock. The Company also owns 35,000 shares of REIT common stock, which is carried at quoted market value. Investments in Partnerships- Information with respect to the Company's investments in partnerships at December 31, 1998 and 1997 is as follows:
Carrying value (in thousands) % Type of ------------------- Entity Ownership Interest 1998 1997 ------ --------- -------- ---- ---- Devonshire Associates 10% General $ 1 $ 1 SF Partners 2% General -- -- Highland Plaza Partners, Ltd. 5% General 1 1 DDP Partners, L.P. 5% General 10 12 ---- ----- 12 14 Shelby Distribution Partners, L.P. 33% General 182 (329) ---- ----- $194 $(315) ==== =====
4. NOTE RECEIVABLE: In June 1996, the Company obtained management agreements for eight hotel properties owned by entities unrelated to the Company. In connection with acquiring these contracts, the Company loaned $3,000,000 to the owners through an unsecured promissory note with interest at 10% per annum. During 1996, the note receivable was reduced by approximately $1,500,000 primarily from proceeds of new debt financing and two hotel property sales by the owners. On September 15, 1998, the owners of the hotels effectively terminated their management agreement with the Company. Pursuant to the note agreement, upon termination of the Company as manager of the hotels, the remaining principal balance with unpaid interest is due within one year from the date of termination. As of December 31, 1998, no payments have been made to the Company subsequent to the effective termination of the management contracts. Accrued unpaid interest was $192,000 and $40,000 at December 31, 1998 and 1997, respectively. 30 32 5. PREFERRED AND COMMON STOCK: In connection with the Company's acquisition by Doubletree, the Company retired all of its then outstanding common stock and issued 100 new shares of common stock to Doubletree. In addition, Doubletree made an $18,500,000 capital contribution to the Company. The proceeds from this capital contribution were used by the Company to purchase Series A Preferred Stock issued by the REIT, as discussed in Note 3. In 1995, the Company granted a total of 12 shares of common stock to certain employees. These shares were recorded at the estimated fair value on the date of grant. Such vesting requirements are contingent upon the employees' continued employment with the Company. The value of the shares at the grant date was charged to compensation expense over the four-year period. 6. INCOME TAXES: Effective December 19, 1997, the Company's results of operations are included in Promus' consolidated U.S. Federal income tax return. Prior to then, income taxes were the responsibility of the Company. Under the terms of a tax sharing agreement, the Company makes payments to its Parent for a proportionate allocation of its consolidated income tax expense based on statutory tax rates then in effect. The Company's deferred tax liabilities are primarily comprised of temporary differences related to income from joint ventures and taxes, other than income taxes. Income tax expense attributable to income consisted of the following (in thousands):
1998 1997 1996 ------ ------ ------ Current Federal $5,222 $4,999 $3,592 State 645 471 -- Deferred Federal 424 -- -- State 52 -- -- ------ ------ ------ $6,343 $5,470 $3,592 ====== ====== ====== Income tax expense at federal statutory rate 35.0% 35.0% 35.0% State taxes, net of federal tax benefit 4.1% 3.3% -- ------ ------ ------ 39.1% 38.3% 35.0% ====== ====== ======
The Company remitted $6,343,000 and $5,470,000 to Promus for income tax payments for the years ended December 31, 1998 and 1997, respectively. 31 33 7. COMMITMENTS AND CONTINGENCIES: The Company leases office space and equipment under noncancelable operating lease agreements expiring at varying intervals through 2002. The future minimum rental payments required under these leases as of December 31, 1998 were as follows (in thousands):
Year Amount ---- ------ 1999 $ 312 2000 315 2001 315 2002 79 ------ $1,021 ======
Rental expense, except for the lease expense described below, was approximately $301,000 for the years ended December 31, 1998 and 1997. The Company has future lease commitments to the Partnership under percentage leases through 2015. At December 31, 1998, minimum future rental payments under percentage leases were as follows (in thousands):
Year Amount ---- -------- 1999 $ 31,578 2000 30,810 2001 30,810 2002 30,810 2003 30,229 Thereafter 70,890 -------- $225,127 ========
The Company paid base rents of approximately $33,665,000 and $34,956,000 and percentage rents in excess of base rents of approximately $49,885,000 and $45,093,000 for the years ended December 31, 1998 and 1997, respectively. At December 31, 1998 and 1997 the Company had a net payable to the Partnership of $9,425,000 and $8,901,000, respectively, for percentage rents and other transactions. The Company has management agreements with two hotel operators to manage four of the leased hotels. The management agreements have terms ranging from 10 to 20 years and provide for a fee based on a percentage of each hotel's revenue. 8. RELATED PARTY TRANSACTIONS: The Company has an intercompany receivable from its Parent subject to an informal agreement where excess cash of the Company is transferred to the Parent. No interest is earned on this receivable. Certain of the partnerships in which the Company has an interest and certain former stockholders owed the company approximately $321,000 for advances and other transactions at December 31, 1998 and 1997. The Company has recognized, as income, approximately $1,529,000 and $1,564,000 of distributions received from the Partnership with respect to Series A Preferred Stock, Partnership units and REIT common stock owned by the Company for the years ended December 31, 1998 and 1997, respectively. 32 34 8. RELATED PARTY TRANSACTIONS (Continued): The Company maintained a consulting agreement ("Agreement") with Hospitality Advisory Services, Inc. ("HAS"). The owners of HAS are officers of the REIT and were stockholders of the Company. The Agreement was terminated effective February 27, 1996 and was replaced with new consulting agreements with two former officers of the Company. These consulting agreements were terminated by the Company on February 27, 1997. Total fees paid on these consulting agreements were $35,000 in 1997. 9. EMPLOYEE BENEFIT PLANS: The Company maintains an employee savings plan under Section 401(k) of the Internal Revenue Code. This plan covers all full-time employees of the Company who are 21 years of age and have completed at least one year of continuous service. The participants' maximum contributions are limited under applicable IRS regulations. The Company currently matches 50% of employee contributions to the plan, up to a maximum of 2% of employee compensation. Vesting in the employer contribution account is graduated over a seven year period. Contribution expense related to this plan was approximately $139,000 and $151,000 for the years ended December 31, 1998 and 1997, respectively. 10. FAIR VALUE OF FINANCIAL INSTRUMENTS: Statement of Financial Accounting Standards No. 107, "Disclosures About Fair Value of Financial Instruments," defines the fair value of a financial instrument as the amount at which the instrument could be exchanged in a current transaction between willing parties. The Company's financial instruments consist primarily of cash and cash equivalents, trade receivables, note receivable, due from Parent, investments in the REIT, investments in partnerships and ventures, accounts payable and accrued expenses and Percentage Lease payable, each as included in the balance sheets under such captions. With the exception of the note receivable and investments in partnerships and ventures, the carrying amounts of all other classes of financial instruments approximate fair value due to the short maturity of those instruments or, in the case of marketable equity securities, are carried at their estimated fair value. The Company has determined that the fair value of its note receivable is not significantly different from its carrying value based on interest rate and payment terms the Company would currently offer on notes with similar security to borrowers of similar creditworthiness. The fair value of the partnership interests, which is carried at cost, is estimated based upon the residual value to the Company in the respective partnership's net assets. Partnership units, which are convertible into REIT common stock, have a carrying value of $841,000 and an estimated fair value of approximately $1,270,000 and $1,553,000 at December 31, 1998 and 1997, respectively. Additionally, the fair value of the Series A Convertible Preferred Stock was $11,928,000 and $19,415,000 at December 31, 1998 and 1997, respectively, based on the quoted market value of the REIT's common stock. 11. YEAR 2000: With the approach of the year 2000, there has been concern over the impact of this event on computer systems worldwide. The Company has assessed the impact of the year 2000 on its business and has developed a project plan to remediate its current status of systems not yet deemed year 2000 compliant. The Company spent $60,000 in 1998 on year 2000 system upgrades, and expects to spend approximately $340,000 in 1999 to complete its year 2000 compliance efforts. 33 35 11. YEAR 2000 (Continued): The Company has begun developing a formal contingency plan for year 2000 non-compliance and expects the contingency plan to be complete by the second quarter 1999. In the event of the Company's non-compliance, management does not believe there will be a significant adverse effect on its operations or reporting the results thereof. The Company and the hotels that it manages are also dependent on external businesses that supply them with goods and services such as front office hotel systems and utilities, as well as telephone, financial and food services. The Company is not able to control or ensure that all of these businesses will be year 2000 compliant and, accordingly, such lack of compliance may negatively affect the Company and its managed hotels. ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE. None. PART III ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT Incorporated herein by reference to the sections entitled "Election of Class III Directors" and "Executive Compensation" in the Company's definitive proxy statement to be filed with the Securities and Exchange Commission within 120 days following the end of the year covered by this Form 10-K with respect to its Annual Meeting of Shareholders to be held on April 28, 1999 (the "Proxy Statement"). See also Item 1. Business-Executive Officers. ITEM 11. EXECUTIVE COMPENSATION Incorporated herein by reference to the section entitled "Executive Compensation" in the Proxy Statement. ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT Incorporated herein by reference to the sections entitled "Ownership of the Company's Common Stock" in the Proxy Statement. ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS Incorporated herein by reference to the section entitled "Certain Relationships and Related Transactions" in the Proxy Statement. 34 36 PART IV ITEM 14. EXHIBITS, FINANCIAL STATEMENTS, SCHEDULES AND REPORTS ON FORM 8-K (a) Financial Statements The following financial statements included in the Company's Annual Report to Shareholders for the year ended December 31, 1998 are incorporated by reference: Report of Independent Accountants Consolidated Balance Sheets as of December 31, 1998 and 1997 Consolidated Statements of Income for years ended December 31, 1998, 1997 and 1996 Consolidated Statements of Shareholders' Equity for years ended December 31, 1998, 1997 and 1996 Consolidated Statements of Cash Flows for years ended December 31, 1998, 1997 and 1996 Notes to Consolidated Financial Statements The following financial statement schedules and report of independent accountants on the financial statement schedules are included in this report on Form 10-K: Report of Independent Accountants on the Financial Statement Schedules Schedule III - Real Estate and Accumulated Depreciation for RFS Hotel Investors, Inc. The following financial statements of RFS, Inc. are included in this report on Form 10-K: Independent Auditors' Report Consolidated Balance Sheets as of December 31, 1998 and 1997 Consolidated Statements of Operations for years ended December 31, 1998, 1997 and 1996 Consolidated Statements of Stockholder's Equity for years ended December 31, 1998, 1997 and 1996 Consolidated Statements of Cash Flows for year ended December 31, 1998, 1997 and 1996 Notes to Consolidated Financial Statements (b) Reports on Form 8-K No filings of Form 8-K were made during the last quarter of 1998. 35 37 (c) Exhibits
Exhibit Number Exhibit ------- ------- 3.1 - Second Restated Charter of the Registrant (previously filed as Exhibit 3.1 to the Company's Current Report on Form 8-K dated March 6, 1996 and incorporated herein by reference). 3.2 - By-Laws of the Registrant (previously filed as Exhibit 3.2 to the Company's Form S-11 Registration Statement, Registration No. 33-63696 and incorporated herein by reference). 3.3 - Second Amended and Restated Agreement of Limited Partnership of RFS Partnership, L.P., (previously filed as Exhibit 3.3 to the Company's Form S-3 Registration Statement, Registration No. 33-83450 and incorporated herein by reference). 3.3(a) - Third Amended and Restated Agreement of Limited Partnership of RFS Partnership, L.P., (previously filed as Exhibit 4.3 to the Company's Form S-3 Registration Statement, Registration No. 333-3307 and incorporated herein by reference). 3.3(b) - Fourth Amended and Restated Agreement of Limited Partnership (previously filed as Exhibit 3.3(b) to the Company's Form 10-K for the year ended December 31, 1996 and incorporated herein by reference). 10.1 - Consolidated Lease Amendment (previously filed as Exhibit 10.3 to the Company's current report on Form 8-K, dated February 27, 1996 and incorporated herein by reference). 10.2 - Form of Future Percentage Lease (previously filed as Exhibit 10.4 to the Company's Current Report on Form 8-K, dated February 27, 1996 and incorporated herein by reference). *10.2(a) - Schedule of terms of Percentage Leases 10.3 - Form of Sale and Purchase Agreement (previously filed as Exhibit 10.2 to the Company's Form 10-K for the year ended December 31, 1994 and incorporated herein by reference). *10.3(a) - Schedule of terms of Sale and Purchase Agreements
36 38 10.4 - Second Amended and Restated Employment Agreement between RFS Managers, Inc. and Robert M. Solmson (previously filed as Exhibit 10.4 to the Company's Form 10-K for the year ended December 31, 1997, and incorporated herein by reference). 10.6 - Second Amended and Restated Employment Agreement between RFS Managers, Inc. and J. William Lovelace (previously filed as Exhibit 10.6 to the Company's Form 10-K for the year ended December 31, 1997, and incorporated herein by reference). 10.7 - Second Amended and Restated Employment Agreement between RFS Managers, Inc. and Michael J. Pascal (previously filed as Exhibit 10.6 to the Company's Form 10-K for the year ended December 31, 1997, and incorporated herein by reference). 10.9 - Master Agreement, dated February 1, 1996 (previously filed as Exhibit 10.2 to the Company's Current Report on Form 8-K dated February 27, 1996 and incorporated herein by reference). 10.9(a) - First Amendment to Master Agreement dated as of November 21, 1996 (previously filed as Exhibit 10.9(a) to the Company's Form 10-K for the year ended December 31, 1996 and incorporated herein by reference). 10.10 - Indenture dated as of November 21, 1996 (previously filed as Exhibit 10.10 to the Company's Form 10-K for the year ended December 31, 1996 and incorporated herein by reference). 10.11 - Form of Deed of Trust dated as of November 21, 1996 (previously filed as Exhibit 10.11 to the Company's Form 10-K for the year ended December 31, 1996 and incorporated herein by reference). 10.12 - Second Amended and Restated Revolving Credit and Term Loan Agreement (previously filed as Exhibit 10.12 to the Company's Form 10-K for the year ended December 31, 1997 and incorporated herein by reference.) *10.13 - Third Amended and Restated Revolving Credit Agreement *13.1 - Relevant Portions of the Company's Annual Report to Shareholders for the year ended December 31, 1998 *21.1 - List of Subsidiaries of the Registrant *23.1 - Consent of PricewaterhouseCoopers LLP
37 39 *23.2 - Consent of KPMG LLP *23.3 - Consent of Arthur Andersen LLP *27.1 - Financial Data Schedule (for SEC use only)
---------------- * Filed herewith 38 40 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant as duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. RFS HOTEL INVESTORS, INC. By: /s/ Robert M. Solmson --------------------- Robert M. Solmson Chairman of the Board and Chief Executive Officer Date: March 26, 1999 Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated:
SIGNATURES TITLE DATE /s/ Robert M. Solmson - ------------------------------ Robert M. Solmson Chairman of the Board, March 26, 1999 Chief Executive Officer and President /s/ Michael J. Pascal - ------------------------------ Michael J. Pascal Chief Financial Officer March 26, 1999 Secretary and Treasurer (principal financial and accounting officer) /s/ H. Lance Forsdick - ------------------------------ H. Lance Forsdick, Sr. Director March 26, 1999 /s/ Bruce E. Campbell, Jr. - ------------------------------ Bruce E. Campbell, Jr. Director March 26, 1999 /s/ Michael E. Starnes - ------------------------------ Michael E. Starnes Director March 26, 1999 /s/ John W. Stokes, Jr. - ------------------------------ John W. Stokes, Jr. Director March 26, 1999 /s/ Harry W. Phillips, Sr. - ------------------------------ Harry W. Phillips, Sr. Director March 26, 1999 /s/ R. Lee Jenkins - ------------------------------ R. Lee Jenkins Director March 26, 1999
39 41 REPORT OF INDEPENDENT ACCOUNTANTS ON FINANCIAL STATEMENT SCHEDULE To the Board of Director of RFS Hotel Investors, Inc. Our audits of the consolidated financial statements referred to in our report dated January 27, 1999, except for Note 12 as to which the date is February 16, 1999, appearing on page 19 of the 1998 Annual Report to Shareholders of RFS Hotel Investors, Inc. (which report and consolidated financial statements are incorporated by reference in this Annual Report on Form 10-K) also included an audit of the financial statement schedule listed in Item 14(a)(2) of this Form 10-K. In our opinion, this financial statement schedule presents fairly, in all material respects, the information set forth therein when read in conjunction with the related consolidated financial statements. PricewaterhouseCoopers LLP Memphis, Tennessee January 27, 1999, except for Note 12 as to which the date is February 16, 1999 40 42 RFS HOTEL INVESTORS, INC. SCHEDULE III-REAL ESTATE AND ACCUMULATED DEPRECIATION (IN THOUSANDS) AS OF DECEMBER 31, 1998
Cost Capitalize Gross Amount at Which Carried Initial Cost Subsequent to Acquisition at end of Period ------------------------ ------------------------- ----------------------------- Buildings and Buildings and Buildings and Description Encumbrances Land Improvements Land Improvements Land Improvements ----------- ------------ ---- ------------- ---- ------------- ---- ------------- Holiday Inn Clayton, MO (1) $1,599 $4,968 $1,376 $1,599 $6,344 Holiday Inn Columbia, SC (1) 790 3,573 456 790 4,029 Holiday Inn Express Louisville, KY (1) 1,328 3,808 770 1,328 4,578 Comfort Inn Marietta, GA (2) 989 5,509 129 989 5,638 Holiday Inn Lafayette, LA (1) 700 8,858 806 700 9,664 Residence Inn Kansas City, MO (2) 392 5,344 80 392 5,424 Comfort Inn Ft Mill, SC (2) 763 6,612 138 763 6,750 Hampton Inn Ft Lauderdale, FL (1) 590 4,664 242 590 4,906 Holiday Inn Express Arlington Heights, IL (1) 350 4,121 393 350 4,514 Hampton Inn Denver, CO none 500 8,098 360 500 8,458 Holiday Inn Express Downers Grove, IL (1) 400 5,784 356 400 6,140 Comfort Inn Farmington Hills, MI (2) 525 4,118 186 525 4,304 Hampton Inn Indianapolis, IN (2) 475 8,008 262 475 8,270 Hampton Inn Lincoln, NE (1) 350 4,829 304 350 5,133 Hampton Inn Bloomington, MN (2) 375 8,657 174 375 8,831 Holiday Inn Express Bloomington, MN (1) 780 6,910 $152 191 932 7,101 Hampton Inn Minnetonka, MN (1) 475 5,066 126 475 5,192 Hampton Inn Oklahoma City, OK (2) 530 6,826 418 530 7,244 Hampton Inn Omaha, NE (2) 450 6,362 445 450 6,807 Hampton Inn Tulsa, OK (1) 350 5,715 405 350 6,120 Life upon Which Accumulated Net Book Depreciation in Depreciation Value Latest Income Buildings and Buildings and Date of Statement is Total Improvements Improvements Acquisition Calculated - ----- ------------ ------------ ----------- ---------- $7,943 $1,587 $4,757 1993 40 4,819 535 3,494 1993 40 5,906 575 4,003 1993 40 6,627 711 4,927 1993 40 10,364 1,218 8,446 1993 40 5,816 664 4,760 1994 40 7,513 794 5,956 1994 40 5,496 565 4,341 1994 40 4,864 501 4,013 1994 40 8,958 947 7,511 1994 40 6,540 679 5,461 1994 40 4,829 482 3,822 1994 40 8,745 935 7,335 1994 40 5,483 575 4,558 1994 40 9,206 998 7,833 1994 40 8,033 801 6,300 1994 40 5,667 587 4,605 1994 40 7,774 804 6,440 1994 40 7,257 753 6,054 1994 40 6,470 682 5,438 1994 40
continued 43 RFS HOTEL INVESTORS, INC. SCHEDULE III-REAL ESTATE AND ACCUMULATED DEPRECIATION (IN THOUSANDS) AS OF DECEMBER 31, 1998
Cost Capitalize Gross Amount at Which Carried Initial Cost Subsequent to Acquisition at end of Period ------------------------ ------------------------- ----------------------------- Buildings and Buildings and Buildings and Description Encumbrances Land Improvements Land Improvements Land Improvements ----------- ------------ ---- ------------- ---- ------------- ---- ------------- Hampton Inn Warren, MI (1) $ 500 $ 2,814 $ 205 $ 500 $ 3,019 Holiday Inn Express Wauwatosa, WI (2) 700 4,926 437 700 5,363 Residence Inn Fishkill, NY $1,820 2,280 10,484 155 2,280 10,639 Residence Inn Providence, RI (2) 1,385 7,742 240 1,385 7,982 Residence Inn Tyler, TX (1) 855 6,212 219 855 6,431 Hampton Inn Memphis, TN (2) 980 6,157 61 980 6,218 Residence Inn Ft Worth, TX (2) 985 10,726 104 985 10,830 Residence Inn Wilmington, DE (1) 1,100 8,488 404 1,100 8,892 Residence Inn Torrance, CA (1) 2,600 17,789 779 2,600 18,568 Residence Inn Ann Arbor, MI (2) 525 4,461 227 3,192 752 7,653 Holiday Inn Flint, MI (1) 1,220 11,994 307 1,220 12,301 Residence Inn Charlotte, NC (2) 850 3,844 159 174 1,009 4,018 Hawthorn Suites Atlanta, GA (1) 3,000 12,886 740 3,000 13,626 Holiday Inn Express Austin, TX (2) 500 4,737 101 500 4,838 Hampton Inn Lakewood, CO (2) 957 6,790 86 957 6,876 Hampton Inn Hattiesburg, MS (2) 785 4,653 1,517 785 6,170 Hampton Inn Laredo, TX (1) 1,037 4,116 (3) 1,037 4,113 Residence Inn Atlanta, GA none 1,306 10,200 132 1,306 10,332 Holiday Inn Crystal Lake, IL (2) 1,685 10,932 85 1,685 11,017 Residence Inn Orlando, FL (2) 1,045 8,880 97 1,045 8,977 Life upon Which Accumulated Net Book Depreciation in Depreciation Value Latest Income Buildings and Buildings and Date of Statement is Total Improvements Improvements Acquisition Calculated - ----- ------------ ------------ ----------- ---------- $ 3,519 $ 334 $ 2,685 1994 40 6,063 588 4,775 1994 40 12,919 1,165 9,474 1994 40 9,367 865 7,117 1994 40 7,286 698 5,733 1994 40 7,198 657 5,561 1994 40 11,815 1,142 9,688 1994 40 9,992 930 7,962 1994 40 21,168 1,943 16,625 1994 40 8,405 582 7,071 1994 40 13,521 1,264 11,037 1994 40 5,027 409 3,609 1994 40 16,626 1,329 12,297 1994 40 5,338 478 4,360 1995 40 7,833 654 6,222 1995 40 6,955 533 5,637 1995 40 5,150 351 3,762 1995 40 11,638 834 9,498 1995 40 12,702 891 10,126 1995 40 10,022 724 8,253 1995 40
continued 44 RFS HOTEL INVESTORS, INC. SCHEDULE III-REAL ESTATE AND ACCUMULATED DEPRECIATION, CONTINUED (IN THOUSANDS) AS OF DECEMBER 31, 1998
Cost Capitalize Gross Amount at Which Carried Initial Cost Subsequent to Acquisition at end of Period ------------------------ ------------------------- ----------------------------- Buildings and Buildings and Buildings and Description Encumbrances Land Improvements Land Improvements Land Improvements ----------- ------------ ---- ------------- ---- ------------- ---- ------------- Residence Inn Sacramento, CA (2) $1,000 $13,122 $135 $1,000 $13,257 Doubletree Hotel Del Mar, CA (2) 1,500 13,535 64 1,500 13,599 Hampton Inn Plano, TX (1) 959 5,178 17 959 5,195 Courtyard by Marriott Flint, MI (1) 600 4,852 179 600 5,031 Hampton Inn Sedona, AZ none 1,464 3,858 18 1,464 3,876 Hampton Inn Chandler, AZ none 485 3,950 1 485 3,951 Hampton Inn Houston, TX (1) 606 4,919 0 606 4,919 Sheraton Hotel Milpitas, CA (2) 5,253 23,169 0 5,253 23,169 Sheraton Four Points Sunnyvale, CA (2) 785 22,401 0 785 22,401 Sheraton Four Points Pleasant, CA (2) 1,935 19,251 0 1,935 19,251 Sheraton Four Points Bakersfield, CA (2) 1,390 7,554 1 1,390 7,555 Beverly Heritage Milpitas, CA none 5,250 25,118 64 5,250 25,182 Sheraton Hotel Birmingham, AL $5,000 3,108 13,491 (5) 3 3,103 13,494 Life upon Which Accumulated Net Book Depreciation in Depreciation Value Latest Income Buildings and Buildings and Date of Statement is Total Improvements Improvements Acquisition Calculated ----- ------------ ------------ ----------- ---------- $14,257 $ 987 $12,270 1996 40 15,099 901 12,698 1996 40 6,154 324 4,871 1996 40 5,631 260 4,771 1996 40 5,340 136 3,740 1997 40 4,436 155 3,796 1997 40 5,525 237 4,682 1997 40 28,422 1,158 22,011 1997 40 23,186 1,120 21,281 1997 40 21,186 962 18,289 1997 40 8,945 378 7,177 1997 40 30,432 996 24,186 1997 40 16,597 422 13,072 1997 40
continued 45 RFS HOTEL INVESTORS, INC. SCHEDULE III-REAL ESTATE AND ACCUMULATED DEPRECIATION, CONTINUED (IN THOUSANDS) AS OF DECEMBER 31, 1998
Cost Capitalize Gross Amount at Which Carried Initial Cost Subsequent to Acquisition at end of Period ------------------------ ------------------------- ----------------------------- Buildings and Buildings and Buildings and Description Encumbrances Land Improvements Land Improvements Land Improvements ----------- ------------ ---- ------------- ---- ------------- ---- ------------- Residence Inn Jacksonville, FL none $ 1,339 $ 4,990 $(6) $ 1,339 $ 4,984 Residence Inn West Palm Beach, FL none 1,293 4,025 1,293 4,025 Hampton Inn Jacksonville, FL none 1,047 4,375 1,047 4,375 Homewood Suites Chandler, AZ none 485 4,601 485 4,601 Hotel Rex San Francisco, CA none 3,000 11,039 3,000 11,039 Ramada Inn San Francisco, CA $19,062 3,007 28,308 3,007 10,677 TownPlace Suites Ft. Worth, TX none 753 4,721 753 4,721 Unimproved land Crystal Lake, IL none 252 252 Unimproved land Olathe, KS none 500 500 Unimproved land Miami, FL none 914 914 Unimproved land Miami, FL none 836 836 ----------------------------------------------------------------------------------------------------- Totals $25,882 $74,767 $499,118 $533 $17,125 $75,300 $498,612 ===================================================================================================== Life upon Which Accumulated Net Book Depreciation in Depreciation Value Latest Income Buildings and Buildings and Date of Statement is Total Improvements Improvements Acquisition Calculated ----- ------------ ------------ ----------- ---------- $ 6,323 $ 145 $ 4,839 1997 40 5,318 83 3,942 1998 40 5,422 90 4,285 1998 40 5,086 84 4,517 1998 40 14,039 184 10,855 1998 40 13,684 593 10,084 1998 40 5,474 4,721 1998 40 252 0 1995 n/a 500 0 1995 n/a 914 0 1997 n/a 836 0 1997 n/a - ----------------------------------------- $573,912 $40,979 $457,633 =========================================
(1) Property is collateral for the Line of Credit. (2) Property is collateral for long-term, fixed rate debt. EX-10.2.A 2 SCHEDULE OF TERMS OF PERCENTAGE LEASES 1 EXHIBIT 10.2(a) RFS HOTEL INVESTORS, INC. LEASE TERMS for leases as of December 31, 1998
Date of Termination Tier 1 Room Franchise City State Inception Date Start Date Base Rent Revenue --------- ---- ----- --------- ---- ---------- --------- ------- Holiday Inn Louisville KY 08/13/93 08/13/2008 08/13/93 409,727.00 1,537,499.00 Holiday Inn Clayton MO 08/13/93 08/13/2008 01/01/98 557,228.00 2,505,320.00 Holiday Inn Columbia SC 08/13/93 08/13/2008 08/13/93 368,754.00 1,475,513.00 Holiday Inn Lafayette LA 10/26/93 10/26/2008 10/26/93 700,000.00 2,750,000.00 Comfort Inn Marietta GA 12/17/93 12/17/2008 12/17/93 472,500.00 1,400,000.00 Residence Inn Kansas City MO 02/02/94 02/02/2009 02/02/94 406,000.00 1,400,000.00 Comfort Inn Ft. Mill SC 04/29/94 04/29/2009 04/29/94 518,000.00 1,250,000.00 Hampton Inn Ft. Lauderdale FL 04/19/94 04/19/2009 04/19/94 364,000.00 1,450,000.00 Holiday Inn Express Arlington Heights IL 06/07/94 06/07/2009 06/07/94 289,961.00 1,100,000.00 Holiday Inn Express Bloomington MN 06/07/94 06/07/2009 06/07/94 515,793.00 1,500,000.00 Hampton Inn Bloomington MN 06/07/94 06/07/2009 06/07/94 613,288.00 1,750,000.00 Hampton Inn Denver CO 06/07/94 06/07/2009 06/07/94 568,981.00 1,425,000.00 Holiday Inn Express Downers Grove IL 06/07/94 06/07/2009 06/07/94 409,850.00 1,100,000.00 Comfort Inn Farmington Hills MI 06/07/94 06/07/2009 06/07/94 303,594.00 1,050,000.00 Hampton Inn Indianapolis IN 06/07/94 06/07/2009 06/07/94 556,693.00 1,400,000.00 Hampton Inn Lincoln NE 06/07/94 06/07/2009 06/07/94 342,202.00 950,000.00 Hampton Inn Minnetonka MN 06/07/94 06/07/2009 06/07/94 348,052.00 1,100,000.00 Hampton Inn Oklahoma City OK 06/07/94 06/07/2009 06/07/94 489,631.00 1,400,000.00 Hampton Inn Omaha NE 06/07/94 06/07/2009 06/07/94 463,545.00 1,250,000.00 Hampton Inn Tulsa OK 06/07/94 06/07/2009 06/07/94 423,390.00 1,350,000.00 Hampton Inn Warren MI 06/07/94 06/07/2009 06/07/94 203,688.00 975,000.00 Holiday Inn Express Wauwatosa WI 06/07/94 06/07/2009 06/07/94 373,516.00 1,200,000.00 Residence Inn Tyler TX 08/12/94 08/12/2009 08/12/94 512,750.00 1,700,000.00 Residence Inn Fishkill NY 07/29/94 07/29/2009 07/29/94 888,822.00 2,200,000.00 Residence Inn Warwick RI 07/29/94 07/29/2009 07/29/94 651,994.00 1,875,000.00 Hampton Inn Memphis TN 09/30/94 09/30/2009 09/30/94 516,250.00 1,250,000.00 Residence Inn Ft. Worth TX 10/01/94 10/01/2009 10/01/94 812,000.00 2,300,000.00 Residence Inn Torrance CA 10/15/94 10/15/2009 10/15/94 1,365,000.00 4,000,000.00 Residence Inn Wilmington DE 10/15/94 10/15/2009 10/15/94 703,500.00 2,000,000.00 Residence Inn Ann Arbor MI 10/15/94 10/15/2009 10/15/94 308,000.00 1,150,000.00 Holiday Inn Flint MI 10/29/94 10/29/2009 10/29/94 933,100.00 2,750,000.00 Residence Inn Charlotte NC 11/15/94 11/15/2009 11/15/94 315,000.00 1,150,000.00 Hawthorn Suites Hotel Atlanta GA 12/21/94 12/21/2009 12/21/94 1,194,200.00 3,200,000.00 Holiday Inn Express Austin TX 01/03/95 01/03/2010 01/03/95 367,500.00 1,300,000.00 Hampton Inn Lakewood CO 03/16/95 03/16/2010 03/16/95 553,000.00 1,600,000.00 Hampton Inn Hattiesburg MS 04/20/95 04/20/2010 04/20/95 385,000.00 1,150,000.00 Hampton Inn Laredo TX 07/05/95 07/05/2010 07/05/95 409,255.00 500,000.00 Residence Inn Atlanta GA 10/02/95 10/02/2010 10/02/95 815,500.00 1,500,000.00 Holiday Inn Crystal Lake IL 10/05/95 10/05/2010 10/05/95 1,016,000.00 2,400,000.00 Residence Inn Orlando FL 10/19/95 10/19/2010 10/19/95 707,000.00 2,350,000.00 Residence Inn Sacramento CA 01/12/96 01/12/2011 01/12/96 1,008,000.00 2,975,000.00 Hampton Inn Plano TX 07/15/96 07/15/2011 07/15/96 490,000.00 1,100,000.00 Hampton Inn Houston TX 11/12/96 11/12/2011 11/12/96 420,052.00 1,335,000.00 Courtyard Flint MI 12/19/96 12/19/2011 12/19/96 427,000.00 1,540,000.00 Hampton Inn Chandler AZ 05/11/97 05/11/2012 05/11/97 369,514.00 1,580,000.00 Hampton Inn Sedona AZ 06/17/97 06/17/2007 06/17/97 398,397.00 1,155,000.00 Sheraton Hotel Milpitas CA 01/01/97 01/01/2012 01/01/97 2,199,601.00 3,506,412.00 Sheraton Four Points Sunnyvale CA 01/01/97 01/01/2012 01/01/97 1,733,847.00 2,585,969.00 Sheraton Four Points Pleasanton CA 01/01/97 01/01/2012 01/01/97 1,585,783.00 2,407,568.00 Sheraton Four Points Bakersfield CA 01/01/97 01/01/2012 01/01/97 675,768.00 1,513,792.00 Doubletree Hotel San Diego CA 05/30/96 05/30/2011 05/30/96 1,162,000.00 2,800,000.00 Beverly Heritage Milpitas CA 06/23/97 06/23/2007 06/23/97 2,395,750.00 4,000,000.00 Residence Inn Jacksonville FL 10/12/97 10/12/2007 10/12/97 575,658.00 1,934,250.00 Hampton Inn Jacksonville FL 03/01/98 03/01/2008 03/01/98 428,871.00 1,335,000.00 Residence Inn West Palm Beach FL 02/01/98 02/01/2008 02/01/98 420,001.00 1,700,000.00 Ramada Plaza San Francisco CA 06/05/98 06/04/2003 06/05/98 2,812,226.00 5,950,000.00 Tier 1 Tier 2 Room Tier 2 Tier 3 Room Tier 3 Top Tier Food Beverage Other Revenue Percentage Revenue Percentage Revenue Percentage Percentage Percentage Percentage Percentage - ---------- ------- ---------- ------- ---------- ---------- ---------- ---------- ---------- 23.00% 250,000.00 45.00% 0.00 0.00% 60.00% 5.00% 20.00% 0.00% 17.00% 250,000.00 30.00% 2,313,929.00 50.00% 60.00% 5.00% 20.00% 0.00% 17.50% 250,000.00 30.00% 0.00 0.00% 50.00% 5.00% 20.00% 0.00% 24.00% 250,000.00 35.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 27.50% 0.00 0.00% 0.00 0.00% 60.00% 5.00% 20.00% 0.00% 24.00% 250,000.00 45.00% 0.00 0.00% 60.00% 5.00% 20.00% 0.00% 32.00% 0.00 0.00% 0.00 0.00% 65.00% 5.00% 20.00% 0.00% 27.50% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 38.50% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 27.50% 0.00 0.00% 0.00 0.00% 72.00% 5.00% 20.00% 0.00% 41.50% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 27.50% 0.00 0.00% 0.00 0.00% 76.50% 5.00% 20.00% 0.00% 34.50% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 36.00% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 40.50% 0.00 0.00% 0.00 0.00% 72.00% 5.00% 20.00% 0.00% 30.50% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 38.50% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 32.50% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 38.00% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 33.50% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 33.50% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 40.50% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 26.00% 0.00 0.00% 0.00 0.00% 67.50% 5.00% 20.00% 0.00% 27.50% 0.00 0.00% 0.00 0.00% 72.00% 5.00% 20.00% 0.00% 31.00% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 33.00% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 41.00% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 35.00% 0.00 0.00% 0.00 0.00% 69.00% 5.00% 20.00% 0.00% 36.00% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 24.00% 0.00 0.00% 0.00 0.00% 69.00% 5.00% 20.00% 0.00% 40.00% 250,000.00 65.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 24.00% 0.00 0.00% 0.00 0.00% 69.00% 5.00% 20.00% 0.00% 36.50% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 36.50% 0.00 0.00% 0.00 0.00% 65.00% 5.00% 20.00% 0.00% 33.50% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 36.00% 0.00 0.00% 0.00 0.00% 65.00% 5.00% 20.00% 0.00% 21.00% 800,000.00 37.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 30.00% 500,000.00 50.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 30.00% 500,000.00 50.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 25.00% 500,000.00 50.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 40.00% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 33.00% 300,000.00 50.00% 0.00 0.00% 68.00% 5.00% 20.00% 0.00% 35.00% 0.00 0.00% 0.00 0.00% 65.00% 0.00% 0.00% 0.00% 41.50% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 47.20% 275,000.00 62.00% 0.00 0.00% 72.00% 0.00% 0.00% 0.00% 43.60% 137,000.00 65.00% 0.00 0.00% 72.00% 0.00% 0.00% 0.00% 47.00% 3,357,203.00 54.30% 0.00 0.00% 65.00% 0.00% 0.00% 90.00% 45.90% 2,475,928.00 52.60% 0.00 0.00% 65.00% 5.00% 0.00% 90.00% 48.10% 2,305,118.00 57.00% 0.00 0.00% 65.00% 5.00% 0.00% 90.00% 23.50% 1,449,375.00 41.00% 0.00 0.00% 65.00% 0.00% 0.00% 90.00% 26.00% 515,000.00 45.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 53.10% 2,356,591.00 65.00% 0.00 0.00% 75.00% 5.00% 20.00% 0.00% 34.60% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 31.00% 0.00 0.00% 0.00 0.00% 70.00% 5.00% 20.00% 0.00% 44.20% 0.00 0.00% 0.00 0.00% 68.00% 0.00% 0.00% 0.00% 20.60% 830,000.00 65.00% 0.00 0.00% 75.00% 0.00% 0.00% 0.00%
EX-10.3.A 3 SCHEDULE OF TERMS OF SALE AND PURCHASE AGREEMENTS 1 EXHIBIT 10.3(a) RFS HOTEL INVESTORS, INC. SCHEDULE OF TERMS AND PURCHASE AND SALE AGREEMENTS FOR AGREEMENTS IN 1998
PURCHASE SALE PRICE PRICE -------- ----- HOTEL REX $15,000,000 RAMADA INN, FISHERMAN'S WHARF 14,500,000 EXECUTIVE INN, TUPELO, MS $4,600,000 HOLIDAY INN EXPRESS, FRANKLIN, TN 2,350,000 HAMPTON INN, LANSING, MI 4,350,000 COMFORT INN - Conyers, GA 2,430,000 Grand Rapids, MI 4,600,000 Clemson, SC 4,700,000
EX-10.13 4 THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREE 1 EXHIBIT 10.13 ================================================================================ THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT DATED AS OF DECEMBER 22, 1998 AMONG RFS PARTNERSHIP, L.P., AS BORROWER, RFS HOTEL INVESTORS, INC., AS GUARANTOR, NATIONSBANC MONTGOMERY SECURITIES LLC, AS LEAD ARRANGER, NATIONSBANK, N.A., AS AGENT AND LENDER, AND THE SEVERAL OTHER LENDERS FROM TIME TO TIME PARTIES HERETO ================================================================================ 2 TABLE OF CONTENTS ARTICLE I DEFINITIONS............................................................................................4 ARTICLE II THE CREDIT............................................................................................22 2.1 Assignment and Assumption; Conversion; Commitment Increase................................................22 2.1.1. Assignment and Assumption............................................................................22 2.1.2 Conversion............................................................................................23 2.1.3. Commitment; Notes....................................................................................23 Final Principal Payment.......................................................................................24 2.3. Ratable Loans............................................................................................24 2.4. Collateral...............................................................................................24 2.5. Unused Credit Fee........................................................................................25 2.6. Commitment Fee; Other Fees...............................................................................25 2.6.1. Commitment Fee.......................................................................................26 2.6.2. Other Fees..........................................................................................26 2.7. Minimum Amount of Each Advance...........................................................................26 2.8. Optional Principal Payments..............................................................................26 2.9. Manner of Borrowing and Method of Selecting Types and Interest Periods for New Advances; Borrowing Base; Lender Obligations............................................................................................26 2.9.1. Manner of Borrowing and Method of Selecting Types and Interest Periods for New Advances..............26 2.9.2. Borrowing Base.......................................................................................27 2.9.3. Lender Obligations...................................................................................27 2.10. Conversion and Continuation of Outstanding Advances.....................................................27 2.11. Changes in Interest Rate, Etc...........................................................................28 2.12. Rates Applicable After Default; Late Fee................................................................30 2.13. Method of Payment.......................................................................................30 2.14. Notes; Telephonic Notices...............................................................................31 2.15. Interest Payment Dates; Interest and Fee Basis..........................................................31 2.16. Notification of Advances, Interest Rates and Prepayments................................................31 2.17. Lending Installations...................................................................................32 2.18. Non-Receipt of Funds By the Agent.......................................................................32 2.19. Withholding Tax Exemption...............................................................................32 2.20. Voluntary Reduction of Aggregate Commitment Amount......................................................33 2.21. Usury...................................................................................................33 2.22. Application of Moneys Received by the Agent.............................................................34 ARTICLE III THE LETTER OF CREDIT SUBFACILITY....................................................................35 3.1. Obligation to Issue......................................................................................35 3.2. Types and Amounts........................................................................................35 3.3. Conditions...............................................................................................35 3.4. Procedure for Issuance of Facility Letters of Credit.....................................................36 3.5. Reimbursement Obligations, Duties of Issuing Bank........................................................37 3.6. Participation............................................................................................38 3.7. Payment of Reimbursement Obligations.....................................................................39 3.8. Compensation for Facility Letters of Credit..............................................................40 3.9. Letter of Credit Collateral Account......................................................................40 ARTICLE IV CHANGE IN CIRCUMSTANCES..............................................................................41
i 3 4.1. Yield Protection.........................................................................................41 4.2. Changes in Capital Adequacy Regulations..................................................................41 4.3. Funding Indemnification..................................................................................42 4.4. Lender Statements, Survival of Indemnity.................................................................42 4.5. Limitation on the Borrower's Liability..................................................................43 ARTICLE V CONDITIONS PRECEDENT..................................................................................43 5.1. Conditions to Closing....................................................................................43 5.2. Conditions to Each Advance, Issuance of Facility Letter of Credit and Continuation/Conversion............44 5.3 Conditions to Secured Collateral Pool.....................................................................45 5.4 Conditions to Negative Collateral Pool....................................................................49 ARTICLE VI REPRESENTATIONS AND WARRANTIES.......................................................................52 6.1. Existence................................................................................................52 6.2. Authorization and Validity...............................................................................52 6.3. No Conflict; Government Consent..........................................................................52 6.4. Financial Statements; Material Adverse Change............................................................53 6.5. Taxes....................................................................................................53 6.6. Litigation and Contingent Obligations....................................................................53 6.7. Subsidiaries.............................................................................................53 6.8. ERISA....................................................................................................54 6.9. Accuracy of Information..................................................................................54 6.10. Regulation U............................................................................................55 6.11. Material Agreements.....................................................................................55 6.12. Compliance With Laws....................................................................................55 6.13. Ownership of Collateral Pool Properties.................................................................55 6.14. Investment Company Act..................................................................................55 6.15. Public Utility Holding Company Act......................................................................55 6.16. Solvency................................................................................................56 6.17. Insurance...............................................................................................56 6.18. NYSE and REIT Status....................................................................................57 6.19. Environmental Matters...................................................................................57 6.20. Licenses, etc...........................................................................................58 6.21. Judgments...............................................................................................58 6.22. Lessee; Property Manager................................................................................58 6.23. Updated Schedules.......................................................................................59 6.24. Collateral Pool Properties..............................................................................59 ARTICLE VII COVENANTS...........................................................................................61 7.1. Financial Reporting......................................................................................61 7.2. Use of Proceeds..........................................................................................63 7.3. Notice of Default........................................................................................63 7.4. Conduct of Business......................................................................................64 7.5. Taxes....................................................................................................64 7.6. Insurance................................................................................................65 7.7. Compliance with Laws.....................................................................................65 7.8. Maintenance of Collateral Pool Properties................................................................65 7.9. Inspection...............................................................................................65 7.10. Maintenance of Status...................................................................................65 7.11. Dividends...............................................................................................65 7.12. Merger; Sale of Assets..................................................................................66
ii 4 7.13. Release of Mortgages or Negative Pledge Agreements......................................................66 7.14. Liens..................................................................................................66 7.15. Affiliates..............................................................................................67 7.16. Interest Rate Hedging...................................................................................67 7.17. Consolidated Net Worth..................................................................................68 7.18. Additional Financial Covenants..........................................................................68 (c) Total Indebtedness Limitation...........................................................................69 7.19. Environmental Matters...................................................................................70 7.19.1 Violation............................................................................................70 7.19.2. Notice to the Lenders..............................................................................71 7.19.3. Site Assessments and Information...................................................................71 7.19.4. Remedial Actions...................................................................................72 7.19.5. Indemnity..........................................................................................72 7.20. Negative Pledge Agreements..............................................................................75 7.21. Manager.................................................................................................75 7.22. Acceleration Notice.....................................................................................75 7.23. Additional Covenants....................................................................................75 7.24. Calculation of Financial Covenants Upon Property Breaches...............................................75 7.25. Leases..................................................................................................76 7.26. Franchises..............................................................................................76 ARTICLE VIII DEFAULTS............................................................................................76 ARTICLE IX ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES........................................................79 9.1. Acceleration.............................................................................................79 9.2. Amendments, Waivers, Decisions...........................................................................80 9.3. Preservation of Rights...................................................................................81 ARTICLE X GENERAL PROVISIONS....................................................................................81 10.1. Survival of Representations.............................................................................81 10.2. Governmental Regulation.................................................................................81 10.3. Taxes...................................................................................................81 10.4. Headings................................................................................................81 10.5. Entire Agreement........................................................................................81 10.6. Several Obligations; Benefits of This Agreement.........................................................82 10.7. Expenses; Indemnification...............................................................................82 10.8. Numbers of Documents....................................................................................82 10.9. Accounting..............................................................................................82 10.10. Severability of Provisions.............................................................................83 10.11. Nonliability of Lenders, Arranger, Agent...............................................................83 10.12. Publicity..............................................................................................83 10.13. Brokers................................................................................................83 10.14. Confidentiality........................................................................................83 10.15. Appraisals.............................................................................................84 10.16. CHOICE OF LAW..........................................................................................84 10.17. CONSENT TO JURISDICTION................................................................................84 10.18. WAIVER OF JURY TRIAL...................................................................................84 10.19. MANDATORY ARBITRATION..................................................................................84 10.20. Year 2000 Problem.....................................................................................86 ARTICLE XI THE AGENT AND AGREEMENTS AMONG LENDERS...............................................................86
iii 5 11.1. Appointment.............................................................................................86 11.2. Powers..................................................................................................86 11.3. General Immunity........................................................................................86 11.4. No Responsibility for Loans, Recitals, etc..............................................................87 11.5. Action on Instructions of Lenders.......................................................................87 11.6. Employment of Agents and Counsel........................................................................87 11.7 Reliance on Documents, Counsel...........................................................................87 11.8. Agent's Reimbursement and Indemnification...............................................................87 11.9. Rights as a Lender......................................................................................88 11.10. Lender Credit Decision; Non-Reliance on Agents and Other Lenders.......................................88 11.11. Resignation of Agent; Removal of Agent; Successor Agent................................................89 11.12. Notice of Defaults.....................................................................................90 11.13. Requests for Approval..................................................................................90 11.14. Copies of Documents....................................................................................90 11.15. Defaulting Lenders....................................................................................90 ARTICLE XII RATABLE PAYMENTS....................................................................................91 ARTICLE XIII BENEFIT OF AGREEMENT; PARTICIPATIONS; ASSIGNMENTS..................................................91 13.1. Successors and Assigns..................................................................................91 13.2 Participations...........................................................................................92 13.2.1. Permitted Participants; Effect.....................................................................92 13.2.2. Voting Rights......................................................................................92 13.3. Assignments.............................................................................................92 13.3.1. Permitted Assignments...............................................................................92 13.3.2. Effect; Effective Date.............................................................................93 13.4. Dissemination of Information............................................................................94 13.5. Tax Treatment...........................................................................................94 13.6. Possession of Loan Documents and Register...............................................................94 ARTICLE XIV NOTICES.............................................................................................95 14.1. Giving Notice...........................................................................................95 14.2. Change of Address.......................................................................................95 14.3. Accounts................................................................................................95 ARTICLE XV COUNTERPARTS.........................................................................................95
iv 6 TABLE OF CONTENTS EXHIBITS Exhibit A Form of Note Exhibit B Form of Opinion Exhibit C Form of Compliance Certificate Exhibit D Assignment Agreement Exhibit E Loan/Credit Related Money Transfer Instruction Exhibit F Minimum Specifications for Environmental Investigations Exhibit G Secured Collateral Pool Exhibit H Negative Collateral Pool Exhibit I-1 Borrowing Notice Exhibit I-2 Conversion/Continuation Notice Exhibit I-3 Letter of Credit Request SCHEDULES Schedule 1 Subsidiaries and Investment Affiliates Schedule 2 Indebtedness and Liens Schedule 3 Plans and Multiemployer Plans Schedule 4 Environmental Disclosures Schedule 5 Noncompliance with Laws Schedule 6 Litigation and Investigations Schedule 7 Contingent Obligations Schedule 8 Indebtedness Defaults Schedule 9 Lessees and Managers other than RFS, Inc. v 7 THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT This Third Amended and Restated Revolving Credit Agreement, dated as of December ___, 1998 is among RFS PARTNERSHIP, L.P., a Tennessee limited partnership, (the "Borrower"), RFS HOTEL INVESTORS, INC., a Tennessee corporation (the "Guarantor"), the several banks, financial institutions and other entities from time to time parties to this Agreement (collectively, the "Lenders"), and NATIONSBANK, N.A., a national banking association, (the "Agent"). RECITALS A. The Borrower is primarily engaged in the business of purchasing, developing, owning, operating, leasing, managing, financing and selling Hotel Properties (as defined herein). B. The Guarantor is the sole general partner of the Borrower and the Guarantor is qualified as a real estate investment trust with its common stock listed on the New York Stock Exchange. C. Boatmen's Bank of Tennessee ("BBOT") has heretofore made loans available to the Guarantor, formerly as borrower, in the maximum aggregate principal amount of $75,000,000 (hereinafter as modified and/or increased called the "Facility"), as set forth in that certain First Amended Revolving Credit and Term Loan Agreement dated as of February 20, 1996, as modified by that certain First Modification of First Amended Revolving Credit and Term Loan Agreement and of Related Documents dated as of May 19, 1996 (collectively the "BBOT Loan Agreement"). D. BBOT has heretofore transferred undivided participation interests in the Facility (the "Participations") to SouthTrust Bank of Georgia, N.A., First Tennessee Bank National Association, and First National Bank of Commerce, New Orleans (collectively the "Participating Lenders"), pursuant to the terms of that certain First Amended Participation Agreement dated as of May 29, 1996 (the "Participation Agreement"). E. By Amended and Restated Revolving Credit and Term Loan Agreement dated as of July 30, 1997 (the "Restated Loan Agreement"), the Borrower became the borrower and assumed the obligations of the Guarantor, formerly as the borrower, relating to the Facility set forth in the BBOT Loan Agreement, the Participations were converted into a single direct multiple-lender line of credit, and the Facility was increased to the maximum aggregate principal amount of $175,000,000. F. In connection with the Restated Loan Agreement, BBOT assigned all of its right, title and interest in and to the Facility, the BBOT Loan Agreement, the Participation Agreement and the other Loan Documents (as herein defined) to NationsBank which then, together with the Participating Lenders, terminated the Participation Agreement and assigned to the Participating Lenders an undivided interest in and to the Facility. NationsBank also placed of record in each jurisdiction where a Mortgage was already of record an assignment, modification and assumption agreement, assigning its rights therein to the Agent as agent for the Lenders, modifying such Mortgage to reflect the increase in the Facility and extension of the Facility Termination Date, 2 8 and reflecting the assumption of the Obligations by the Borrower, and including certain other matters. G. Contemporaneously with the termination of the Participation Agreement, NationsBank and the Participating Lenders assigned to the remaining Lenders such portions of the Commitment existing under the BBOT Loan Agreement as were necessary to properly distribute to all Lenders their proper pro rata shares of the Commitment existing under the BBOT Loan Agreement, followed contemporaneously by an increase in the Facility and Commitment as set forth in the Restated Loan Agreement and the appointment of NationsBank as the Agent for the Lenders pursuant to the terms thereof. NationsBanc Capital Markets, Inc. ("NCMI"), now known as NationsBanc Montgomery Securities LLC ("NMS"), arranged the increase in the Facility requested by the Borrower and the Guarantor from $75,000,000 to $175,000,000, and NCMI and NationsBank coordinated the closing of such increase. H. By Second Amended and Restated Revolving Credit and Term Loan Agreement, dated as of October 1, 1997, made and entered into by and among the Borrower, the Guarantor, the Lenders party thereto and the Agent (the "Second Restated Loan Agreement"), the parties modified the Restated Loan Agreement to adjust the interest rate options therein, to add certain additional financial covenants and delete or modify certain existing financial covenants, and to include certain other modifications. I. By First Amendment to Second Amended and Restated Revolving Credit and Term Loan Agreement dated as of June 4, 1998, made and entered into by and among the Borrower, the Guarantor, the Lenders party thereto and the Agent (the "First Amendment to Second Restated Loan Agreement"), the parties modified the Second Restated Loan Agreement to increase the Facility to the maximum aggregate principal amount of $190,000,000, to modify certain existing financial covenants, and to include certain other modifications, all to be effective from the date thereof through and including December 31, 1998. J. By Second Amendment to Second Amended and Restated Revolving Credit and Term Loan Agreement dated as of June 30, 1998, made and entered into by and among the Borrower, the Guarantor, the Lenders party thereto and the Agent (the "Second Amendment to Second Restated Loan Agreement"; the Second Restated Loan Agreement, as modified by the First Amendment to Second Restated Loan Agreement and the Second Amendment to Second Restated Loan Agreement, being hereinafter referred to as the "Agreement"), the parties modified and added certain definitions. K. By letter dated November 6, 1998 (the "Waiver Letter"), Agent, on behalf of the Required Lenders, waived any defaults arising due to breaches of Section 7.18(d) of the Agreement through December 31, 1998. L. The Borrower has asked that the Agreement be further modified to reduce the Facility to the maximum aggregate principal amount of $100,000,000 in exchange for the release of certain Collateral Pool Property, to modify certain existing financial covenants, and to include certain other modifications, all to be effective as of the date hereof, and NMS arranged this 3 9 amendment and restatement of the Facility and the reduction of the Facility to $100,000,000 and is coordinating the closing of this amendment and restatement. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto agree as follows: ARTICLE I DEFINITIONS As used in this Agreement: "Adjusted Cash Flow" means the lesser of (i) lease payments for the trailing twelve (12) months less real estate taxes for the latest available year, property insurance and the Capital Expenditure Reserve Amount or (ii) Property Operating Income (as defined herein, but before deducting real estate taxes, insurance, any capital expenditures and any management fee) for the trailing twelve (12) months less real estate taxes for the latest available year, property insurance, the Capital Expenditure Reserve Amount and a management fee equal to four percent (4%) of trailing twelve (12) month gross room revenues. "Adjusted EBITDA" means EBITDA less the Capital Expenditure Reserve Amount. Wherever in this Agreement such term is used (except in Section 7.18(c)), it is understood that for any Completed Development Hotel or any Hotel Property owned by the Borrower for less than twelve (12) months, historical EBITDA for the period of the Borrower's ownership will be used to calculate Adjusted EBITDA, unless the Borrower requests in writing at least fifteen (15) Business Days prior to the date such calculation is to be made that the Borrower prefers to use projected EBITDA for such Hotel Property. Approval of such a request will be at the Agent's sole discretion. "Advance" means a borrowing hereunder consisting of the aggregate amount of the several Loans made by the Lenders to the Borrower or a Qualified Borrower of the same Type and, in the case of LIBOR Advances, for the same Interest Period, including Reimbursement Obligations. "Affiliate" of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person. A Person shall be deemed to control another Person if the controlling Person owns 10% or more of any class of voting securities (or other ownership interests) of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by contract or otherwise. "Agent" means NationsBank, N.A. in its capacity as agent for the Lenders pursuant to Article XI, and not in its individual capacity as a Lender, and any successor Agent appointed pursuant to Article XI. "Agent's Fee" is defined in Section 2.6. 4 10 "Aggregate Commitment", or "Aggregate Commitment Amount" means the aggregate of the Commitments of all the Lenders, which initially shall be $100,000,000, subject to the Borrower's right to reduce the Aggregate Commitment pursuant to Section 2.20 and which shall otherwise only be increased with the consent of all Lenders. "Agreement" means this Third Amended and Restated Revolving Credit and Term Loan Agreement, as it may be amended or modified and in effect from time to time. "Allocated Facility Amount" means, at any time, the sum of all then outstanding Advances and the then existing Facility Letter of Credit Obligations. "Applicable Advance Rate" means the applicable percentage (as it may change from time to time upon the agreement of the Borrower and the Lenders) of either Cost or Implied Value used to calculate the Borrowing Base which for Hotel Properties in the Secured Collateral Pool is 50%, and for Hotel Properties in the Negative Collateral Pool is 40%. "Applicable Cap Rate" means 11.5% initially, may be reviewed from time to time by the Lenders and shall be subject to adjustment by the Required Lenders in their sole discretion based upon market conditions for comparable property types. In no event shall the Applicable Cap Rate be adjusted more than one (1) time in any trailing twelve (12) month rolling period. "Applicable Laws" is defined in Section 6.24(c). "Arranger" means NMS. "Article" means an article of this Agreement unless another document is specifically referenced. "Assignment" is defined in Section 13.3. "Assignments of Rents and Leases" means the assigning of all rents, leases, issues and profits from Hotel Properties in the Secured Collateral Pool as part of the Collateral for the Obligations including, without limitation, the Leases. "Authorized Officer" means with respect to any Person, any of the president, executive vice president, chief operating officer, chief financial officer or treasurer, general partner, or chief manager acting singly on behalf of such Person, who has been duly authorized to execute any document and to act on behalf of such Person. "BBOT" means Boatmen's Bank of Tennessee. "BBOT Loan Agreement" means that certain First Amended Revolving Credit and Term Loan Agreement dated as of February 20, 1996, as modified by that certain First Modification of First Amended Revolving Credit and Term Loan Agreement and of Related Documents dated as of May 19, 1996, all entered into by and between BBOT, the Borrower, and the Guarantor. 5 11 "BBOT Note" means that certain Replacement Master Revolving Line of Credit Promissory Note dated May 29, 1996 in the principal amount of $75,000,000 evidencing the Facility prior to the date hereof, and which BBOT Note was replaced by the Notes, as hereinafter defined. "Borrower" means RFS Partnership, L.P., and its successors and permitted assigns. "Borrowing Base" means the amount of the Aggregate Commitment available to the Borrower hereunder, which amount is the sum of (a) for each Collateral Pool Property owned or open for less than four (4) fiscal quarters, the Applicable Advance Rate times the Cost, plus (b) for each Collateral Pool Property owned or open for four (4) fiscal quarters or more, the Applicable Advance Rate times the Implied Value of the Collateral Pool Property. However, the aggregate Borrowing Base attributable to Completed Development Hotels in the Secured Collateral Pool cannot exceed 20% of the aggregate Borrowing Base attributable to all Secured Collateral Pool Properties at any time prior to July 30, 1998 and 15% at any time thereafter. Further, the aggregate Borrowing Base attributable to Completed Development Hotels in the Negative Collateral Pool cannot exceed 20% of the aggregate Borrowing Base attributable to all Negative Collateral Pool properties at any time prior to July 30, 1998 and 15% at any time thereafter. "Borrowing Base to Value Ratio" means the ratio arrived at from time to time by dividing the Borrowing Base by the then existing Value of the Secured Collateral Pool. "Borrowing Date" means a date on which an Advance is made hereunder. "Borrowing Notice" is defined in Section 2.9. "Break-up Fee" means a sum equal to the aggregate of any loss, cost, liability or expense incurred by the Lenders, or any of them, as a result of the prepayment of the Obligations, or portion thereof, whether due to acceleration or in due course in connection with conversions to or from a LIBOR Loan including, without limitation, any loss in obtaining, liquidating or employing funds from third parties, and any loss of yield, as determined by any Lender, on a present value basis, in its judgment reasonably exercised; but the Break-up Fee shall in no event be less than zero. "Business Day" means (i) with respect to any borrowing, payment or rate selection of LIBOR Advances, a day (other than a Saturday or Sunday) on which banks generally are open in Atlanta, Georgia for the conduct of substantially all of their commercial lending activities and on which dealings in United States dollars are carried on in the London interbank market and (ii) for all other purposes, a day (other than a Saturday or Sunday) on which banks generally are open in Atlanta, Georgia for the conduct of substantially all of their commercial lending activities. "Capital Expenditure Reserve Amount" means, for any period, 4% of the trailing twelve (12) month gross revenues. 6 12 "Capital Stock" means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person which is not a corporation and any and all warrants or options to purchase any of the foregoing. "Capitalized Lease" of a Person means any lease of Property imposing obligations on such Person, as lessee thereunder, which are required in accordance with GAAP to be capitalized on a balance sheet of such Person. "Capitalized Lease Obligations" of a Person means the amount of the obligations of such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with GAAP. "Cash Equivalents" means, as of any date, (i) securities issued or directly and fully guaranteed or insured by the United States Government or any agency or instrumentality thereof having maturities of not more than one year from such date, (ii) time deposits and certificates of deposit having maturities of not more than one year from such date and issued by any domestic commercial bank having (A) senior long-term unsecured debt rated at least A or the equivalent thereof by S&P or A2 or the equivalent thereof by Moody's and (B) capital and surplus in excess of $100,000,000, (iii) commercial paper rated at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by Moody's and in either case maturing within 120 days from such date; and (iv) shares of any money market mutual fund rated at least AAA or the equivalent thereof by S&P or at least AAA or the equivalent thereof by Moody's. "Change" is defined in Section 4.2. "Closing Date" means December ____, 1998. "Code" means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time. "Collateral" means all property of every type and kind which now or hereafter secures the Obligations, including, without limitation, the Hotel Properties in the Secured and Negative Collateral Pools, the Leases and the Consolidated Lease (including all rents, leases, issues and profits resulting therefrom or relating thereto), the Letter of Credit Collateral Account, and all real and personal property described in the Security Documents. "Collateral Pool" means all Hotel Properties included in the Secured Collateral Pool and the Negative Collateral Pool. "Collateral Pool Property" means any Hotel Property in the Collateral Pool. "Commitment" means the commitment to lend the maximum principal amount available under the Facility and, for each Lender, the obligation of such Lender to make Loans not exceeding the amount set forth opposite its signature below or as set forth in any Notice of 7 13 Assignment relating to any assignment that has become effective pursuant to Section 13.3.2, as such amount may be modified from time to time pursuant to the terms hereof. "Commitment Fee" means a sum equal to .25% of the Aggregate Commitment or $250,000, paid upon the execution of this Agreement. "Completed Development Hotels" means Hotel Properties open less than twelve (12) months. "Condemnation" is defined in Section 8.9. "Consolidated Lease" means that certain Consolidated Amended Lease Agreement dated as of February 27, 1996, by and between the Borrower, as lessor, and RFS, Inc., as lessee, as the same may have been, or may hereafter be, modified, amended or restated. "Consolidated Lease Estoppel" means that certain Consolidated Lease Estoppel, Subordination, Attornment and Non-Disturbance Agreement dated February 26, 1996, entered into by and between the Borrower, the Guarantor, RFS, Inc., and BBOT. "Consolidated Net Worth" means, as of any date of determination, an amount equal to (a) Total Assets as of such date minus (b) Total Liabilities as of such date minus (c) GAAP minority interest as of such date. "Consolidated Total Indebtedness" means, as of any date of determination, all Indebtedness of the Borrower, the Guarantor, any Qualified Borrowers and any of their Subsidiaries, determined on a consolidated basis, such consolidation to be in accordance with GAAP, after eliminating intercompany items. "Controlled Group" means all members of a controlled group of corporations, partnerships (including joint ventures), limited liability companies and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower, the Guarantor, Qualified Borrowers, or any of their Subsidiaries are treated as a single employer under Section 414 of the Code. "Conversion/Continuation Notice" is defined in Section 2.10. "Cost" means for any Hotel Property the purchase price of such Hotel Property plus the cost of any capital improvements performed by the Borrower which the Agent has agreed to accept as part of the Cost of such Hotel Property. For purposes of the Collateral Pool Properties existing as of the Closing Date, "Cost" shall mean the amount set forth beside each Hotel Property listed on Exhibits G or H attached hereto. "Debt Service" means, for any trailing twelve (12) month period, (a) Interest Expense for such period plus (b) the aggregate amount of regularly scheduled principal payments of Indebtedness (excluding the subject balloon payment and the balloon payment on the Perimeter Note) required to be made during such period by the Borrower, the Guarantor, any Qualified 8 14 Borrower or any of their Subsidiaries plus (c) a percentage of all such regularly scheduled principal payments required to be made during such period by any Investment Affiliate on Indebtedness taken into account in calculating Interest Expense, equal to the greater of (x) the percentage of the principal amount of such Indebtedness for which the Borrower, the Guarantor, or any Qualified Borrower, or any Subsidiary is liable and (y) the percentage ownership interest in such Investment Affiliate held by the Borrower, the Guarantor and any Subsidiaries, in the aggregate, without duplication. "Default" means an event of default described in Article VIII. "Defaulting Lender" means any Lender which fails or refuses to perform its obligations under this Agreement within the time period specified for performance of such obligation, or, if no time frame is specified, if such failure or refusal continues for a period of 5 Business Days after written notice from the Agent; provided that if such Lender cures such failure or refusal, such Lender shall cease to be a Defaulting Lender. "EBITDA" means income before extraordinary items (but after the impact of minority interests and reduced to eliminate any income from Investment Affiliates), as reported by the Borrower, the Guarantor and their Subsidiaries on a trailing twelve (12) month consolidated basis in accordance with GAAP, plus Interest Expense, depreciation, amortization and income tax (if any) expense plus a percentage of such income (adjusted as described above) of any Investment Affiliate equal to the allocable economic interest in such Investment Affiliate held by the Borrower, the Guarantor and any Subsidiaries, in the aggregate (provided that no item of income or expense shall be included more than once in such calculation even if it falls within more than one of the foregoing categories). For all periods prior to December 31, 1998, the policies and procedures prescribed by EITF 98-9 will not be utilized in the calculation of EBITDA. For all periods from and after December 31, 1998, the policies and procedures prescribed by EITF 98-9 will be utilized in the calculation of EBITDA. "EITF 98-9" means Emerging Issues Task Force Issue 98-9. "Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c) a financial institution or other entity that is an "accredited investor" (as defined in Rule 501 under the Securities Act of 1933, as amended) having (i) total assets of at least $10,000,000,000, (ii) a long-term unsecured debt rating of at least Baa1 by Moody's and BBB+ by Standard & Poor's and (iii) an office in the United States; or (d) any other Person approved by the Agent. "Environmental Claim" means any investigative, enforcement, cleanup, removal, containment, remedial or other private or governmental or regulatory action at any time threatened, instituted or completed pursuant to any applicable Environmental Requirement, against the Borrower, the Guarantor, any Qualified Borrower or any Subsidiary, or against or with respect to any Hotel Properties or any condition, use or activity on any of the Hotel Properties (including any such action against the Agent or the Lenders), and any claim at any time threatened or made by any person against the Borrower, the Guarantor, any Qualified Borrower or any Subsidiary, or against or with respect to any of the Hotel Properties or any condition, use or activity on any of the Hotel Properties (including any such claim against Agent 9 15 or the Lenders), relating to damage, contribution, cost recovery, compensation, loss or injury resulting from or in any way arising in connection with any Hazardous Material or any Environmental Requirement. "Environmental Law" means any federal, state or local law, statute, ordinance, code, rule, regulation, license, authorization, decision, order, injunction, decree, or rule of common law, and any judicial interpretation of any of the foregoing, which pertains to health, safety, any Hazardous Material, or the environment (including but not limited to ground or air or water or noise pollution or contamination, and underground or above ground tanks) and shall include without limitation, the Solid Waste Disposal Act, 42 U.S.C. ss. 6901 et seq.; the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. ss. 9601 et seq. ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"); the Hazardous Materials Transportation Act, 49 U.S.C. ss. 1801 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. ss. 1251 et seq.; the Clean Air Act, 42 U.S.C. ss. 7401 et seq.; the Toxic Substances Control Act, 15 U.S.C. ss. 2601 et seq.; the Safe Drinking Water Act, 42 U.S.C. ss. 300f et seq.; any applicable state air quality Act; any applicable state underground storage tank act; any applicable Water Quality Control Act; any applicable Comprehensive Solid Waste Management Act; any applicable Oil or Hazardous Material Spill or Release Act; any applicable Hazardous Waste Management Act; any applicable Hazardous Site Response Act, and any other state or federal environmental statutes, and all rules, regulations, orders and decrees now or hereafter promulgated under any of the foregoing, as any of the foregoing now exist or may be changed or amended or come into effect in the future. "Environmental Requirement" means any Environmental Law, agreement or restriction (including but not limited to any condition or requirement imposed by any insurance or surety company), as the same now exists or may be changed or amended or come into effect in the future, which pertains to health, safety, any Hazardous Material, or the environment, including but not limited to ground or air or water or noise pollution or contamination, and underground or aboveground tanks. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any rule or regulation issued thereunder. "Facility" is defined in Recital C. "Facility Letter of Credit" means a Letter of Credit issued hereunder. "Facility Letter of Credit Fee" is defined in Section 3.8 (a). "Facility Letter of Credit Obligations" means, as at the time of determination thereof, all liabilities, whether actual or contingent, without duplication, of the Borrower, the Guarantor or any Qualified Borrower with respect to Facility Letters of Credit, including the aggregate undrawn face-amount of the then outstanding Facility Letters of Credit, but not including Reimbursement Obligations. 10 16 "Facility Termination Date" means July 30, 2000, or such earlier date on which the principal balance of the Facility and all other sums due in connection with the Facility shall be due as a result of the acceleration of the Facility. "Federal Funds Effective Rate" means, for any day, an interest rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 10 a.m. (Atlanta time) on such day on such transactions received by the Agent from three Federal funds brokers of recognized standing selected by the Agent in its sole discretion. "First Amendment to Second Restated Loan Agreement" is defined in the recitals to this Agreement. "Funds From Operations" or FFO means, as to any period, an amount equal to (a) income (loss) from operations of the Borrower, the Guarantor and their respective Subsidiaries for such period, excluding gain (loss) from debt restructuring and sale of Hotel Properties, plus (b) depreciation and amortization of real estate assets, plus (minus) (c) to the extent not included in clause (a) above, gain (loss) on the sales of outparcels made in the ordinary course of business, and after adjustments for Investment Affiliates, determined in each case on a combined basis in accordance with GAAP. Adjustments for Investment Affiliates will be calculated to reflect funds from operations on the same basis. "GAAP" means generally accepted accounting principles in the United States of America as in effect from time to time, applied in a manner consistent with that used in preparing the financial statements referred to in Section 7. 1. "Governmental Authority" means any nation or government, any state or other political subdivision thereof and any quasi-governmental agency exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government. "Guarantee Obligation" means, as to any Person (the "guaranteeing person"), any obligation (determined without duplication) of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any Letter of Credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counter-indemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the "primary obligations") of any other third Person (the "primary obligor") in any manner, whether directly or indirectly, including, without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2), to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase any property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the 11 17 ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the maximum stated amount of the primary obligation relating to such Guarantee Obligation (or, if less, the maximum stated liability set forth in the instrument embodying such Guarantee Obligation), provided, that in the absence of any such stated amount or stated liability, the amount of such Guarantee Obligation shall be such guaranteeing person's maximum reasonably anticipated liability in respect thereof as determined by the Borrower, the Guarantor or any Subsidiary in good faith. "Guarantor" means RFS Hotel Investors, Inc. "Hazardous Material" means any substance, whether solid, liquid or gaseous, which is listed, defined or regulated as a "hazardous substance", "hazardous waste" or "solid waste", or otherwise classified as hazardous or toxic, in or pursuant to any Environmental Requirement; or which is or contains asbestos, radon, any polychlorinated biphenyl, urea formaldehyde foam insulation, explosive or radioactive material, or motor fuel or other petroleum hydrocarbons; or which causes or poses a threat to cause a contamination or nuisance on any real property or any adjacent real property or a hazard to the environment or to the health or safety of persons on any real property. "Hotel Property" or "Hotel Properties" means any parcel of real property owned by the Borrower, the Guarantor, or any Subsidiary, Investment Affiliate, Qualified Borrower or Joint Venture, on which parcel is either located a hotel, or on which construction of a hotel has commenced. "Implied Debt Service" means twelve (12) times the monthly payment required to fully amortize the Allocated Facility Amount using a constant calculated based upon (a) a fixed rate of interest equal to an amount which is 2.25% per annum above the most recent monthly average of the daily yields on all outstanding United States Treasury Securities adjusted to a constant maturity of seven (7) years, as most recently published by the Federal Reserve Board in Federal Reserve Statistical Release Document H.15(519), Selected Interest Rates, and such rate then rounded upwards to the nearest .125% and (b) a twenty (20) year amortization schedule; provided however, that in no event shall the constant used for such calculation be less than nine percent (9%). "Implied Value" means for any Hotel Property an amount arrived at based upon that Hotel Property's Adjusted Cash Flow, divided by the Applicable Cap Rate. "Indebtedness" of any Person at any date means without duplication, (a) all indebtedness of such Person for borrowed money which is outstanding according to GAAP, (b) all obligations of such Person for the deferred purchase price of property or services, (c) any other indebtedness of such Person which is evidenced by a note, bond, debenture or similar instrument, (d) all Capitalized Lease Obligations, (e) all obligations of such Person in respect of acceptances issued or created for the account of such Person, (f) all Guarantee Obligations of such Person (excluding 12 18 in any calculation of consolidated indebtedness of the Borrower and the Guarantor, Guarantee Obligations of the Borrower or the Guarantor in respect of primary obligations of any Qualified Borrower or any Subsidiary), (g) all reimbursement obligations of such Person for Letters of Credit and other contingent liabilities, (h) all liabilities secured by any Lien (other than Liens for taxes not yet due and payable) on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof, (i) any repurchase obligation or liability of such Person or any of its Subsidiaries with respect to accounts or notes receivable sold by such Person or any of its Subsidiaries, (j) if such Person is the Borrower or the Guarantor, such Person's pro rata share of debt in Investment Affiliates and any loans where such Person is liable as a general partner, (k) the greater of (i) the Borrower's, the Guarantor's and all Subsidiaries' recourse interest in an Investment Affiliate's debt that is not consolidated with the Borrower's, the Guarantor's or any Subsidiaries' financial statements, or (ii) pro rata interest in all debt owed by an Investment Affiliate which is either recourse or non-recourse to the Borrower, or the Guarantor, or any Subsidiary, as applicable, that is not consolidated with the Borrower's, the Guarantor's or any Subsidiaries' financial statements, (l) any pre-sale obligations of such Person relating to the purchase of any real or personal property, (m) Total Liabilities, (n) any amounts payable under any interest rate protection product (to the extent permitted by the Loan Documents and without implying consent thereto), (o) any other amounts considered debt by rating agencies and (p) any forward equity commitments. "Interest Expense" means all interest expense of the Borrower, the Guarantor and any Qualified Borrower and their Subsidiaries determined in accordance with GAAP plus (i) capitalized interest not covered by an interest reserve from a loan facility, plus (ii) the allocable portion (based on liability) of any accrued or paid interest incurred on any obligation for which the Borrower, the Guarantor , any Qualified Borrower or any Subsidiary is wholly or partially liable under repayment, interest carry, or performance guarantees, or other relevant liabilities, plus (iii) the greater of (x) allocable percentage of any accrued or paid interest incurred on any Indebtedness of any Investment Affiliate, whether recourse or non-recourse, equal to the applicable economic interest in such Investment Affiliate held by the Borrower, the Guarantor and any Subsidiaries, in the aggregate, or (y) the amount of all interest expense on all recourse Indebtedness the Borrower, the Guarantor, any Qualified Borrower, and/or their Subsidiaries, have in any Investment Affiliate, provided that no expense shall be included more than once in such calculation even if it falls within more than one of the foregoing categories. "Investment" of a Person means any loan, advance (other than commission, travel and similar advances to officers and employees made in the ordinary course of business and other than advances to, or deposits with, contractors and suppliers in the ordinary course of business), extension of credit (other than accounts receivable arising in the ordinary course of business on terms customary in the trade), deposit account or contribution of capital by such Person to any other Person or any investment in, or purchase or other acquisition of, the stock, partnership interests, notes, debentures or other securities of any other Person made by such Person. "Investment Affiliate" means any Person in which the Borrower, the Guarantor or any Qualified Borrower, or any Subsidiary, directly or indirectly, have an ownership interest, including, without limitation, Joint Ventures, whose financial results are not consolidated under GAAP with their financial results on their consolidated financial statements. 13 19 "Issuance Date" is defined in Section 3.4(a)(2). "Issuance Notice" is defined in Section 3.4(c). "Issuing Bank" means, with respect to each Facility Letter of Credit, any Lender which issues such Facility Letter of Credit. The initial Issuing Bank shall be NationsBank. "Joint Venture" means any joint venture partnership in which the Borrower, the Guarantor, any Qualified Borrower or any Subsidiary is a joint venture partner. "Lease or Leases" means any lease or all leases of any or all of the Collateral Pool Properties, with the Borrower as the lessor and with either RFS, Inc., as the lessee (including, without limitation, the Consolidated Lease), or with any other Person as the lessee approved by the Required Lenders. "Lenders" means the lending institutions listed on the signature pages of this Agreement, their respective permitted successors and assigns and any other lending institutions that subsequently become parties to this Agreement. "Lending Installation" means, with respect to a Lender, any office, branch, subsidiary or affiliate of such Lender. "Lessee" means RFS, Inc., a Tennessee corporation, or any other Person approved by the Required Lenders, now or hereafter party to any of the Leases as the tenant or lessee thereunder. "Letter of Credit" means a letter of credit of a Person which is issued upon the application of such Person or upon which such Person is an account party or for which such Person is in any way liable. "Letter of Credit Collateral Account" is defined in Section 3.9. "Letter of Credit Request" is defined in Section 3.4(a). "Leverage Ratio" means the ratio of Consolidated Total Indebtedness divided by the Total Asset Value. "LIBOR Advance" means an Advance which bears interest at a LIBOR Basis. "LIBOR Basis" means a per annum rate of interest (rounded upwards, if necessary, to the nearest whole one-sixteenth of 1%) determined pursuant to the following formula: LIBOR Rate ------------------------------- LIBOR Basis = 100% - LIBOR Reserve Percentage 14 20 PLUS the number of basis points set forth beside the Leverage Ratio applicable at any given time (as determined by Agent based upon the most recent compliance certificate delivered to Agent in accordance with Section 7.1(e) hereof or otherwise and effective as of the date of receipt of such certificate if such certificate is accepted by Agent) in the following grid after adjustment for insurance costs and other appropriate regulatory costs and adjustments (other than reserve requirements):
LEVERAGE RATIO BASIS POINTS -------------- ------------ <25% 150.0 >25% and <35% 165.0 - >35% and <40% 175.0 - > 40% 200.0 -
"LIBOR Interest Period" means, with respect to any LIBOR Advance, a period from the date on which the LIBOR Basis shall become effective as to such LIBOR Advance to thirty (30), sixty (60), ninety (90), or one hundred eighty (180) days thereafter, subject however to the following: (i) if any LIBOR Interest Period would otherwise end on a day which is not a Business Day, that LIBOR Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such LIBOR Interest Period into another calendar month, in which event such LIBOR Interest Period shall end on the immediately preceding Business Day; and (ii) any LIBOR Interest Period which begins on the last Business Day of a calendar month (or on a day for which there is no corresponding day in the calendar month at the end of such LIBOR Interest Period) shall, subject to clause (iii) below, end on the last Business Day of a calendar month; and (iii) No LIBOR Interest Period shall extend beyond the Facility Termination Date. "LIBOR Loan" means a Loan which bears interest at a LIBOR Basis. "LIBOR Rate" means for any LIBOR Advance for any LIBOR Interest Period therefor, the rate per annum appearing on Telerate Page 3750 (or any successor page) as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period. If for any reason such rate is not available, the term "LIBOR Rate" shall mean, for any LIBOR Advance for any LIBOR Interest Period therefor, the rate per annum appearing on Reuters Screen LIBO Page as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period; provided, however, if more than one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of all such rates. 15 21 "LIBOR Reserve Percentage" means for any day, that percentage (expressed as a decimal) which is in effect from time to time under Regulation D of the Board of Governors of the Federal Reserve System (or any successor), as such regulation may be amended from time to time or any successor regulation, as the maximum reserve requirement (including, without limitation, any basic, supplemental, emergency, special, or marginal reserves) applicable with respect to Eurocurrency liabilities as that term is defined in Regulation D (or against any other category of liabilities that includes deposits by reference to which the interest rate of LIBOR Advances is determined), whether or not any Lender has any Eurocurrency liabilities subject to such reserve requirement at that time. LIBOR Advances shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credits for proration, exceptions or offsets that may be available from time to time to any Lender. The LIBOR Basis shall be adjusted automatically on and as of the effective date of any change in the LIBOR Reserve Percentage. "Lien" means any lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title retention agreement but excluding the leasehold interest of a lessee in a lease that is not a Capitalized Lease). "Loan" means, with respect to a Lender, such Lender's portion of any Advance. "Loan Documents" means this Agreement, the Notes, the Mortgages, the Negative Pledge Agreements and any guaranty, reaffirmation of guaranty, environmental indemnity agreement, or other document executed and delivered by the Borrower, the Guarantor, any Qualified Borrower, any Investment Affiliate, or any of their Subsidiaries, from time to time and evidencing, securing, guaranteeing or relating to the payment or performance of the Obligations, as any of the foregoing may be amended, modified, restated, renewed, extended or reaffirmed from time to time. "Material Adverse Effect" means a material adverse effect on (i) the business, Hotel Property, results of operations or financial condition of the Borrower, the Guarantor, any Qualified Borrower or any of their Subsidiaries taken as a whole or (ii) the ability of the Borrower or the Guarantor to perform their obligations under the Loan Documents, or (iii) the validity or enforceability of any of the Loan Documents or the remedies or material rights of the Agent or the Lenders thereunder. "Maximum Amount" means the maximum nonusurious aggregate amount of all interest permitted by such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Facility or the federal laws of the United States applicable to the transaction, whichever laws allow the greater interest, as such laws now exist or may hereafter be changed or amended or come into effect in the future. 16 22 "Maximum Rate" means the maximum nonusurious rate of interest per annum permitted by such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Facility, or the federal laws of the United States applicable to the transaction, whichever laws allow the greater interest, as such laws now exist or may hereafter be changed or amended or come into effect in the future. The Maximum Rate shall be applied by taking into account all amounts characterized by applicable law as interest on the Obligations, so that the aggregate of all interest does not exceed the Maximum Amount. "Mortgage" means any deed of trust, deed to secure debt or mortgage encumbering a Hotel Property which secures the Obligations. "Multiemployer Plan" means a Plan to which more than one employer is obligated to make contributions, and which is maintained pursuant to one or more collective bargaining agreements to which the Borrower or any member of the Controlled Group is a party. "NMS" means NationsBanc Montgomery Securities LLC. "NationsBank" means NationsBank, N.A., in its individual capacity, and its successors. "NationsBank Prime Rate" means, on any day, the rate of interest per annum then most recently established by NationsBank as its "prime rate". Any such rate is a general reference rate of interest, may not be related to any other rate, and may not be the lowest or best rate actually charged by NationsBank to any customer or a favored rate, and may not correspond with future increases or decreases in interest rates charged by other lenders or market rates in general. "Negative Collateral Pool" means a specified group of Hotel Properties not encumbered by Mortgages encumbering Hotel Properties that have been accepted by the Lenders into the Collateral Pool but which the Borrower or other Person owning any such Hotel Property has agreed not to encumber, transfer, pledge, assign, mortgage or otherwise hypothecate in any manner. "Negative Pledge Agreement" means a written agreement executed by the Borrower or any other Person which owns a Hotel Property wherein the Borrower or such Person agrees not to encumber, transfer, pledge, assign, mortgage or otherwise hypothecate such Hotel Property in any manner. "Non-Conforming Investments" is defined in Section 7.4. "Note" or "Notes" means the renewal promissory note or notes, in substantially the form of Exhibit A attached to this Agreement, duly executed by the Borrower as of the Closing Date and payable to the order of each Lender in the amount of its Commitment, including any amendment, modification, renewal or replacement of such promissory note(s). "Notice of Assignment" is defined in Section 13.3.2. 17 23 "Obligations" means all indebtedness and obligations of the Borrower arising under or relating to, this Agreement, the Notes, the Mortgages, as well as under all other Loan Documents including, without limitation, all unpaid principal of and accrued and unpaid interest on the Notes, the Facility Letter of Credit Obligations and all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations (including, without limitation, Reimbursement Obligations) of the Borrower or if and to the extent applicable, any Qualified Borrower to the Lenders or to any Lender, the Agent, or any indemnified party hereunder arising under the Loan Documents. "Participating Lenders" means all financial institutions named in the Participation Agreement to whom BBOT transferred an undivided participation in the Facility. "Participations" means the interests of the Participating Lenders in the Facility. "Participation Agreement" means that certain First Amended Participation Agreement dated as of May 29, 1996, entered into by and between BBOT and the other Participating Lenders. "Participants" is defined in Section 13.2.1. "Payment Date" means, with respect to the payment of interest accrued on any Prime Advance or any LIBOR Advance, the first Business Day of each calendar month. "PBGC" means the Pension Benefit Guaranty Corporation, or any successor thereto. "Percentage" means for each Lender the percentage of the Aggregate Commitment allocated to such Lender as set forth opposite its signature. "Perimeter Note" means that certain promissory note dated December 15, 1989, in the original principal amount of $6,000,000 secured by a Mortgage encumbering a Hotel Property in Fulton County, Georgia. "Permitted Liens" are defined in Section 7.14. "Person" means any natural person, corporation, firm, joint venture, partnership, association, enterprise, trust, limited liability company or other entity or organization, or any government or political subdivision or any agency, department or instrumentality thereof. "Plan" means an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code as to which the Borrower or any member of the Controlled Group may have any liability. "Prime Advance" means an Advance which bears interest at the Prime Rate. "Prime Loan" means a Loan which bears interest at the Prime Rate. 18 24 "Prime Rate" means, for any day, a rate per annum equal to the greater of (i) the NationsBank Prime Rate for such day plus the number of basis points set forth beside the Leverage Ratio applicable at any given time (as determined by Agent based upon the most recent compliance certificate delivered to Agent in accordance with Section 7.1(e) hereof or otherwise and effective as of the date of receipt of such certificate if such certificate is accepted by Agent) in the grid set forth below, in each case changing when and as the NationsBank Prime Rate changes, or (ii) the Federal Funds Effective Rate for such day plus 50 basis points, in each case changing when and as the Federal Funds Effective Rate changes:
LEVERAGE RATIO BASIS POINTS -------------- ------------ <25% 0.0 >25% and <35% 0.0 - >35% and <40% 25.0 - >40% 50.0 -
"Property Breach" is defined in Section 7.24. "Property Operating Income" means, with respect to any Hotel Property owned by the Borrower, the Guarantor, any Qualified Borrower, any Subsidiary or any Investment Affiliate, for any period, earnings from rental operations (computed in accordance with GAAP but without deduction for reserves) attributable to such Hotel Property plus depreciation, amortization and interest expense for such period, and, if such period is less than a year, adjusted by straight lining various ordinary operating expenses which are payable less frequently than once during every such period (e.g. real estate taxes and insurance). "Purchaser" is defined in Section 13.3.l. "Qualified Borrower" means any entity, other than the Borrower, in which the Borrower or the Guarantor owns an interest, the Indebtedness of which entity is guaranteed by the Borrower or the Guarantor, and with respect to which the Borrower or the Guarantor has provided to the Agent an unconditional guaranty of payment satisfactory in form and substance to the Agent, as well as such notes, opinions, financial statements, organizational and authorization documents, security or collateral documents and other documents as the Agent may require in order for such entity to be able to receive an Advance under the Facility. "Qualified Lender" means a financial institution with assets over $5,000,000,000 that is generally in the business of making loans comparable to the Loans made under the Facility and that maintains an office in the United States. "Register" is defined in Section 13.6. "Regulation U" means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official 19 25 interpretation of said Board of Governors relating to the extension of credit by banks for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System. "Reimbursement Obligations" means at any time, the aggregate of the Obligations of the Borrower and any Qualified Borrowers to the Lenders, the Issuing Bank and the Agent in respect of all unreimbursed payments or disbursements made by the Lenders, the Issuing Bank and the Agent under or in respect of the Facility Letters of Credit. "Reportable Event" means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section, with respect to a Plan, excluding, however, such events as to which the PBGC by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within 30 days of the occurrence of such event, provided, however, that a failure to meet the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any such waiver of the notice requirement in accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code. "Required Lenders" means Lenders in the aggregate having at least 66 2/3 % of the Aggregate Commitment (not held by Defaulting Lenders who are not entitled to vote) or, if the Aggregate Commitment has been terminated, Lenders in the aggregate holding at least 66 2/3 % of the aggregate unpaid principal amount of the outstanding Advances and Facility Letter of Credit Obligations (not held by Defaulting Lenders who are not entitled to vote). "Restated Loan Agreement" means that certain Amended and Restated Revolving Credit and Term Loan Agreement dated as of July 30, 1997, entered into by and among the Borrower, the Guarantor and NationsBank, N.A., as Agent and Lender, and the several other lenders from time to time parties thereto. "Secured Collateral Pool" means a specified group of Hotel Properties encumbered by Mortgages which have been accepted by the Lenders into the Collateral Pool to secure the Obligations. "Security Documents" means all Loan Documents executed by or on behalf of the Borrower, the Guarantor, any Subsidiary, any Qualified Borrower, or any Investment Affiliate which pledge, mortgage, encumber or constitute a lien upon any of their real or personal property as part of the Collateral, including, without limitation the Mortgages and the Assignments of Rents and Leases, any UCC financing statements, and all supporting documents relating thereto, including, without limitation, title insurance policies, surveys, appraisals, and environmental surveys or reports. "Second Amendment to Second Restated Loan Agreement" is defined in the recitals to this Agreement. "Second Restated Loan Agreement" means that certain Second Amended and Restated Revolving Credit and Term Loan Agreement dated as of October 1, 1997, entered into by and 20 26 among the Borrower, the Guarantor and NationsBank, N.A., as Agent and Lender, and the several other lenders from time to time parties thereto. "Section" means a numbered section of this Agreement, unless another document is specifically referenced. "Senior Loans" is defined in Section 11.15. "Single Employer Plan" means a Plan maintained by the Borrower or any member of the Controlled Group for employees of the Borrower or any member of the Controlled Group. "Subsidiary" means a corporation, partnership or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by the Borrower, the Guarantor, or any Qualified Borrower and provided such corporation, partnership or other entity is consolidated with the Borrower, the Guarantor, or any such Qualified Borrower for financial reporting purposes under GAAP. "Total Assets" means all GAAP assets of the Borrower, the Guarantor, any Qualified Borrowers and any of their Subsidiaries. "Total Asset Value" means the sum of (a) for each open Hotel Property owned or open for less than four (4) fiscal quarters, whether or not such Hotel Property is included in the Collateral Pool, 100% of the Cost of the Hotel Property plus (b) for each open Hotel Property owned or open for four (4) fiscal quarters or more, whether or not such Hotel Property is included in the Collateral Pool, the Implied Value of the Hotel Property, plus (c) 100% of cash and Cash Equivalents in accordance with GAAP. "Total Liabilities" means all GAAP liabilities (not inclusive of GAAP minority interest or GAAP deferred/unearned revenue liability arising solely from the application of the policies and procedures prescribed by EITF 98-9) of the Borrower, the Guarantor, any Qualified Borrowers and any of their Subsidiaries. "Total Property Operating Income" means the sum of (i) Property Operating Income for each Hotel Property owned (including leaseholds) by the Borrower and its Subsidiaries and any Qualified Borrower, and (ii) (without redundancy) the Borrower's pro rata share (based on percentage interest in operating income) of Property Operating Income from any Hotel Property owned (including leaseholds) by the Guarantor, and any Qualified Borrowers or Investment Affiliates. "Transferee" is defined in Section 13.4. "Type" means, with respect to any Advance, its nature as a Prime Advance or a 21 27 LIBOR Advance. "Unfunded Liabilities" means the amount (if any) by which the present value of all vested nonforfeitable benefits under all Single Employer Plans determined under Section 4001(a)(18)(A) of ERISA exceeds the fair market value of all such Plan assets allocable to such benefits determined as of the then most recent valuation date for such Plans. "Unmatured Default" means an event which but for the lapse of time or the giving of notice, or both, would constitute a Default. "Unused Credit Fee" means the fee payable by the Borrower to the Agent for the benefit of the Lenders as set out in Section 2.5. "Value" means the Implied Value for Secured Collateral Pool properties owned or open for more than four (4) fiscal quarters, and means the Cost of Hotel Properties in the Secured Collateral Pool owned or open for less than four (4) fiscal quarters. However, the aggregate Value attributable to Completed Development Hotels in the Secured Collateral Pool cannot exceed 20% of the aggregate Value attributable to all Hotel Properties in the Secured Collateral Pool at any time prior to July 30, 1998, and 15% at any time thereafter. "Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of the outstanding voting securities of which shall at the time be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such Person, or (ii) any partnership, association, joint venture or similar business organization of which 100% of the ownership interests having ordinary voting power and at least 95% of all other classes of ownership interest shall at the time be so owned or controlled by such Person. The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms. ARTICLE II THE CREDIT 2.1 Assignment and Assumption; Conversion; Commitment Increase. 2.1.1. Assignment and Assumption.Pursuant to the Restated Loan Agreement, as the same is being amended and restated hereby, the Guarantor has heretofore transferred and assigned to the Borrower, and the Borrower has heretofore assumed, in the place and stead of the Guarantor, all indebtedness and obligations relating to or arising out of the BBOT Note and the BBOT Loan Agreement and all other documents relating thereto. The Guarantor has, effective as of July 30, 1997, executed a guaranty agreement in form and content acceptable to the Lenders guaranteeing the Obligations. 22 28 2.1.2 Conversion. BBOT has, by separate assignment executed July 30, 1997, assigned to NationsBank all its right, title and interest in and to the Facility, the BBOT Loan Agreement, the Participation Agreement and the other Loan Documents. Pursuant to the Restated Loan Agreement, as the same is being amended and restated hereby, the Participation Agreement was terminated by NationsBank, as successor-in-interest to BBOT, and the Participating Lenders, and NationsBank assigned to the Participating Lenders their respective pro rata portions of the Commitment existing under the BBOT Loan Agreement. If deemed necessary by the Agent in connection with the termination of the Participations, all Lenders other than the Participating Lenders have heretofore agreed to pay to NationsBank upon demand their respective pro rata shares of all outstanding Advances existing on or after the date of termination of the Participations. It is understood and agreed that the Participations have heretofore been converted into direct obligations to lend, and the Participating Lenders have assumed their respective pro rata portions of the Commitment to make Advances and their respective pro rata portions of all other obligations of NationsBank, as successor-in-interest to BBOT, under or in regards to the Facility as heretofore set forth in the BBOT Loan Agreement, as the same was amended and restated by the Restated Loan Agreement, as the same is being amended and restated hereby, and as such Commitment was increased as set forth in the Restated Loan Agreement, as the same is being amended and restated hereby. Likewise, NationsBank and the Participating Lenders have heretofore assigned to the remaining Lenders such portions of the Commitment existing under the BBOT Loan Agreement as necessary to properly distribute to all Lenders their proper pro rata shares of the Commitment existing under the BBOT Loan Agreement in accordance and consistent with their respective Percentages of the Aggregate Commitment allocated to the Lenders, as set forth opposite their signatures in the Restated Loan Agreement. NationsBank and, to the extent of any interest they may have had, the Participating Lenders, have heretofore assigned to the Agent as the agent for the Lenders pursuant to the terms of Article XI of the Restated Loan Agreement, as the same is being amended and restated hereby, all of their right, title and interest in and to the Obligations, the Collateral and the other Loan Documents, and directed the Agent to place of record in each jurisdiction where a Mortgage appears of record an appropriate assignment and modification agreement reflecting the transfer of such Mortgage and related Loan Documents from NationsBank to the Agent, as agent for the Lenders. It is also understood and agreed that the assignments by NationsBank and the Participating Lenders of an undivided interest in the Facility were outright and absolute assignments, and not the sale or transfer of a participation interest, and were not intended to constitute a refinance of the Facility. 2.1.3. Commitment; Notes. The Facility has heretofore been increased from $75,000,000, as set forth in the BBOT Loan Agreement, to $175,000,000, as set forth in the Restated Loan Agreement and to $190,000,000, as set 23 29 forth in the First Amendment to Second Restated Loan Agreement. The Facility is contemporaneously herewith being reduced to $100,000,000.00. From and including the Closing Date and prior to the Facility Termination Date, each Lender hereby agrees and reaffirms its Commitment, subject to the terms and conditions set forth in this Agreement, to make Loans to the Borrower from time to time in amounts not to exceed in the aggregate for each Lender at any one time outstanding the amount of such Lender's Commitment (as set forth beside each Lender's name on the signature page hereof) minus such Lender's Percentage of Facility Letter of Credit Obligations and Reimbursement Obligations. Subject to the terms of this Agreement, the Borrower may borrow, repay and reborrow at any time prior to the Facility Termination Date. The Commitments of each Lender to lend under this Agreement shall expire on the Facility Termination Date. In connection with the reduced Facility, the Borrower has contemporaneously herewith executed and delivered to each Lender a Note in the amount of each Lender's Commitment, which Notes collectively replace, renew and restate the BBOT Note and modify the Aggregate Commitment Amount evidenced thereby. 2.2. Final Principal Payment. Any outstanding Advances and all other unpaid Obligations shall be paid in full by the Borrower on the Facility Termination Date. 2.3. Ratable Loans. Each Advance hereunder shall consist of Loans made from the several Lenders ratably in proportion to the ratio that their respective Commitments bear to the Aggregate Commitment. The Advances may be Prime Advances, LIBOR Advances, or a combination thereof, selected by the Borrower in accordance with Sections 2.9 and 2.10. 2.4. Collateral. (a) The Collateral shall consist primarily of cross-collateralized and cross-defaulted first priority Mortgages encumbering Hotel Properties in the Secured Collateral Pool, and by Negative Pledge Agreements restricting the transfer, pledge or other hypothecation of Hotel Properties in the Negative Collateral Pool, both of which groups of Hotel Properties form the Collateral Pool or Collateral Pool Properties, and are listed on Exhibits G and H respectively attached hereto, with the franchise and franchisor for each such Hotel Property identified thereon which have been approved by the Lenders. Each Collateral Pool Property must be domestic, that is, located in the lower forty-eight (48) continental United States of America, must be subject to a current franchise agreement (with no defaults thereunder) approved by the Lenders with a franchisor that is acceptable to the Lenders, must be unencumbered with only such exceptions as have been approved by the Lenders, must be open for business and fully operational, and must otherwise be in compliance with the applicable provisions of Article V hereof. Notwithstanding the foregoing, all Collateral Pool Properties must be wholly owned directly by either the Borrower or the Guarantor and not by any Joint Ventures or wholly owned Subsidiary of the Borrower or the Guarantor, and no Hotel Properties owned by Joint Ventures or wholly owned Subsidiaries of the Borrower or the Guarantor may be included in the Collateral Pool. 24 30 (b) The Mortgages encumbering the Hotel Properties presently in the Secured Collateral Pool which have heretofore secured the Facility evidenced by the BBOT Note, pursuant to the terms of the BBOT Loan Agreement, as amended and restated by the Restated Loan Agreement, which is being amended and restated hereby, have heretofore been assigned to the Agent as a continuing part of the Collateral, subject to being reviewed by and acceptable to the Lenders in accordance with the conditions precedent set forth in Article V, Section 5.1, hereof. In the event at any time the Lenders determine that any item required by the applicable provisions of Article V hereof, whether for existing or future Collateral Pool Properties, is not available, or has not been provided, or is not acceptable, such item may, in the Lenders' sole discretion, either be waived, or, in the alternative, such Hotel Property for which the item has not been provided or is unacceptable may be removed from the Collateral Pool, in which event the Borrowing Base shall be adjusted accordingly to reflect the removal of such Hotel Property. Furthermore, for purposes of calculating the Borrowing Base to Value Ratio, the Collateral Pool Property for which items have not been provided, or is unacceptable, will be removed from the calculation thereof. In the alternative, the Borrower may substitute another Hotel Property for the one so removed, provided such Hotel Property is acceptable to the Lenders, and all conditions precedent to the inclusion of such Hotel Property in the Collateral Pool have been complied with, including, without limitation, the conditions of either Section 5.3 or 5.4, as applicable. Any such Hotel Property so removed from the Collateral Pool shall upon the written request from the Borrower be released by the Agent from the lien of any Mortgage, or from the restrictions of any Negative Pledge Agreement, provided there is then existing no Default or Unmatured Default then existing hereunder, and provided all provisions of Section 7.13 hereof have been complied with. 2.5. Unused Credit Fee. The Borrower has heretofore agreed and hereby agrees to pay to the Agent for the account of each Lender the Unused Credit Fee from the Closing Date to and including the Facility Termination Date, calculated at the rate of 0.18 % per annum on the actual daily unborrowed portion of such Lender's Commitment (which is equal to the difference between (a) such Lender's Commitment on such day and (b) the then outstanding Loans owed to such Lender plus the Lender's Percentage of any outstanding and undrawn Facility Letters of Credit) payable quarterly in arrears on the first day of each calendar quarter beginning January 1, 1999 and on the Facility Termination Date; provided, however, that the Unused Credit Fee shall be calculated at the reduced rate of 0.125 % per annum on the actual daily unborrowed portion of such Lender's Commitment for any day on which the principal balance of all outstanding and unpaid Loans held by such Lender plus its Percentage of outstanding and undrawn Facility Letters of Credit is greater than 50% of such Lender's Commitment. Notwithstanding the foregoing, all accrued Unused Credit Fees shall be payable on the effective date of any termination of the obligations of the Lenders to make Loans hereunder. Further, pursuant to the Second Restated Loan Agreement, as amended and restated hereby, the Borrower has heretofore agreed and hereby agrees to pay to the Agent for the account of each Lender the Unused Credit Fee (as defined in the Second Restated Credit Agreement) accrued from October 1, 1998 to and including the Closing Date, calculated in accordance with the Second Restated Loan Agreement, which shall be due and payable on January 1, 1999 together with all other Unused Credit Fees then due. 25 31 2.6. Commitment Fee; Other Fees. 2.6.1. Commitment Fee. The Borrower has contemporaneously herewith paid to the Agent for the account of each Lender the Commitment Fee in the amount of $250,000, which is fully earned, due and payable upon the execution of this Agreement. 2.6.2. Other Fees. The Borrower agrees to pay all other fees payable to the Agent and/or the Arranger for their own accounts or for the account of the Lenders pursuant to the terms hereof and/or the Borrower's prior letter agreements with either the Agent or the Arranger, including, without limitation, an annual Agent fee of $150,000 which shall be paid on July 30, 1999 (the "Agent's Fee"). 2.7. Minimum Amount of Each Advance. Each LIBOR Advance shall be in the minimum amount of $2,000,000 (and in multiples of $100,000 if in excess thereof), and each Prime Advance shall be in the minimum amount of $1,000,000 (and in multiples of $100,000 if in excess thereof), provided, however, that any Prime Advance may be in the amount of the unused Aggregate Commitment. 2.8. Optional Principal Payments. The Borrower may from time to time pay, without penalty or premium (subject to reimbursement, upon demand, of the Lenders' Break-up Fee and all other breakage and re-deployment costs in the case of prepayment of LIBOR Advances), all or any part of outstanding Prime Advances or LIBOR Advances, upon two (2) Business Days' prior notice to the Agent and each such prepayment shall be in a minimum amount of $50,000.00 or in multiples thereof, provided that a LIBOR Advance may not be paid prior to the last day of the applicable LIBOR Interest Period unless Borrower pays the Break-up Fee. 2.9. Manner of Borrowing and Method of Selecting Types and Interest Periods for New Advances; Borrowing Base; Lender Obligations. 2.9.1. Manner of Borrowing and Method of Selecting Types and Interest Periods for New Advances. The Borrower shall select the Type of Advance and, in the case of each LIBOR Advance, the LIBOR Interest Period applicable to each Advance from time to time. The Borrower shall give the Agent irrevocable notice substantially in the form of Exhibit I-1 attached hereto (a "Borrowing Notice") (i) not later than 1:00 p.m. (Atlanta time) at least one, (1) Business Day before the Borrowing Date of each Prime Advance, and (ii) not later than 1:00 p.m. (Atlanta time) at least three (3) Business Days before the Borrowing Date for each LIBOR Advance, specifying: (a) the Borrowing Date, which shall be a Business Day, of such Advance, (b) the aggregate amount of such Advance, (c) the Type of Advance selected, and 26 32 (d) in the case of each LIBOR Advance, the LIBOR Interest Period applicable thereto. 2.9.2. Borrowing Base. Availability under the Facility shall be determined according to the Borrowing Base. In no event shall the Borrower be entitled hereunder to Advances or Facility Letters of Credit which would cause the Borrowing Base to Value Ratio to be greater than as prescribed in Section 7.18(e), nor shall the Allocated Facility Amount at any time under the Loans exceed the lesser of (i) the Borrowing Base or (ii) the Aggregate Commitment Amount. Furthermore, any Collateral Pool Property whose operating franchise license is canceled shall be immediately deducted from the Borrowing Base until such time as a franchise reasonably acceptable to the Lenders is obtained with respect to such Collateral Pool Property. For purposes of the computation of the Borrowing Base to Value Ratio, the Collateral Pool Property with respect to which such franchise is canceled shall be removed from the calculation. In the alternative, the Borrower may substitute another Hotel Property for the one whose franchise license has been canceled, provided such Hotel Property is acceptable to the Lenders and all conditions precedent to the inclusion of such Hotel Property in the Collateral Pool have been complied with, including without limitation, the conditions of either Sections 5.3 or 5.4, as applicable. In such event, upon the substitution of such Hotel Property, upon the written request from the Borrower, the Hotel Property deducted from the Borrowing Base calculation shall be released by the Agent from the lien of any Mortgage, or from the restrictions of any Negative Pledge Agreement, provided there is no Default or Unmatured Default then existing hereunder, and provided all provisions of Section 7.13 hereof have been complied with. 2.9.3. Lender Obligations. Not later than 12:00 noon (Atlanta time) (as to each Lender other than Wells Fargo Bank which shall provide its Federal Reference Number and time not later than 12:30 p.m. [Atlanta time]) on each Borrowing Date, each Lender shall make available its Loan or Loans, in funds immediately available in Atlanta, Georgia to the Agent at the account specified pursuant to Article XIV. The Lenders shall not be obligated to match fund their LIBOR Advances. The Agent will promptly make the funds so received from the Lenders available to the Borrower from the Agent's aforesaid account. No LIBOR Interest Period may end after the Facility Termination Date and, unless all of the Lenders otherwise agree in writing, in no event may there be more than five (5) different LIBOR Interest Periods for LIBOR Advances outstanding at any one time. 2.10. Conversion and Continuation of Outstanding Advances. Prime Advances shall continue as Prime Advances unless and until such Prime Advances are converted into LIBOR Advances. Each LIBOR Advance shall continue as a LIBOR Advance until the end of the then applicable LIBOR Interest Period therefor, at which time such LIBOR Advance shall be automatically converted into a Prime Advance unless the Borrower shall have given the Agent a Conversion/Continuation Notice requesting that, at the end of such LIBOR Interest Period, such LIBOR Advance shall continue as a LIBOR Advance for the same or another LIBOR Interest 27 33 Period. The Borrower may elect from time to time to convert all or any part of an Advance of any Type into any other Type of Advance; provided that any conversion of any LIBOR Advance (whether due to acceleration or otherwise) shall be made on, and only on, the last day of the Interest Period applicable thereto unless the Borrower pays the applicable Break-up Fee, to be paid on the same Business Day as the conversion occurs. The Borrower shall give the Agent irrevocable notice substantially in the form of Exhibit I-2 attached hereto (a "Conversion/ Continuation Notice") of each conversion of an Advance not later than 1:00 p.m. (Atlanta time) at least one Business Day, in the case of a conversion into a Prime Advance, or three Business Days, in the case of a conversion into or continuation of a LIBOR Advance, prior to the date of the requested conversion or continuation, specifying: (a) the requested date which shall be a Business Day, of such conversion or continuation; (b) the aggregate amount and Type of the Advance which is to be converted or continued; and (c) the amount and Type(s) of Advance(s) into which such Advance is to be converted or continued and, in the case of a conversion into or continuation of a LIBOR Advance, the duration of the LIBOR Interest Period applicable thereto. 2.11. Changes in Interest Rate, Etc. Each Prime Advance shall bear interest on the outstanding principal amount thereof, for each day from and including the date such Advance is made or is converted from a LIBOR Advance into a Prime Advance pursuant to Section 2.10 to but excluding the date it is paid or is converted into a LIBOR Advance pursuant to Section 2.10 hereof, at a rate per annum equal to the Prime Rate for such day. Changes in the rate of interest on that portion of any Advance maintained as a Prime Advance will take effect simultaneously with each change in the NationsBank Prime Rate. Each LIBOR Advance shall bear interest from and including the first day of the LIBOR Interest Period applicable thereto to (but not including) the last day of such LIBOR Interest Period at the LIBOR Basis determined as applicable to such LIBOR Advance. If, on or prior to the first day of any LIBOR Interest Period, (a) the Agent shall have reasonably determined (which determination shall be conclusive and binding) that by reason of circumstances affecting the London interbank market or other Eurodollar market, as applicable, adequate and reasonable means do not exist for ascertaining the LIBOR Basis, or (b) the Agent shall have reasonably determined (which determination shall be conclusive and binding) that the LIBOR Basis will not adequately and fairly reflect the cost to the Lenders of such LIBOR Advance for such LIBOR Interest Period, 28 34 then the Agent shall forthwith give notice thereof to the Borrower, whereupon until the Agent notifies the Borrower that the circumstances giving rise to such suspension no longer exist, the obligations of the Lenders to allow new LIBOR Advances shall be suspended. If, after the date of this Agreement, the adoption of any applicable law, rule or regulations, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Agent or the Lenders with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall make it unlawful or impossible for the Lenders to make, maintain or fund LIBOR Loans, the Agent shall forthwith give notice thereof to the Borrower, whereupon until the Agent notifies the Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of the Lenders to allow LIBOR Advances shall be suspended. If the Agent shall determine that the Lenders may not lawfully continue to maintain any outstanding LIBOR Loans to maturity and shall so specify in such notice, such LIBOR Loans shall be immediately converted to a borrowing at the Prime Rate. If, after the date of this Agreement, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Agent or the Lenders with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency: (a) shall subject the Lenders to any tax, duty or other direct charge with respect to the LIBOR Loans or this Agreement or shall change the basis of taxation of payments to the Lenders of the principal of or interest on LIBOR Loans or any other amounts due under this Agreement in respect to LIBOR Loans or the Lenders' obligations to allow LIBOR Advances (except for changes in the rate of tax on the overall net income of any Lender imposed by the jurisdiction in which any Lender's principal executive office is located); or (b) shall impose, modify or deem applicable any reserve, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System, but excluding with respect to any LIBOR Loan any such requirement included in an applicable LIBOR Reserve Percentage) against assets of, deposits with or for the account of, or credit extended by, any Lender or shall impose on any Lender or the interbank market for Eurodollar deposits and other condition affecting LIBOR Loans, this Agreement or the obligation of any Lender to allow LIBOR Advances; and the result of any of the foregoing is to increase the cost to any Lender of allowing or maintaining LIBOR Loans or to reduce the amount of any sum received or receivable by any Lender under this Agreement with respect thereto, by an amount deemed by the Agent, in its good faith judgment, to be material, then, within fifteen (15) days after demand by the Agent, the 29 35 Borrower shall pay to the Agent for the benefit of the Lenders such additional amount or amounts as will compensate the Lenders for such increased cost or reduction. The Agent will promptly notify the Borrower of any event of which it has knowledge, occurring after the date hereof, which will entitle the Lenders to compensation pursuant to this paragraph. A certificate of the Agent claiming compensation under this paragraph, setting forth the additional amount or amounts to be paid to it hereunder, and explaining in reasonable detail the estimates, data and calculations of such amount, shall be conclusive and binding in the absence of manifest error. In determining such amount, the Agent may use any reasonable averaging and attribution methods. In lieu of paying the compensation to the Lenders described in this paragraph, the Borrower may elect, promptly upon receiving notice from the Agent of the event entitling the Lenders to such compensation, to have any LIBOR Loan converted to a Prime Advance, subject to the Borrower's payment of any Break-up Fee due as a result of such conversion. 2.12. Rates Applicable After Default; Late Fee. Notwithstanding anything to the contrary contained in Sections 2.9 or 2.10, during the continuance of a Default or Unmatured Default, the Agent may, at the option of the Required Lenders, by written notice to the Borrower (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section 9.2 requiring unanimous consent of the Lenders to changes in interest rates), declare that no Advance may be made as, converted into or continued beyond its current term as a LIBOR Advance. During the continuance of a Default, the Agent may, at the option of the Required Lenders, by prior written notice to the Borrower (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section 9.2 requiring unanimous consent of the Lenders to changes in interest rates), declare that (a) each LIBOR Advance shall bear interest for the applicable LIBOR Interest Period at a rate per annum equal to the lesser of (i) the rate otherwise applicable to such LIBOR Interest Period plus 4% per annum or (ii) the Maximum Rate, until such Default shall have been cured and (b) each Prime Advance shall bear interest at a rate per annum equal to the lesser of (i) the Prime Rate otherwise applicable to the Prime Advance plus 4% per annum or (ii) the Maximum Rate until such Default shall have been cured; provided that such rates shall become applicable automatically without notice to the Borrower if a Default occurs under Section 8.7 or Section 8.8. If any principal or interest is not paid when due, the Borrower shall pay, on demand, a late charge of $.04 for each dollar of each installment which becomes past due for a period exceeding ten (10) days to help defray the added expense incurred in handling said delinquent installment, provided that in the event any such late charge should be determined by a court of competent jurisdiction to constitute interest, in no event shall such interest be due or payable in excess of the Maximum Rate. 2.13. Method of Payment. All payments of the Obligations hereunder shall be made, without setoff, deduction, or counterclaim, in immediately available funds to the Agent at the Agent's account specified pursuant to Article XIV, or at any other Lending Installation of the Agent specified in writing by the Agent to the Borrower, by 1:00 p.m. (Atlanta time) on the date when due and shall be applied ratably by the Agent among the Lenders. Any payment received after 1:00 p.m. shall be processed as of the next Business Day. Each payment delivered to the Agent for the account of any Lender shall be delivered promptly by the Agent to such Lender in the same type of funds that the Agent received at its account specified pursuant to 30 36 Article XIV or at any Lending Installation specified in a notice received by the Agent from such Lender promptly. If any payment received by the Agent is not delivered to a Lender by the closing of business on the same Business Day as received by the Agent (with respect to payments received by 1:00 p.m., Atlanta time) or the next Business Day (with respect to payments received after 1:00 p.m., Atlanta time), such Lender shall receive from the Agent interest at the Federal Funds Effective Rate on the payment. The Agent is hereby authorized to charge the specific account of the Borrower, if any, maintained with NationsBank for such purpose, for each payment of principal, interest and fees as it becomes due hereunder. The Borrower shall not have any liability to any Lender for the failure of the Agent to promptly deliver funds to any such Lender and shall be deemed to have made all such payments on the date the respective payment is made by the Borrower to the Agent provided that it is received by the Agent no later than the time specified in this Section 2.13. 2.14. Notes; Telephonic Notices. Each Lender is hereby authorized to record the principal amount of each of its Loans and each repayment on the schedule attached to its Note, provided, however, that the failure to so record shall not affect the Borrower's obligations under such Note. Each Lender's books and records, including without limitation, the information, if any, recorded by the Lender on the schedule attached to its Note, shall be deemed to be prima facia correct absent manifest error. The Borrower hereby authorizes the Lenders and the Agent to extend, convert or continue Advances, effect selections of Types of Advances and to transfer funds based on telephonic notices made by any person or persons the Agent or any Lender in good faith believes to be an Authorized Officer. The Borrower agrees to deliver promptly to the Agent a written confirmation signed by an Authorized Officer of each telephonic notice. If the written confirmation differs in any material respect from the action taken by the Agent and the Lenders, the records of the Agent and the Lenders shall govern absent manifest error. 2.15. Interest Payment Dates; Interest and Fee Basis. Interest accrued on each Advance shall be payable on each Payment Date, commencing with the first such date to occur after the date hereof, and at the Facility Termination Date, whether by acceleration or otherwise. Interest accrued on each LIBOR Advance shall not be payable on any date on which the LIBOR Advance is prepaid (provided that nothing herein shall authorize a prepayment which is not otherwise permitted hereunder), or converted to another LIBOR Advance or to a Prime Advance, as the case may be, but shall be payable on the next Payment Date. Interest, Unused Credit Fees and Facility Letter of Credit Fees shall be calculated for actual days elapsed on the basis of a 360-day year. Interest shall be payable for the day an Advance is made but not for the day of any payment on the amount paid if payment is received prior to 1:00 p.m. (Atlanta time) at the place of payment, unless such Advance is repaid on the date that it was made. If any payment of principal of or interest on an Advance shall become due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and, in the case of a principal payment, such extension of time shall be included in computing interest in connection with such payment. 2.16. Notification of Advances, Interest Rates and Prepayments. Promptly after receipt thereof (but in no event later than the close of business (Atlanta time) one Business Day prior to the proposed Borrowing Date for a Prime Advance or the close of business three Business Days prior to the proposed Borrowing Date for a LIBOR Advance) the Agent will notify each Lender in writing by facsimile of the contents of each Borrowing Notice, Conversion/Continuation Notice, and prepayment notice received by it hereunder. The Agent will notify each Lender and the Borrower of the interest rate applicable to each LIBOR Advance promptly upon determination of such interest rate and will give each Lender and the Borrower prompt notice of each change in the NationsBank Prime Rate. 31 37 2.17. Lending Installations. Each Lender may book its Loans at any Lending Installation selected by such Lender and may change its Lending Installation from time to time. All terms of this Agreement shall apply to any such Lending Installation and the Notes shall be deemed held by each Lender for the benefit of such Lending Installation. Each Lender may, by written or telex notice to the Agent and the Borrower, designate a Lending Installation through which Loans will be made by it and for whose account Loan payments are to be made. 2.18. Non-Receipt of Funds By the Agent. Unless the Borrower or a Lender, as the case may be, notifies the Agent prior to the date on which it is scheduled to make payment to the Agent of (a) in the case of a Lender, the proceeds of a Loan or (b) in the case of the Borrower, a payment of principal, interest or fees to the Agent for the account of the Lenders, that it does not intend to make such payment, the Agent may assume that such payment has been made. The Agent may, but shall not be obligated to, make the amount of such payment available to the intended recipient in reliance upon such assumption. If the Borrower has not in fact made such payment to the Agent, the recipient of such payment shall, on demand by the Agent, repay to the Agent the amount so made available together with interest thereon in respect of each day during the period commencing on the date such amount was so made available by the Agent until the date the Agent recovers such amount at a rate per annum equal to the Federal Funds Effective Rate for such day. If a Lender has not in fact made such payment to the Agent, the Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon in respect of each day during the period commencing on the date such amount was so made available by the Agent until the date the Agent recovers such amount at a rate per annum equal to the Federal Funds Effective Rate for such date. If such Lender does not make such payment upon the Agent's demand therefor, the Agent shall promptly notify the Borrower, and the Borrower shall immediately pay such amount to the Agent together with interest thereon in respect of each day during the period commencing on the date such amount was so made available by the Agent until the date the Agent recovers such amount at the rate applicable to the relevant Loan. Nothing in this Section 2.18 shall be deemed to relieve any Lender from its obligation to fulfill any portion of its Commitment hereunder or to prejudice any rights which the Borrower may have against any Lender as a result of any default by such Lender hereunder. No Lender shall be responsible for any default by any other Lender in its obligation to make Loans hereunder, and each Lender shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to fulfill its Commitment hereunder. 2.19. Withholding Tax Exemption. At least five Business Days prior to the first date on which interest or fees are payable hereunder for the account of any Lender, each Lender that is not incorporated under the laws of the United States of America, or a state thereof, agrees that it will deliver to each of the Borrower and the Agent two duly completed copies of United States 32 38 Internal Revenue Service Form 1001 or 4224, certifying in either case that such Lender is entitled to receive payments under this Agreement and the Notes without deduction or withholding of any United States federal income taxes and an Internal Revenue Service Form W-8 or W-9 or applicable successor form, as the case may be, to establish an exemption from United States backup withholding tax. Each Lender which so delivers a Form 1001 or 4224 and Form W-8 or W-9 further undertakes to deliver to each of the Borrower and the Agent two additional copies of such Form (or a successor form) on or before the date that such form expires (currently, three successive calendar years for Form 1001 and one calendar year for Form 4224) or becomes obsolete or after the occurrence of any event requiring a change in the most recent forms so delivered by it, and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrower or the Agent, in each case certifying that such Lender is entitled to receive payments under this Agreement and the Notes without deduction or withholding of any United States federal income taxes and is exempt from backup withholding, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender advises the Borrower and the Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax or is not exempt from backup withholding tax. 2.20. Voluntary Reduction of Aggregate Commitment Amount. Upon at least five (5) Business Days' prior irrevocable written notice (or telephonic notice promptly confirmed in writing) to the Agent, the Borrower shall have the right, without premium or penalty, to permanently reduce the Aggregate Commitment provided that (a) the Borrower may not reduce the Aggregate Commitment below the Allocated Facility Amount at the time of such requested reduction, (b) any such partial reduction shall be in the minimum aggregate amount of U.S. $5,000,000 or any integral multiple of $5,000,000 in excess thereof and (c) the Borrower may not reduce the Aggregate Commitment to an amount less than $50,000,000. Any reduction of the Aggregate Commitment shall be applied pro rata to each Lender's Commitment. In addition, upon any such reduction, the Agent shall release such Hotel Properties from the Collateral Pool as are requested by the Borrower in writing, provided such Hotel Properties released are acceptable to the Lenders in their sole discretion, and provided the Borrower complies with Section 7.13 hereof and that all covenants and terms of this Agreement remain in compliance after such release. 2.21. Usury. The Borrower, the Lenders, the Agent and all other parties to the Loan Documents intend to conform to and contract in strict compliance with applicable usury law from time to time in effect. All agreements between the Borrower and the Lenders (or any other party liable with respect to any of the Obligations) are hereby limited by the provisions of this Section which shall override and control all such agreements, whether now existing or hereafter arising. In no way, nor in any event or contingency (including but not limited to prepayment, default, demand for payment, or acceleration of the maturity of any Obligation), shall the interest taken, reserved, contracted for, charged, chargeable, or received under this Agreement, a Note, any of the other Loan Documents, or otherwise, exceed the Maximum Rate. If, from any possible construction of any document, interest would otherwise be payable in excess of the Maximum Amount, any such construction shall be subject to the provisions of this Section and such 33 39 document shall ipso facto be automatically reformed and the interest payable shall be automatically reduced to the Maximum Amount, without the necessity of execution of any amendment or new document. If any Lender shall ever receive anything of value which is characterized as interest under applicable law and which would apart from this provision be in excess of the Maximum Amount, an amount equal to the amount which would have been excessive interest shall, without penalty, be applied to the reduction of the principal amount owing on the Obligations in the inverse order of its maturity and not to the payment of interest, or be refunded to the Borrower or the other payor thereof, at the election of such Lender in its sole discretion or as required by applicable law. The right to accelerate maturity of a Note or any other Indebtedness does not include the right to accelerate any interest which has not otherwise accrued on the date of such acceleration, and the Lenders do not intend to charge or receive any unearned interest in the event of acceleration. All interest paid or agreed to be paid to the Lenders shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full stated term (including any renewal or extension) of such Indebtedness such that such interest does not exceed the Maximum Amount. As used in this Section, the term "applicable law" shall mean the laws of such state or states whose laws are held by any court of competent jurisdiction to govern or the federal laws of the United States applicable to this transaction, whichever laws allow the greater interest, as such laws now exist or may be changed or amended or come into effect in the future. 2.22. Application of Moneys Received by the Agent. All moneys collected or received by the Agent on account of the Facility directly or indirectly, shall be applied in the following order of priority: (a) to the payment of all reasonable costs (including without limitation all costs payable to any Lender of which the Agent has been notified) incurred in the collection of such moneys of which the Agent shall have given notice to the Borrower; (b) to the reimbursement of any yield protection due to the Lenders in accordance with Section 4.1; (c) to the payment of any fee due to the Issuing Bank pursuant to Section 3.8(b), to the Lenders pursuant to Section 3.8(a) in connection with the issuance of a Facility Letter of Credit, to the payment of the Commitment Fee to the Lenders, to the payment of the Unused Credit Fee to the Lenders, if any of the same are then due, in accordance with their Percentages, and to the payment of the Agent's Fee to the Agent if then due; (d) (i) in case the entire unpaid principal of the Loan shall not have become due and payable, the whole amount received as interest and Facility Letter of Credit Fee then due to the Lenders (other than a Defaulting Lender) as their respective Percentages appear or (ii) in case the entire unpaid principal of the Loan shall have become due and payable, as a result of a Default or otherwise, to the payment of the whole amount then due and payable on the Loan for principal, together with interest thereon at the Default Rate or the interest rate, as applicable, to the Lenders (other than a Defaulting Lender) as their respective Percentages appear until paid in full; and 34 40 (e) to the payment of any sums due to each Defaulting Lender as their respective Percentages appear (provided that the Agent shall have the right to set-off against such sums any amounts due from such Defaulting Lender). ARTICLE III THE LETTER OF CREDIT SUBFACILITY 3.1. Obligation to Issue. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of the Borrower herein set forth, the Issuing Bank hereby agrees to issue for the account of the Borrower, one or more Facility Letters of Credit in accordance with this Article III, from time to time during the period ending thirty (30) days prior to the Facility Termination Date. 3.2. Types and Amounts. The Issuing Bank shall not, except with the prior written consent of all Lenders: (a) issue any Facility Letter of Credit if the aggregate maximum amount then available for drawing under Letters of Credit issued by such Issuing Bank, after giving effect to the Facility Letter of Credit requested hereunder, shall exceed any limit imposed by law or regulation upon such Issuing Bank provided, in such event, the Borrower shall have the right to select (with the approval of the alternate Issuing Bank but not the other Lenders) an alternate Issuing Bank which shall be one of the Lenders; (b) issue any Facility Letter of Credit if, after giving effect thereto, the aggregate Facility Letter of Credit Obligations would exceed $10,000,000 or the Allocated Facility Amount would exceed the Aggregate Commitment; (c) issue any Facility Letter of Credit having an expiration date, or containing automatic extension provisions to extend such date, to a date which is less than thirty (30) days preceding the Facility Termination Date; or (d) issue any Facility Letter of Credit having an expiration date which is more than fifteen (15) months after the date of its issuance. 3.3. Conditions. In addition to being subject to the satisfaction of the conditions contained in Section 5.2 hereof, the obligation of the Issuing Bank to issue any Facility Letter of Credit is subject to the satisfaction in full of the following conditions: (a) the Borrower shall have delivered to the Issuing Bank at such times and in such manner as the Issuing Bank may reasonably prescribe such documents and materials as may be reasonably required pursuant to the terms of the proposed Facility Letter of Credit (it being understood that if any inconsistency exists between such documents and the Loan Documents, the terms of the Loan Documents shall control) and the proposed Facility Letter of Credit shall be reasonably satisfactory to the Issuing Bank as to form and content; 35 41 (b) as of the date of issuance, no order, judgment or decree of any court, arbitrator or governmental authority shall purport by its terms to enjoin or restrain the Issuing Bank from issuing the requested Facility Letter of Credit and no law, rule or regulation applicable to the Issuing Bank and no request or directive (whether or not having the force of law) from any governmental authority with jurisdiction over the Issuing Bank shall prohibit or request that the Issuing Bank refrain from the issuance of Letters of Credit generally or the issuance of the requested Facility Letter of Credit in particular, provided, in such event, the Borrower shall have the right to select an alternate Issuing Bank which shall be one of the Lenders; (c) there shall not exist any Default or Unmatured Default; and (d) the Borrower shall have paid those portions of the Facility Letter of Credit Fee referred to in Section 3.8 hereof that are due on the Issuance Date. 3.4. Procedure for Issuance of Facility Letters of Credit. (a) The Borrower shall give the Issuing Bank and the Agent at least five (5) Business Days' prior written notice of any requested issuance of a Facility Letter of Credit under this Agreement substantially in the form of Exhibit I-3 attached hereto (a "Letter of Credit Request") (except that, in lieu of such written notice, the Borrower may give the Issuing Bank and the Agent telephonic notice of such request if confirmed in writing by delivery to the Issuing Bank and the Agent (i) by the close of business on such day (A) of a telecopy of the written notice required hereunder which has been signed by an Authorized Officer, or (B) of a telex containing all information required to be contained in such written notice and (ii) promptly (but in no event later than the requested date of issuance) of the written notice required hereunder containing the original signature of an Authorized Officer); such notice shall specify: (1) the stated amount of the Facility Letter of Credit requested (which stated amount shall not be less than $50,000); (2) the effective date (which day shall be a Business Day) of issuance of such requested Facility Letter of Credit (the "Issuance Date"); (3) the date on which such requested Facility Letter of Credit is to expire which date (exclusive of automatic extension periods so long as the Facility Letter of Credit gives the Issuing Bank the right to issue a notice that the expiration date will not be extended) shall be a Business Day and shall in no event be later than the earlier of fifteen months after the Issuance Date and thirty (30) days prior to the Facility Termination Date; (4) the purpose for which such Facility Letter of Credit is to be issued (such purpose shall comply with the requirements of Section 7.2); 36 42 (5) the Person for whose benefit the requested Facility Letter of Credit is to be issued; and (6) any special language required to be included in the Facility Letter of Credit. At the time such request is made, the Borrower shall also provide the Agent and the Issuing Bank with a copy of the specific form, if any, of the Facility Letter of Credit that the Borrower is requesting be issued, which shall be subject to the reasonable approval of the Issuing Bank and the Agent. Such notice, to be effective, must be received by such Issuing Bank and the Agent not later than 2:00 p.m. (Atlanta time) on the last Business Day on which notice can be given under this Section 3.4(a). The Agent shall promptly but in no event later than three (3) Business Days prior to the Issuance Date give a copy of the Letter of Credit Request to the other Lenders. The Borrower shall also deliver to the Agent and the Issuing Bank the compliance certificate required in Section 5.2 together with each Letter of Credit Request. (b) Subject to the terms and conditions of this Article III and provided that the applicable conditions set forth in Section 5.2 hereof have been satisfied, such Issuing Bank shall, on the Issuance Date, issue a Facility Letter of Credit on behalf of the Borrower in accordance with the Letter of Credit Request and the Issuing Bank's usual and customary business practices unless the Issuing Bank has actually received (i) written notice from the Borrower specifically revoking the Letter of Credit Request with respect to such Facility Letter of Credit, or (ii) written or telephonic notice from the Agent stating that the issuance of such Facility Letter of Credit would violate Section 3.2. (c) The Issuing Bank shall give the Agent and the Borrower written or telex notice, or telephonic notice confirmed promptly thereafter in writing, of the issuance of a Facility Letter of Credit (the "Issuance Notice") and the Agent shall promptly give a copy of the Issuance Notice to the other Lenders. (d) The Issuing Bank shall not extend or amend any Facility Letter of Credit (other than an automatic extension) unless the requirements of this Section 3.4 are met as though a new Facility Letter of Credit was being requested and issued. (e) The Issuing Bank shall give the Agent written or telex notice, or telephonic notice confirmed promptly thereafter in writing, of any extension or amendment of a Facility Letter of Credit and the Agent shall promptly give a copy of such notice to the Lenders. 3.5. Reimbursement Obligations, Duties of Issuing Bank. (a) The Issuing Bank shall promptly notify the Borrower and the Agent of any draw under a Facility Letter of Credit, and the Agent shall promptly notify the other Lenders that such draw has occurred. Any such draw shall constitute an Advance of the Facility in the amount of the Reimbursement Obligation with respect to such Facility Letter of Credit and shall bear interest from the date of the relevant drawing(s) under the pertinent Facility Letter of Credit at the Prime Rate until instructed otherwise by the Borrower in accordance with Section 2.10 37 43 hereof; provided that if any Default or an Unmatured Default involving the payment of money exists at the time of any such drawing(s), then the Borrower shall reimburse the Issuing Bank for drawings under a Facility Letter of Credit issued by the Issuing Bank no later than the next succeeding Business Day after the payment by the Issuing Bank and until repaid such Reimbursement Obligation shall bear interest from the date funded at the Default Rate. (b) Any action taken or omitted to be taken by the Issuing Bank under or in connection with any Facility Letter of Credit, if taken or omitted in the absence of willful misconduct or gross negligence, shall not put the Issuing Bank under any resulting liability to the Borrower or any Lender or, provided that such Issuing Bank has complied with the procedures specified in Section 3.4, relieve a Lender of its obligations hereunder to the Issuing Bank. In determining whether to pay under any Facility Letter of Credit, the Issuing Bank shall have no obligation relative to the Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered in compliance, and that they appear to comply on their face, with the requirements of such Letter of Credit. 3.6. Participation. (a) Immediately upon issuance by the Issuing Bank of any Facility Letter of Credit in accordance with the procedures set forth in Section 3.4, each Lender shall be deemed to have irrevocably and unconditionally purchased and received from the Issuing Bank, without recourse, representation or warranty, an undivided interest and participation equal to such Lender's Percentage in such Facility Letter of Credit (including, without limitation, all obligations of the Borrower with respect thereto) and any security therefor or guaranty pertaining thereto. Each Lender's obligation to make further Loans to the Borrower (other than any payments such Lender is required to make under subparagraph (b) below) or issue any Facility Letters of Credit on behalf of the Borrower shall be reduced by such Lender's Percentage of the undrawn portion of each Facility Letter of Credit outstanding, as well as any outstanding Reimbursement Obligations. (b) In the event that the Issuing Bank makes any payment under any Facility Letter of Credit and the Borrower shall not have repaid such amount to the Issuing Bank pursuant to Section 3.7 hereof, the Issuing Bank shall promptly notify the Agent, which shall promptly notify each Lender of the same, and each Lender shall within one (1) Business Day unconditionally pay to the Agent for the account of the Issuing Bank the amount of such Lender's Percentage of the unreimbursed amount of such payment, and the Agent shall promptly pay such amount to the Issuing Bank. Notwithstanding the foregoing, unless the Borrower shall notify the Agent of the Borrower's intent to repay the Reimbursement Obligation on the date of the related drawing under any Facility Letter of Credit, such Reimbursement Obligation shall simultaneously with such drawing be converted to and become a Prime Loan as set forth in Section 2.10. The failure of any Lender to make available to the Agent for the account of any Issuing Bank its Percentage of the unreimbursed amount of any such payment shall not relieve any other Lender of its obligation hereunder to make available to the Agent for the account of such Issuing Bank its Percentage of the unreimbursed amount of any payment on the date such payment is to be made, but no Lender shall be responsible for the failure of any other Lender to make available to the Agent its Percentage of the unreimbursed amount of any payment on the 38 44 date such payment is to be made. Any Lender which fails to make any payment required pursuant to this Section 3.6(b) shall be deemed to be a Defaulting Lender hereunder. (c) If the Issuing Bank receives a payment on account of a Reimbursement Obligation, including any interest thereon, the Issuing Bank shall promptly pay to the Agent and the Agent shall promptly pay to each Lender which has funded its participating interest therein, in immediately available funds, an amount equal to such Lender's Percentage thereof. (d) Upon the request of the Agent or any Lender, an Issuing Bank shall furnish to the Agent or such Lender copies of any Facility Letter of Credit to which that Issuing Bank is party and such other documentation as may reasonably be requested by the Agent or such Lender. (e) The obligations of a Lender to make payments to the Agent for the account of each Issuing Bank with respect to a Facility Letter of Credit shall be absolute, unconditional and irrevocable, not subject to any counterclaim, set-off, qualification or exception whatsoever other than a failure of any such Issuing Bank to comply with the terms of this Agreement relating to the issuance of such Facility Letter of Credit and shall be made in accordance with the terms and conditions of this Agreement under all circumstances. 3.7. Payment of Reimbursement Obligations. (a) The Borrower agrees to pay to the Agent for the account of each Issuing Bank the amount of all Advances for Reimbursement Obligations, interest and other amounts payable to such Issuing Bank under or in connection with any Facility Letter of Credit when due irrespective of any claim, set-off, defense or other right which the Borrower may have at any time against any Issuing Bank or any other Person, under all circumstances, including without limitation any of the following circumstances: (i) any lack of validity or enforceability of this Agreement or any of the other Loan Documents; (ii) the existence of any claim, setoff, defense or other right which the Borrower may have at any time against a beneficiary named in a Facility Letter of Credit or any transferee of any Facility Letter of Credit (or any Person for whom any such transferee may be acting), the Agent, the Issuing Bank, any Lender, or any other Person, whether in connection with this Agreement, any Facility Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between the Borrower and the beneficiary named in any Facility Letter of Credit); (iii) any draft, certificate or any other document presented under the Facility Letter of Credit proving to be forged, fraudulent, invalid 39 45 or insufficient in any respect of any statement therein being untrue or inaccurate in any respect; (iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or (v) the occurrence of any Default or Unmatured Default. (b) In the event any payment by the Borrower received by the Issuing Bank or the Agent with respect to a Facility Letter of Credit and distributed by the Agent to the Lenders on account of their participations is thereafter set aside, avoided or recovered from the Agent or the Issuing Bank in connection with any receivership, liquidation, reorganization or bankruptcy proceeding, each Lender which received such distribution shall, upon demand by the Agent, contribute such Lender's Percentage of the amount set aside, avoided or recovered together with interest at the rate required to be paid by the Issuing Bank or the Agent upon the amount required to be repaid by the Issuing Bank or the Agent. 3.8. Compensation for Facility Letters of Credit. (a) The Borrower shall pay to the Agent, for the ratable account of the Lenders, based upon the Lenders' respective Percentages, a per annum fee (the "Facility Letter of Credit Fee") with respect to each Facility Letter of Credit that is equal to 1.50% of the face amount of the Facility Letter of Credit of which .25% of the face amount shall be paid to the Issuing Bank on the Issuance Date as set forth in Section 3.8 (b) hereof. The balance of the Facility Letter of Credit Fee (1.25%) relating to any Facility Letter of Credit shall be due and payable in advance in equal installments (except for the first payment which may be a partial payment based on the proportionate share of the quarter then remaining) commencing on the first day of January, 1999, for any Facility Letter of Credit then outstanding, and continuing on the first day of the months of April, July, October and January, each year thereafter, and, to the extent any such fees are then due and unpaid, on the Facility Termination Date such unpaid fees shall be due and payable in full. The Agent shall promptly remit such balance of the Facility Letter of Credit Fees, when paid, to the Lenders (including the Issuing Bank) in accordance with their respective Percentages thereof. The Borrower shall not have any liability to any Lender for the failure of the Agent to promptly deliver funds to any such Lender and shall be deemed to have made all such payments on the date the respective payment is made by the Borrower to the Agent, provided such payment is received by the time specified in Section 2.15 hereof. (b) The Issuing Bank shall receive solely for its own account the aforesaid issuance fee of .25 % of the face amount of each Facility Letter of Credit, payable by the Borrower on the Issuance Date for each such Facility Letter of Credit. The Issuing Bank shall also be entitled to receive its reasonable out-of-pocket costs and the Issuing Bank's standard charges of issuing, amending and servicing Facility Letters of Credit and processing draws thereunder. 3.9. Letter of Credit Collateral Account. The Borrower hereby agrees that it will, if required pursuant to the terms of a Facility Letter of Credit or Section 9.1, maintain a special 40 46 collateral account (the "Letter of Credit Collateral Account") at the Agent's office at the address specified pursuant to Section 14.1, in the name of the Borrower but under the sole dominion and control of the Agent, for the benefit of the Lenders, and in which the Borrower shall have no interest other than as set forth in Section 9.1. Such Letter of Credit Collateral Account shall be funded to the extent required by Section 9.1. In addition to the foregoing, the Borrower hereby grants to the Agent, for the benefit of the Lenders, a properly perfected security interest in and to the Letter of Credit Collateral Account, any funds that may hereafter be on deposit in such account and the proceeds thereof. The Borrower agrees to execute a security agreement and such other documents as the Agent may require in connection therewith. ARTICLE IV CHANGE IN CIRCUMSTANCES 4.1. Yield Protection. If, after the date hereof, any law or any governmental or quasi-governmental rule, regulation, policy, guideline or directive (whether or not having the force of law), or any interpretation thereof, or the compliance of any Lender therewith, (a) subjects any Lender or any applicable Lending Installation to any tax, duty, charge or withholding on or from payments due from the Borrower (excluding federal, state and local income, franchise or similar taxes on the overall income of any Lender or applicable Lending Installation), or changes the basis of taxation of payments to any Lender in respect of its loans, Facility Letters of Credit or other amounts due it hereunder, or (b) imposes or increases or deems applicable any reserve, assessment, insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or any applicable Lending Installation (other than reserves and assessments taken into account in determining the interest rate applicable to LIBOR Advances), or (c) imposes any other condition the result of which is to increase the cost to any Lender or any applicable Lending Installation of making, funding or maintaining loans or reduces any amount receivable by any Lender or any applicable Lending Installation in connection with loans, or requires any Lender or any applicable Lending Installation to make any payment calculated by reference to the amount of loans held, Letters of Credit issued or participated in, or interest received by it, by an amount reasonably deemed material by such Lender then, (d) within fifteen (15) days of written demand by such Lender pursuant to Section 4.4, the Borrower shall pay such Lender that portion of such increased expense incurred or reduction in an amount received which such Lender determines is attributable to making, funding and maintaining its Loans and its Commitment. 4.2. Changes in Capital Adequacy Regulations. If the amount of capital required or expected to be maintained by each Lender, the Lending Installations of the Lenders or the 41 47 corporations controlling the Lenders (as the case may be) is increased as a result of a Change (as hereinafter defined), then, within fifteen days of written demand by such Lender pursuant to Section 4.4, the Borrower shall pay each such Lender the amount necessary to compensate for any shortfall in the rate of return on the portion on such increased capital which such Lender determines is attributable to this Agreement, its Loans, its interest in the Facility Letters of Credit, or its obligation to make Loans hereunder or participate in or issue Facility Letters of Credit (after taking into account such Lender's policies as to capital adequacy). "Change" means (i) any change after the date of this Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of or change in any other law, rule, regulation, policy, guideline, interpretation, or directive of any Governmental Authority having jurisdiction after the date of this Agreement which affects the amount of capital required or reasonably expected to be maintained by each of the Lenders or the Lending Installations, or the corporations controlling such Lenders, (as the case may be). "Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines in effect in the United States on the date of this Agreement, including transition rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside the United States implementing the July 1988 report of the Basle Committee on Banking Regulation and Supervisory Practices Entitled "International Convergence of Capital Measurements and Capital Standards," including transition rules, and any amendments to such regulations adopted prior to the date of this Agreement. 4.3. Funding Indemnification. If any payment of a LIBOR Advance occurs on a date which is not the last day of the applicable LIBOR Interest Period, whether because of acceleration, prepayment or otherwise, or a LIBOR Advance is not made on the date specified by the Borrower for any reason, the Borrower will pay to the Agent for the benefit of the applicable Lenders the Break-up Fee upon the Borrower's receipt of the written notice pursuant to Section 4.5. 4.4. Lender Statements, Survival of Indemnity. To the extent reasonably possible, each Lender shall designate an alternate Lending Installation with respect to its LIBOR Loans and shall take other measures in its discretion to reduce any liability of the Borrower to such Lender under Sections 4.1 and 4.2 or to avoid the unavailability of a Type of a LIBOR Advance under Section 2.11, so long as such designation or other measure is not disadvantageous to such Lender. Each Lender shall deliver a written statement of such Lender to the Agent and to the Borrower as to the amount due, if any, under Sections 4.1, 4.2 or 4.3. Such written statement shall set forth in reasonable detail the calculations upon which such Lender determined such amount and shall be final, conclusive and binding on the Borrower in the absence of manifest error. Determination of amounts payable under such Sections in connection with a LIBOR Loan shall be calculated as though each Lender funded its LIBOR Loan through the purchase of a deposit of the type and maturity corresponding to the deposit used as a reference in determining the LIBOR Rate applicable to such Loan, whether in fact that is the case or not. Unless otherwise provided herein, the amount specified in the written statement shall be payable on demand after receipt by the Borrower of the written statement. The obligations of the Borrower under Sections 4.1, 4.2 and 4.3 shall survive payment of the Obligations and termination of this Agreement for a period of one year. 42 48 4.5. Limitation on the Borrower's Liability. The Borrower shall not be obligated to compensate any Lender pursuant to Sections 4.1, 4.2 or 4.3 for any amounts attributable to a period more than one year prior to such Lender's written notice under Section 4.4 of its intention to seek compensation under Sections 4.1, 4.2 or 4.3. ARTICLE V CONDITIONS PRECEDENT 5.1. Conditions to Closing. This Agreement shall not be effective unless and until (a) the Borrower shall have paid all fees then due and payable to the Lenders, the Agent and the Arranger hereunder, and (b) the Borrower shall have furnished to the Agent, in form and substance satisfactory to the Lenders and their counsel and with sufficient copies for the Lenders, the following: (a) The duly executed originals of the Loan Documents, (all of which must have been reviewed by and acceptable to the Agent) including this Agreement; (b) Certified copies of the articles of incorporation, limited partnership certificate, limited liability company agreement or other organizational document of the Borrower, the Guarantor, each Subsidiary and each Qualified Borrower, to the extent applicable, with all amendments and certified by the appropriate governmental officer of the state of organization as of a recent date, but only to the extent of any changes or additions thereto since June 4, 1998; (c) Certificates of good standing for the Borrower, the Guarantor, each Subsidiary and each Qualified Borrower certified by the appropriate governmental officer of the state of organization, and foreign qualification certificates for the Borrower and the Guarantor, certified by the appropriate governmental officer, for each jurisdiction where any assets are located and each other jurisdiction where the failure to so qualify or be licensed (if required) would have a Material Adverse Effect; (d) Copies, certified by an officer of the Borrower, the Guarantor, each Subsidiary and each Qualified Borrower, as applicable, of each of the foregoing Persons' respective by-laws, partnership agreement, operating agreement or similar document, to the extent applicable, together with all amendments thereto, but only to the extent of any changes or additions thereto since June 4, 1998; (e) An incumbency certificate, executed by an Authorized Officer of the Borrower, which shall identify by name and title and bear the signature of the Persons authorized to sign the Loan Documents and to make borrowings hereunder on behalf of the Borrower, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower; 43 49 (f) Copies, certified by the Secretary or Assistant Secretary, of the Guarantor's (as the sole general partner of the Borrower) Board of Directors' resolutions (and resolutions of other bodies, if any are deemed necessary by counsel for any Lender) authorizing on behalf of the Borrower as its sole general partner the Advances provided for herein and the execution, delivery and performance of the Loan Documents to be executed and delivered by the Borrower hereunder; (g) A written opinion of the Borrower's and the Guarantor's counsel, addressed to the Lenders in substantially the form of Exhibit B hereto; (h) A certificate, signed by an officer of the Guarantor, as the sole general partner of the Borrower, stating that on the Closing Date no Default or Unmatured Default has occurred and is continuing and that all representations and warranties of the Borrower contained herein are true and correct as of the Closing Date as and to the extent set forth herein and that the Borrower is in compliance with all covenants, terms and conditions of this Agreement and the other Loan Documents; (i) A pro forma compliance certificate in the form attached hereto as Exhibit C; (j) Evidence that all parties whose consent is required for the Borrower to execute the Loan Documents have provided such consents; (k) Current UCC-11, judgment and tax lien searches acceptable to the Agent; and; (l) A title search or abstract for each property within the Secured Collateral Pool and the Negative Collateral Pool as of the Closing Date, and a commitment to endorse each mortgage title policy for each property within the Secured Collateral Pool as of the Closing Date, marked in a manner satisfactory to Agent and in conformity with the requirements of Section 5.3(j) hereof. 5.2. Conditions to Each Advance, Issuance of Facility Letter of Credit and Continuation/Conversion. The following conditions must be satisfied as a condition precedent to the making of an Advance, the issuance of a Facility Letter of Credit, or the continuation of a LIBOR Advance or conversion of an existing Advance into a LIBOR Advance: (a) There exists no Default or Unmatured Default; (b) The representations and warranties contained in Article VI are true and correct as of such Borrowing Date, Issuance Date, or date of conversion and/or continuation as and to the extent set forth therein, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall be true and correct on and as of such earlier date and except for Property Breaches, in which case the compliance certificate shall contain a calculation of the financial covenants with and without 44 50 including the Hotel Property with respect to which there is a Property Breach and demonstrate compliance with such covenants both with and without inclusion of such Hotel Property; (c) All legal matters incident to the making of such Advance shall be reasonably satisfactory to the Lenders and their counsel; (d) Written money transfer instructions, in substantially the form of Exhibit E hereto, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested; and (e) Such approvals, opinions and documents pertaining to any Advance requested by or on behalf of a Qualified Borrower as the Agent may require have been provided. Each Borrowing Notice, Letter of Credit Request, and Conversion/Continuation Notice shall constitute a representation and warranty by the Borrower that the conditions contained in Sections 5.2(a) and (b) have been satisfied. 5.3 Conditions to Secured Collateral Pool. No Hotel Property may henceforth be included in the Secured Collateral Pool until the Agent has received, with respect to each such Hotel Property, each of the following documents or information, which documents and information shall in all respects be acceptable in form and substance to the Agent and the Lenders and their counsel: (a) Security Documents. Such Security Documents as the Agent shall require including, without limitation, a Mortgage in recordable form duly executed by the Borrower in form and content acceptable to the Agent and its counsel and giving the Agent a first priority lien on said Hotel Property subject only to those easements or encumbrances consented to in writing by the Agent ("Permitted Exceptions"). (b) Security Agreements. Security Agreements duly executed by the Borrower, granting to the Agent a first priority security interest in all furniture, furnishings, equipment, fixtures, supplies, inventory, accounts, licenses, franchise agreements, general intangibles and other personal property of every kind and description used in connection with the ownership, operation and or management of each such Hotel Property, together with (i) acknowledgment copies of financing statements (UCC-1's) duly filed under the Uniform Commercial Code of all jurisdictions necessary or, in the opinion of the Agent, desirable to perfect the security interests created by the Security Agreements; and (ii) certified copies of requests for information (form UCC-11's) identifying all of the financing statements on file with respect to the Borrower, the Guarantor, any Qualified Borrower and the Lessee, as applicable, indicating that no party claims an interest in any of the personal property composing part of the Collateral. At the Agent's option, the Security Agreements may be contained in the Mortgages. (c) Evidence of Due Authorization of Security Documents and Corporate or Partnership Good Standing. Certified copies of all partnership or corporate action, as applicable, taken by each party executing a Mortgage, Security Agreement, Assignments of Rents and Leases, UCC-1 financing statements, and all other Loan Documents and other instruments, 45 51 certificates or agreements required by the Agent, including resolutions of its board of directors or appropriate partnership action, as applicable, authorizing the execution, delivery and performance of the Security Documents and evidence of the good standing of each party to each of the Security Documents under their respective state's organization and any other state the Agent deems necessary or appropriate. (d) Assignments of Rents and Leases. The Assignment of Rents and Leases with respect to each such Hotel Property duly executed by the Borrower, which assignments may be contained in the Mortgages at the Agent's option. (e) Franchise Agreements. Copies of the franchise agreement under which each such Hotel Property will be operated, a copy of the franchisor's most recent inspection report, and, unless waived by the Agent, a letter from each franchisor agreeing to give notices to the Agent of any defaults by the franchisee. (f) Leases. Copies of each Lease and any service agreements relating to each such Hotel Property, all of which shall be acceptable in form and content to the Agent. (g) Subordinations. Subordination agreement(s) duly executed by the Lessee under the Leases subordinating the Leases to the Mortgages. (h) Management Agreements. Copy of any management agreement for any Hotel Property subject to a management agreement providing for management by a company satisfactory to the Agent, and an assignment to the Agent of any such management agreement, as well as the subordination thereof and management fees thereunder to the Mortgage for the subject Hotel Property, and the consent of the manager thereto, all in form and content acceptable to the Agent and its counsel. (i) Surveys. An ALTA (or its equivalent acceptable to the Agent) as-built survey of each such Hotel Property from a licensed surveyor acceptable to the Agent, the Agent's counsel and the title insurance company. The survey must be sufficient in form and content so that the title insurance company will issue an ALTA mortgagee's title insurance policy in which the standard boundary, encroachment and survey exceptions have been deleted. The survey for any Secured Collateral Pool Property acquired by the Borrower after the date hereof must be dated within ninety (90) days prior to the issuance of the title policy and be certified to the Agent and the title insurance company in form acceptable to the Agent. The survey must show all easements or restrictions reflected as exceptions in the title insurance policies and must not show any matters affecting a particular Hotel Property which is objectionable to the Agent. The survey shall indicate whether any part of the particular Hotel Property is located within a flood plain area. (j) Title Insurance Policies. A mortgagee title insurance policy with respect to each such Hotel Property in an amount equal to 45% of the Value as of the date the applicable Hotel Property is accepted into the Collateral Pool, naming the Agent as the insured party, showing no liens against such Hotel Property except for the Mortgage and reflecting fee simple title to the Hotel Property in the Borrower, subject to no exceptions except for Permitted 46 52 Exceptions. Such policy shall be issued by a title insurance company acceptable to the Agent, and shall contain affirmative coverage as to survey matters, and such other affirmative coverage or endorsements (including, without limitation, so-called tie-in endorsement or equivalent thereof acceptable to the Agent) as may be reasonably required by the Agent. (k) Environmental Audits. A hazardous materials report site assessment for each such Hotel Property, performed and issued by a nationally recognized environmental audit firm, or as otherwise mutually agreed upon by the Borrower and the Agent, addressed to the Agent as a party entitled to rely thereon, dated not more than six (6) months prior to the date the applicable Hotel Property is accepted into the Collateral Pool, in compliance with the requirements of Exhibit F and reflecting no indication of adverse environmental conditions at the subject Hotel Property, including, without limitation, asbestos, and including a certification that the Hotel Property is not located on, and has not disturbed, a protected wetlands area. (l) Physical Inspections. A report of an independent inspecting engineering firm satisfactory to the Agent as to the physical condition of each such Hotel Property reflecting a condition of such Hotel Property acceptable to the Agent and the independent satisfaction of the Agent with the physical condition of the Hotel Property pursuant to the on-site inspection of officers of the Agent, for which inspections such officers shall be permitted access to the Hotel Property during reasonable hours. All out of pocket expenses incurred by the Agent in connection with such inspections shall be payable on demand by the Borrower. (m) Certificates of Insurance. Each of (i) a current certificate of insurance as to the insurance maintained by the Borrower on such Hotel Property (including flood insurance if necessary) from the insurer or an independent insurance broker dated as of the date of determination, identifying insurers, types of insurance, insurance limits, and policy terms (which certificate may evidence inclusion of such Hotel Property under a "blanket" policy maintained by the Borrower); (ii) certified copies of all policies evidencing such insurance (or certificates therefor signed by the insurer or an agent authorized to bind the insurer); and (iii) such further information and certificates from the Borrower, its insurers and insurance brokers as the Agent may request. (n) Appraisals. Any existing appraisal of each such Hotel Property which the Borrower may have access to. (Upon any Default or Unmatured Default the Agent may order an appraisal on any or all Collateral Pool Properties at the Borrower's expense prepared by an MAI appraiser acceptable to the Agent). (o) Environmental Indemnity. An Environmental Indemnity Agreement in form and content satisfactory to the Agent and its counsel, executed by the Borrower, with respect to each such Hotel Property. (p) Opinion of Counsel. The favorable opinion of counsel for the Borrower qualified to practice in the State in which the Hotel Property is located, addressed to Agent as to the enforceability against the Borrower of the Security Documents, as applicable, and all other documents to be delivered by such entities and, with respect to the Borrower, specifically opining as to the existence and sufficiency of consideration for the Security Documents to be signed by 47 53 it, each such opinion letter to be in form and content acceptable to the Agent, and opining as to such other matters as the Agent may request. (q) Independent Market Study. An independent market study acceptable to the Agent on each such Hotel Property. (r) Certificate of Occupancy; As Built Plans and Specifications. To the extent available or obtainable, a copy of the certificate of occupancy for such Hotel Property, or other evidence satisfactory to the Agent that no certificate of occupancy is necessary to the use and occupation thereof, together with a copy of as-built plans and specifications for such Hotel Property, showing all improvements thereon to the fullest extent available to the Borrower or in the Borrower's possession. (s) Zoning Compliance. A zoning letter or certificate from the appropriate local official (or other evidence satisfactory to the Agent) confirming that the use of the Hotel Property is in compliance with zoning regulations or is an otherwise permitted use, and other evidence reasonably satisfactory to the Agent that in case of casualty the improvements could be rebuilt in substantially the manner existing prior to such casualty. (t) Permit Assurances. Evidence by the Borrower or the Borrower's agents or representatives reasonably satisfactory to the Agent that all activities being conducted on such Hotel Property which require federal, state or local licenses or permits have been duly licensed and that such licenses or permits are in full force and effect. (u) Operating Statements. Operating statements for such Hotel Property in form acceptable to the Agent covering each of the last twelve (12) consecutive calendar months (or, if twelve (12) calendar months have not passed since completion of construction of such Hotel Property, an operating statement for each quarter since such completion) ending immediately prior to the addition of such Hotel Property to the Secured Collateral Pool; provided, however, that if twelve (12) calendar months have not passed since the Borrower acquired title to the Hotel Property, such operating statements for periods prior to the Borrower's ownership as are in the Borrower's possession or reasonably obtainable by the Borrower. (v) Doing Business Opinion or Title Endorsement. For Hotel Properties located in such states as the Agent may designate, either (i) an opinion, dated the date of the inclusion of each such Hotel Property in the Secured Collateral Pool, of legal counsel acceptable to the Agent qualified to practice in the state in which such Hotel Property is located, or (ii) a doing-business endorsement to the title insurance policy required by Section 5.3 (j) hereof, each to the effect that neither the Agent nor any Lender shall be required to qualify to do business in such state or any political subdivision thereof or to become liable to pay any taxes in such state or any political subdivision thereof solely on account of the receipt of the security title or lien on such Hotel Property securing the Obligations, such opinion or endorsement to be satisfactory to the Agent, subject to practices customary in such state with respect to the scope and substance of such opinion or endorsement. 48 54 (w) Photographs. Photographs of the Hotel Property, and a listing of amenities. (x) Legal Description. A legal description of the Hotel Property. (y) Site Plan. A site plan. (z) Location Map. A location map with the Hotel Property clearly identified thereon. (aa) Borrowing Base. The Cost and Implied Value for each Hotel Property from which the Borrowing Base can be determined. (bb) Pro forma Compliance Certificate. A pro forma compliance certificate in the form attached hereto as Exhibit C. (cc) Other Documents. Such other approvals, opinions, information or documents as the Agent may request, it being understood that all Hotel Properties now or hereafter being considered for inclusion in the Secured Collateral Pool must be acceptable to the Lenders. If at any time the Agent reasonably determines, in its sole discretion, that a Hotel Property should be removed from the Secured Collateral Pool, whether due to environmental concerns which have changed or become known since the date of inclusion in the Secured Collateral Pool, casualty or otherwise, the Agent shall so notify the Borrower in writing and such Hotel Property shall thereafter no longer be considered part of the Secured Collateral Pool, nor included in the calculation of the Borrowing Base. Any such Hotel Property so removed from the Secured Collateral Pool shall upon written request from the Borrower be released by the Agent from the lien of any Mortgage provided there is then existing no Default or Unmatured Default hereunder and the provisions of Section 7.13 hereof have been complied with. In addition, the Borrower may substitute another Hotel Property for the one removed from the Secured Collateral Pool provided such new Hotel Property is acceptable to the Lenders and all conditions precedent to the inclusion of such Hotel Property in the Secured Collateral Pool have been complied with including, without limitation, the provisions of Section 7.13 hereof. 5.4 Conditions to Negative Collateral Pool. No Hotel Property may be included in the Negative Collateral Pool until the Agent has received, with respect to each such Hotel Property, each of the following documents or information, which documents and information shall in all respects be acceptable in form and substance to the Agent and the Lenders and their counsel: (a) Negative Pledge. The Negative Pledge Agreement. (b) UCC Searches. Certified copies of requests for information (form UCC-11) identifying all of the financing statements on file with respect to the Borrower, the Guarantor, any Qualified Borrower and the Lessee, as applicable, indicating that no Person 49 55 claims an interest in any of the personal property belonging to the Borrower and located on or at the Hotel Property. (c) Evidence of Due Authorization and Corporate or Partnership Good Standing. Certified copies of all partnership or corporate action, as applicable, taken by each party executing a Negative Pledge Agreement, and all other Loan Documents and other instruments, certificates or agreements required by the Agent, including resolutions of its board of directors or appropriate partnership action, as applicable, authorizing the execution, delivery and performance of the Negative Pledge Agreement and evidence of the good standing of each party to each Negative Pledge Agreement under their respective state's organization and any other state the Agent deems necessary or appropriate. (d) Franchise Agreements. Copies of the franchise agreement under which each such Hotel Property will be operated, a copy of the franchisor's most recent inspection report, and, unless waived by the Agent, a letter from each franchisor agreeing to give notices to the Agent of any defaults by the franchisee. (e) Leases. Copies of each Lease and any service agreements relating to each such Hotel Property all of which shall be acceptable in form and content to the Agent. (f) Management Agreements. Copy of any management agreement for any Hotel Property subject to a management agreement providing for management by a company satisfactory to the Agent, and an assignment to the Agent of any such management agreement, all in form and content acceptable to the Agent and its counsel. (g) Title Insurance Policies; Updated Searches. Copies of any owner's title insurance policy with respect to each such Hotel Property showing no liens encumbering such Hotel Property and reflecting fee simple title to the Hotel Property in the Borrower, subject to no exceptions except for Permitted Exceptions. The Borrower shall also provide updated title searches or abstracts sufficient to allow the Agent to determine the Hotel Property is unencumbered as of the date hereof. (h) Environmental Audits. Any existing hazardous materials report site assessment for each such Hotel Property, reflecting no indication of adverse environmental conditions at the subject Hotel Property, including, without limitation, asbestos, and including a certification that the Hotel Property is not located on, and has not disturbed, a protected wetlands area. (i) Physical Inspections Any existing report of an inspecting engineering firm as to the physical condition of each such Hotel Property reflecting a condition of such Hotel Property acceptable to the Agent and the independent satisfaction of the Agent with the physical condition of the Hotel Property pursuant to the on-site inspection of officers of the Agent, for which inspections such officers shall be permitted access to the Hotel Property during reasonable hours. All out of pocket expenses incurred by the Agent in connection with such inspections shall be payable on demand by the Borrower. 50 56 (j) Appraisals. Any existing appraisal of each such Hotel Property which the Borrower may have access to. (Upon any Default or Unmatured Default the Agent may order an appraisal on any or all Collateral Pool Properties at the Borrower's expense prepared by an MAI appraiser acceptable to the Agent). (k) Environmental Indemnity. An Environmental Indemnity Agreement in form and content satisfactory to the Agent and its counsel, executed by the Borrower, with respect to each such Hotel Property. (l) Operating Statements. Operating statements for such Hotel Property acceptable to the Agent covering each of the last twelve (12) consecutive calendar months (or, if twelve (12) calendar months have not passed since completion of construction of such Hotel Property, an operating statement for each quarter since such completion) ending immediately prior to the addition of such Hotel Property to the Negative Collateral Pool; provided, however, that if twelve (12) calendar months have not passed since the Borrower acquired title to the Hotel Property, such operating statements for periods prior to the Borrower's ownership as are in the Borrower's possession or reasonably obtainable by the Borrower. (m) Photographs. Photographs of the Hotel Property, and a listing of amenities. (n) Legal Description. A legal description of the Hotel Property. (o) Site Plan. A site plan. (p) Location Map. A location map with the Hotel Property clearly identified thereon. (q) Independent Market Study. An independent market study acceptable to the Agent. (r) Borrowing Base. The Cost and Implied Value for each Hotel Property from which the Borrowing Base can be determined. (s) Pro forma Compliance Certificate. A pro forma compliance certificate in the form attached hereto as Exhibit C. (t) Other Documents. Such other approvals, opinions, information or documents as the Agent may request. If at any time the Agent reasonably determines, in its sole discretion, that a Hotel Property should be removed from the Negative Collateral Pool, whether due to environmental concerns which have changed or become known since the date of inclusion in the Negative Collateral Pool, casualty or otherwise, the Agent shall so notify the Borrower in writing and such Hotel Property shall thereafter no longer be considered part of the Negative Collateral Pool, nor included in the calculation of the Borrowing Base. Any such Hotel Property so removed from 51 57 the Negative Collateral Pool shall upon written request from the Borrower be released from the Negative Pledge Agreement applicable thereto provided there is then existing no Default or Unmatured Default hereunder, and the provisions of Section 7.13 hereof have been complied with. In addition, the Borrower may substitute another Hotel Property for the one removed from the Negative Collateral Pool provided such Hotel Property is acceptable to the Lenders and all conditions precedent to the inclusion of such Hotel Property in the Negative Collateral Pool have been complied with. ARTICLE VI REPRESENTATIONS AND WARRANTIES The Borrower and the Guarantor represent and warrant to the Lenders that as of the date hereof, and as of each Borrowing Date, Issuance Date and each conversion and/or continuation (except as otherwise disclosed to and approved by the Required Lenders): 6.1. Existence. They are duly organized, validly existing and in good standing under the laws of the State of Tennessee, with their principal places of business in Memphis, Tennessee, and are duly qualified as a foreign partnership or corporation (as applicable), properly licensed (if required), in good standing and have all requisite authority to conduct their business in each jurisdiction in which either owns Hotel Properties and, except where the failure to be so qualified or to obtain such authority would not have a Material Adverse Effect, in each other jurisdiction in which their business is conducted. Each of their Subsidiaries, Qualified Borrowers and Investment Affiliates is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all requisite authority to conduct its business in each jurisdiction in which it owns Hotel Property, and except where the failure to be so qualified or to obtain such authority would not have a Material Adverse Effect, in each other jurisdiction in which it conducts business. 6.2. Authorization and Validity. They have the power and authority and legal right to execute and deliver the Loan Documents and to perform their respective obligations thereunder. The execution and delivery by them of the Loan Documents and the performance of their obligations thereunder have been duly authorized by proper proceedings, and the Loan Documents constitute legal, valid and binding obligations of the Borrower and the Guarantor enforceable against them in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). 6.3. No Conflict; Government Consent. Neither the execution and delivery by them of the Loan Documents, nor the consummation of the transactions therein contemplated, nor compliance with the provisions thereof will violate in any material respect any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on, respectively, the Borrower, the Guarantor or any of their Subsidiaries or Qualified Borrowers or any of such entities' articles of incorporation, by-laws, certificates of limited partnership, partnership 52 58 agreements or operating agreements, as the case may be, or the provisions of any indenture, declaration of trust, instrument or agreement to which any entity is a party or is subject, or by which it, or its Hotel Property, is bound, or conflict with or constitute a default thereunder, or result in the creation or imposition of any Lien in, of or on the Hotel Property of such entity pursuant to the terms of any such indenture, instrument or agreement. No order, consent, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, any governmental or public body or authority, or any subdivision thereof, is required to authorize, or is required in connection with the execution, delivery and performance of, or the legality, validity, binding effect or enforceability of, any of the Loan Documents. 6.4. Financial Statements; Material Adverse Change. The most recent consolidated financial statements of the Borrower, the Guarantor and their Subsidiaries delivered to the Lenders prior to the date that this representation is made were prepared in accordance with GAAP in effect on the date such statements were prepared and fairly present the consolidated financial condition and operations of the Borrower, the Guarantor and their Subsidiaries at such date and the consolidated results of their operations for the period then ended. Since the date of such financial statements, there has been no change in the business, property, results of operations or financial condition of the Borrower, the Guarantor or their Subsidiaries which have or could be reasonably expected to have a Material Adverse Effect. 6.5. Taxes. The Borrower, the Guarantor and their Subsidiaries, and any Qualified Borrowers, have filed all United States federal tax returns and all other tax returns which are required to be filed and have paid all taxes due pursuant to said returns or pursuant to any assessment received by, respectively, the Borrower, the Guarantor, any of their Subsidiaries or any Qualified Borrowers, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided. No tax liens have been filed and no claims are being asserted with respect to any such taxes. The charges, accruals and reserves on the books of the Borrower, the Guarantor and their Subsidiaries, and to the Borrower's and the Guarantor's collective knowledge, their Qualified Borrowers in respect of any taxes or other governmental charges are adequate. 6.6. Litigation and Contingent Obligations. Except as set forth on Schedule 6, there is no litigation, arbitration, governmental investigation or proceeding pending or, to the knowledge of any of the Guarantor's officers, threatened, in a writing received by the Borrower, the Guarantor, a Subsidiary, or a Qualified Borrower, against or affecting the Borrower , the Guarantor or any of their Subsidiaries, Qualified Borrowers or Investment Affiliates which, if adversely determined, would have a Material Adverse Effect. Except as disclosed on Schedule 7, they have no material contingent obligations not provided for or disclosed in the financial statements referred to in Section 7.1, which would have or could be reasonably expected to have a Material Adverse Effect. 6.7. Subsidiaries. Schedule 1 hereto contains an accurate list of all of the presently existing Subsidiaries and Investment Affiliates of the Borrower and the Guarantor, setting forth their respective jurisdictions of formation, the percentage of their respective Capital Stock owned by them or their Subsidiaries, properties owned and a description of its business and with respect to Investment Affiliates, whether such Investment Affiliate constitutes a Qualified 53 59 Borrower. All of the issued and outstanding shares of Capital Stock of such Subsidiaries and, to the Borrower's and the Guarantor's collective knowledge, such Investment Affiliates have been duly authorized and issued and are fully paid and non-assessable. 6.8. ERISA. The Unfunded Liabilities of all Single Employer Plans do not in the aggregate exceed $1,000,000. Neither the Borrower nor the Guarantor, nor any other member of the Controlled Group has incurred any withdrawal liability to Multiemployer Plans in excess of $250,000 in the aggregate. If withdrawals from all Multiemployer Plans occurred, the liability would not exceed $250,000. Each Plan and, to the Borrower's and the Guarantor's collective knowledge, each Multiemployer Plan, complies in all material respects with all applicable requirements of law and regulations and the Borrower, the Guarantor and all members of the Controlled Group have complied in all material respects with ERISA and the Code with respect to each Plan. No Reportable Event has occurred with respect to any Plan, neither the Borrower nor the Guarantor nor any other member of the Controlled Group has withdrawn from any Plan or Multiemployer Plan or initiated steps to do so, and no steps have been taken to reorganize or terminate any Plan or, to the Borrower's or the Guarantor's collective knowledge, Multiemployer Plan. Neither the Borrower nor the Guarantor nor any member of the Controlled Group has any Plans or is a party to any collective bargaining agreements other than those listed on Schedule 3. There is no accumulated funding deficiency (as defined in Section 412 of the Code or Section 302 of ERISA) outstanding which could reasonably be expected to have a Material Adverse Effect, there is no lien outstanding under Section 412 of the Code or Section 302 of ERISA with respect to assets of the Borrower or the Guarantor or any member of the Controlled Group and no requirement to provide security under Section 401(a)(29) of the Code or Section 307 of ERISA has been or is reasonably expected to be imposed on assets of the Borrower, the Guarantor or any member of the Controlled Group. No liability to the PBGC or the Internal Revenue Service with respect to any Plan or Multiemployer Plan or trust related thereto has been or is reasonably expected to be incurred by the Borrower or the Guarantor or any member of the Controlled Group which could reasonably be expected to have a Material Adverse Effect. Neither the Borrower nor the Guarantor nor any member of the Controlled Group has any contingent liability with respect to any post-retirement benefits under any "welfare plan" (as defined in Section 3(l) of ERISA) nor withdrawal liability or exit fee or charge with respect to any such postretirement benefits under any welfare plan which could reasonably be expected to have a Material Adverse Effect. Throughout the term of the Loan, the Borrower and the Guarantor are not and neither will be an "employee benefit plan" as defined in Section 3(32) of ERISA or a "governmental plan" within the meaning of Section 3(3) of ERISA, none of the assets of the Borrower or the Guarantor will constitute "plan assets" of one or more plans for purposes of Title I of ERISA, and neither the Borrower nor the Guarantor will be subject to state statutes applicable to Borrower or the Guarantor regulating investments and fiduciary obligations with respect to governmental plans. 6.9. Accuracy of Information. All factual information heretofore or contemporaneously furnished by or on behalf of the Borrower, the Guarantor or any of their Subsidiaries or any Investment Affiliates, or Qualified Borrowers, to the Agent or any Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of the Borrower, the Guarantor or any of their Subsidiaries, any Investment Affiliates or Qualified Borrowers to the 54 60 Agent or any Lender will be, true and accurate (taken as a whole) on the date as of which such information is dated or certified and not incomplete by omitting to state any material fact necessary to make such information (taken as a whole) not misleading at such time. There are no facts, events or conditions directly and specifically affecting the Borrower, the Guarantor, their Subsidiaries or any Investment Affiliate or Qualified Borrower known to the Borrower or the Guarantor and not disclosed to the Agent or not disclosed in the information furnished by or on behalf of the Borrower, the Guarantor, their Subsidiaries or any Investment Affiliates or Qualified Borrowers, which, in the aggregate, have or could be reasonably expected to have a Material Adverse Effect. 6.10. Regulation U. They do not hold any margin stock (as defined in Regulation U). 6.11. Material Agreements. Neither they nor any Subsidiary or Investment Affiliate or Qualified Borrower is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in (i) any agreement to which it is a party, which default could have a Material Adverse Effect, or (ii) except as disclosed on Schedule 8 any agreement or instrument evidencing or governing Indebtedness. 6.12. Compliance With Laws. Except as set forth in Schedule 5 they and their Subsidiaries and any Investment Affiliates and Qualified Borrowers have complied in all material respects, to their collective knowledge, with all applicable statutes, rules, regulations, orders and restrictions of any domestic or foreign government or any instrumentality or agency thereof, having jurisdiction over the conduct of their respective businesses or the ownership of their respective Hotel Property except where such non-compliance would not have a Material Adverse Effect. Except as disclosed on Schedule 5, neither the Borrower, the Guarantor, any Subsidiary, nor any Investment Affiliate nor any Qualified Borrower, has received any written notice to the effect that its operations are not in material compliance with any of the requirements of applicable federal, state and local environmental, health and safety statutes and regulations or the subject of any federal or state remedial action responding to a release of any toxic or hazardous waste or substance into the environment, which non-compliance or remedial action could have a Material Adverse Effect. 6.13. Ownership of Collateral Pool Properties. On the date of this Agreement, the Borrower will have good title, free of all Liens other than Permitted Liens, to all of the Collateral Pool Properties as identified on Exhibits G and H. 6.14. Investment Company Act. Neither Borrower, the Guarantor nor any Subsidiary or any Investment Affiliate or Qualified Borrower is an "investment company" or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended. 6.15. Public Utility Holding Company Act. Neither Borrower, the Guarantor nor any Subsidiary or any Investment Affiliate or Qualified Borrower is a "holding company" or a "subsidiary company" of a "holding company", or an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company", within the meaning of the Public Utility Holding Company Act of 1935, as amended. 55 61 6.16. Solvency. (a) Immediately after the Closing Date and immediately following the making of each Loan and after giving effect to the application of the proceeds of such Loans, (a) the fair value of the assets of the Borrower, the Guarantor and their Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, subordinated, contingent or otherwise, of the Borrower, the Guarantor and their Subsidiaries on a consolidated basis; (b) the present fair saleable value of all property of the Borrower, the Guarantor and their Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of the Borrower, the Guarantors and their Subsidiaries on a consolidated basis on their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) the Borrower, the Guarantor and their Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (d) the Borrower, the Guarantor and their Subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted after the date hereof . (b) They do not intend to, or to permit any of their Subsidiaries, Investment Affiliates or Qualified Borrowers to incur debts beyond their ability to pay such debts as they mature, taking into account the timing of and amounts of cash to be received by them or any such Subsidiary and the timing of the amounts of cash to be payable on or in respect of their Indebtedness or the Indebtedness of any such Subsidiary. 6.17. Insurance. While any of the Obligations remain outstanding the Borrower shall procure and maintain or shall cause to be procured and maintained continuously in effect, policies of insurance in form and amounts and issued by companies, associations or organizations licensed to do business in the states in which the Collateral Pool Properties are located, with a Best's Rating of no less than A, XII and otherwise satisfactory to the Agent covering such casualties, risk, perils, liabilities and other hazards reasonably required by the Agent. All original policies, or certificates thereof, and endorsements and renewals thereof shall be delivered to and retained by the Agent unless the Agent waives this requirement in writing. All policies shall expressly protect or recognize the Lenders' interests as required by the Agent. Without limiting the generality of the foregoing, the Borrower shall provide or cause to be provided the following types of insurance coverage: (a) Until repayment and/or fulfillment of the Obligations: (i) property insurance on a "special causes of loss" replacement cost basis (or fire, extended coverage and difference in conditions basis) including flood, earthquake and sinkhole coverages in amount equal to the replacement cost of the Collateral Pool Properties, naming the Agent as mortgagee and loss/payee under a standard form mortgagee clause; (ii) Comprehensive General Liability Insurance (including contractual liability, owners and contractors protective coverages, products & completed operations, personal & advertising injury liability, fire damage, legal liability and alienated premises coverage) and Comprehensive Auto Liability Insurance in a minimum amount of $20,000,000 per each occurrence; (iii) Statutory Workers' Compensation and Employer's 56 62 Liability Insurance in the minimum amounts of $1,000,000 each accident, $1,000,000 each employee-disease, $1,000,000 policy limit-disease; and (iv) Rent loss insurance against loss of income by reason of any hazard covered under the insurance required under this subparagraph (a) in an amount sufficient to avoid any co-insurance penalty, but in any event for not less than two (2) years gross receipts from all sources of income from the Collateral Pool Properties. (b) Such additional insurance as may be reasonably required by the Agent from time to time in the event that any of the Collateral Pool Properties are exposed to hazards and risks with respect to which the Agent deems the existing insurance inadequate to properly protect its interests. All policies of insurance shall have attached thereto a lender's loss payable endorsement for the benefit of the Agent as loss payee, in form satisfactory to the Agent. The Borrower shall furnish the Agent with a certified copy of an original or a certificate of insurance of all policies of insurance required. All policies or certificates, as the case may be, of insurance shall set forth the coverage, the limits of liability, the name of the carrier, the policy number, the Bests' Rating of the carrier and the period of coverage. In addition, all policies of insurance required under the terms hereof shall (i) contain an endorsement or agreement by the insurer that any loss shall be payable in accordance with the terms of such policy, notwithstanding any act or negligence of the Borrower or any party holding under the Borrower which might otherwise result in a forfeiture of said insurance and the further agreement of the insurer waiving all rights of setoff, counterclaim or deductions against the Borrower, (ii) indemnify the Agent against losses due to its sole or contributory negligence. At least twenty (20) days prior to the expiration of each required policy, the Borrower shall deliver to the Agent evidence of the renewal or replacement of such policy, continuing such insurance in their form as required by this agreement. All such policies shall contain a provision that notwithstanding any contrary agreement between the Borrower and the applicable insurance company, such policies will not be canceled, allowed to lapse without renewal, surrendered or amended (which provision shall include any reduction in the scope or limits of coverage) without at least thirty (30) days prior written notice to the Agent. 6.18. NYSE and REIT Status. The Guarantor's common stock is listed on the New York Stock Exchange and there is no proceeding pending to delist said stock, and the Guarantor is qualified as a real estate investment trust and currently is in compliance with all applicable provisions of the Code. 6.19. Environmental Matters. Except as disclosed in Schedule 4, after due inquiry and investigation in accordance with good commercial or customary practices, without regard to whether the Agent or the Lenders have or hereafter obtain any knowledge or report of the environmental condition of any of the Collateral Pool Properties, each of the following representations and warranties is true and correct except to the extent that the facts and circumstances giving rise to any such failure to be so true and correct, in the aggregate, could not reasonably be expected to have a Material Adverse Effect: (a) During the period of the Borrower's, and/or the Guarantor's, ownership of the Collateral Pool Properties, the Collateral Pool Properties have not been used for industrial or manufacturing purposes, for landfill, dumping or other waste disposal 57 63 activities or operations, for generation, storage, use, sale, treatment, processing, recycling or disposal of any Hazardous Material in violation of any applicable Environmental Requirement, for underground or aboveground storage tanks, or for any other use that could give rise to the release of any Hazardous Material on any of the Collateral Pool Properties; to the best of their knowledge, no such use of any of the Collateral Pool Properties occurred at any time prior to the period of their ownership; and to the best of their knowledge, no such use on any adjacent property occurred at any time prior to the date hereof; (b) to the best of their knowledge, there is no Hazardous Material, storage tank (or similar vessel) whether underground or otherwise, sump or well currently on any of the Collateral Pool Properties; (c) they have received no notice and have no knowledge of any Environmental Claim regarding any of the Collateral Pool Properties or any adjacent property; (d) the present conditions, uses and activities on the Collateral Pool Properties do not violate any Environmental Requirement and the uses of the Collateral Pool Properties which Borrower (and each tenant and subtenant, if any) makes and intends to make of the Properties comply and will comply with all applicable Environmental Requirements; and neither they, nor to their knowledge, any tenant or subtenant, has obtained or is required to obtain any permit or other authorization to construct, occupy, operate, use or conduct any activity on any of the Collateral Pool Properties by reason of any Environmental Requirement; (e) None of the Collateral Pool Properties appear on the National Priorities List or any other list or database of hotels maintained by any local, state or federal agency or department showing Collateral Pool Properties which are known to contain or which are suspected of containing a Hazardous Material; and (f) They have never applied for and been denied environmental impairment liability insurance coverage relating to any of the Collateral Pool Properties. 6.20. Licenses, etc. The Borrower, the Guarantor, their Subsidiaries, and any Qualified Borrowers or Investment Affiliates have obtained and hold in full force and effect, all material trademarks, trade names, copyrights, licenses, permits, certificates, authorizations, qualifications, accreditations, easements, rights of way and other rights consents and approvals which are necessary for the operation of the Collateral Pool Properties. 6.21. Judgments. There are no judgments, decrees, or orders of any kind against the Borrower, the Guarantor, their Subsidiaries, any Qualified Borrowers or any Investment Affiliates unpaid of record which would have a Material Adverse Effect. 6.22. Lessee; Property Manager. Except as set forth on Schedule 9, as of the date hereof, the Lessee and manager of each Collateral Pool Property is RFS, Inc. 58 64 6.23. Updated Schedules. The Borrower will, at the Agent's request, update any or all of the Schedule(s) to this Agreement by delivery to the Agent of such revised Schedule(s) and, from and after the date of delivery of such updated Schedule(s) to the Agent, and its approval by the Required Lenders, the representations and warranties of the Borrower hereunder shall be deemed to reflect such revised Schedule, provided, however, in no event may the Borrower cure any Default hereunder by substituting a revised Schedule for one that was incorrect when submitted. 6.24. Collateral Pool Properties. Exhibits G and H hereto contain a complete and accurate list of Hotel Properties in the Secured Collateral Pool and in the Negative Collateral Pool as of the Closing Date, and as supplemented from time to time. With respect to each such Collateral Pool Property, the Borrower hereby represents and warrants as follows except to the extent disclosed in writing to the Lenders and approved by the Required Lenders (which approval shall not be unreasonably withheld): (a) No portion of any improvement on each Collateral Pool Property is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law, or, if located within any such area, the Borrower has obtained and will maintain the insurance prescribed in Section 6.17 hereof. (b) The Borrower, or the Lessee, has obtained all material certificates, licenses and other approvals, governmental and otherwise, necessary for the operation of each Collateral Pool Property and the conduct of its business and all required zoning, building code, land use, environmental and other similar permits or approvals which it is required to maintain, all of which are in full force and effect as of the date hereof and not subject to revocation, suspension, forfeiture or modification. (c) To the Borrower's knowledge, each Collateral Pool Property and the present use and occupancy thereof are in material compliance with all applicable zoning ordinances (without reliance upon adjoining or other properties), building codes, land use and Environmental Laws, laws relating to the disabled including, but not limited to, the Americans with Disabilities Act to the extent applicable, and other similar laws ("Applicable Laws"). (d) Each Collateral Pool Property is served by all utilities required for the current or contemplated use thereof. All utility service is provided by public utilities and each Collateral Pool Property has accepted or is equipped to accept such utility service. (e) All public roads and streets necessary for service of and access to each Collateral Pool Property for the current or contemplated use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public. (f) Each Collateral Pool Property is served by public water and sewer systems or, if any Collateral Pool Property is not serviced by a public water and sewer system, such 59 65 alternate systems are adequate and meet, in all material respects, all requirements and regulations of, and otherwise complies in all material respects with, all Applicable Laws with respect to such alternate systems. (g) The Borrower is not aware of any latent or patent structural or other significant deficiency of any Collateral Pool Property. Each Collateral Pool Property is free of damage and waste that would materially and adversely affect the value thereof, is in good repair and there is no deferred maintenance other than ordinary wear and tear. Each Collateral Pool Property is free from damage caused by fire or other casualty. There is no pending or, to the actual knowledge of Borrower threatened condemnation proceedings affecting any Collateral Pool Property, or any part thereof. (h) To the Borrower's knowledge, all liquid and solid waste disposal, septic and sewer systems located on any Collateral Pool Property are in a good and safe condition and repair and to the Borrower's knowledge, in compliance with all Applicable Laws with respect to such systems. (i) All improvements on each Collateral Pool Property lie within the boundaries and building restrictions of the legal description of record of each Collateral Pool Property, no such improvements encroach upon easements benefiting any Collateral Pool Property other than encroachments that do not materially adversely affect the use or occupancy thereof, and no improvements on adjoining properties encroach upon any Collateral Pool Property or easements benefitting any Collateral Pool Property other than encroachments that do not materially adversely affect the use or occupancy thereof. All amenities, access routes or other items that materially benefit each Collateral Pool Property are under direct control of the Borrower, constitute permanent easements that benefit all or part of each Collateral Pool Property or are public property, and each Collateral Pool Property, by virtue of such easements or otherwise, is contiguous to a physically open, dedicated all weather public street, and has the necessary permits for ingress and egress. (j) There are no delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or other outstanding charges affecting any Collateral Pool Property except to the extent such items are being contested in good faith and as to which adequate reserves have been provided. (k) Each Collateral Pool Property is assessed for real estate tax purposes as one or more wholly independent tax lot or lots, separate from any adjoining land or improvements not constituting a part of such lot or lots, and no other land or improvements is assessed and taxed together with any Collateral Pool Property or any portion thereof. (l) Each Collateral Pool Property is operated in compliance with a franchise agreement entered into with a franchise chain approved by the Lenders, and the Borrower is not in default under any of the terms thereof. (m) A breach of any of the representations and warranties contained in this Section 6.24 with respect to a Collateral Pool Property shall disqualify, unless otherwise 60 66 approved by the Required Lenders, such Collateral Pool Property from being in the Collateral Pool but shall not constitute a Default (unless the elimination of such Collateral Pool Property from the Collateral Pool results in a Default under one of the other provisions of this Agreement). ARTICLE VII COVENANTS During the term of this Agreement, unless the Required Lenders shall otherwise consent in writing: 7.1. Financial Reporting. The Borrower and the Guarantor will maintain, for themselves and each Subsidiary, and shall cause each Qualified Borrower and Investment Affiliate to maintain, a system of accounting established and administered in accordance with GAAP, and shall furnish to the Lenders: (a) As soon as available, but in any event not later than forty-five (45) days after the close of each fiscal quarter, for the Borrower and the Guarantor an unaudited consolidated balance sheet as of the close of each such period and the related unaudited consolidated statements of income and retained earnings and of cash flows of the Borrower, the Guarantor and their Subsidiaries for such period and the portion of the fiscal year through the end of such period, setting forth in each case in comparative form the figures for the previous year, including, without limitation, a list of all contingent liabilities, all certified by the Borrower's and the Guarantor's chief Authorized Officers, and, for the Guarantor, as soon as available, but in any event not later than ninety (90) days after the close of each fiscal year, similar audited financial statements prepared by a public accounting firm acceptable to the Agent; (b) As soon as available, but in any event not later than forty-five (45) days after the close of each fiscal quarter, for the Borrower, the Guarantor and their Subsidiaries, related reports in form and substance satisfactory to the Lenders, all certified by the Borrower's and the Guarantor's chief financial officers or chief accounting officers, including a statement of Funds From Operations, Adjusted EBITDA, a listing of capital expenditures (in the level of detail as disclosed in the Borrower's most recent Form 10Q), a report listing and describing all Collateral Pool Properties included in either the Secured or Negative Collateral Pools, including, without limitation, each Collateral Pool Property's name, franchise affiliations, lessee name and address, Adjusted Cash Flow, Borrowing Base, Cost, Property Operating Income, Adjusted EBITDA, lease payments, real estate taxes, calculation of the Capital Expenditure Reserve Amount, management fees, occupancy rates, square footage, date acquired or completed, and such other information as may be requested to evaluate the quarterly compliance certificate delivered as provided below; (c) As soon as publicly available but in no event later than the date such reports are to be filed with the Securities Exchange Commission, copies of all Form 1OKs, 1OQs, 8Ks, and any other annual, quarterly, monthly or other reports, copies of all registration statements and any other public information which the Borrower, the Guarantor or any of their 61 67 Subsidiaries files with the Securities Exchange Commission and to the extent any of such reports contains information required under the other subsections of this Section 7.1, the information need not be furnished separately under the other subsections; (d) As soon as available, but in any event not later than ninety (90) days after the close of each fiscal year of the Borrower, the Guarantor and their Subsidiaries, reports in form and substance satisfactory to the Lenders, certified by their respective Authorized Officers containing Property Operating Income for each Collateral Pool Property; (e) Not later than forty-five (45) days after the end of each of the first three fiscal quarters, and not later than ninety (90) days after the end of the fiscal year, a compliance certificate in substantially the form of Exhibit C hereto signed by the Borrower's and the Guarantor's Authorized Officers confirming that the Borrower and the Guarantor are in compliance with all of the covenants of the Loan Documents, showing the calculations and computations necessary to determine compliance with the financial covenants contained in this Agreement (including such schedules and backup information as may be necessary to demonstrate such compliance) and stating that to such officer's best knowledge, no other Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof; (f) As soon as possible and in any event within ten (10) Business Days after the Borrower or the Guarantor knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by their chief Authorized Officers, describing said Reportable Event and within twenty (20) days after such Reportable Event, a statement signed by such Authorized Officers describing the action which they propose to take with respect thereto; and within ten (10) Business Days of receipt, any notice from the Internal Revenue Service, PBGC or Department of Labor with respect to a Plan regarding any excise tax, proposed termination of a Plan, prohibited transaction or fiduciary violation under ERISA or the Code which could result in any liability to the Borrower or the Guarantor or any member of the Controlled Group in excess of $100,000; and within ten (10) Business Days of filing, any Form 5500 filed by the Borrower or the Guarantor with respect to a Plan, or any member of the Controlled Group which includes a qualified accountant's opinion. (g) As soon as possible and in any event within thirty (30) days after receipt by the Borrower or the Guarantor, a copy of (i) any notice or claim to the effect that the Borrower or the Guarantor or any of their Subsidiaries or Qualified Borrowers or Investment Affiliates is or may be liable to any Person as a result of the release by such entity, or any of its Subsidiaries, or any other Person of any toxic or hazardous waste or substance into the environment, and (ii) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Borrower, the Guarantor or any of their Subsidiaries or Qualified Borrowers or Investment Affiliates, which, in either case, could be reasonably likely to have a Material Adverse Effect; (h) Promptly upon the furnishing thereof to the partners of the Borrowers or shareholders of the Guarantor, copies of all financial statements, reports and proxy statements so furnished; 62 68 (i) Promptly upon the distribution thereof to the press or the public, copies of all press releases; (j) As soon as possible, and in any event within ten (10) days after the Borrower or the Guarantor knows of any fire or other casualty or any pending or threatened condemnation or eminent domain proceeding with respect to all or any portion of any Collateral Pool Property, a statement signed by the Authorized Officer of the Borrower or the Guarantor, describing such fire, casualty or condemnation and the action the Borrower intends to take with respect thereto; (k) Promptly upon the giving of any notices of default under any of the Leases, copies of all such notices; (l) Not later than forty-five (45) days after the end of each quarter, an unaudited financial statement for each Qualified Borrower that is not a Subsidiary and has received an Advance (including, without limitation, a balance sheet, income statement, statement of sources and uses of funds and listing of contingent liabilities), certified by an Authorized Officer; (m) As soon as possible and in any event within thirty (30) days prior to the commencement of each calendar year, the Borrower shall supply a detailed capital expenditure budget for that calendar year for each Collateral Pool Property, all in form and detail acceptable to the Required Lenders; and (n) Such other information (including, without limitation, financial statements for the Borrower or the Guarantor and non-financial information) as the Agent or any Lender may from time to time reasonably request. 7.2. Use of Proceeds. (a) The Borrower will use the proceeds of the Advances and the Facility Letters of Credit for the general business purposes of the Borrower, including working capital needs, closing costs, and interim or other financing for acquisitions of new Hotel Properties, construction of new Hotel Properties or capital improvements or renovations of existing improvements on Hotel Properties, and to repay outstanding Indebtedness; and (b) the Borrower will not, nor will it permit any Qualified Borrower or any Subsidiary to, use any of the proceeds of the Advances (i) to purchase or carry any "margin stock" (as defined in Regulation U) or (ii) to fund any tender offer for all or substantially all of another Person's outstanding Capital Stock registered with the Securities and Exchange Commission under the Securities Act of 1933, unless such Person shall have consented to such tender offer prior to its commencement and the Required Lenders shall have consented to such use of the proceeds of such Advance. 7.3. Notice of Default. The Borrower and the Guarantor will give, and will cause each of their Subsidiaries and each Qualified Borrower to give, prompt notice in writing to the Lenders of the occurrence of any Default or Unmatured Default and of any other development, financial or otherwise, which could be reasonably likely to have a Material Adverse Effect. 63 69 7.4. Conduct of Business. The Borrower and the Guarantor will do, and will cause each of their Subsidiaries and Qualified Borrowers to do, all things necessary to remain duly incorporated and/or duly qualified, validly existing and in good standing as a real estate investment trust, corporation, general partnership, limited liability company or limited partnership, as the case may be, in its jurisdiction of incorporation/formation. The Borrower will maintain all requisite authority to conduct its business in each jurisdiction in which the Collateral Pool Properties are located and, except where the failure to be so qualified would not have a Material Adverse Effect, in each jurisdiction required to carry on and conduct its businesses in substantially the same manner as it is presently conducted, and, specifically, neither the Borrower nor the Guarantor nor their Subsidiaries nor any Qualified Borrowers will undertake, or be allowed to undertake, any business other than the acquisition, development, ownership, management, operation and leasing of Hotel Properties and ancillary businesses specifically related thereto, except that the Borrower, the Guarantor and their Subsidiaries and any Qualified Borrowers may invest in the following assets or property ("Non-Conforming Investments"), subject to such limitations as are hereinafter set forth: (a) unimproved land; (b) other non-income producing property holdings (excluding cash and Cash Equivalents that are hereby deemed conforming) and income producing properties other than Hotel Properties or other investments not considered the Borrower's primary course of business; (c) stock holdings (excluding stock holdings in Subsidiaries and Investment Affiliates engaged in the Borrower's primary course of business that are hereby deemed conforming); (d) mortgages; and (e) Joint Ventures and partnerships (excluding those investments in Investment Affiliates engaged in the Borrower's primary course of business that are hereby deemed conforming). The total investment (i.e. amounts actually expended as of such date) in Non-Conforming Investments in the aggregate shall never exceed 15% of Total Assets. The total aggregate amount of all budgeted costs (whether or not actually expended) for Hotel Properties under development shall never exceed 10% of Total Assets. The total investment in the aggregate by the Borrower in Joint Ventures, partnerships and other Investment Affiliates engaged in the Borrower's primary course of business that are hereby deemed conforming shall never exceed 15% of Total Assets. 7.5. Taxes. The Borrower and the Guarantor will pay, and will cause each of their Subsidiaries and Qualified Borrowers to pay, when due all taxes, assessments and governmental charges and levies upon them of their income, profits or properties, except those which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been set aside. 64 70 7.6. Insurance. (a) The Borrower and the Guarantor will, and will cause each of their Subsidiaries and Qualified Borrowers to, maintain with financially sound and reputable insurance companies insurance on all its Collateral Pool Properties in such amounts and covering such risks as is consistent with sound business practice and in compliance with the representation in Section 6.17, and the Borrower will furnish to the Agent or any Lender upon request full information as to the insurance carried. (b) The Borrower will promptly notify the Agent if there has been a termination of any insurance policy or a material change in coverage or of the credit rating of the insurer providing such coverage. 7.7. Compliance with Laws. The Borrower and the Guarantor will, and will cause each of their Subsidiaries and Qualified Borrowers to, be in material compliance, with all laws, rules and regulations and with all final orders, writs, judgments, injunctions, decrees or awards to which they may be subject. 7.8. Maintenance of Collateral Pool Properties. The Borrower and the Guarantor will, and will cause each of their Subsidiaries, Qualified Borrowers, and the Lessee to, do all things necessary to maintain, preserve, protect and keep the Collateral Pool Properties in good repair, working order and condition, and make all necessary and proper repairs, renewals and replacements so that their businesses carried on in connection therewith may be properly conducted at all times. 7.9. Inspection. Upon reasonable notice, the Borrower and the Guarantor will, and will cause each of their Subsidiaries and Qualified Borrowers and the Lessees to, permit the Lenders, by their respective representatives and agents, to inspect any of the Hotel Properties, books and financial records of the Borrower and the Guarantor and each of their Subsidiaries and Qualified Borrowers and the Lessee, to examine and make copies of the books of accounts and other financial records of the Borrower and the Guarantor and each of their Subsidiaries, Qualified Borrowers and the Lessee, and to discuss the affairs, finances and accounts of the Borrower and the Guarantor and each of their Subsidiaries, Qualified Borrowers and lessees of Hotel Properties, and to be advised as to the same by, their respective officers at such reasonable times during normal business hours and reasonable intervals as the Lenders may reasonably designate. 7.10. Maintenance of Status. The Guarantor shall at all times (a) maintain the listing of its common stock on the New York Stock Exchange and not take any action that results in a proceeding to delist such stock, and (b) maintain its status as a real estate investment trust in compliance with all applicable provisions of the Code. 7.11. Dividends. Provided there is not a continuing Default under Section 8.1 or Section 8.2, and there is not a continuing Default under Section 8.3 relating to a breach of any of the covenants contained in Sections 7.4, 7.17 and 7.18, the Guarantor shall be permitted to declare and pay dividends and similar distributions on its Capital Stock from time to time in amounts determined by the Guarantor, provided, however, that subject to the terms of the next sentence, in no event shall the Guarantor declare or pay dividends and similar distributions on its Capital Stock if dividends paid in any calendar year would exceed 95% of Funds From 65 71 Operations for such period. Notwithstanding the foregoing, unless at the time of distribution there exists a Default in the payment of principal, interest, or the Commitment Fee, or any other fees required hereunder, the Guarantor shall be permitted to distribute whatever amount of dividends is necessary to maintain its tax status as a real estate investment trust. 7.12. Merger; Sale of Assets. The Borrower and Guarantor will not, nor will they permit any of their Subsidiaries or Qualified Borrowers to, enter into any merger, consolidation, reorganization or liquidation or transfer or otherwise dispose of all or a portion of their property except for (a) such transactions that occur between Wholly-Owned Subsidiaries, (b) transactions where the Borrower or the Guarantor is the surviving entity and there is no change in business conducted or loss of an investment grade rating on such entity's long-term unsecured debt and no other Default results from such transaction, or (c) transactions that are approved in advance in writing by the Lenders. 7.13. Release of Mortgages or Negative Pledge Agreements. In addition to any other specific provisions herein allowing the release of a Mortgage or a Negative Pledge Agreement, provided there is no Default or Unmatured Default hereunder, the Borrower may by written request to the Agent obtain a release of a Mortgage or a Negative Pledge Agreement encumbering or affecting any Collateral Pool Property if such Hotel Property is either being (i) sold by the Borrower under an arms-length contract to a Person which is not also the Guarantor, a Subsidiary of the Borrower or the Guarantor, or a Qualified Borrower, (ii) is being included by the Borrower in a securitization offering, or (iii) is being removed from the Collateral Pool due to other reasons as set forth in this Agreement, provided that in any such event at least one (1) of the following provisions is satisfied: (a) the Borrower provides a substitute Hotel Property acceptable to the Lenders and complies with all conditions precedent herein to the inclusion of such Hotel Property in the Collateral Pool, or (b) the outstanding principal balance of the Facility is reduced in an amount satisfactory to the Lenders and availability under the Facility is reduced by an equivalent sum on a pro rata basis. In addition to the foregoing, in order to obtain a release of any Mortgage or Negative Pledge Agreements, whether due to the sale of a Collateral Pool Property, or otherwise, all covenants must still be met as evidenced by a pro forma compliance certificate in the form attached hereto as Exhibit "C". Notwithstanding the foregoing, or any other provision herein to the contrary, the Agent shall be under no obligation to release any Mortgage or Negative Pledge Agreement if the mix of the remaining Collateral Pool Property types is not acceptable to the Required Lenders, in their sole but reasonable discretion. 7.14. Liens. The Borrower and the Guarantor will not, nor will they permit any of their Subsidiaries or Qualified Borrowers to, create, incur, or suffer to exist any Lien in, of or on their Collateral Pool Properties, except: 66 72 (a) Liens for taxes, assessments or governmental charges or levies on their Collateral Pool Properties if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings and for which adequate reserves shall have been set aside on their books; (b) Liens which arise by operation of law, such as carriers', warehousemen's, landlords', materialmen and mechanics' liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than thirty (30) days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves shall have been set aside on its books; (c) Liens arising out of pledges or deposits under worker's compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation; (d) Utility easements, building restrictions, zoning restrictions, easements and such other encumbrances or charges against real property as are of a nature generally existing with respect to properties of a similar character and which do not in any material way affect the marketability of the same or interfere with the use thereof in their businesses; (e) Liens of any Subsidiary, Qualified Borrower or Investment Affiliate in favor of the Borrower; (f) Liens existing on the date hereof and described in Schedule 2 hereto; and (g) Liens arising in connection with any Indebtedness permitted hereunder to the extent such Liens will not result in a violation of any of the provisions of this Agreement. Liens permitted pursuant to this Section 7.14 shall be deemed to be "Permitted Liens". 7.15. Affiliates. The Borrower and the Guarantor will not, nor will they permit any of their Subsidiaries or any Qualified Borrowers or Investment Affiliates to, enter into any transaction (including, without limitation, the purchase or sale of any Hotel Property or service) with, or make any payment or transfer to, any Affiliate except in the ordinary course of business and pursuant to the reasonable requirements of their business and upon fair and reasonable terms no less favorable to the Borrower or such Subsidiary, Qualified Borrower or Investment Affiliate than they would obtain in a comparable arms-length transaction. 7.16. Interest Rate Hedging. The Borrower and the Guarantor will not enter into or remain liable upon, nor will they permit any Subsidiary, Qualified Borrower or Investment Affiliate to enter into or remain liable upon, any agreements, devices or arrangements designed to protect at least one of the parties thereto from the fluctuations of interest rates, exchange rates or forward rates applicable to such party's assets, liabilities or exchange transactions, including, but not limited to, interest rate exchange agreements, forward currency exchange agreements, interest rate cap or collar protection agreements, forward rate currency or interest rate options unless such agreement, device or arrangement was entered into by the Borrower, a Subsidiary, a 67 73 Qualified Borrower or Investment Affiliate in the ordinary course of its business for the purpose of hedging interest rate risk to any of them. 7.17. Consolidated Net Worth. The Borrower, the Guarantor and their Subsidiaries, as of the last day of any fiscal quarter, shall maintain a Consolidated Net Worth of not less than the sum of (a) the Consolidated Net Worth existing as of December 31, 1996, which is $357,482,000 plus (b) eighty-five percent (85%) of the net cash proceeds received by the Guarantor (net of customary related fees and expenses) in connection with any offering of stock in the Guarantor after December 31, 1996. 7.18. Additional Financial Covenants. The Borrower and the Guarantor and all Subsidiaries shall at all times comply with the following additional financial covenants: (a) Debt Coverage Ratios. (i) Minimum Collateral Pool Debt Coverage Ratio. The Borrower, the Guarantor, and their Subsidiaries shall maintain a minimum debt coverage ratio on the Collateral Pool Properties of at least 2:00:1.00 at all times. This ratio shall be calculated by dividing Adjusted Cash Flow from the Collateral Pool Properties by Implied Debt Service. (ii) Minimum Corporate Debt Coverage Ratio. The Borrower, the Guarantor and their Subsidiaries shall maintain a minimum consolidated corporate debt coverage ratio of 2.25:1.00 at all times. This ratio shall be calculated by dividing Adjusted EBITDA by the total Debt Service on Consolidated Total Indebtedness. (iii) Special Cure for Debt Coverage Ratio Defaults. For purposes of determining compliance with the debt coverage ratio covenants set forth above in Section 7.18, (a)(i) and (ii), upon any Default under said covenants, and upon the Borrower's written request to the Agent given no later than two (2) Business Days after such Default occurs, the Borrower shall be allowed ninety (90) days from the original date the Default occurred, to cure such Default before the Agent and/or the Lenders can exercise their remedies. If during this time period the Default is not cured, but the ratio is improved from the previous quarter by at least 50% of the previous report's short fall expressed as a percent (i.e. if the ratio was 92% of the requirement, the ratio must have improved to at least 96% of the required ratio), the Borrower may have a second consecutive ninety (90) day cure period upon written request to the Agent given no later than two (2) Business Days after the end of the first ninety (90) day time period. The first and second cure periods will not be provided to the Borrower if the Default results from a debt 68 74 coverage ratio which is less than 90% of the required covenant, or if any other Default exists at either time. (iv) Minimum Corporate Fixed Charge Ratio. The Borrower, the Guarantor and their Subsidiaries shall maintain a minimum consolidated fixed charge ratio of 2.00:1.00 at all times. This ratio shall be calculated by dividing Adjusted EBITDA by the sum of (i) Debt Service on Consolidated Total Indebtedness plus (ii) preferred dividends paid during such trailing twelve (12) month period. (b) Minimum Interest Coverage. The Borrower, the Guarantor and their Subsidiaries shall maintain a minimum interest coverage on Consolidated Total Indebtedness of at least 2.75:1.00. This ratio shall be measured quarterly, using a trailing twelve (12) month rolling average for the immediately preceding twelve (12) month period, and shall be calculated by dividing Adjusted EBITDA by Interest Expense. (c) Total Indebtedness Limitation. Consolidated Total Indebtedness shall not exceed at any time the lesser of (i)(A) on or before December 31, 1999, 4.75 times the trailing four (4) quarter Adjusted EBITDA or (B) 4.5 times the trailing four (4) quarter Adjusted EBITDA thereafter, or (ii) forty-five percent (45%) of the Borrower's Cost in all Hotel Properties; provided, however, that if at any time during the term of this Agreement the actual ratio of Indebtedness divided by Adjusted EBITDA is equal to or less than 4.20:1.00, then at all times thereafter Consolidated Total Indebtedness shall not exceed at any time the lesser or 4.25 times the trailing four (4) quarter Adjusted EBITDA, or (ii) forty-five percent (45%) of the Borrower's Cost in all Hotel Properties. For the purposes of determining compliance with this covenant, Cost shall include the Borrower's, the Guarantor's and their Subsidiaries' pro rata Cost in any Hotel Properties owned by Joint Ventures. Not later than January 15, 2000, Borrower shall furnish to the Lenders a compliance certificate in accordance with the requirements of Section 7.1(e), showing the calculations and computations necessary to determine compliance with the financial covenants contained in this Agreement (including such schedules and backup information as may be necessary to demonstrate such compliance) in effect as of January 1, 2000. (d) Total Liabilities Limitation. Total Liabilities of the Borrower, the Guarantor and their Subsidiaries shall not exceed at any time (i) on or before June 30, 1999, fifty percent (50%) of the sum of the Borrower's, the Guarantor's and their Subsidiaries' Total Liabilities and Consolidated Net Worth, and at all times thereafter, forty-five percent (45%) of the sum of the Borrower's, the Guarantor's and their Subsidiaries' Total Liabilities and Consolidated Net Worth. Not later than July 15, 1999, Borrower shall furnish to the Lenders a compliance certificate in accordance with the requirements of Section 7.1(e), showing the calculations and computations necessary to determine compliance with the financial covenants contained in this Agreement (including such schedules and backup information as may be necessary to demonstrate such compliance) in effect as of July 1, 1999. 69 75 (e) Borrowing Base to Value Ratio. At no time shall the Borrower permit the Borrowing Base to Value Ratio to exceed 70%. (f) Limit on Additional Indebtedness. Neither the Borrower nor the Guarantor, nor any Qualified Borrower or any of their Subsidiaries may incur any additional Indebtedness after the Closing Date in excess of $15,000,000 without the prior written approval of all Lenders, which any Lender may grant or withhold in its sole discretion. The restriction set forth in the preceding sentence of this Section 7.18(f) shall not apply with respect to non-recourse secured Indebtedness so long as no Default or Unmatured Default exists hereunder. (g) Borrowing Base. At no time shall the Allocated Facility Amount exceed the Borrowing Base. (h) Leverage Ratio. At no time shall the Leverage Ratio exceed 45%. Nothing contained in the definitions of LIBOR Basis or Prime Rate shall be deemed to modify this covenant. 7.19. Environmental Matters. 7.19.1 Violation. The Borrower and the Guarantor will not cause, commit, permit or allow to continue (i) any violation of any Environmental Requirement (a) by the Borrower or (b) by or with respect to any of the Collateral Pool Properties or any use of or condition or activity on any of the Collateral Pool Properties, or (ii) the attachment of any environmental lien to any of the Collateral Pool Properties . The Borrower will not place, install, dispose of or release, or cause, permit, or allow the placing, installation, disposal, spilling, leaking, dumping or release of, any Hazardous Material or storage tank (or similar vessel) on any of the Hotel Properties and will keep the Hotel Properties free of Hazardous Material. Notwithstanding the foregoing provisions of this Section 7.19, the Borrower shall not be in default hereunder should the Borrower or the Lessee store minimal quantities of substances on any of the Hotel Properties which technically could be considered Hazardous Material, provided that: such substances are of a type and are held only in a quantity normally used in connection with the construction, occupancy or operation of comparable buildings (such as cleaning fluids, and supplies normally used in the day to day operation of business offices), such substances are being held, stored and used in complete and strict compliance with all applicable Environmental Requirements, and the indemnity in Section 7.19.5 of this Agreement shall always apply to such substances, and it shall be and continue to be the responsibility of the Borrower to take, or cause any tenant to take, all remedial actions required under and in accordance with Section 7.19.4 of this Agreement in the event of any unlawful release of any such substance. 70 76 7.19.2. Notice to the Lenders. The Borrower shall promptly deliver to the Agent a copy of each report pertaining to the Collateral Pool Properties or to the Borrower prepared by or on behalf of the Borrower pursuant to any Environmental Requirement. The Borrower shall immediately advise the Agent in writing of any Environmental Claim or of the discovery of any Hazardous Material on any of the Hotel Properties, as soon as the Borrower first obtains knowledge thereof, including a full description of the nature and extent of the Environmental Claim and/or Hazardous Material and all relevant circumstances. 7.19.3. Site Assessments and Information. If the Agent or any Lender shall ever have reason to believe that any Hazardous Material affects any of the Hotel Properties, or if any Environmental Claim is made or threatened, or if a default shall have occurred under the Loan Documents, or upon the occurrence of the Transition Date (defined below) if requested by the Agent, the Borrower will at its expense provide to the Agent from time to time, in each case within thirty (30) days after the Agent's request, an Environmental Assessment (defined below) made after the date of the Agent's request. As used in this Agreement, the term "Environmental Assessment" means a report (including all drafts thereof) of an environmental investigation and analysis of the subject Collateral Pool Property of such scope (including but not limited to the taking of soil borings and air and groundwater samples and other above and below ground testing) as the Agent may request, by a consulting firm acceptable to Agent and made in accordance with Agent's established guidelines. The Borrower will cooperate with each consulting firm making any such Environmental Assessment and will supply to the consulting firm, from time to time and promptly on request, all information available to the Borrower to facilitate the completion of the Environmental Assessment. If the Borrower fails to furnish the Agent within ten (10) days after the Agent's request with a copy of an agreement with an acceptable environmental consulting firm to provide such Environmental Assessment to be made at the Borrower's expense and risk, the Agent and its designees are hereby granted access to the Hotel Properties at any time or times, upon reasonable notice (which may be written or oral), and a license which is coupled with an interest and irrevocable, to make or cause to be made such Environmental Assessments. The Agent may disclose to interested parties any information the Agent ever has about the environmental condition or compliance of the Hotel Property, but shall be under no duty to disclose any such information except as may be required by law. The Agent shall be under no duty to make any Environmental Assessment of any of the Hotel Properties, and in no event shall any such Environmental Assessment by Agent be or give rise to a representation that any Hazardous Materials is or is not present on the subject Hotel Property, or that there has been or shall be compliance with any Environmental Requirement, nor shall the Borrower or any other person be entitled to rely on any Environmental Assessment made by the Agent or at the Agent's request. The Agent and the Lenders owe no duty of care to protect the Borrower or any other person against, or to inform them of, any Hazardous Material or other adverse condition affecting any of the Collateral Pool Properties. 71 77 7.19.4. Remedial Actions. (a) If any Hazardous Material is discovered on any of the Collateral Pool Properties at any time and regardless of the cause, (i) the Borrower shall promptly at the Borrower's sole risk and expense remove, treat, and dispose of the Hazardous Material in compliance with all applicable Environmental Requirements and solely under the Borrower's name (or if removal is prohibited by any Environmental Requirement, take whatever action is required by any Environmental Requirement), in addition to taking such other action as is necessary to have the full use and benefit of the subject Collateral Pool Property as contemplated by the Loan Documents, and provide the Agent with satisfactory evidence thereof; and (ii) if requested by the Agent, provide to the Agent within thirty (30) days of the Agent's request a bond, letter of credit or other financial assurance evidencing to the Agent's satisfaction that all necessary funds are readily available to pay the costs and expenses of the actions required by clause (i) preceding and to discharge any assessments or liens established against the subject Collateral Pool Property as a result of the presence of the Hazardous Material on the Collateral Pool Property. Within fifteen (15) days after completion of such remedial actions, Borrower shall obtain and deliver to the Agent an Environmental Assessment of the Hotel Property made after such completion and confirming to the Agent's satisfaction that all required remedial action as stated above has been taken and successfully completed and that there is no evidence or suspicion of any contamination or risk of contamination on the subject Hotel Property or any adjacent property, or of violation of any Environmental Requirement, with respect to any such Hazardous Material. (b) The Agent may, but shall never be obligated to, remove or cause the removal of any Hazardous Material from any of the Collateral Pool Properties (or if removal is prohibited by any Environmental Requirement, take or cause the taking of such other action as is required by any Environmental Requirement) if the Borrower fails to promptly commence such remedial actions following discovery and thereafter diligently prosecute the same to the satisfaction of the Agent (without limitation of the Agent's rights to declare a default under any of the Loan Documents and to exercise all rights and remedies available by reason thereof); and the Agent and its designees are hereby granted access to the Collateral Pool Properties at any time or times, upon reasonable notice (which may be written or oral), and a license which is coupled with an interest and irrevocable, to remove or cause such removal or to take or cause the taking of any such other action. 7.19.5. Indemnity. (a) The Borrower, the Guarantor and their Subsidiaries hereby agree to protect, indemnify and hold (i) the Agent, the Arranger and the Lenders; (ii) any persons or entities owned or controlled by, owning or controlling, or under common control or affiliated with the Agent or the Lenders; (iii) any participants in the Facility; (iv) the directors, officers, partners, employees and agents of the 72 78 Lenders and/or such persons or entities; and (v) the heirs, personal representatives, successors and assigns of each of the foregoing persons or entities (each an "Indemnified Party") harmless from and against, and, if and to the extent paid, reimburse them on demand for, any and all Environmental Damages (as hereinafter defined). Without limitation, the foregoing indemnity shall apply to each Indemnified Party with respect to Environmental Damages which in whole or in part are caused by or arise out of the negligence of such (and/or any other) Indemnified Party. However, such indemnity shall not apply to a particular Indemnified Party to the extent that the subject of the indemnification is caused by or arises out of the gross negligence or willful misconduct of that particular Indemnified Party. Upon demand by the Agent, the Borrower shall diligently defend any Environmental Claim which affects any of the Collateral Pool Properties or is made or commenced against any of the Agent or the Lenders, whether alone or together with the Borrower or any other person, all at the Borrower's own cost and expense and by counsel to be approved by the Agent in the exercise of its reasonable judgment. In the alternative, at any time the Agent or any Lender may elect to conduct its own defense through counsel selected by the Agent or such Lender and at the cost and expense of the Borrower. (b) As used in this Agreement, the term "Environmental Damages" means all claims, demands, liabilities (including strict liability), losses, damages (including consequential damages), causes of action, judgments, penalties, fines, costs and expenses (including fees, costs and expenses of attorneys, consultants, contractors, experts and laboratories), of any and every kind or character, contingent or otherwise, matured or unmatured, known or unknown, foreseeable or unforeseeable, made, incurred, suffered, brought, or imposed at any time and from time to time, whether before or after the Transition Date (as hereinafter defined) and arising in whole or in part from: (i) The presence of any Hazardous Material on any of the Collateral Pool Properties, or any escape, seepage, leakage, spillage, emission, release, discharge or disposal of any Hazardous Material on or from any of the Collateral Pool Properties, or the migration or release or threatened migration or release of any Hazardous Material to, from or through any of the Collateral Pool Properties, on or before the Transition Date; or (ii) any act, omission, event or circumstance existing or occurring in connection with the handling, treatment, containment, removal, storage, decontamination, clean-up, transport or disposal of any Hazardous Material which is at any time on or before the Transition Date present on any of the Hotel Properties; or (iii) the breach of any representation, warranty, covenant or agreement contained in this Agreement because of any event or condition occurring or existing on or before the Transition Date; or 73 79 (iv) any violation on or before the Transition Date, of any Environmental Requirement in effect on or before the Transition Date, regardless of whether any act, omission, event or circumstance giving rise to the violation constituted a violation at the time of the occurrence or inception of such act, omission, event or circumstance; or (v) any Environmental Claim, or the filing or imposition of any environmental lien against any of the Collateral Pool Properties, because of, resulting from, in connection with, or arising out of any of the matters referred to in subparagraphs (i) through (iv) preceding; and regardless of whether any of the foregoing was caused by the Borrower or the Lessee, or a prior owner of any of the Collateral Pool Properties or its tenant or subtenant, or any third party, including but not limited to (a) injury or damage to any person, property or natural resource occurring on or off of any of the Collateral Pool Properties, including but not limited to the cost of demolition and rebuilding of any improvements on real property; (b) the investigation or remediation of any such Hazardous Material or violation of Environmental Requirement, including but not limited to the preparation of any feasibility studies or reports and the performance of any cleanup, remediation, removal, response, abatement, containment, closure, restoration, monitoring or similar work required by any Environmental Requirement or necessary to have full use and benefit of the subject Collateral Pool Property as contemplated by the Loan Documents (including any of the same in connection with any foreclosure action or transfer in lieu thereof); (c) all liability to pay or indemnify any person or governmental authority for costs expended in connection with any of the foregoing; (d) the investigation and defense of any claim, whether or not such claim is ultimately defeated; and (e) the settlement of any claim or judgment. (c) As used in this Agreement, the term "Transition Date" means the earlier of the following two dates: (i) the date on which the Obligations have been paid and performed in full and the Mortgages have been released; or (ii) the date on which the liens of the Mortgages are fully and finally foreclosed or a conveyance by deed in lieu of such foreclosure is fully and finally effective and possession of the Collateral Pool Properties has been given to and accepted by the purchaser or grantee free of occupancy and claims to occupancy by the Borrower and the Borrower's heirs, devisees, representatives, successors and assigns; provided that, if such payment, performance, release, foreclosure or conveyance is challenged, in bankruptcy proceedings or otherwise, the Transition Date shall be deemed not to have occurred until such challenge is validly released, dismissed with prejudice or otherwise barred by law from further assertion. 74 80 (d) The indemnification agreements contained in this Section 7.19 are not secured by the Collateral. 7.20. Negative Pledge Agreements. The Borrower, the Guarantor and their Subsidiaries agree that throughout the Facility, they shall not transfer, assign, mortgage, hypothecate, grant or agree to a negative pledge or otherwise encumber any of the Hotel Properties, whether or not such Hotel Properties are to be included in the Collateral Pool, or any other asset or property of the Borrower, the Guarantor or their Subsidiaries except to the extent permitted in Section 7.18(f), in any event subject to the provisions of Section 7.13, if applicable. The Borrower further agrees to execute Negative Pledge Agreements for all Hotel Properties in the Negative Collateral Pool, such agreements to be in recordable form such that they can be recorded by the Agent in the proper land records office for the state and county where each such Collateral Pool Property is located. The effectiveness of the Negative Pledge Agreements shall not in any way be conditioned upon the recordation of such recordable instruments. 7.21. Manager. The Collateral Pool Properties shall at all times be managed by RFS, Inc. or another Person approved in writing by the Required Lenders, it being understood that any other manager identified on Schedule 9 is acceptable to the Lenders. 7.22. Acceleration Notice. Borrower agrees that it shall, within ten (10) days after receipt of written notice that any Indebtedness aggregating $5,000,000 or more of the Borrower, the Guarantor, any Qualified Borrower or any Subsidiary or Investment Affiliate has been accelerated, provide written notice to the Agent of such acceleration. 7.23. Additional Covenants. The Borrower and the Guarantor will not engage in or willingly permit any illegal activities at any Collateral Pool Property. 7.24. Calculation of Financial Covenants Upon Property Breaches. In the event of a breach of a representation or warranty under Article VI or of a covenant under Sections 7.5, 7.6, 7.7, 7.8, 7.14, 7.19, 7.20, 7.21, or 7.23, or in the event of the occurrence of any other event which has a Material Adverse Effect on the operation of any Collateral Pool Property (collectively a "Property Breach"), or if there are environmental disclosures concerning a Collateral Pool Property contained in Schedule 4, such Hotel Property shall be excluded from the Borrowing Base, as well as the calculation of the Borrowing Base to Value Ratio, and the Borrower shall be required to demonstrate financial covenant compliance under applicable provisions of Article VII both with and without the affected Collateral Pool Property for as long as such breach or condition shall exist. At the Borrower's option, upon written notice and request to the Agent, the Borrower may substitute another Hotel Property for the Hotel Property excluded, provided such new Hotel Property is acceptable to the Lenders and all conditions precedent to the inclusion of such Hotel Property in the Collateral Pool, as well as the release of a Hotel Property therefrom, have been complied with. Furthermore, upon such substitution the Borrower may obtain the release of such Hotel Property excluded from the Borrowing Base from the lien of any Mortgage or from the restrictions of any Negative Pledge Agreement only if no Default or Unmatured Default then exists hereunder and all provisions of Section 7.13 hereof have been complied with. 75 81 7.25. Leases. The Borrower will duly perform all obligations as landlord under the Leases and shall not amend any of the Leases in any material manner without the Agent's prior written consent, which consent will not be unreasonably withheld. 7.26. Franchises. The Borrower shall comply, and shall take all reasonable and necessary steps to ensure that the Lessee complies, with all requirements of all franchise agreements affecting the use and operation of the Collateral Pool Properties, and shall promptly notify the Agent within ten (10) days of the Borrower learning of any default or alleged default under any such franchise agreement(s), or of any change therein which could have a Material Adverse Effect. ARTICLE VIII DEFAULTS The occurrence of any one or more of the following events shall constitute a Default: 8.1. Nonpayment of any principal payment on any Note within five (5) Business Days of the Borrower's receipt of written notice from the Agent, provided, however, once such written notice has been given, whether or not such payment is made, no further written notice will be required in that same calendar year for any subsequent nonpayment of principal on any Note in order for such nonpayment to constitute a Default. 8.2. Nonpayment of (a) interest upon any Note, any Commitment Fee, Agent's Fee, Facility Letter of Credit Fee, or Unused Credit Fee, under any of the Loan Documents within five (5) Business Days after the same becomes due or (b) any other payment Obligation under any of the Loan Documents within five (5) Business Days of the Borrower's receipt of written notice from the Agent provided, however, once such written notice has been given, whether or not such payment is made, no further written notice will be required in that same calendar year for any subsequent nonpayment of another payment Obligation in order for such nonpayment under this Section 8.2 (b) to constitute a Default. 8.3. The breach of any of the terms or provisions of Sections 7.1(c), (d) and (e), 7.2(b), 7.6, 7.10, 7.11, 7.12, 7.13, 7.14, 7.16, 7.17, 7.18, 7.19 , 7.20, or 7.21 , or a breach of any of the terms or provisions of Section 7.1 (other than as set forth above) which remains uncured for ten (10) Business Days after the Borrower's receipt of written notice from the Agent, provided, however, in the event such breach of Section 7.18 results from an adjustment by the Required Lenders in the Applicable Cap Rate, such breach shall not constitute a Default hereunder if within six (6) months from the date of such adjustment in the Applicable Cap Rate, the Borrower either reduces the Allocated Facility Amount to a sum equal to or less than the Borrowing Base (in which case the Aggregate Commitment Amount of the Facility shall be presumably reduced unless the Lenders otherwise agree), or provides additional Collateral satisfactory to the Lenders necessary to restore compliance. 8.4. Any representation or warranty made or deemed made by or on behalf of the Borrower or any of its Subsidiaries to the Lenders or the Agent under or in connection with this 76 82 Agreement (other than Section 6.24 and a Property Breach unless such breach causes a Default under another provision of this Article VIII), any Loan, or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false on the date as of which made. 8.5. The breach of any of the other terms or provisions of this Agreement which is not remedied within thirty (30) days, or ninety (90) days for a breach which is curable but cannot be cured within thirty (30) days but is being diligently cured, after the receipt of written notice from the Agent. 8.6. Any default by the Borrower, the Guarantor, any Qualified Borrower or any Investment Affiliate (to the extent the Indebtedness is recourse to such Person), or any of their Subsidiaries (after applicable cure periods) under any other loan documents relating to any of such Persons in connection with any Indebtedness other than the Obligations aggregating in excess of $50,000,000. 8.7. The Borrower, the Guarantor, any Qualified Borrower or any Investment Affiliate that is not a Subsidiary (a) have an order for relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect, (b) make an assignment for the benefit of creditors, (c) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (d) institute any proceeding seeking an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate it as a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (e) take any corporate action to authorize or effect any of the foregoing actions set forth in this Section 8.7, (f) fail to contest in good faith any appointment or proceeding described in Section 8.8, or (g) not pay, or admit in writing its inability to pay, its debts generally as they become due. 8.8. A receiver, trustee, examiner, liquidator or similar official shall be appointed for the Borrower, the Guarantor, any Qualified Borrower or any Investment Affiliate that is not a Subsidiary, or any Subsidiary or any portion of its property, or a proceeding described in Section 8.7(d) shall be instituted against any of them and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) consecutive days. 8.9. Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of (each a "Condemnation"), all or any portion of the Hotel Properties of the Borrower, the Guarantor, any Qualified Borrower or any Investment Affiliates or any Subsidiaries which, when taken together with all other of their property so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a substantial (as determined in the Agent's reasonable discretion) portion of their property. 77 83 8.10. The Borrower, the Guarantor, any Qualified Borrower or Investment Affiliate or any Subsidiaries shall fail within sixty (60) days to pay, bond or otherwise discharge any judgments or orders for the payment of money in an amount which, when added to all other judgments or orders outstanding against any of them would exceed $10,000,000 in the aggregate, which have not been stayed on appeal or otherwise appropriately contested in good faith, unless the liability is insured against and the insurer has not challenged coverage of such liability. 8.11. The Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan, the PBGC or other party that it has incurred withdrawal liability or is in default of payments to such Multiemployer Plan in an amount which, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Borrower or any other member of the Controlled Group as withdrawal liability (determined as of the date of such notification) or amounts in default, exceeds $250,000 or requires payments exceeding $100,000 per annum. 8.12. The Borrower or any other member of the Controlled Group shall have been notified by the sponsor of a Multiemployer Plan or the PBGC or other party that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or termination the aggregate annual contributions of the Borrower and the other members of the Controlled Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being terminated have been or will be increased over the amounts contributed to such Multiemployer Plans for the respective plan years of each such Multiemployer Plan immediately preceding the plan year in which the reorganization or termination occurs by an amount exceeding $250,000 per year. 8.13. (a) A Reportable Event shall occur with respect to a Plan, or (b) any Plan shall incur an accumulated funding deficiency (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived, or fail to make a required installment payment on or before the due date under Section 412 of the Code or Section 302 of ERISA, or (c) the Borrower or a member of the Controlled Group shall have engaged in a nonexempt prohibited transaction under Section 4975 of the Code or Section 406 of ERISA, or (d) the Borrower or any member of the Controlled Group shall fail to pay when due an amount which it shall have become liable to pay to the PBGC, or any Plan, any Multiemployer Plan, or (e) Borrower or any member of the Controlled Group shall have received a notice from the PBGC of its intention to terminate a Plan or to appoint a trustee to administer a Plan, or Multiemployer Plan, or a condition exists by reason of which the PBGC would be entitled to obtain a decree adjudicating that a Plan must be terminated, or (f) any other event or condition shall occur or exist with respect to any employee benefit plan (as defined in Section 3(3) of ERISA) or Plan or any Multiemployer Plan, which could reasonably be expected to subject the Borrower or any member of the Controlled Group to any tax, penalty or other liability or the imposition of any lien or security interest on the Borrower or any member of the Controlled Group, provided, however, that any event or circumstance in Section 8.13(a) through (f) shall only be an Event of Default if it would result in liability to Borrower in excess of $250,000 per year; or (g) the assets of the Borrower or the Guarantor become or are deemed to be assets of an employee benefit plan (as defined in Section 3(3) of ERISA or a plan as defined in Section 4975 of the Code). No Default under this Section 78 84 8.13 shall be deemed to have been or be waived or corrected because of any disclosure by the Borrower. 8.14. Failure to remediate within the time period required by law or governmental order, (or within a reasonable time in light of the nature of the problem if no specific time period is so established), environmental problems in violation of applicable law (a) related to Collateral Pool Properties of the Borrower, the Guarantor, any Qualified Borrower or any Investment Affiliates or any Subsidiaries if the affected Collateral Pool Properties have an aggregate book value in excess of $10,000,000 or (b) where the estimated cost of remediation is in the aggregate in excess of $500,000, in each case after all administrative hearings and appeals have been concluded. 8.15. The occurrence of any default under any Loan Document other than this Agreement or the breach of any of the terms or provisions of any Loan Document other than this Agreement, which default or breach continues beyond any period of grace therein provided. 8.16. Robert Solmson ceases to be active in the day-to-day management and operation of the Borrower and the Guarantor and a successor to Mr. Solmson approved by the Required Lenders is not appointed within four (4) months of Mr. Solmson's departure, demise or physical or mental incapacitation. ARTICLE IX ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES 9.1. Acceleration. If any Default described in Sections 8.7 or 8.8 occurs with respect to the Borrower, the Guarantor, any Qualified Borrower or any Subsidiary or Investment Affiliate, the obligations of the Lenders to make Loans and of the Issuing Bank to issue Facility Letters of Credit hereunder shall automatically terminate and the Obligations shall immediately become due and payable without any election or action on the part of the Agent or any Lender. If any other Default (other than a Property Breach unless such breach causes a Default under any other provision of Article VIII) occurs and is continuing, the Required Lenders may terminate or suspend the obligations of the Lenders to make Loans hereunder, and to issue Facility Letters of Credit, or declare the Obligations to be due and payable, or both, whereupon the Obligations shall become immediately due and payable, upon written notice to the Borrower. In addition to the foregoing, following the occurrence and during the continuance of a Default and so long as any Facility Letter of Credit has not been fully drawn and has not been canceled or expired by its terms, upon demand by the Agent the Borrower shall establish and deposit in the Letter of Credit Collateral Account cash in an amount equal to the aggregate undrawn face amount of all outstanding Facility Letters of Credit and all fees and other amounts due or which may become due with respect thereto. The Borrower shall have no control over funds in the Letter of Credit Collateral Account, which funds will be invested by the Agent from time to time at its discretion in certificates of deposit of NationsBank having a maturity not exceeding thirty (30) days. Such funds shall be promptly applied by the Agent to reimburse any Issuing Bank for drafts drawn from time to time under the Facility Letters of Credit, provided, 79 85 however, interest accrued on such funds shall remain in the Letter of Credit Collateral Account to be used for reimbursement as set forth above. Such funds, if any, remaining in the Letter of Credit Collateral Account following the payment of all Obligations in full shall, unless Agent is otherwise directed by a court of competent jurisdiction, be promptly paid over to the Borrower. If, within forty-five (45) days after acceleration of the maturity of the Obligations or termination of the obligations of the Lenders to make Loans hereunder or to issue Facility letters of Credit as a result of any Default (other than any Default as described in Sections 8.7 or 8.8 with respect to the Borrower) and before any judgment or decree for the payment of the Obligations shall have been obtained or entered, the Required Lenders (in their sole discretion) may direct the Agent by notice to the Borrower, to rescind and annul such acceleration and/or termination. 9.2. Amendments, Waivers, Decisions. Subject to the provisions of this Article IX, the Required Lenders (or the Agent with the consent or direction in writing of the Required Lenders) and the Borrower may waive or amend any terms or conditions of this Agreement and enter into agreements supplemental hereto for the purpose of adding or modifying any provisions to the Loan Documents or changing in any manner the rights of the Lenders or the Borrower hereunder, releasing any Mortgages or Negative Pledge Agreements except as provided in Section 7.13 hereof, or waiving any Default hereunder; provided, however, that no such supplemental agreement shall, without the consent of all Lenders: (a) Extend the Facility Termination Date or forgive all or any portion of the principal amount of any Loan or accrued interest thereon or the Commitment Fee, or any other fees, reduce the applicable margin or spread on the underlying interest rate options applicable to the various Types of Advances except as provided in the applicable interest rate grids based upon the Leverage Ratio, or otherwise modify or add to such interest rate options, or extend the time of payment of any of the Obligations. (b) Reduce the percentage specified in the definition of Required Lenders or change any provision that currently requires an approval from the Required Lenders, all Lenders or the specific Lender affected, to approval by a different standard. (c) Increase the amount of the Aggregate Commitment. (d) Permit the Borrower to assign its rights under this Agreement. (e) Amend Sections 2.2, 2.3, 3.4(a), 3.8(a), 7.4, 7.11, 7.18, 13.2, 13.3 or this Section 9.2. (f) Release or limit the liability of Borrower, the Guarantor, or any Qualified Borrower with respect to the Obligations. 80 86 (g) Add any Hotel Property to the Collateral Pool. (h) Amend or modify the definition of, or provisions for the calculation of, the Borrowing Base. No amendment of any provision of this Agreement relating to the Agent shall be effective without the written consent of the Agent, and no amendment increasing the Commitment of any Lender shall be effective without the written consent of such Lender. 9.3. Preservation of Rights. No delay or omission of the Lenders or the Agent to exercise any right under the Loan Documents shall impair such right or be construed to be a waiver of any Default or an acquiescence therein, and the making of a Loan notwithstanding the existence of a Default or the inability of the Borrower to satisfy the conditions precedent to such Loan shall not constitute any waiver or acquiescence. Any single or partial exercise of any such right shall not preclude other or further exercise thereof or the exercise of any other right, and no waiver, amendment or other variation of the terms, conditions or provisions of the Loan Documents whatsoever shall be valid unless in writing signed by the Lenders required pursuant to Section 9.2, and then only to the extent in such writing specifically set forth. All remedies contained in the Loan Documents or by law afforded shall be cumulative and all shall be available to the Agent and the Lenders until the Obligations have been paid in full. ARTICLE X GENERAL PROVISIONS 10.1. Survival of Representations. All representations and warranties of the Borrower contained in this Agreement shall survive delivery of the Notes and the making of the Loans herein contemplated. 10.2. Governmental Regulation. Anything contained in this Agreement to the contrary notwithstanding, no Lender shall be obligated to extend credit to the Borrower in violation of any limitation or prohibition provided by any applicable statute or regulation. 10.3. Taxes. Any taxes (excluding federal, state and local income or franchise or other similar taxes on the overall net income of any Lender) or other similar assessments or charges made by any governmental or revenue authority in respect of the Loan Documents shall be paid by the Borrower, together with interest and penalties, if any. 10.4. Headings. Section headings in the Loan Documents are for convenience of reference only, and shall not govern the interpretation of any of the provisions of the Loan Documents. 10.5. Entire Agreement. The Loan Documents embody the entire agreement and understanding among the Borrower, the Guarantor, the Agent, and the Lenders and supersede all prior commitments, agreements and understandings among the Borrower, the Guarantor, the 81 87 Agent, and the Lenders relating to the subject matter thereof, except for the agreement of the Borrower to pay certain fees to the Agent and the agreement of the Agent to pay certain fees to the Lenders. 10.6. Several Obligations; Benefits of This Agreement. The respective obligations of the Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any other (except to the extent to which the Agent is authorized to act as such). The failure of any Lender to perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder. This Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement and their respective successors and assigns. 10.7. Expenses; Indemnification. The Borrower and the Guarantor shall reimburse upon demand the Arranger, the Agent, and each Lender for any costs, and reasonable out-of-pocket expenses (including, without limitation, all reasonable fees for consultants and reasonable fees and expenses for attorneys for the Arranger, the Agent and each Lender) in connection with the preparation, negotiation, execution, delivery, amendment or modification of the Loan Documents, as well as any syndication or assignment of any of their rights under the Loan Documents as set forth in Section 13.3 hereof. The Borrower and the Guarantor also agree to reimburse upon demand the Arranger, the Agent, and the Lenders for any costs, internal charges and reasonable out-of-pocket expenses (including, without limitation, appraisal expenses and all reasonable fees and expenses for attorneys for the Arranger, the Agent and the Lenders) paid or incurred by the Arranger or the Agent (whether in its capacity as arranger, or, in the case of NationsBank, in its capacity as the Agent) or any Lender in connection with the collection and enforcement of the Loan Documents (including, without limitation, any workout). The Borrower and the Guarantor further agree to indemnify and hold harmless the Agent, the Arranger and each Lender and their directors, officers, employees, agents, attorneys and Affiliates against all losses, claims, damages, penalties, judgments, liabilities and reasonable expenses (including, without limitation, all expenses of litigation or preparation therefor whether or not such entity is a party thereto) which any of them may pay or incur arising out of or relating to this Agreement, the other Loan Documents, the Hotel Properties, the transactions contemplated hereby or the direct or indirect application or proposed application of the proceeds of any Loan hereunder, other than liability arising from the gross negligence or willful misconduct of the party being indemnified. The obligations of the Borrower and the Guarantor under this Section 10.7 shall survive the Facility Termination Date and continue for the benefit of the Agent, the Arranger, each Lender, and all of their respective agents, representatives, employees, officers, directors, and partners at all times after the Borrower's acceptance of the Commitment (whether or not any expenses were incurred before or after the execution of the Commitment Letter by the Borrower) as evidenced by its execution of the Commitment Letter. 10.8. Numbers of Documents. All financial statements, notices, closing documents, press releases, compliance certificates and requests hereunder shall be furnished to the Agent with sufficient counterparts so that the Agent may furnish one to each of the Lenders. 10.9. Accounting. Except as provided to the contrary herein, all accounting terms used herein shall be interpreted and all accounting determinations hereunder shall be made in 82 88 accordance with GAAP, except that any calculation or determination which is to be made on a consolidated basis shall be made for the Borrower, the Guarantor and all their Subsidiaries. 10.10. Severability of Provisions. Any provision in any Loan Document that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of all Loan Documents are declared to be severable. 10.11. Nonliability of Lenders, Arranger, Agent. The relationship between the Borrower, on the one hand, and the Lenders, the Arranger and the Agent on the other, shall be solely that of borrower and lender. Neither the Agent, the Arranger nor any Lender shall have any fiduciary responsibilities to the Borrower. Neither the Agent, the Arranger nor any Lender undertakes any responsibility to the Borrower to review or inform the Borrower of any matter in connection with any phase of the Borrower's business or operations. Neither the Arranger nor the Agent shall have any responsibilities to the Borrower or Lenders under this Agreement except to the extent, if any, expressly set forth herein. 10.12. Publicity. Each Lender and the Arranger shall have the right to do a tombstone publicizing the transaction contemplated hereby upon the consent of the Borrower which shall not be unreasonably withheld. 10.13. Brokers. The Borrower and the Agent each hereby represent and warrant that no brokers or finders were used in connection with procuring the financing contemplated hereby and the Borrower hereby agrees to indemnify and save the Agent and each Lender harmless from and against any and all liabilities, losses, costs and expenses (including attorneys' fees or court costs) suffered or incurred by the Agent or any Lender as a result of any claim or assertion by any party claiming by, through or under the Borrower, the Guarantor, any Qualified Borrower, any Investment Affiliate or any of their Subsidiaries that it is entitled to compensation in connection with the financing contemplated hereby. 10.14. Confidentiality. With respect to the financial statements and other information delivered pursuant to Section 7.1, and any other information obtained by any Lender or any assignee of any Lender pursuant to this Section 10.14 or otherwise, each Lender and each assignee of any Lender agree that, to the extent that such information therein contained has not theretofore otherwise been disclosed in such a manner as to render such information no longer confidential, such Lender and such assignee will employ reasonable procedures reasonably designed to maintain the confidential nature of the information therein contained; provided that anything herein contained to the contrary notwithstanding, any Lender or its assignee may disclose or disseminate such information to: (a) its employees, agents, attorneys accountants, and the Arranger who would ordinarily have access to such information in the normal course of the performance of their duties; (b) such third parties as such Lender may deem reasonably necessary in connection with or in response to (i) compliance with any law, ordinance or governmental order, regulation, rule, policy, subpoena, investigation, regulatory authority request or requests, or (ii) any order, decree, judgment, subpoena, notice of discovery or similar ruling or pleading issued, filed, served or purported on its face to be issued, filed or served by or under authority of 83 89 any court, tribunal, arbitration board of any governmental or industry agency, commission, authority, board or similar entity or in connection with any proceeding, case or matter pending (or on its face purported to be pending) before any court, tribunal, arbitration board or any governmental agency, commission, authority, board or similar entity; and (c) any prospective assignee of or Participant in such Lender's interest, provided such prospective assignee or Participant agrees in writing to be bound by these provisions. 10.15. Appraisals. Upon any Default or Unmatured Default hereunder, the Agent may order new or updated appraisals on any Collateral Pool Properties selected by the Agent. Such appraisals shall be at the Borrower's expense and the Borrower shall fully cooperate with the Agent to facilitate the preparation of such appraisals. 10.16. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF TENNESSEE, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS. 10.17. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR TENNESSEE STATE COURT SITTING IN MEMPHIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN, SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN MEMPHIS, TENNESSEE. 10.18. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER. 10.19. MANDATORY ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING 84 90 FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF ENDISPUTE, INC., DOING BUSINESS AS J.A.M.S./ENDISPUTE ("J.A.M.S."), AS AMENDED FROM TIME TO TIME, AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION. (a) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF ATLANTA, GEORGIA AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN NINETY (90) DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL SIXTY (60) DAYS. (b) RESERVATIONS OF RIGHTS. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO (i) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR RESPONSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR (ii) BE A WAIVER BY THE LENDERS OF THE PROTECTION AFFORDED TO THEM BY 12 U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE RIGHT OF ANY LENDER (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF OR THE APPOINTMENT OF A RECEIVER. THE LENDERS MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS AGREEMENT. AT THE LENDER'S OPTION, FORECLOSURE UNDER A MORTGAGE MAY BE ACCOMPLISHED BY ANY OF THE FOLLOWING: THE EXERCISE OF A POWER OF SALE UNDER THE MORTGAGE, OR BY JUDICIAL SALE UNDER THE MORTGAGE, OR BY JUDICIAL FORECLOSURE. NEITHER THE EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES. 85 91 NO PROVISION IN THE LOAN DOCUMENTS REGARDING SUBMISSION TO JURISDICTION AND/OR VENUE IN ANY COURT IS INTENDED OR SHALL BE CONSTRUED TO BE IN DEROGATION OF THE PROVISIONS IN ANY LOAN DOCUMENT FOR ARBITRATION OF ANY CONTROVERSY OR CLAIM. 10.20. Year 2000 Problem. Borrower hereby represents and warrants to the Agent and the Lenders that Borrower has (i) initiated a review and assessment of all areas within its and each of its Affiliates' business and operations (including those affected by suppliers and vendors) that could be adversely affected by the "Year 2000 Problem" (that is, the risk that computer applications used by Borrower or any of its Affiliates (or its suppliers and vendors) may be unable to recognize and perform properly date-sensitive functions involving certain dates prior to and any date after December 31, 1999), (ii) developed a plan and timeline for addressing the Year 2000 Problem on a timely basis, and (iii) to date, implemented that plan in accordance with that timetable. Borrower reasonably believes that all computer applications (including those of its suppliers and vendors) that are material to its or any of its Affiliates' business and operations will on a timely basis be able to perform properly date-sensitive functions for all dates before and after January 1, 2000 (that is, be "Year 2000 compliant"), except to the extent that a failure to do so could not reasonably be expected to have a Material Adverse Effect. Borrower will promptly notify the Agent in the event that Borrower discovers or determines that any computer application (including those of its suppliers and vendors) that is material to its or any of its Affiliates' business and operations will not be Year 2000 compliant on a timely basis, except to the extent that such failure could not reasonably be expected to have a Material Adverse Effect. ARTICLE XI THE AGENT AND AGREEMENTS AMONG LENDERS 11.1. Appointment. Subject to the provisions of Section 11.11, NationsBank is hereby appointed as the Agent hereunder and under each other Loan Document, and each of the Lenders irrevocably authorizes the Agent to act as the agent of such Lender. The Agent agrees to act as such upon the express conditions contained in this Article XI. The Agent shall not have a fiduciary relationship in respect of the Borrower or any Lender by reason of this Agreement. The Agent agrees to administer this Facility in the same manner as it administers similar facilities for its own account. 11.2. Powers. The Agent shall have and may exercise such powers under the Loan Documents as are specifically delegated to the Agent by the terms of each thereof, together with such powers as are reasonably incidental thereto. The Agent shall have no implied duties to the Lenders, or any obligation to the Lenders to take any action thereunder except any action specifically provided by the Loan Documents to be taken by the Agent. 11.3. General Immunity. Neither the Agent nor any of its directors, officers, agents or employees shall be liable to the Borrower, the Lenders or any Lender for any action taken or omitted to be taken by it or them hereunder or under any other Loan Document or in connection herewith or therewith except for its or their own gross negligence or willful misconduct and 86 92 except for any liability of the Agent for breach of an express agreement made by the Agent herein to take or not take actions based on the approval or direction of a requisite number of Lenders. 11.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor any of its directors, officers, agents, employees, attorneys-in-fact or Affiliates shall be responsible for or have any duty to ascertain, inquire into, or verify (a) any statement, warranty or representation made in connection with any Loan Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements of any obligor under any Loan Document, including, without limitation, any agreement by an obligor to furnish information directly to each Lender; (c) the satisfaction of any condition specified in Article V, except receipt of items required to be delivered to the Agent; (d) the validity, effectiveness, enforceability, collectibility, sufficiency or genuineness of any Loan Document or any other instrument or writing furnished in connection therewith (provided that the Agent shall be obligated to furnish copies of the Loan Documents to the Lenders); or (e) the value, sufficiency, creation, perfection or priority of any interest in any collateral security. The Agent shall have no duty to disclose to the Lenders information that is not required to be furnished by the Borrower to the Agent at such time, but is voluntarily furnished by the Borrower to the Agent in its individual capacity. 11.5. Action on Instructions of Lenders. The Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder and under any other Loan Document in accordance with written instructions signed by the Required Lenders unless such action or inaction requires the consent of all the Lenders or an individual Lender not included in the direction of the Required Lenders pursuant to this Agreement, and such instructions and any action taken or failure to act pursuant thereto shall be binding on all of the Lenders and on all holders of Notes. The Agent shall be fully justified in failing or refusing to take any action hereunder and under any other Loan Document unless it shall first be indemnified to its satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may incur by reason of taking or continuing to take any such action. 11.6. Employment of Agents and Counsel. The Agent may execute any of its duties as the Agent hereunder and under any other Loan Document by or through employees, agents, attorneys and attorneys-in-fact and so long as it exercises reasonable care in the selection of such parties, the Agent shall not be answerable to the Lenders, except as to money or securities received by it or its authorized agents, due solely to the default, negligence or misconduct of any such parties. The Agent shall be entitled to advice of counsel concerning all matters pertaining to the agency hereby created and its duties hereunder and under any other Loan Document. 11.7 Reliance on Documents, Counsel. The Agent shall be entitled to rely upon any Note, notice, consent, certificate, affidavit, letter, telegram, statement, paper or document believed by it to be genuine and correct and to have been signed or sent by the proper person or persons, and, in respect to legal matters, upon the opinion of counsel selected by the Agent, which counsel may be employees of the Agent. 11.8. Agent's Reimbursement and Indemnification. The Lenders agree to reimburse and indemnify the Agent (in its capacity as Agent but not as Lender) ratably in proportion to 87 93 their respective Commitments (i) for any amounts not reimbursed by the Borrower for which the Agent is entitled to reimbursement by the Borrower under the Loan Documents including reasonable out-of pocket expenses in connection with the preparation, execution and delivery of the Loan Documents, (ii) for any other reasonable out-of-pocket expenses incurred by the Agent on behalf of the Lenders, in connection with the administration and enforcement of the Loan Documents and (iii) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Agent in any way relating to or arising out of the Loan Documents or any other document delivered in connection therewith or the transactions contemplated thereby, or the enforcement of any of the terms thereof or of any such other documents, provided that no Lender shall be liable for any of the foregoing to the extent they arise from the gross negligence or willful misconduct of the Agent or an action relating to a dispute which is solely between the Agent and one or more Lenders in which the other Lender prevails, or an action taken or not taken by Agent contrary to the express requirements contained herein pertaining to the requisite number of lenders required to approve or direct certain actions. The obligations of the Lenders under this Section 11.8 shall survive payment of the Obligations and termination of this Agreement. 11.9. Rights as a Lender. In the event the Agent is a Lender, the Agent shall have the same rights and powers and the same duties and obligations hereunder and under any other Loan Document as any Lender and may exercise the same as though it were not the Agent, and the term "Lender" or "Lenders" shall, at any time when the Agent is a Lender, unless the context otherwise indicates, include the Agent in its individual capacity. The Agent may accept deposits from, lend money to, and generally engage in any kind of trust, debt, equity or other transaction, in addition to those contemplated by this Agreement or any other Loan Document, with the Borrower, the Guarantor or any of their Subsidiaries in which the Borrower, the Guarantor or such Subsidiary is not restricted hereby from engaging with any other Person. 11.10. Lender Credit Decision; Non-Reliance on Agents and Other Lenders. Each Lender expressly acknowledges that neither the Agent, NMS, nor any of their officers, directors, employees, agents, attorneys, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Agent, NMS or any Affiliate thereof hereinafter taken, including any review of the affairs of the Borrower, the Guarantor, any Qualified Borrower, Investment Affiliate, or Subsidiary, shall be deemed to constitute any representation or warranty by the Agent or NMS to any Lender. Each Lender represents to the Agent and NMS that it has, independently and without reliance upon the Agent or NMS or any other Lender, or any of their respective officers, directors, employees, agents, attorneys, attorneys-in-fact, or Affiliates, and based on such documents and information as it has deemed appropriate made its own credit analysis, appraisal of and investigation into the business, assets, operations, property, financial and other conditions, prospects and credit worthiness of the Borrower, the Guarantor, any Qualified Borrower, Investment Affiliate, or Subsidiary and made its own decision to make its loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon the Agent, NMS or any other lender or any of their respective officers, directors, employees, agents, attorneys, attorneys-in-fact or Affiliates, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals, and decisions in taking or not taking action under this 88 94 Agreement, and to make such investigation as it deems necessary to inform itself as to the business, assets, operations, property, financial and other conditions, prospects and creditworthiness of the Borrower, the Guarantor, any Qualified Borrower, Investment Affiliate, or Subsidiary. The Agent shall promptly provide to the Lenders copies of all notices of Default, copies of all financial statements, certificates and other information pursuant to Section 11.14. Except for such notices, reports and other documents expressly required to be furnished to the Lenders by the Agent hereunder, the Agent and NMS shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, assets, property, financial or other conditions, prospects or creditworthiness of the Borrower, the Guarantor, any Qualified Borrower, Investment Affiliate or Subsidiary, which may come into the possession of the Agent, NMS or any of their officers, directors, employees, agents, attorneys, attorneys-in-fact or Affiliates. 11.11. Resignation of Agent; Removal of Agent; Successor Agent. (a) Resignation of Agent. The Agent may resign at any time by giving prior written notice thereof to the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent. If no successor Agent shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Agent's giving notice of resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent. Any such successor Agent shall be either a Lender or a commercial bank organized under the laws of the United States of America or any state thereof and have total assets of at least $25,000,000,000 (as shown on its most recently published statement of condition) and whose debt obligations (or whose parent's debt obligations) are rated not less than Baa1 by Moody's or BBB+ by Standard & Poor's, and is generally in the business of making loans comparable to the Loans made under this Facility. If the successor Agent is a subsidiary of a bank, total assets and rating requirement shall apply only to the parent bank. In the event that the retiring Agent, after becoming entitled to appoint a successor Agent as set forth above, does not appoint a successor agent within sixty (60) days after the retiring Agent giving notice of resignation, the Lenders shall perform all the duties of the Agent hereunder and the Borrower shall make all payments in respect of the Obligations to the applicable Lender and for all other purposes shall deal directly with the Lenders. No successor Agent shall be deemed to be appointed hereunder until such successor Agent has accepted the appointment. (b) Removal of Agent. The Lenders may remove the Agent as the Agent hereunder and appoint a successor Agent upon not less than thirty (30) days' prior written notice signed by Lenders whose Commitment Percentages equal 66 2/3% of the Aggregate Commitment exclusive of the Agent's Commitment, if the Agent is grossly negligent or is guilty of willful misconduct in the performance of its duties hereunder, as determined in the reasonable discretion of the Lenders signing the foregoing written notice. (c) Successor Agents. Upon the acceptance of any appointment as Agent under this Agreement by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges, and duties of the retiring Agent upon written notice thereof to the Borrower, and the retiring Agent shall be discharged from its duties 89 95 and obligations under this Agreement excepting with respect to its willful misconduct or gross negligence occurring prior to its discharge. After any retiring Agent's resignation or removal under this Agreement as Agent, the provisions of this Article 11 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Agent. 11.12. Notice of Defaults. The Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Unmatured Default hereunder (other than a Default resulting from the nonpayment of any principal, interest or fees due hereunder) unless the Agent has received notice from a Lender or another Person referring to a Loan Document describing such Default or Unmatured Default and stating that such notice is a "notice of default." In the event the Agent receives such a notice, the Agent shall give notice thereof to the Lenders within one (1) Business Day of the Agent's receipt thereof. The Agent shall take such action with respect to such Default or Unmatured Default as shall be reasonably directed by the Required Lenders. Each Lender shall give the Agent written notice of any Default or Unmatured Default within one (1) Business Day of such Lender's knowledge of a Default or Unmatured Default. 11.13. Requests for Approval. If the Agent requests in writing the consent or approval of a Lender, unless otherwise provided herein or in any other Loan Document, such Lender shall respond and either approve or disapprove definitively in writing to the Agent within ten (10) Business Days (or sooner if such notice specifies a shorter period, but in no event less than five (5) Business Days for responses based on the Agent's good faith determination that circumstances exist warranting its request for an earlier response) after such written request from the Agent, and within fifteen (15) Business Days of the written request from the Agent and the receipt of all documents and information required by Sections 5.3 and 5.4, as applicable, when considering new Hotel Properties for inclusion in the Collateral Pool. If the Lender does not so respond, that Lender shall be deemed to have approved the request. Upon request, the Agent shall notify the Lenders which Lenders, if any, failed to respond to a request for approval. 11.14. Copies of Documents. The Agent shall promptly deliver to each of the Lenders copies of all notices of Default and other formal notices sent or received and according to Section 14 of this agreement. The Agent shall deliver to Lenders within fifteen (15) Business Days following receipt, copies of all financial statements and certificates except to the extent such items are required to be furnished directly to the Lenders by the Borrower hereunder. Within fifteen (15) Business Days after a request by a Lender to the Agent for other documents previously furnished to the Agent by the Borrower, the Agent shall provide copies of such documents to such Lender except where this Agreement obligates the Agent to provide copies in a shorter period of time. 11.15. Defaulting Lenders. At such time as a Lender becomes a Defaulting Lender, such Defaulting Lender's right to vote on matters which are subject to the consent or approval of the Required Lenders, each affected Lender or all Lenders shall be immediately suspended until such time as the Lender is no longer a Defaulting Lender. If a Defaulting Lender has failed to fund its Percentage of any Advance and until such time as such Defaulting Lender subsequently funds its Percentage of such Advance, all Obligations owing to such Defaulting Lender hereunder shall be subordinated in right of payment, as provided in the following sentence, to the prior payment in 90 96 full of all principal of, interest on and fees relating to the Loans funded by the other Lenders in connection with any such Advance in which the Defaulting Lender has not funded its Percentage (such principal, interest and fees being referred to as "Senior Loans" for the purposes of this section). All amounts paid by the Borrower and otherwise due to be applied to the Obligations owing to such Defaulting Lender pursuant to the terms hereof shall be distributed by the Agent to the other Lenders in accordance with their respective Percentages (recalculated for the purposes hereof to exclude the Defaulting Lender) until all Senior Loans have been paid in full. At that point, the "Defaulting Lender" shall no longer be deemed a Defaulting Lender. After the Senior Loans have been paid in full equitable adjustments will be made in connection with future payments by the Borrower to the extent a portion of the Senior Loans had been repaid with amounts that otherwise would have been distributed to a Defaulting Lender but for the operation of this Section 11.15. This provision governs only the relationship among the Agent, each Defaulting Lender and the other Lenders; nothing hereunder shall limit the obligation of the Borrower to repay all Loans in accordance with the terms of this Agreement. The provisions of this section shall apply and be effective regardless of whether a Default occurs and is continuing, and notwithstanding (i) any other provision of this Agreement to the contrary, (ii) any instruction of the Borrower as to its desired application of payments or (iii) the suspension of such Defaulting Lender's right to vote on matters which are subject to the consent or approval of the Required Lenders or all Lenders. ARTICLE XII RATABLE PAYMENTS If any Lender has payment made to it upon its Loans (other than payments received pursuant to Sections 4.1, 4.2 or 4.4) in a greater proportion than that received by any other Lender, such Lender agrees, promptly upon demand, to purchase a portion of the Loans held by the other Lenders so that after such purchase each Lender will hold its ratable proportion of Loans. If any Lender, whether in connection with setoff or amounts which might be subject to setoff or otherwise, receives collateral or other protection for its Obligations or such amounts which may be subject to setoff, such Lender agrees, promptly upon demand, to take such action necessary such that all Lenders share in the benefits of such collateral ratably in proportion to their Loans. In case any such payment is disturbed by legal process, or otherwise, appropriate further adjustments shall be made. ARTICLE XIII BENEFIT OF AGREEMENT; PARTICIPATIONS; ASSIGNMENTS 13.1. Successors and Assigns. The terms and provisions of the Loan Documents shall be binding upon and inure to the benefit of the Borrower, the Guarantor and the Lenders and their successors and permitted assigns, except that (i) the Borrower and the Guarantor shall not have the right to assign their rights or obligations under the Loan Documents and (ii) any assignment by any Lender must be made in compliance with Section 13.3. Notwithstanding clause (ii) of this Section 13.1, any Lender may at any time, without the consent of the Borrower, assign all or any portion of its rights under this Agreement and its Notes to a Federal Reserve 91 97 Bank or to an Affiliate; provided, however, that no such assignment shall release the transferor Lender from its obligations hereunder. The Agent may treat the payee of any Note as the owner thereof for all purposes hereof unless and until such payee complies with Section 13.3 in the case of an assignment thereof or, in the case of any other transfer, a written notice of the transfer is filed with the Agent. Any assignee or transferee of a Note agrees by acceptance thereof to be bound by all the terms and provisions of the Loan Documents. Any request, authority or consent of any Person, who at the time of making such request or giving such authority or consent is the holder of any Note, shall be conclusive and binding on any subsequent holder, transferee or assignee of such Note or of any Note or Notes issued in exchange therefor. 13.2 Participations. 13.2.1. Permitted Participants; Effect. Any Lender, in the ordinary course of its business and in accordance with applicable law, at any time, may sell participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such under the Loan Documents. Any Person to whom such a participating interest is sold is a "Participant." In the event of any such sale by a Lender of participating interests to a Participant, such Lender's obligations under the Loan Documents shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, such Lender shall remain the holder of any such Note for all purposes under the Loan Documents, all amounts payable by the Borrower under this Agreement shall be determined as if such Lender had not sold such participating interests, and the Borrower and the Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under the Loan Documents. 13.2.2. Voting Rights. Each Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of the Loan Documents other than any amendment, modification or waiver with respect to any Loan or Commitment in which such Participant has an interest which forgives principal, interest or fees or reduces the interest rate or fees payable with respect to any such Loan or Commitment or postpones any date fixed for any regularly-scheduled payment of principal of, or interest or fees on, any such Loan or Commitment or releases any guarantor of any such Loan or releases any substantial portion of collateral, if any, securing such Loan. 13.3. Assignments. 13.3.1. Permitted Assignments. In addition to the assignments permitted in Section 13.1 hereof, any Lender may, in the ordinary course of its business, with the prior written consent of the Agent, which consent shall not be unreasonably withheld, and in accordance with applicable law, at any time, assign all or any portion of its rights and obligations under the Loan Documents pursuant to an assignment agreement substantially in the form of Exhibit D, to one or more Eligible Assignees, provided that (a) any such assignment shall be in a minimum 92 98 aggregate amount of $10,000,000 of such Lender's Commitment, and in integral multiples of $1,000,000 above such amount (or the remaining amount of the Commitment held by such Lender), (b) each such assignment shall be of a constant, not varying, percentage of all of the assigning Lender's rights and obligations under the Commitment being assigned, and (c) any Lender wishing to assign all or a portion of its Commitment who has received a bonafide offer to purchase all or a portion of its Commitment must first offer to assign such Commitment, or portion thereof, for the same sum as set forth in said offer, by written notice to all other Lenders, followed by ten (10) Business Days during which time any other Lender may by written notice to the assigning Lender as well as the Agent exercise its right of first refusal to purchase such Commitment, or portion thereof. In the event more than one (1) Lender exercises such right, the amount of the Commitment to be assigned shall be divided equally among such Lenders, with the payment of funds due from each such purchasing Lender to be made within five (5) Business Days of the date of such written notice from the end of the ten (10) day right of first refusal period. Any Lender considering an assignment of all or a portion of its Commitment is hereby authorized to disseminate any information it now has or hereafter obtains pertaining to the Facility, including, without limitation, any of the Loan Documents and any credit or other information on the Borrower and the Guarantor, and any Subsidiaries, Qualified Borrowers or Investment Affiliates, to any such assignee, or prospective assignee, affiliates of the Agent or the Lenders, including, without limitation, NMS, any regulatory body having jurisdiction over the Agent or the Lenders, and to any other Persons as necessary or appropriate in the Agent's or the Lenders' reasonable judgment. Unless such Lender assigns its entire interest, it must maintain a minimum Commitment of $10,000,000 (exclusive of any portion of its Commitment in which it has sold a participation interest, other than participations where such Lender retains full voting control). Notwithstanding the foregoing provision, any assignment by a Lender to another Lender, or an Affiliate thereof, or an Affiliate of the assigning Lender shall not be subject to either the $10,000,000 minimum assignment amount or the fee in Section 13.3.2(b) hereof. If the Aggregate Commitment is reduced, the references to $10,000,000 contained in this Section 13.3.1 shall be reduced proportionately. Any Person to whom such rights and obligations are assigned is a "Purchaser." Such assignment shall be substantially in the form of Exhibit D hereto or in such other form as may be agreed to by the parties thereto (the "Assignment"). So long as no Default or Unmatured Default exists hereunder, in no event shall NationsBank's Commitment amount be reduced below the largest Commitment amount for any of the other Lenders. 13.3.2. Effect; Effective Date. Upon (a) delivery to the Agent and the Borrower of a notice of assignment, substantially in the form attached as Exhibit I to Exhibit D hereto (a "Notice of Assignment"), together with any consents required by Section 13.3.1, and (b) payment of a $3,500 fee to the Agent for processing such assignment, such assignment shall become effective on the effective date specified in such Notice of Assignment. The Notice of Assignment shall contain 93 99 a representation by the Purchaser to the effect that none of the consideration used to make the purchase of the Commitment and Loans under the applicable assignment agreement are "plan assets" as defined under ERISA and that the rights and interests of the Purchaser in and under the Loan Documents will not be "plan assets" under ERISA. On and after the effective date of such assignment, such Purchaser shall for all purposes be a Lender party to this Agreement and any other Loan Document executed by the Lenders and shall have all the rights and obligations of a Lender under the Loan Documents, to the same extent as if it were an original party hereto, and no further consent or action by the Borrower, the Lenders or the Agent shall be required to release NationsBank with respect to the percentage of the Aggregate Commitment and Loans assigned to such Purchaser. Upon the consummation of any assignment to a Purchaser pursuant to this Section 13.3.2, the transferor Lender, Agent and the Borrower shall make appropriate arrangements so that replacement Notes are issued to such transferor Lender, if applicable, and new Notes or, as appropriate, replacement Notes, are issued to such Purchaser, in each case in principal amounts reflecting their Commitment, as adjusted pursuant to such assignment. 13.4. Dissemination of Information. The Borrower and the Guarantor authorize each Lender to disclose to the Arranger and to any Participant or Purchaser, or any other Person acquiring an interest in the Loan Documents by operation of law (each a "Transferee") and any prospective Transferee any and all information in such Lender's possession concerning the creditworthiness of the Borrower, the Guarantor and their Subsidiaries, provided that such Transferees agree to maintain the confidentiality of any information that is confidential in the manner set forth in Section 10.14. 13.5. Tax Treatment. If any interest in any Loan Document is transferred to any Transferee which is organized under the laws of any jurisdiction other than the United States or any State thereof, the transferor Lender shall cause such Transferee, concurrently with the effectiveness of such transfer, to comply with the provisions of Section 2.19. 13.6. Possession of Loan Documents and Register. The Agent shall keep and maintain complete and accurate files and records of all matters pertaining to the Loan. Upon reasonable prior notice to the Agent by any Lender, other than any privileged attorney/client information or documentation or other internal information or documentation deemed by the Agent to be privileged or proprietary in nature, the Agent will make available to such Lender and their representatives and agents, the files and records relating to the Facility for inspection and copying at their expense during normal business hours. The Agent shall also maintain at its address specified pursuant to Article XIV, a copy of each Assignment delivered to and accepted by it and a listing of the names and addresses of the Lenders, the amount of each Lender's Commitment and Percentage (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent, and the Lenders may treat each person or entity whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection and copying by the Borrower or any Lender during normal business hours upon reasonable prior notice to the Agent. 94 100 ARTICLE XIV NOTICES 14.1. Giving Notice. Except as otherwise permitted by Section 2.14 with respect to borrowing notices, all notices and other communications provided to any party hereto under this Agreement or any other Loan Document shall be in writing or by telex or by facsimile and addressed or delivered to such party at its address set forth below its signature hereto or at such other address as may be designated by such party in a notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid, shall be deemed given when received; any notice, if transmitted by telex or facsimile, shall be deemed given when transmitted (answer back confirmed in the case of telexes). 14.2. Change of Address. The Borrower, the Guarantor, the Arranger, the Agent and any Lender may each change the address for service of notice upon it by a notice in writing to the other parties hereto. 14.3. Accounts. The Agent shall deliver to each Lender and the Borrower, and each Lender shall deliver to the Agent wiring instructions containing account information for purposes of the payment of sums due under this Agreement. ARTICLE XV COUNTERPARTS This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. This Agreement shall be effective when it has been executed by the Borrower, the Guarantor, the Arranger, the Agent and the Lenders and each party has notified the Agent by telex or telephone, that it has taken such action. 95 101 IN WITNESS WHEREOF, the Borrower, the Guarantor, the Arranger, the Agent and the Lenders have executed this Agreement as of the date first above written. The "Borrower" RFS PARTNERSHIP, L.P. By: RFS Hotel Investors, Inc. Its General Partner By: /s/Michael J. Pascal ------------------------------------------ Name: Michael J. Pascal ---------------------------------------- Title: Secretary, Treasurer and CFO --------------------------------------- Notice Address: 850 Ridge Lake Blvd., Suite 220 Memphis, Tennessee 38119 Attention: Mike Pascal Telephone: 901/767-7005 Facsimile: 901/818-5260 [SIGNATURES CONTINUED ON FOLLOWING PAGE] 96 102 [SIGNATURES CONTINUED FROM PREVIOUS PAGE] The "Guarantor" RFS HOTEL INVESTORS, INC., By: /s/ Michael J. Pascal ------------------------------------------ Name: Michael J. Pascal ---------------------------------------- Title: Secretary, Treasurer and CFO --------------------------------------- Notice Address: 850 Ridge Lake Blvd., Suite 220 Memphis, Tennessee 38119 Attention: Mike Pascal Telephone: 901/767-7005 Facsimile: 901/818-5260 [SIGNATURES CONTINUED ON FOLLOWING PAGE] 97 103 [SIGNATURES CONTINUED FROM PREVIOUS PAGE] COMMITMENT: $18,392,850 NATIONSBANK, N.A. Individually and as Agent PERCENTAGE: 18.39285% By: /s/ Donna W. Friedel - --------- ------------------------------------------- Name: Donna W. Friedel ----------------------------------------- Title: Senior Vice President ---------------------------------------- Notice Address: 600 Peachtree Street, N.E., 6th Floor Atlanta, Georgia 30308-3318 Attention: Donna W. Friedel Telephone: 404/607-4107 Facsimile: 404/607-4145 [SIGNATURES CONTINUED ON FOLLOWING PAGE] 98 104 [SIGNATURES CONTINUED FROM PREVIOUS PAGE] COMMITMENT: $18,392,850 SOUTHTRUST BANK, N.A. By: /s/ Robert M. Searson ------------------------------------------- Name: Robert M. Searson ----------------------------------------- Title: Vice President PERCENTAGE ---------------------------------------- 18.39285% Notice Address: 600 W. Peachtree St., 22nd Floor Atlanta, GA 30308 Attention: Robert M. Searson Telephone: 404/853-5754 Facsimile: 404/853-5766 [SIGNATURES CONTINUED ON FOLLOWING PAGE] 99 105 [SIGNATURES CONTINUED FROM PREVIOUS PAGE] COMMITMENT: $17,500,000 FIRST TENNESSEE BANK NATIONAL ASSOCIATION By: /s/ Bob Nieman ------------------------------------------- Name: Bob Nieman PERCENTAGE: ---------------------------------------- Title: Vice President 17.5% --------------------------------------- Notice Address: First Tennessee Bank National Association 165 Madison Avenue, 1st Floor Memphis, Tennessee 38103 Attention: Robert P. Nieman Telephone: 901/523-4259 Facsimile: 901/523-4235 [SIGNATURES CONTINUED ON FOLLOWING PAGE] 100 106 [SIGNATURES CONTINUED FROM PREVIOUS PAGE] COMMITMENT: $14,285,700 PNC BANK, N.A. By: /s/Wayne P. Roberts ------------------------------------------- PERCENTAGE: Name: Wayne P. Roberts ------------------------------------------- 14.2857% Title: Vice President Wayne P. Roberts Notice Address: 249 5th Avenue P1-POPP-19-2 Pittsburgh, PA 15222 Attention: Wayne Robertson Telephone: 412/762-8452 Facsimile: 412/762-6500 [SIGNATURES CONTINUED ON FOLLOWING PAGE] 101 107 [SIGNATURES CONTINUED FROM PREVIOUS PAGE] COMMITMENT: $11,428,600 WELLS FARGO BANK By: /s/Sam Wammock ------------------------------------------- PERCENTAGE: Name: Sam Wammock ----------------------------------------- 11.4286% Title: ---------------------------------------- Notice Address: 2859 Paces Ferry Rd. Suite 1805 Atlanta, GA 30339 Attention: Sam Wammock Telephone: 770/435-3800 Facsimile: 770/435-2262 [SIGNATURES CONTINUED ON FOLLOWING PAGE] 102 108 [SIGNATURES CONTINUED FROM PREVIOUS PAGE] COMMITMENT: $11,428,600 AMSOUTH BANK OF ALABAMA By: /s/Lawrence Clark ------------------------------------------- PERCENTAGE: Name: Lawrence Clark ----------------------------------------- 11.4286% Title: Vice President ---------------------------------------- Notice Address 1900 5th Ave. North Birmingham, AL 35203 Attention: Lawrence Clark Telephone: 205/581-7493 Facsimile: 205/326-4075 [SIGNATURES CONTINUED ON FOLLOWING PAGE] 103 109 [SIGNATURES CONTINUED FROM PREVIOUS PAGE] COMMITMENT: $8,571,400 FIRST NBC / BANK ONE By: /s/ Debora Connelly ------------------------------------------- PERCENTAGE: Name: Debora Connelly ---------------------------------------- 8.5714% Title: Senior Vice President ---------------------------------------- Notice Address 201 St. Charles St., 28th Floor New Orleans, LA 70170 Attention: Debora Connelly Telephone: 504/623-4106 Facsimile: 504/623-8379 104 110 EXHIBIT A NOTE FORM OF NOTE $________________ December ___, 1998 RFS Partnership, L.P., a Tennessee limited partnership (the "Borrower"), promises to pay to the order of _______________ (the "Lender") the principal sum ______________________ Dollars ($_____________), in immediately available funds at the main office of ________________ in __________, ____________, together with interest on the unpaid principal amount hereof at the rates and on the dates set forth in the Agreement (as hereinafter defined). The Borrower shall pay the remaining unpaid principal of and accrued and unpaid interest on this Loan in full on the Facility Termination Date. The Lender shall, and is hereby authorized to, record in accordance with its usual practice, the date and amount of each Loan and the date and amount of each principal payment hereunder. This Note is one of the Notes issued pursuant to, and is entitled to the benefits of, the Third Amended and Restated Revolving Credit and Term Loan Agreement among the Borrower, NationsBank, N.A., individually as a Lender and as Agent, NationsBanc Montgomery Securities LLC, and the other Lenders named therein, dated as of the date hereof (the "Agreement"), to which Agreement reference is hereby made for a statement of the terms and conditions governing this Note, including the terms and conditions under which this Note may be prepaid or its maturity date accelerated. Capitalized terms used herein and not otherwise defined herein are used with the meanings attributed to them in the Agreement. If there is an Unmatured Default or Default under the Agreement or any other Loan Document and Agent exercises the remedies provided under the Agreement and/or any of the Loan Documents for the Lenders, then in addition to all amounts recoverable by the Agent and the Lenders under such documents, the Agent and the Lenders shall be entitled to receive on demand reasonable attorneys fees and expenses incurred by Agent and the Lenders in connection with the exercise of such remedies. The Borrower and all endorsers severally waive presentment, protest and demand, notice of protest, demand and of dishonor and nonpayment of this Note, and any and all lack of diligence or delays in collection or enforcement of this Note, and expressly agree that this Note, or any payment hereunder, may be extended from time to time, and expressly consent to the release of any party liable for the obligation secured by this Note, the release of any of the security for this Note, the acceptance of any other security therefor, or any other indulgence or forbearance whatsoever, all without notice to any party and without affecting the liability of the Borrower and any endorsers hereof. This Note shall be governed and construed under the internal laws of the State of Tennessee. 111 IN WITNESS WHEREOF, the Borrower has executed this Note under seal as of the date first written above. RFS PARTNERSHIP, L.P. By: RFS Hotel Investors, Inc. Its General Partner By: ----------------------------------------- Name: --------------------------------------- Title: -------------------------------------- [CORPORATE SEAL] Notice Address: 850 Ridge Lake Blvd., Suite 220 Memphis, Tennessee 38119 Attention: Mike Pascal Telephone: 901/767-7005 Facsimile: 901/818-5260 112 EXHIBIT B FORM OF OPINION ______________, 19_____ The Agent and the Lenders who are parties to Credit Agreement described below Gentlemen/Ladies: We are counsel for RFS Partnership, L.P. (the "Borrower"), and have represented the Borrower in connection with its execution and delivery of that certain Third Amended and Restated Revolving Credit and Term Loan Agreement among the Borrower, NationsBank, N.A., individually and as Agent, NationsBanc Montgomery Securities LLC and the Lenders named therein, providing for Advances in an aggregate principal amount not exceeding $100,000,000 at any one time outstanding and dated as of _______________ (the "Agreement"). All capitalized terms used in this opinion and not otherwise defined shall have the meanings attributed to them in the Agreement. We have examined the Borrower's Partnership Agreement and Covenants as well as the Guarantor's articles of incorporation, by-laws, and resolutions, the Loan Documents and such other matters of fact and law which we deem necessary in order to render this opinion. Based upon the foregoing, it is our opinion that: 1. The Borrower and the Guarantor and each of their Subsidiaries and each Qualified Borrower are either duly incorporated corporations or duly qualified and formed limited partnerships, validly existing and in good standing under the laws of their states of incorporation or formation, and they each have all requisite authority and power to enter into, and perform the obligations under, the Loan Documents and to conduct business in each jurisdiction in which they conduct business. 2. The execution and delivery of the Loan Documents by the Borrower and the Guarantor and the performance by them of their respective obligations under the Loan Documents have been duly authorized by all necessary corporate action and/or proceedings on their part and will not: (a) require any consent of the Borrower's limited partners or the Guarantor's shareholders; (b) violate any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on the Borrower or the Guarantor or any of their Subsidiaries or the Borrower's, the Guarantor's or any Subsidiary's articles of incorporation, by-laws, certificate of limited partnership, partnership agreement, or any indenture, instrument or agreement binding upon the Borrower or the Guarantor or any of their Subsidiaries, (c) result in, or require, the creation or imposition of any Lien pursuant to the provisions of any indenture, instrument or agreement binding upon the Borrower or the Guarantor or any of their Subsidiaries 113 3. The Loan Documents have been duly executed and delivered by the Borrower and the Guarantor and constitute their legal, valid and binding obligations enforceable in accordance with their respective terms except to the extent the enforcement thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally and subject also to the availability of equitable remedies if equitable remedies are sought. 4. There is no litigation or proceeding against the Borrower or the Guarantor or any of their Subsidiaries which, if adversely determined, could have a Material Adverse Effect. 5. No approval, authorization, consent, adjudication or order of, or registration or filing with, any governmental authority, which has not been obtained or made by the Borrower or the Guarantor or any of their Subsidiaries, is required to be obtained or made by the Borrower or the Guarantor or any of their Subsidiaries in connection with the execution and delivery of the Loan Documents, the borrowings under the Agreement or in connection with the payment by the Borrower of the Guarantor of their obligations under the Loan Documents. 6. The Loan does not violate the usury laws or laws regulating the use or forbearance of money of Tennessee and the operation of any term of the Agreement or Loan Documents, including, without limitation, the terms regarding late charges and default interest rate or the lawful exercise of any right thereunder, shall not render the Agreement or Loan Documents unenforceable, in whole or in part, or subject to any right of rescission. set-off, counterclaim or defense. 7. The Guarantor qualifies as a real estate investment trust in accordance with all applicable requirements of the Internal Revenue Code. This opinion may be relied upon by the Agent, the Lenders and their participants, assignees and other transferees. Very truly yours, --------------------------------- 114 EXHIBIT D ASSIGNMENT AGREEMENT This Assignment Agreement (this "Assignment Agreement") between ______________________ (the "Assignor") and _______________________ (the "Assignee") is dated as of ______________, 19___. The parties hereto agree as follows: 1. PRELIMINARY STATEMENT. The Assignor is a party to that certain Third Amended and Restated Revolving Credit and Term Loan Agreement (which, as it may be amended, modified, renewed or extended from time to time is herein called the "Credit Agreement") described in Item I of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used herein and not otherwise defined herein shall have the meanings attributed to them in the Credit Agreement. 2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to the Assignee, without recourse and without representation or warranty, express or implied, except as expressly set forth herein, and the Assignee hereby purchases and assumes from the Assignor, an interest in and to the Assignor's rights and obligations under the Credit Agreement and the other Loan Documents, such that after giving effect to such assignment the Assignee shall have purchased pursuant to this Assignment Agreement the percentage interest specified in Item 3 of Schedule 1 of all outstanding rights and obligations under the Credit Agreement and the other Loan Documents. The aggregate Commitment (or Loans, if the applicable Commitment has been terminated) purchased by the Assignee hereunder is set forth in Item 4 of Schedule 1. 3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the "Effective Date") shall be the later of the date specified in Item 5 of Schedule 1 or, if any Assignor is other than NationsBank two (2) Business Days (or such shorter period agreed to by the Agent) after a Notice of Assignment substantially in the form of Exhibit "I" attached hereto has been delivered to the Agent. In no event will the Effective Date occur if the payments required to be made by the Assignee to the Assignor on the Effective Date under Section 4 hereof are not made on the proposed Effective Date, unless otherwise agreed to in writing by Assignor and Assignee. The Assignor will notify the Assignee of the proposed Effective Date no later than the Business Day prior to the proposed Effective Date. As of the Effective Date, (i) the Assignee shall have the rights and obligations of a Lender under the Loan Documents with respect to the rights and obligations assigned to the Assignee hereunder and (ii) the Assignor shall relinquish its rights and be released from its corresponding obligations under the Loan Documents with respect to the rights and obligations assigned to the Assignee hereunder. 4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee shall be entitled to receive from the Agent all payments of principal, interest and fees with respect to the interest assigned hereby. The Assignee shall advance funds directly to the Agent with respect to all Loans and reimbursement payments made on or after the Effective Date with respect to the interest assigned hereby. In consideration for the sale and assignment of Loans hereunder, (i) the Assignee shall pay the Assignor, on the Effective Date, an amount equal to the principal amount of the portion of all Prime Loans assigned to the Assignee hereunder and (ii) with respect to each LIBOR Loan made by the Assignor and assigned to the Assignee hereunder which is outstanding on the Effective Date, (a) on the last day of the Interest Period therefor or (b) on such earlier date agreed to by the Assignor and the Assignee or (c) on the date on which any such LIBOR 115 Loan either becomes due (by acceleration or otherwise) or is prepaid (the date as described in the foregoing clauses (a), (b) or (c) being hereinafter referred to as the "LIBOR Due Date"), the Assignee shall pay the Assignor an amount equal to the principal amount of the portion of such LIBOR Loan assigned to the Assignee which is outstanding on the LIBOR Due Date. If the Assignor and the Assignee agree that the applicable LIBOR Due Date for such LIBOR Loan shall be the Effective Date, they shall agree, solely for purposes of dividing interest paid by the Borrower on such LIBOR Loan, to an alternate interest rate applicable to the portion of such Loan assigned hereunder for the period from the Effective Date to the end of the related Interest Period (the "Agreed Interest Rate") and any interest received by the Assignee in excess of the Agreed Interest Rate, with respect to such LIBOR Loan for such period, shall be remitted to the Assignor. In the event a prepayment of any LIBOR Loan which is existing on the Effective Date and assigned by the Assignor to the Assignee hereunder occurs after the Effective Date but before the applicable LIBOR Due Date, the Assignee shall remit to the Assignor any excess of the funding indemnification amount paid by the Borrower under Section 3.4 of the Credit Agreement as well as an account of such prepayment with respect to the portion of such LIBOR Loan assigned to the Assignee hereunder over the amount which would have been paid if such prepayment amount were calculated based on the Agreed Interest Rate and only covered the portion of the Interest Period after the Effective Date. The Assignee will promptly remit to the Assignor (i) the portion of any principal payments assigned hereunder and received from the Agent with respect to any LIBOR Loan prior to its LIBOR Due Date and (ii) any amounts of interest on Loans and fees received from the Agent which relate to the portion of the Loans assigned to the Assignee hereunder for periods prior to the Effective Date, in the case of Prime Loans or fees, or the LIBOR Due Date, in the case of LIBOR Loans, and not previously paid by the Assignee to the Assignor. In the event that either party hereto receives any payment to which the other party hereto is entitled under this Assignment Agreement, then the party receiving such amount shall promptly remit it to the other party hereto. 5. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S LIABILITY. The Assignor represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim created by the Assignor. It is understood and agreed that the assignment and assumption hereunder are made without recourse to the Assignor and that the Assignor makes no other representation or warranty of any kind to the Assignee. Neither the Assignor nor any of its officers, directors, employees, agents or Attorneys shall be responsible for (i) the due execution, legality, validity, enforceability, genuineness, sufficiency or collectability of any Loan Document, including without limitation, documents granting the Assignor and the other Lenders a security interest in assets of the Borrower or any guarantor, (ii) any representation, warranty or statement made in or in connection with any of the Loan Documents, (iii) the financial condition or creditworthiness of the Borrower or any guarantor, (iv) the performance of or compliance with any of the terms or provisions of any of the Loan Documents, (v) inspecting any of the Collateral Pool Properties, books or records of the Borrower, the Guarantor, their Subsidiaries or Investment Affiliates, (vi) the validity, enforceability, perfection, priority, condition, value or sufficiency of any collateral securing or purporting to secure the Loans or (vii) any mistake, error of judgment, or action taken or omitted to be taken in connection with the Loans or the Loan Documents. 116 6. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it has received a copy of the Credit Agreement and the other Loan Documents, together with copies of the financial statements requested by the Assignee and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment Agreement, (ii) agrees that it will, independently and without reliance upon the Agent, the Documentation Agent, the Assignor or any other Lender and based on such documents and information at it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, (iii) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender, (v) agrees that its payment instructions and notice instructions are as set forth in the attachment to Schedule 1, (vi) confirms that none of the funds, monies, assets or other consideration being used to make the purchase and assumption hereunder are "plan assets" as defined under ERISA and that its rights, benefits and interests in and under the Loan Documents will not be "plan assets" under ERISA, (vii) attaches either U.S. Internal Revenue Service Form 4224 or Form 1001 certifying that the Assignee claims entitlement to complete exemption from U.S. Federal withholding tax on all interest payments under the Loans and (viii) if Assignee is organized under the laws of any jurisdiction other than the United States or any state thereof, agrees to provide Assignor and the Agent a new Form 4224 or Form 1001 upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable U.S. laws and regulations, and amendments duly executed and completed by Assignee, and to comply from time to time with all applicable U.S. laws and regulations with regard to such withholding tax exemption. 7. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor harmless against any and all losses, costs and expenses (including, without limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor in connection with or arising in any manner from the Assignee's nonperformance of the obligations assumed under this Assignment Agreement. 8. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the Aggregate Commitment occurs between the date of this Assignment Agreement and the Effective Date, the percentage interest specified in Item 3 of Schedule I shall remain the same, but the dollar amount purchased shall be recalculated based on the reduced Aggregate Commitment. 9. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice of Assignment embody the entire agreement and understanding between the parties hereto and supersede all prior agreements and understandings between the parties hereto relating to the subject matter hereof. 10. GOVERNING LAW. This Assignment Agreement shall be governed by the internal law, and not the law of conflicts, of the State of Tennessee. 11. NOTICES. Notices shall be given under this Assignment Agreement in the manner set forth in the Credit Agreement. For the purpose hereof, the addresses of the parties hereto (until notice of a change is delivered) shall be the address set forth in the attachment to Schedule 1. 117 IN WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement by their duly authorized officers as of the date first above written. [NAME OF ASSIGNOR] By: ----------------------------------------- Title: -------------------------------------- [NAME OF ASSIGNEE] By: ----------------------------------------- Title: -------------------------------------- 118 SCHEDULE I to Assignment Agreement 1. Description and Date of Credit Agreement: 2. Date of Assignment Agreement: _____________, 19___ 3. Amounts (As of Date of Item 2 above): a. Aggregate Commitment (Loans)* under Credit Agreement $_______ b. Assignee's Percentage of the Aggregate Commitment purchased under this Assignment Agreement** _______% 4. Amount of Assignee's Commitment (Loan Amount)* Purchased under this Assignment Agreement: $_______ 5. Amount of Assignor's Commitment (Loan Amount) After Purchase under this Assignment Agreement ________ 6. Proposed Effective Date: ________ Accepted and Agreed: [NAMES OF ASSIGNOR] [NAMES OF ASSIGNEE] By: By: --------------------------- --------------------------- Title: Title: ------------------------ --------------------------- * If a Commitment has been terminated, insert outstanding Loans in place of Commitment ** Percentage taken to 8 decimal places 119 Attachment to SCHEDULE I to ASSIGNMENT AGREEMENT Attach Assignor's Administrative Information Sheet, which must include notice address and account information for the Assignor and the Assignee 120 EXHIBIT "I" to Assignment Agreement NOTICE OF ASSIGNMENT _____________, 19___ To: [NAME OF AGENT] From: [NAME OF ASSIGNOR] (the "Assignor") [NAME OF ASSIGNEE] (the "Assignee") 1. We refer to that Third Amended and Restated Revolving Credit and Term Loan Agreement (the "Credit Agreement") described in Item 1 of Schedule I attached hereto ("Schedule I"). Capitalized terms used herein and not otherwise defined herein shall have the meanings attributed to them in the Credit Agreement. 2. This Notice of Assignment (this "Notice") is given and delivered to the Agent pursuant to Section 13.3.2 of the Credit Agreement. 3. The Assignor and the Assignee have entered into an Assignment Agreement, dated as of ____________, 19__ (the "Assignment"), pursuant to which, among other things, the Assignor has sold, assigned, delegated and transferred to the Assignee, and the Assignee has purchased, accepted and assumed from the Assignor the percentage interest specified in Item 3 of Schedule I of all outstandings, rights and obligations under the Credit Agreement. From and after such purchase, the Assignee's Commitment shall be the amount specified in Item 4 of Schedule I and the Assignor's Commitment shall be the amount specified in Item 5 of Schedule I. The Effective Date of the Assignment shall be the later of the date specified in Item 5 of Schedule I or two (2) Business Days (or such shorter period as agreed to by the Agent) after this Notice of Assignment has been delivered to the Agent, provided that the Effective Date shall not occur if any condition precedent agreed to by the Assignor and the Assignee or set forth in Section 13 of the Credit Agreement has not been satisfied. 4. The Assignor and the Assignee hereby give to the Agent notice of the assignment and delegation referred to herein. The Assignor will confer with the Agent before the date specified in Item 6 of Schedule I to determine if the Assignment Agreement will become effective on such date pursuant to Section 3 hereof, and will confer with the Agent to determine the Effective Date pursuant to Section 3 hereof if it occurs thereafter. The Assignor shall notify the Agent if the Assignment Agreement does not become effective on any proposed Effective Date as a result of the failure to satisfy the conditions precedent agreed to by the Assignor and the Assignee. At the request of the Agent, the Assignor will give the Agent written confirmation of the satisfaction of the conditions precedent. 5. The Assignor or the Assignee shall pay to the Agent on or before the Effective Date the processing fee of $3,500 required by Section 13.3.2 of the Credit Agreement. 121 6. If Notes are outstanding on the Effective Date, the Assignor and the Assignee request and direct that the Agent prepare and cause the Borrower to execute and deliver new Notes or, as appropriate, replacements notes, to the Assignor and the Assignee. The Assignor and, if applicable, the Assignee each agree to deliver to the Agent the original Note received by it from the Borrower upon its receipt of a new Note in the appropriate amount. 7. The Assignee advises the Agent that notice and payment instructions are set forth in the attachment to Schedule I. 8. The Assignee hereby represents and warrants that none of the funds, monies, assets or other consideration being used to make the purchase pursuant to the Assignment are "plan assets" as defined under ERISA and that its rights, benefits, and interests in and under the Loan Documents will not be "plan assets" under ERISA. 9. The Assignee authorizes the Agent to act as its agent under the Loan Documents in accordance with the terms thereof. The Assignee acknowledges that the Agent has no duty to supply information with respect to the Borrower or the Loan Documents to the Assignee until the Assignee becomes a party to the Credit Agreement.* * May be eliminated if Assignee is a party to the Credit Agreement prior to the Effective Date. NAME OF ASSIGNOR NAME OF ASSIGNEE - ---------------------------------- ------------------------------------ By: By: ------------------------------- --------------------------------- Title: Title: ----------------------------- ------------------------------ ACKNOWLEDGED AND CONSENTED TO BY Agent - ---------------------------------- By: ------------------------------- Title: ---------------------------- [ATTACH PHOTOCOPY OF SCHEDULE I TO ASSIGNMENT] 122 EXHIBIT E LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION To: The NationsBank, N.A. as Agent (the "Agent") under the Credit Agreement Described Below Re: Third Amended and Restated Revolving Credit and Term Loan Agreement, dated as of ______________, (as amended, modified, renewed or extended from time to time, the "Agreement"), among RFS Partnership, L.P. (the "Borrower"), NationsBank, N.A., individually and as Agent, NationsBanc Montgomery Securities LLC and the Lenders named therein. Terms used herein and not otherwise defined shall have the meanings assigned thereto in the Credit Agreement. The Agent is specifically authorized and directed to act upon the following standing money transfer instructions with respect to the proceeds of Advances or other extensions of credit from time to time until receipt by the Agent of a specific written revocation of such instructions by the Borrower, provided, however, that the Agent may otherwise transfer funds as hereafter directed in writing by the Borrower in accordance with Section 14.1 of the Credit Agreement or based on any telephonic notice made in accordance with Section 2.14 of the Credit Agreement. Facility Identification Number(s) ----------------------------------------------- Customer/Account Name ----------------------------------------------------------- Transfer Funds To --------------------------------------------------------------- --------------------------------------------------------------- --------------------------------------------------------------- For Account No. ----------------------------------------------------------------- Reference/Attention To ---------------------------------------------------------- Authorized Officer (Customer Representative) Date ----------------------- - ---------------------------------- ------------------------------------ (Please Print) Signature Bank Officer Name Date -------------------------------- - ---------------------------------- ------------------------------------ (Please Print) Signature (Deliver Completed Form to Credit Support Staff For Immediate Processing) 123 EXHIBIT F Minimum Specifications for Environmental Investigations (See attached) EX-13.1 5 ANNUAL REPORT TO SHAREHOLDERS 1 EXHIBIT 13.1 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS BACKGROUND The Company commenced operations in August 1993 upon completion of its initial public offering and the simultaneous acquisition of seven hotels with 1,118 rooms. The following chart summarizes information regarding the 60 hotels (the "Hotels") owned at December 31, 1998 through the Company's operating partnership, RFS Partnership, L.P., and its subsidiaries (collectively, the "Partnership").
Number of Number of Franchise Affiliation Hotel Properties Rooms/Suites - ------------------------------------------------------------------------------------------------------------------------------------ Full Service Hotels: Holiday Inn 6 1,208 Sheraton Hotels and Sheraton Four Points 5 1,018 Doubletree 1 220 Ramada Plaza 1 234 Independent 2 290 - ------------------------------------------------------------------------------------------------------------------------------------ Sub-total 15 2,970 - ------------------------------------------------------------------------------------------------------------------------------------ Extended Stay Hotels: Residence Inn by Marriott 14 1,847 Homewood Suites 1 83 TownePlace Suites 1 95 Hawthorn Suites 1 280 - ------------------------------------------------------------------------------------------------------------------------------------ Sub-total 17 2,305 - ------------------------------------------------------------------------------------------------------------------------------------ Limited Service Hotels: Hampton Inn 19 2,364 Courtyard by Marriott 1 102 Holiday Inn Express 5 637 Comfort Inn 3 472 - ------------------------------------------------------------------------------------------------------------------------------------ Sub-total 28 3,575 - ------------------------------------------------------------------------------------------------------------------------------------ Total 60 8,850 ====================================================================================================================================
The following chart summarizes ownership history for the years presented:
1998 1997 1996 - ------------------------------------------------------------------------------------------------------------------------------------ Hotels owned at beginning of year 60 53 48 Acquisitions and developed Hotels placed into service 6 10 6 Sales (6) (3) (1) - ------------------------------------------------------------------------------------------------------------------------------------ Hotels owned at end of year 60 60 53 ====================================================================================================================================
The Hotels are located in 24 states. Management believes it is prudent to diversify geographically and among franchise brands. The Partnership leases 56 of the Hotels to third parties, (collectively, the "Lessees") pursuant to leases (the "Percentage Leases") which provide for annual rent equal to the greater of (i) fixed base rent, or (ii) rent payments based on percentages of the Hotels' revenues ("Percentage Rent"). Base rent is payable monthly. Percentage Rent is payable quarterly. Four Hotels are not leased and are operated by third parties, (the "Operators"), pursuant to management agreements between the Partnership and the Operators. The Lessees operate 52 of the 56 Hotels they lease. The other four Hotels are operated by other third parties, (the "Lessee Operators"), pursuant to management agreements between the Lessees and the Lessee Operators. One of the Lessees has a right of first refusal, subject to certain exceptions, to lease hotels acquired by RFS Partnership, L.P. through February 27, 2006. 14 2 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS RESULTS OF OPERATIONS Comparison of 1998 to 1997 Increases in lease revenue for the year ended December 31, 1998 over 1997 are primarily due to increases in revenue per available room ("REVPAR") at the hotels owned throughout both periods. The following table shows statistical data regarding the hotels on an actual and a pro forma basis. The pro forma assumes 53 of the 60 hotels owned at December 31, 1998 were owned by the Partnership throughout both years; it excludes four newly opened hotels and three hotels which were undergoing major renovations during 1998.
Actual Pro Forma ------ --------- % Increase % Increase 1998 1997 (Decrease) 1998 1997 (Decrease) -------------------------------------------------------------------------------------- Occupancy 73.8% 74.1% (0.4) 75.0% 75.7% (0.9) ADR $83.61 $75.94 10.1 $83.74 $78.63 6.5 REVPAR $61.74 $56.31 9.6 $62.80 $59.52 5.5
Increases in other revenue are a result of interest income earned on notes receivable taken as part of the purchase price for hotels sold and net operating income from non-leased hotels owned in 1998 and not in 1997. Increases in real estate taxes and property and casualty insurance and increases in depreciation in 1998 over 1997 are due to the increased number of hotels owned by the Partnership during 1998 over 1997 and increased real estate tax assessments. Decreases in compensation in 1998 over 1997 are primarily due to a decreased number of employees, including one highly compensated employee who resigned in the first quarter of 1998 and whose responsibilities were assumed by existing employees. Interest expense increased in 1998 over 1997 due to increased borrowings on the Line of Credit and the assumption of the bonds in connection with the purchase of a hotel. Comparison of 1997 to 1996 Increases in lease revenue for the year ended December 31, 1997 over 1996 are due to (i) an increased number of hotels being owned by the Partnership and leased to the Lessees during the 1997 period and (ii) increases in REVPAR at the hotels owned throughout both periods. The following table shows statistical data regarding the Hotels on an actual and a pro forma basis. The pro forma assumes 43 of the 60 hotels owned at December 31, 1997 were owned by the Partnership throughout both years; it excludes six newly opened hotels and three expanded hotels where the room additions were not open throughout both years, one hotel which was undergoing a major renovation during 1997 and seven hotels which the Partnership intended to sell at December 31, 1997.
Actual Pro Forma ------ --------- % Increase % Increase 1997 1996 (Decrease) 1997 1996 (Decrease) -------------------------------------------------------------------------------------- Occupancy 74.1% 76.3% (2.9) 76.7% 77.0% (0.4) ADR $75.94 $69.20 9.7 $80.11 $74.91 6.9 REVPAR $56.31 $52.83 6.6 $61.42 $57.70 6.4
Increases in other revenue are a result of net operating income from a non-leased hotel owned in 1997 and not in 1996. Increases in real estate taxes and property and casualty insurance and increases in depreciation in 1997 over 1996 are due to the increased number of hotels owned by the Partnership during 1997 over 1996 and increased real estate tax assessments. Increases in compensation in 1997 over 1996 are primarily due to an increased number of employees. Increases in amortization of loan costs in 1997 over 1996 are due to a full year of amortization in 1997 of costs related to a bond financing in November 1996 and amortization of commitment fees related to the Line of Credit. Interest expense increased in 1997 over 1996 due to Bonds being outstanding for the full year during 1997, increased borrowings on the Line of Credit, and the assumption of the Birmingham Bonds. 15 3 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS LIQUIDITY AND CAPITAL RESOURCES The Company has a bank line of credit (the "Line of Credit") for $100 million. Borrowings under the Line of Credit bear interest at a variable rate based on LIBOR. The interest rate was approximately 7.2% at December 31, 1998. The Line of Credit is collateralized by first priority mortgages on 16 hotels and agreements restricting the transfer, pledge or other hypothecation of 5 hotels (collectively, the "Collateral Pool") with a net book value of $180 million at December 31, 1998. The Line of Credit contains various covenants including the maintenance of a minimum net worth, minimum debt coverage and interest coverage ratios, total indebtedness and total liabilities limitations and borrowing base to value limitations. The Company was in compliance with these covenants at December 31, 1998. The Company had borrowed $82.3 million on the Line of Credit at December 31, 1998. The Line of Credit is due July 30, 2000. The Company, through a subsidiary, issued $75 million of commercial mortgage bonds (the "Bonds") series 1996-1 as follows:
Initial Interest Class Principal Amount Rate Stated Maturity -------------------------------------------------------------------------------------- Class A $50 Million 6.83% August 20, 2008 Class B $25 Million 7.30% November 21, 2011
Principal payments on the Class A Bonds are payable based on a 141-month amortization schedule beginning in December 1996; principal payments on the Class B Bonds are payable based on a 39-month amortization schedule beginning in September 2008. The total monthly principal and interest payments approximate $.7 million for the Class A Bonds. The outstanding balance on the bonds was $68.8 million at December 31, 1998. In December 1998, the Company, through two special purpose entities, completed a $95.8 million long-term financing. Principal and interest payments, based on a 25-year amortization, of $.7 million and escrow payments of $.4 million are due monthly through December 2008 at which time all outstanding principal and interest is due. The debt bears interest at 7.8%. Ten of the Hotels with a net book value of $132.2 million are collateral for the debt. The proceeds of the financing were used to reduce the Company's indebtedness under the Line of Credit. In connection with the purchase of a hotel in Fishkill, NY, the Partnership assumed approximately $2.4 million of indebtedness pursuant to industrial development bonds, (the "IDB's") issued in 1988 and which are due December 1, 2002. The IDB's bear interest at a variable rate which, as of December 31, 1998, was approximately three and one-half percent (3.5%) per annum. Principal is payable in installments of $.6 million every three years with the next installment due in 2000. The outstanding balance on the IDB's was $1.8 million at December 31, 1998. In connection with the purchase of a hotel in Birmingham, AL, Ridge Lake General Partners, Inc. ("RLGP"), a subsidiary of the Company, assumed industrial development bonds ("Birmingham IDB's"), which are due in 2001. The Birmingham IDB's bear interest at a variable rate which, at December 31, 1998, was approximately 4.1% per year. Interest is payable quarterly; principal is payable annually. The outstanding balance on the Birmingham IDB's is $5 million at December 31, 1998. The Birmingham hotel is collateral for the Birmingham IDB's and has a net book value of $20 million at December 31, 1998. A subsidiary, in which the Company has a 75% ownership interest, purchased the Ramada Plaza Hotel in San Francisco, CA ("Wharf") and has non-recourse debt of $19.1 million at December 31, 1998. This debt bears interest at 8.22%. Principal and interest payments, based on a 25-year amortization, of $152,000 and escrow payments of $50,000 are due monthly through November 2007 at which time all outstanding principal and interest is due. The Ramada Plaza is collateral for this debt and has a net book value of $34 million at December 31, 1998. The Company budgeted $20.6 million for 1998 capital improvements at 55 of the hotels owned at December 31, 1998. At December 31, 1998, the Partnership had spent approximately $17.9 million of the budgeted amounts. The Company will use cash generated from operations to fund the remaining $ 2.7 million of expenditures. The Company intends to substantially complete these improvements by the second quarter of 1999. Additionally, the Company has budgeted approximately $15.9 million for 1999 capital improvements at 58 of the Hotels owned at December 31, 1998. The Partnership is developing the following hotels:
Number of Estimated Estimated Location Franchise Rooms/Suites Development Costs Opening Quarter -------------------------------------------------------------------------------------------------------- Miami Lakes, FL TownePlace Suites 95 $6.5 2Q99 Tampa, FL TownePlace Suites 95 $6.3 3Q99 Miami Airport-West, FL TownePlace Suites 95 $6.5 3Q99 Crystal Lake, IL Courtyard by Marriott 90 $7.5 1Q00 (Chicago)
16 4 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS The Partnership is constructing a 40 room addition to the Beverly Heritage Hotel in Milpitas, CA. Construction costs are estimated at $3.8 million. Completion of the addition is expected in the fourth quarter of 1999. In addition to purchasing existing hotel properties at targeted rates of return, management anticipates that the Company will both develop additional hotels and enter into contracts to acquire hotels from third parties after development. It is expected that future investments in hotel properties will be financed, in whole or in part, with cash generated from operations, short-term investments, proceeds from additional issuances of equity securities, borrowings under the Line of Credit or other securities or borrowings. The Company in the future may seek to increase further the amount of its credit facilities, negotiate additional credit facilities, or issue corporate debt instruments. Although the Company has no charter restrictions on the amount of indebtedness the Company may incur, the Board of Directors of the Company has adopted a policy limiting the amount of indebtedness that the Company will incur to an amount not in excess of approximately 40% of the Company's investment in hotel properties, at cost, after giving effect to the Company's use of proceeds from any indebtedness and accounting for all investments in hotel properties under the purchase method of accounting. Any debt incurred or issued by the Company may be secured or unsecured, long-term or short-term, may charge a fixed or variable interest rate and may be subject to such other terms as the Board of Directors of the Company in its discretion, may approve. The Company has filed a Shelf Registration Statement on Form S-3 (the "Shelf") with the Securities and Exchange Commission for the issuance from time to time of preferred stock, common stock and depositary shares representing entitlement to all rights and preferences of a fraction of a share of preferred stock of a specified series in the aggregate amount of up to $250 million. The Shelf became effective July 30, 1996. In March 1998, the Company issued 547,946 shares of common stock from the Shelf with proceeds of $9.5 million. The Company intends to fund cash distributions to shareholders principally out of cash generated from operations. The Company may incur, or cause the Partnership to incur, indebtedness to meet distribution requirements imposed on a REIT under the Code (including the requirement that a REIT distribute to its shareholders annually at least 95% of its taxable income) to the extent that working capital and cash flow from the Company's investments are insufficient to make such distributions. In 1998, the Partnership has, through December 31, 1998, made cash distributions to its partners, including the Company, of $41.3 million or $1.51 per Partnership unit, from which the Company made cash distributions to common shareholders of $37.5 million, or $1.51 per share. The Company also made cash distributions to the preferred shareholder of $1.4 million, or $1.45 per share. The Company and the Partnership utilized available cash to fund such distributions. INFLATION Operators of hotels generally possess the ability to adjust room rates quickly. However, competitive pressures have limited, and may in the future, limit the ability of the hotels' operators to raise rates in the face of inflation. Industry-wide REVPAR growth outpaced inflation from 1993 through 1998. SEASONALITY The Hotels' operations historically have been seasonal in nature, generally reflecting higher occupancy during the second and third quarters. This seasonality can be expected to cause fluctuations in the Partnership's quarterly lease revenue to the extent that it receives Percentage Rent. YEAR 2000 MANAGEMENT Beginning in the fourth quarter of 1997, the Company began evaluating the impact of the Year 2000 (Y2K) problem on its systems. The Company also began inquiring of its Lessees regarding the operation of the Lessee's systems at properties owned by the Company. The only software package that was not Y2K compliant was the accounting system of the Company. The Company purchased a new accounting system in January of 1998. The Company has been converting to the new format and plans to go live on July 1, 1999. All computers passed the Y2K check, as well as the phone system and other hardware. The Company has been advised by its Lessees and management companies that the systems at the properties (reservation, accounting, etc.) are being upgraded where necessary by the appropriate management company. Since the Company depends on its Lessees and management companies for revenue information at the hotels in order to calculate percentage rent due to the Company under the leases, any Y2K problem which affects revenue accounting by the Lessees or management companies at the Company's hotels could have a material adverse impact on the Company's business. Testing will continue throughout 1999 on both the new and old software to verify its operation. The Company is in the process of obtaining a statement from its vendors about their Y2K status. The Company estimates its total cost related to the Y2K problem to be approximately $80,000. 17 5 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS FUNDS FROM OPERATIONS The Company considers Funds from Operations ("FFO") a widely accepted and appropriate measure of performance for an equity REIT that provides a relevant basis for comparison among REITs. FFO, as defined by the National Association of Real Estate Investment Trusts (NAREIT), means income (loss) before minority interest (determined in accordance with GAAP), excluding gains (losses) from debt restructuring and sale of property, plus real estate depreciation and after adjustments for unconsolidated partnerships and joint ventures. FFO is presented to assist investors in analyzing the performance of the Company. The Company's method of calculating FFO may be different from the methods used by other REITs and, accordingly, may not be comparable to such other REITs. The computation of FFO is consistent with the NAREIT White Paper Definition of FFO with the exception that the 1998 non-recurring write-off of attempted merger expenses has been added back to calculate FFO. FFO (i) does not represent cash flows from operations as defined by GAAP, (ii) is not indicative of cash available to fund all cash flow needs and liquidity, including the ability to make distributions, and (iii) should not be considered as an alternative to net income (as determined in accordance with GAAP) for purposes of evaluating the Company's operating performance.
For the Year Ended ---------------------- 1998 1997 -------- --------- Income before minority interest $37,723 $37,847 Add depreciation 20,906 17,664 Add loss on sale of hotel properties 4,149 1,164 Add attempted merger expenses 1,664 Less preferred dividend (1,412) (1,412) - --------------------------------------------------------------------------------------------- FFO $63,030 $55,263 - --------------------------------------------------------------------------------------------- Weighted average shares and partnership units outstanding 27,343 26,952 FFO per share $ 2.31 $ 2.05
18 6 CONSOLIDATED BALANCE SHEETS
RFS HOTEL INVESTORS, INC. (in thousands, except share data) December 31, December 31, 1998 1997 - ----------------------------------------------------------------------------------------------------- ASSETS Investment in Hotel Properties, net $624,730 $573,826 Hotels under development 18,289 15,739 Cash and cash equivalents 2,014 4,131 Restricted cash 7,809 2,514 Accounts receivable-Lessees 10,656 9,887 Notes receivable 4,949 2,293 Deferred expenses, net 5,216 4,061 Prepaid and other assets 8,818 4,472 Escrow deposits 1,510 205 - ----------------------------------------------------------------------------------------------------- $683,991 $617,128 ===================================================================================================== LIABILITIES AND SHAREHOLDERS' EQUITY Accounts payable and accrued expenses $ 5,320 $ 6,423 Accrued real estate taxes 2,961 3,491 Borrowings on line of credit 82,307 123,843 Long-term obligations 190,492 85,066 Minority interest 35,974 36,235 - ----------------------------------------------------------------------------------------------------- 317,054 255,058 - ----------------------------------------------------------------------------------------------------- Commitments and contingencies Shareholders' equity: Preferred Stock, $.01 par value, 5,000,000 shares authorized, 973,684 shares outstanding 10 10 Common Stock, $.01 par value, 100,000,000 shares authorized, 25,115,946 and 24,389,000 shares outstanding 251 244 Paid-in capital 374,959 363,066 Treasury stock, 110,000 shares (2,012) Undistributed income (distributions in excess of income) (4,468) 337 Unearned directors' and officers' compensation (1,803) (1,587) - ----------------------------------------------------------------------------------------------------- Total shareholders' equity 366,937 362,070 - ----------------------------------------------------------------------------------------------------- $683,991 $617,128 =====================================================================================================
The accompanying notes are an integral part of these consolidated financial statements. 19 7 CONSOLIDATED STATEMENTS OF INCOME
RFS HOTEL INVESTORS, INC. (in thousands, except share and per share data) For the years ended December 31, 1998 1997 1996 - ------------------------------------------------------------------------------------------ Revenue: Lease revenue $92,788 $82,531 $61,594 Other revenue 4,139 538 392 - ------------------------------------------------------------------------------------------ Total revenue 96,927 83,069 61,986 - ------------------------------------------------------------------------------------------ Expenses: Real estate taxes and property and casualty insurance 9,769 8,357 6,289 Depreciation 20,906 17,664 10,919 Amortization of franchise fees and unearned compensation 779 883 760 Compensation 2,081 2,394 2,120 Franchise taxes 180 300 260 General and administrative 2,141 1,985 2,037 Attempted merger expenses 1,664 Loss on sale of hotel properties 4,149 1,164 244 Write-down of a hotel property 668 Amortization of loan costs 931 913 398 Interest expense, net 16,604 11,562 3,204 - ------------------------------------------------------------------------------------------ Total expenses 59,204 45,222 26,899 - ------------------------------------------------------------------------------------------ Income before minority interest 37,723 37,847 35,087 Minority interest (3,655) (3,615) (500) - ------------------------------------------------------------------------------------------ Net Income 34,068 34,232 34,587 Preferred stock dividends (1,412) (1,412) (1,195) - ------------------------------------------------------------------------------------------ Net income applicable to common shareholders $32,656 $32,820 $33,392 ========================================================================================== Basic earnings per share $ 1.32 $ 1.35 $ 1.37 Diluted earnings per share $ 1.31 $ 1.34 $ 1.37 Weighted average common shares 24,775 24,389 24,353
The accompanying notes are an integral part of these consolidated financial statements. 20 8 CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
RFS HOTEL INVESTORS, INC. For the years ended December 31, 1998, 1997 and 1996 (in thousands, except share and per share data) - ----------------------------------------------------------------------------------------------------------------------------------- Unearned Officers' and Undis- Directors' Preferred Stock Common Stock Paid-In tributed Compen- Treasury Shares Dollars Shares Dollars Capital income sation stock Total - ----------------------------------------------------------------------------------------------------------------------------------- Balances at December 31, 1995 24,294,000 $243 $336,857 $ 3,111 $(1,398) $338,813 Issuance of preferred stock net of expenses of $357 973,684 $10 18,133 18,143 Issuance of restricted common stock to officers and directors 90,000 1 1,558 (1,559) 0 Distributions on common shares, ($1.39 per share) (33,854) (33,854) Distributions on preferred shares ($0.86 per share) (839) (839) Amortization of unearned compensation 632 632 Net income 34,587 34,587 - ------------------------------------------------------------------------------------------------------------------------------------ Balances at December 31, 1996 973,684 $10 24,384,000 $244 $356,548 $ 3,005 $(2,325) $357,482 Issuance of common stock 5,000 72 72 Contribution of capital 90 90 Distributions on common shares ($1.455 per share) (35,488) (35,488) Distributions on preferred shares, ($1.45 per share) (1,412) (1,412) Allocation to minority interest 6,356 6,356 Amortization of unearned compensation 738 738 Net income 34,232 34,232 - ------------------------------------------------------------------------------------------------------------------------------------ Balances at December 31, 1997 973,684 $10 24,389,000 $244 $363,066 $ 337 $(1,587) $362,070 Issuance of common stock net of offering costs of $75 642,946 6 11,034 11,040 Retirement of common stock (45,000) (793) 793 0 Purchase of treasury shares $(2,012) (2,012) Issuance of restricted common stock to officers, directors and employees 129,000 1 1,652 (1,653) Distributions on common shares ($1.51 per share) (37,431) (37,431) Distributions on preferred shares ($1.45 per share) (1,412) (1,412) Distribution on partnership interest (30) (30) Amortization of unearned compensation 644 644 Net income 34,068 34,068 - ------------------------------------------------------------------------------------------------------------------------------------ Balances at December 31, 1998 973,684 $10 25,115,946 $251 $374,959 $(4,468) $(1,803) $(2,012) $366,937 ====================================================================================================================================
The accompanying notes are an integral part of these consolidated financial statements. 21 9 CONSOLIDATED STATEMENTS OF CASH FLOWS
RFS HOTEL INVESTORS, INC. (in thousands, except share and per share data) For the years ended December 31, 1998 1997 1996 - --------------------------------------------------------------------------------------------------------------- Cash flows from operating activities: Net income $ 34,068 $ 34,232 $ 34,587 Adjustments to reconcile net income to net cash provided by operating activities Depreciation and amortization 22,616 19,460 12,077 Income allocated to minority interest 3,655 3,615 500 Loss on sale and write-down of hotel properties 1,441 1,164 912 Attempted merger expenses 1,664 Changes in assets and liabilities: Accounts receivable-Lessees (769) (2,700) (1,414) Prepaids and other assets (6,053) (3,063) (828) Accounts payable and other liabilities (1,530) 5,882 614 - --------------------------------------------------------------------------------------------------------------- Net cash provided by operating activities 55,092 58,590 46,448 - --------------------------------------------------------------------------------------------------------------- Cash flows from investing activities: Investment in Hotel properties and hotels under development (78,839) (153,564) (73,356) Proceeds from sale of hotel properties 19,627 15,566 3,891 Escrow deposits and prepayments under purchase agreements (1,425) (205) (5,053) Cash paid into reserves (5,295) (2,514) Cash paid for franchise agreements (34) - --------------------------------------------------------------------------------------------------------------- Net cash used by investing activities (65,932) (140,751) (74,518) - --------------------------------------------------------------------------------------------------------------- Cash flows from financing activities: Net proceeds from sale of common stock 11,040 162 Net proceeds from sale of preferred stock 18,143 Purchase of treasury stock (2,012) Proceeds from issuance of bonds 75,000 Proceeds from issuance of debt 95,800 Distributions to common and preferred shareholders (38,873) (36,900) (34,693) Distributions to limited partners (3,879) (3,738) (458) Draws on the Line of Credit 52,502 183,843 92,750 Payments on the Line of Credit (94,038) (110,000) (64,600) Payments on debt and bonds (9,543) (3,523) (272) Redemption of shares/units (37) Collection on notes receivable 65 Loan fees paid (2,302) (1,487) (2,545) - --------------------------------------------------------------------------------------------------------------- Net cash provided by financing activities 8,723 28,357 83,325 - --------------------------------------------------------------------------------------------------------------- Net increase (decrease) in cash and cash equivalents (2,117) (53,804) 55,255 Cash and cash equivalents at beginning of year 4,131 57,935 2,680 - --------------------------------------------------------------------------------------------------------------- Cash and cash equivalents at end of year $ 2,014 $ 4,131 $ 57,935 =============================================================================================================== Supplemental disclosures of cash flow information: Cash paid for interest $ 16,474 $ 11,811 $ 3,820
Supplemental disclosures of non-cash investing and financing activities: In 1998, the Company through a partnership assumed $19,169 of debt in connection with the purchase of a hotel. In 1998, the Company applied deposits of $120 towards the purchase of land. In 1998, due to the resignation of an officer, the Company cancelled 45,000 shares of restricted common stock which had not vested. In 1998, the Partnership sold two hotels for which the purchasers paid $1,440 in cash and signed a note to the company for $2,700. In 1997, the Company recorded a $6,356 allocation to paid-in capital from minority interest. In 1997, the Partnership issued 2,244,934 limited partnership units valued at $38,200 in connection with the purchase of four hotels. In 1997, the Partnership applied deposits of $6,064 towards the purchase of hotels. In 1997, RLGP assumed industrial development bonds of $5,525 in connection with the purchase of a hotel. In 1996, the Company issued 90,000 shares of restricted Common Stock which at dates of issuance, were valued from $15-5/8 to $17-5/8 per share. In 1996, the Partnership applied deposits of $1,190 toward the purchase of acquired hotels and land. The accompanying notes are an integral part of these consolidated financial statements. 22 10 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS RFS HOTEL INVESTORS, INC. NOTE 1. ORGANIZATION RFS Hotel Investors, Inc. (the "Company") was incorporated in Tennessee on June 1, 1993 and is a self-administered real estate investment trust ("REIT"). The Company contributed substantially all of the net proceeds of its public offerings to RFS Partnership, L.P. (the "Partnership") in exchange for the sole general partnership interest in the Partnership. The Partnership began operations in August 1993. At December 31, 1998 and 1997, the Company owned approximately 90.4% and 90.5% of the Partnership, respectively. RFS Managers, Inc. ("Managers") a wholly-owned subsidiary of the Company, was formed effective January 1, 1995 to provide management services to the Company. During 1996, RFS Financing Partnership, L.P., ("FPLP"), a bankruptcy remote, single purpose limited partnership, was formed to issue commercial mortgage bonds (the "Bonds"). The Company owns 100% of FPLP. During 1997, Ridge Lake General Partners, Inc. ("RLGP") was formed to purchase a hotel. The Company owns approximately 95% of RLGP. In June 1998, the Company purchased a 75% interest in Wharf Associates Partnership ("Wharf"). In December 1998, RFS SPE 1 1998, LLC, ("SPE 1"), and RFS SPE 2 1998, LLC, ("SPE 2"), bankruptcy remote, single-purpose limited liability companies, were formed to effect a debt financing of ten hotel properties. The Company owns 100% of SPE 1 and SPE 2. The Company, through its subsidiary partnerships, acquires or develops and owns hotel properties. NOTE 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES PRINCIPLES OF CONSOLIDATION. The consolidated financial statements include the accounts of the Company and its subsidiaries. All significant intercompany balances and transactions have been eliminated. INVESTMENT IN HOTEL PROPERTIES. Hotel properties are recorded at cost and are depreciated using the straight-line method over the estimated useful lives of the assets at 40 years for buildings and improvements and 5 to 7 years for furniture and equipment. Upon disposition, both the asset and accumulated depreciation accounts are relieved and the related gain or loss is credited or charged to the income statement. Major renewals, betterments and improvements are capitalized. At each reporting period, the Company reviews the carrying value of each hotel property, for which management has not committed to a plan of disposition, to determine if facts and circumstances exist which would suggest that the investment in the hotel property may be impaired or that the depreciation period should be modified. For hotel properties for which management has committed to a plan of disposition, the Company adjusts the carrying value to the lower of carrying value or fair value less costs of disposition. The Company does not believe that there are any current facts or circumstances indicating any material impairment of any hotel property at December 31, 1998. CASH AND CASH EQUIVALENTS. All highly liquid investments with a maturity of three months or less when purchased are considered to be cash equivalents. The Company invests portions of its excess cash in money market funds. RESTRICTED CASH. Restricted cash includes amounts the Company must make available for the replacement and refurbishment of furniture and equipment and amounts held in escrow by certain lenders for the payment of insurance, real estate taxes, and certain capital expenditures. DEFERRED EXPENSES. Deferred expenses are recorded at cost and consist of initial fees paid to franchisors, annual loan fees and costs incurred in long-term financings. Amortization of franchise fees is computed using the straight-line method over the lives of the franchise agreements which range from 10 to 15 years. Amortization of annual loan fees is computed using the straight-line method over 12 months. Amortization of the costs incurred in long-term financings is computed using the interest method over the stated maturity of the long-term financings. Accumulated amortization of the deferred expenses is $3.2 million and $2.2 million at December 31, 1998 and 1997 respectively. REVENUE RECOGNITION. The Partnership leases hotels to third parties, (collectively, the "Lessees"), pursuant to lease agreements ("Percentage Leases") which provide for rent equal to the greater of (i) fixed base rent, or (ii) rent payments based on percentages of revenues at the hotels. Base rent is payable monthly. Percentage rent is payable quarterly. Lease revenue is recognized as earned from the Lessee under the Percentage Leases from the date of acquisition. MINORITY INTEREST. Minority interest consists of minority interest in the Partnership and minority interest in Wharf. Minority interest represents the limited partners' proportionate share of the equity in the Partnership and the other partner's interest in Wharf. Income is allocated to minority interest based on the weighted percentage ownership throughout the year. 23 11 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS TREASURY STOCK. In 1998 the Board of Directors of the Company authorized the repurchase of 110,000 shares of the Company's stock. Shares repurchased under this authorization were used to offset the dilution caused by the exercise of options under the Company's Amended and Restated 1993 Restricted Stock and Stock Option Plan. The Company's repurchases of shares of common stock are recorded as "Treasury Stock" at cost and result in a reduction of shareholders' equity. BASIC EARNINGS PER SHARE AND DILUTED EARNINGS PER SHARE. Basic earnings per share is computed by dividing net income less preferred dividends by the weighted average number of shares of common stock outstanding for the reporting period. Diluted earnings per share is computed by dividing net income by the weighted average number of shares of common stock and common stock equivalents outstanding during the reporting period. Dilutive options are considered common stock equivalents. INCOME TAXES. The Company has qualified as a Real Estate Investment Trust ("REIT") under Sections 856 to 860 of the Internal Revenue Code. Accordingly, no provision for federal income taxes has been reflected in the consolidated financial statements. Earnings and profits, which will determine the taxability of distributions to shareholders, will differ from net income reported for financial reporting purposes due to the differences for federal tax purposes in the estimated useful lives used to compute depreciation and in the recognition of unearned compensation to officers and directors. Distributions made in 1998, 1997, and 1996 were considered 100% ordinary income for federal income tax purposes. DISTRIBUTIONS. The Company intends to pay regular quarterly distributions which are dependent upon receipt of distributions from the Partnership in order to maintain its REIT status under the Internal Revenue Code. CONCENTRATIONS OF CREDIT RISK. The Company places cash deposits at financial institutions. At December 31, 1998, bank account balances exceeded federal depository insurance limits by $2.4 million. USE OF ESTIMATES. The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. RECLASSIFICATIONS. Certain reclassifications have been made to the 1997 and 1996 financial statements to conform to the 1998 method of presentation. NOTE 3. INVESTMENTS IN HOTEL PROPERTIES The investment in hotel properties consists of the following at December 31, 1998, and 1997, respectively (in thousands):
1998 1997 - ---------------------------------------------------------------------------------- Land $ 73,050 $ 69,087 Building and improvements 516,238 478,142 Furniture and equipment 65,291 52,614 Capital improvements program expenditures 28,169 14,202 - ---------------------------------------------------------------------------------- 682,748 614,045 Less accumulated depreciation 58,018 40,219 - ---------------------------------------------------------------------------------- $624,730 $573,826 ==================================================================================
Capitalized interest during 1998, 1997, and 1996 was $1.4 million, $1 million, and $.5 million, respectively. At December 31, 1998, the Company owned 60 hotel properties in 24 states. Fifty-eight of the hotels are affiliated with national franchises. Ten of the hotels with a net book value of $226.3 million at December 31, 1998 are located in California. NOTE 4. LINE OF CREDIT The Company has a bank line of credit (the "Line of Credit"), for $100 million and $190 million at December 31, 1998 and 1997, respectively. Borrowings under the Line of Credit bear interest at a variable rate based on LIBOR. The interest rate was approximately 7.2% at December 31, 1998. The Line of Credit is collateralized by first 24 12 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS priority mortgages on 16 hotels and agreements restricting the transfer, pledge or other hypothecation of 5 hotels (collectively, the "Collateral Pool") with a net book value of $180 million at December 31, 1998. The Line of Credit contains various covenants including the maintenance of a minimum net worth, minimum debt coverage and interest coverage ratios, total indebtedness and total liabilities limitations and borrowing base to value limitations. The Company was in compliance with these covenants at December 31, 1998. The Company had borrowed $82.3 million and $123.8 million on the Line of Credit at December 31, 1998 and 1997, respectively. The Line of Credit is due July 30, 2000. NOTE 5. LONG-TERM OBLIGATIONS In November 1996, the FPLP issued $75 million of commercial mortgage bonds, series 1996-1 as follows:
Initial Interest Class Principal Amount Rate Stated Maturity ----------------------------------------------------------------------------- Class A $50 Million 6.83% August 20, 2008 Class B $25 Million 7.30% November 21, 2011
Principal payments on the Class A Bonds are based on a 141-month amortization schedule beginning in December 1996; principal payments on the Class B Bonds are payable based on a 39-month amortization schedule beginning in September 2008. Total monthly principal and interest payments approximate $.7 million for the Class A Bonds. The Bonds are collateralized by first priority mortgage liens on 15 hotel properties with an aggregate net book value of $144.6 million at December 31, 1998. The Bonds cannot be prepaid prior to November 2001, and thereafter, only upon payment of a yield maintenance premium. The outstanding balance on the Bonds was $68.8 and $71.9 million at December 31, 1998 and 1997, respectively. In December 1998, SPE 1 and SPE 2 completed a $95.8 million long-term financing of 10 of the Hotels, which was the amount outstanding at December 31, 1998. Principal and interest payments, based on a 25-year amortization, of $.7 million and escrow payments of $.4 million are due monthly through December 2008 at which time all outstanding principal and interest is due. The debt bears interest at 7.8%. Ten of the Hotels with a net book value of $132.2 million are collateral for the debt. In connection with the purchase of a hotel in Fishkill, NY, the Partnership assumed industrial development bonds, ("IDB's"), issued in 1988 and which are due December 1, 2002. The IDB's bear interest at a variable rate which, as of December 31, 1998, was approximately 3.5% per year. Interest is payable quarterly; principal is payable in installments of $.6 million every three (3) years with the next installment due in 2000. The outstanding balance on the IDB's was $1.8 million at December 31, 1998 and 1997. The Fishkill hotel is collateral for the IDB's and has a net book value of $12.7 million at December 31, 1998. In connection with the purchase of a hotel in Birmingham, AL, RLGP assumed industrial development bonds ("Birmingham IDB's"), which are due in 2001. The Birmingham IDB's bear interest at a variable rate which, at December 31, 1998, was approximately 4.1% per year. Interest is payable quarterly; principal is payable annually. The outstanding balance on the Birmingham IDB's was $5 million and $5.5 million at December 31, 1998 and 1997, respectively. The Birmingham hotel is collateral for the Birmingham IDB's and has a net book value of $20 million at December 31, 1998. Wharf has non-recourse debt of $19.1 million at December 31, 1998. This debt bears interest at 8.22%. Principal and interest payments, based on a 25-year amortization, of $152,000 and escrow payments of $50,000 are due monthly through November of 2007 at which time all outstanding principal and interest is due. The Ramada Plaza is collateral for this debt and has a net book value of $34 million at December 31, 1998. Aggregate annual principal payments for the next five years at December 31, 1998 for the long-term obligations are as follows (in thousands):
Year Amount ---- ------ 1999 $5,196 2000 8,964 2001 6,574 2002 7,077 2003 6,296
25 13 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS NOTE 6. COMMITMENTS The Company has entered into a master agreement with one of the Lessees. The master agreement requires the Lessee to maintain a certain net worth, as defined, grants a right to lease hotel properties acquired or developed by the Partnership or the Company through February 2006 subject to certain exceptions, and restricts, for a period of time, changes in control of the Lessee, among other items. Pursuant to the Company's lease agreements, the Company may terminate the Lease Agreement with respect to a hotel property upon the sale of a hotel property in exchange for a termination payment to the Lessee. During 1998, the Company terminated six such leases and incurred fees of $2.7 million which is included in loss on sale of hotel properties and of which $1.8 million is included in accrued expenses as of December 31, 1998. The Company must rely on the Lessees to generate sufficient cash flow from the operation of the hotel properties to enable the Lessees to meet rent obligations under the Percentage Leases. The rent obligations under the Percentage Leases are unsecured and are not guaranteed. At December 31, 1998, the Lessees are in compliance with the provisions of the master agreement and the Percentage Leases. Both the base rent and the percentage rent threshold room revenue in each lease computation are subject to adjustments for changes in the Consumer Price Index ("CPI"). The adjustment is calculated at the beginning of each calendar year following the year of acquisition. Effective January 1, 1998 and 1997, adjustments to the leases were computed using the average CPI increase for 1997 and 1996 of 2.3% and 2.95%, respectively. In 1998, 1997, and 1996, the Company earned base rents of $38.8 million, $37.5 million and $25.9 million, respectively, and percentage rents in excess of the base rents, of $54 million, $45 million and $35.7 million, respectively. Under the Percentage Leases, the Partnership is obligated to pay the costs of real estate taxes, property insurance, maintenance of underground utilities and structural elements of the hotel properties, and for the periodic replacement or refurbishment of furniture, fixtures and equipment required for the retention of the franchise licenses with respect to the hotel properties. The Company has future lease commitments under the various Percentage Leases from the Lessees for various terms extending through May 2012. Minimum future rental income under these Percentage Leases for the next five (5) years is $39.4 million per year. Aggregate future minimum rental income under these Percentage Leases is $415.6 million at December 31, 1998. The Company leases office space. Annual lease payments total $132,000 through December 2006. The Partnership is developing the following hotels:
Number of Estimated Estimated Location Franchise Rooms/Suites Development Costs Opening Quarter ------------------------------------------------------------------------------------------------------- Miami Lakes, FL TownePlace Suites 95 $6.5 2Q99 Tampa, FL TownePlace Suites 95 $6.3 3Q99 Miami Airport-West, FL TownePlace Suites 95 $6.5 3Q99 Crystal Lake, IL Courtyard by Marriott 90 $7.5 1Q00 (Chicago)
The Partnership is constructing a 40 room addition to the Beverly Heritage Hotel in Milpitas, CA. Construction costs are estimated at $3.8 million. Completion of the addition is expected in the fourth quarter of 1999. At December 31, 1998, the Company intends to spend, in 1999, a remaining $2.7 million to complete the 1998 capital improvement programs with respect to the Hotels. NOTE 7. CAPITAL STOCK The Board of Directors is authorized to provide for the issuance of shares of Preferred Stock in one or more series, to establish the number of shares in each series and to fix the designation, powers, preferences and rights of each such series and the qualifications, limitations or restrictions thereof. The Company has issued to one of the Lessees 973,684 shares of Series A Convertible Preferred Stock (the "Series A Preferred Stock"). The Series A Preferred Stock has a preference value of $19.00 per share (the "Stated Value"), a par value of $0.01, and is senior to the 26 14 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS Company's common stock as to dividends and upon liquidation of the Company. The shares of Series A Preferred Stock are entitled to a $1.45 cumulative annual dividend per share. Each share of Series A Preferred Stock has one vote and is convertible into one share of common stock after February 2002. The shares of Series A Preferred Stock have mandatory redemption rights upon the occurrence of certain events which are under the Company's control. The Company can redeem the Series A Preferred Stock after the seventh anniversary of issuance at the Stated Value, together with all accrued and unpaid dividends. Pursuant to the Partnership Agreement, holders of units of limited partnership interests in the Partnership have certain rights ("Redemption Rights") which enable them to cause the Partnership to redeem their units of limited partnership interest in the Partnership for cash, or, at the Company's option, for shares of Common Stock on a one-for-one basis. At December 31, 1998, an aggregate of 2,567,609 units are outstanding and subject to issuance upon exercise of Redemption Rights. The units of limited partnership interests were valued at the fair market value of Common Stock on the date of issuance of the units. The number of shares issuable upon exercise of the Redemption Rights will be adjusted upon the occurrence of stocks splits, mergers, consolidations or similar prorata share transactions, which otherwise would have the effect of diluting the ownership interests of the limited partners. NOTE 8. DISCLOSURES ABOUT FAIR VALUE OF FINANCIAL INSTRUMENTS The following methods and assumptions were used to estimate the fair value of each class of financial instruments for which it is practicable to estimate that value. CASH, CASH EQUIVALENTS AND RESTRICTED CASH. The carrying amount approximates fair value because of the short maturity of those instruments. BORROWINGS ON LINE OF CREDIT. The carrying amount approximates fair value due to the Company's ability to obtain such borrowings at comparable interest rates. LONG-TERM OBLIGATIONS. The fair value of the Company's Bonds and other debt is based on the current rates offered to the Company for debt of the same remaining maturities. The estimated fair value of the Company's financial instruments at December 31, 1998 are as follows (in thousands):
Carrying Fair Amount Value ------ ----- Cash, cash equivalents, and restricted cash $ 9,823 $ 9,823 Borrowings on Line of Credit 82,307 82,307 Long-term obligations 190,492 193,492
NOTE 9. STOCK-BASED COMPENSATION PLANS The Company's Amended and Restated 1993 Restricted Stock and Stock Option Plan (the "Plan") provides for the grant of stock options to purchase a specified number of shares of Common Stock ("Options") or grants of Restricted Shares of Common Stock ("Restricted Stock"). The Plan is administered as two separate plans, with 1,600,000 shares of Common Stock, of which 250,000 shares may be Restricted Stock, being available for awards to the officers and key employees of the Company and its subsidiaries and affiliates and 400,000 shares, of which 50,000 shares may be Restricted Stock, being available for awards to Directors of the Company who are not officers or employees. The Company may grant incentive stock options ("ISO's"), non-qualified stock options or both to purchase the Company's Common Stock. Under the Plan, the exercise price of an ISO may not be less than 100% of the fair market value of the common shares at the date of grant, and must be at least 110% of the fair market value at the date of grant if the grantee possesses more than 10% of the voting power of the outstanding stock. Options issued under the plan have a maximum term of ten years from the date of grant. The exercise price of the options shall be determined on the date of each grant. 27 15 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS The following table summarizes the option activity under the Plan:
1998 1997 1996 ------------------------------------------------------------------------- Weighted Weighted Weighted Average Average Average Exercise Exercise Exercise Options Price Options Price Options Price ------- ----- ------- ----- ------- ----- Outstanding at beginning of year 1,187,700 $15.92 775,000 $15.90 525,000 $15.48 Granted 210,000 11.88 417,700 15.95 250,000 16.76 Exercised (95,000) 17.00 (5,000) 14.50 Terminated (211,900) 16.18 Lapsed Outstanding at end of year 1,090,800 $14.99 1,187,700 $15.92 775,000 $15.90 Exercisable at end of year 520,000 $15.50 395,000 $15.48 240,000 $15.21 Price range of shares under option $11.875 to $13.50 to $13.50 to $16.875 $18.8125 $17.00
The weighted average remaining contractual life of options outstanding as of December 31, 1998, is 6.3 years. Also, under the Plan, the Company granted 129,000, 90,000 and 125,000 shares of Restricted Stock in 1998, 1996 and 1994, respectively subject to vesting. At December 31, 1998, 116,000 shares were vested. The weighted average fair value per share of the Restricted Stock granted in 1998 and 1996 was $11.875 and $16.8125, respectively. The Company has also granted 20,000 shares of Restricted Stock at prices ranging from $10.00 to $14.50 per share subject to vesting. These grants were not granted under the Plan. At December 31, 1998, 19,000 shares were vested. Options and Restricted Stock shares vest at 20% to 33 1/3% per year. Prior to vesting, holders of the Restricted Stock are entitled to vote and receive distributions with respect to unvested shares. The Company applies APB Opinion No. 25 and related Interpretations in accounting for The Plan. FASB Statement No. 123 "Accounting for Stock-Based Compensation" ("SFAS 123") was issued by the FASB in 1995 and, if fully adopted, changes the methods for recognition of cost on plans similar to the Plan. Adoption of the expense recognition provisions of SFAS 123 is optional; however, pro forma disclosures as if the Company adopted the cost recognition requirements under SFAS 123 in 1995 are presented below. The fair value of each option granted during 1998, 1997 and 1996 is estimated on the date of grant using the Black-Scholes option-pricing model with the following assumptions: (1) dividend of $1.54, (2) expected volatility of .27 for 1998, .24 for 1997 and 1996, (3) a risk-free interest rate of 4.59% for 1998, 6.24% for 1997, and 6.94% for 1996, and (4) expected life of 6 years for 1998 and 1997 and 10 years for 1996. Had compensation cost for the Company's 1998, 1997 and 1996 grants for stock-based compensation plans been determined consistent with SFAS 123, the Company's pro forma net income, and net income per common share for 1998, 1997 and 1996 would have decreased less than 1%. The effects of applying SFAS 123 in this pro forma disclosure are not indicative of future amounts. SFAS 123 does not apply to awards prior to 1995, and additional awards in future years are anticipated. 28 16 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS NOTE 10. PRO FORMA FINANCIAL INFORMATION (UNAUDITED) The unaudited pro forma condensed statements of operations of the Company are presented as if the acquisition of the 60 hotel properties which are owned at December 31, 1998 and the equity offering in 1998 had occurred on January 1, 1997 and all of the hotels had been leased to the Lessees pursuant to the Percentage Leases throughout the periods presented except for developed hotels whose actual lease revenue is included from the date of opening. These unaudited pro forma condensed statements of operations are not necessarily indicative of what actual results of operations of the Company would have been assuming such transactions had been completed as of January 1, 1997, nor does it purport to forecast the results of operations for future periods.
1998 1997 - ------------------------------------------------------------------------------------------------ Operating Data: (in thousands) Total revenue $96,078 $87,420 Real estate taxes and property and casualty and insurance 9,888 8,780 Depreciation and amortization 23,964 23,964 Compensation 2,081 2,394 Franchise taxes 180 300 General and administrative 2,141 1,985 Attempted merger expenses 1,664 Loss on sale of hotel properties 4,149 1,164 Interest expense 17,741 15,941 - ------------------------------------------------------------------------------------------------ Income before minority interest 34,270 32,892 Minority Interest (3,472) (3,146) - ------------------------------------------------------------------------------------------------ Net income $30,798 $29,746 ================================================================================================ Basic earnings per share $ 1.18 $ 1.13 Weighted average common shares 25,006 25,006
NOTE 11. EARNINGS PER SHARE Calculations of basic and diluted earnings per share are as follows:
1998 1997 1996 - -------------------------------------------------------------------------------------------------------- Basic EPS: Net income $34,068 $34,232 $34,587 Less dividends declared on preferred stock (1,412) (1,412) (1,195) - -------------------------------------------------------------------------------------------------------- $32,656 $32,820 $33,392 ======================================================================================================== Weighted average common shares outstanding 24,775 24,389 24,353 $ 1.32 $ 1.35 $ 1.37 Diluted EPS: Net Income $34,068 $34,232 $34,587 Less dividends declared on preferred stock (1,412) (1,412) (1,195) - -------------------------------------------------------------------------------------------------------- $32,656 $32,820 $33,392 ======================================================================================================== Weighted average common shares outstanding 24,775 24,389 24,353 Preferred shares outstanding Potential dilutive common shares 89 147 34 - -------------------------------------------------------------------------------------------------------- Weighted average common shares and potential dilutive common shares outstanding 24,864 24,536 24,387 ======================================================================================================== $ 1.31 $ 1.34 $ 1.37
The preferred shares are anti-dilutive and thus are not considered in the calculation of diluted earnings per share. NOTE 12. SUBSEQUENT EVENTS On January 27, 1999, the Partnership declared a cash distribution of $0.385 per partnership unit and the Company declared a $0.385 cash distribution on each share of Common Stock outstanding on February 8, 1999 and a $.3625 cash dividend on each share of Series A Preferred Stock outstanding. The distributions were paid on February 16, 1999. 29 17 REPORT OF INDEPENDENT ACCOUNTANTS To the Board of Directors and Shareholders In our opinion, the accompanying consolidated balance sheets and the related consolidated statements of income and retained earnings and of cash flows present fairly in all material respects, the consolidated financial position of RFS Hotel Investors, Inc. and its subsidiaries at December 31, 1998 and 1997, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 1998, in conformity with generally accepted accounting principles. These financial statements are the responsibility of the Company's management; our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits of these statements in accordance with generally accepted auditing standards which require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the consolidated financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for the opinion expressed above. PricewaterhouseCoopers LLP Memphis, TN January 27, 1999 except for note 12 as to which the date is February 16, 1999 30 18 QUARTERLY RESULTS OF OPERATIONS (unaudited)
RFS HOTEL INVESTORS, INC. (in thousands, except share data) FIRST SECOND THIRD FOURTH QUARTER QUARTER QUARTER QUARTER TOTAL - ---------------------------------------------------------------------------------------------------------------- 1998: Operating Data: Total revenue $22,109 $25,753 $27,336 $21,729 $96,927 Income before minority interest 9,761 12,671 10,523 4,768 37,723 Net income 8,825 11,492 9,452 4,299 34,068 Diluted earnings per share 0.35 0.44 0.37 0.16 1.31 Other Data: FFO per share (1) 0.51 0.64 0.67 0.49 2.31 Dividends paid 0.375 0.375 0.375 0.385 1.51 1997: Operating Data: Total revenue $17,907 $21,747 $23,862 $19,553 $83,069 Income before minority interest 8,529 11,369 11,782 6,167 37,847 Net income 7,694 10,308 10,667 5,563 34,232 Diluted earnings per share 0.3 0.41 0.42 0.21 1.34 Other Data: FFO per share (1) 0.45 0.57 0.60 0.44 2.05 Dividends paid 0.36 0.36 0.36 0.375 1.455 1996: Operating Data: Total revenue $13,337 $16,174 $18,342 $14,133 $61,986 Income before minority interest 7,344 9,987 11,553 6,203 35,087 Net income 7,236 9,850 11,392 6,109 34,587 Diluted earnings per share 0.29 0.39 0.45 0.24 1.37 Other Data: FFO per share (1) 0.4 0.5 0.57 0.38 1.85 Dividends paid 0.33 0.34 0.36 0.36 1.39
(1) The National Association of Real Estate Investment Trusts has adopted a definition of funds from operations ("FFO"). Under the definition, which may not be comparable to similar entitled items reported by other real estate investment trusts as all entities may not define FFO as the same, FFO represents net income before minority interest excluding gains (or losses) from debt restructuring and sales of properties, plus depreciation of real property and after adjustments for unconsolidated partnerships and joint ventures. The computation of FFO is consistent with the NAREIT White Paper definition of FFO except that the non-recurring write-off of attempted merger expenses has been added back to calculate FFO. 31 19 SELECTED FINANCIAL DATA (unaudited)
(in thousands, except per share amounts) For the years ended December 31, Operating Data: Total revenue $ 96,927 $ 83,069 $ 61,986 $ 48,307 $ 23,354 Income before minority interest, interest, depreciation and amortization 76,943 68,869 50,368 41,101 18,632 Income before minority interest or extraordinary gain 37,723 37,847 35,087 31,085 14,351 Net income 34,068 34,232 34,587 30,646 14,156 Diluted earnings per share 1.31 1.34 1.37 1.26 0.94 Balance Sheet Data: Total assets 683,991 617,128 499,129 376,926 346,870 Total debt 272,799 208,909 133,064 30,186 2,420 Shareholders' equity 366,937 362,070 357,482 338,813 335,893 Other Data: FFO per share (1) 2.31 2.05 1.85 1.61 1.18 Dividend paid per share 1.51 1.455 1.39 1.18 0.97 Cash provided by operating activities 55,092 58,590 46,448 38,896 17,321 Cash used by investing activities (65,932) (140,751) (74,518) (74,028) (235,296) Cash provided (used) by financing activities 8,723 28,357 83,325 (7,838) 242,296
(1) The National Association of Real Estate Investment Trusts has adopted a definition of funds from operations ("FFO"). Under the definition, which may not be comparable to similar entitled items reported by other real estate investment trusts as all entities may not define FFO as the same, FFO represents net income before minority interest excluding gains (or losses) from debt restructuring and sales of properties, plus depreciation of real property and after adjustments for unconsolidated partnerships and joint ventures. The computation of FFO is consistent with the NAREIT White Paper definition of FFO except that the non-recurring write-off of attempted merger expenses has been added back to calculate FFO. 32 EX-21.1 6 LIST OF SUBSIDIARIES 1 EXHIBIT 21.1 RFS HOTEL INVESTORS, INC. SUBSIDIARIES OF THE REGISTRANT
State of Name Incorporation - ---- ------------ RFS Partnership, L.P. Tennessee RFS Managers, Inc. Tennessee RFS Financing Corporation Tennessee RFS Financing Partnership, L.P. Tennessee Ridge Lake General Partners, Inc. Tennessee RFS MM 1 1998 Corporation Virginia RFS MM 2 1998 Corporation Virginia RFS SPE 1 1998 LLC Virginia RFS SPE 2 1998 LLC Virginia Wharf Associates Partnership California
EX-23.1 7 CONSENT OF PRICEWATERHOUSECOOPERS LLP 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the registration statements of RFS Hotel Investors, Inc. on Form S-3 (File No. 333-03307) and on Form S-8 (File No. 333-19411) of our report dated January 27, 1999, except for Note 12 as to which the date is February 16, 1999, on our audits of the consolidated financial statements and the financial statement schedule of RFS Hotel Investors, Inc. and Subsidiaries as of December 31, 1998 and 1997, and for the years ended December 31, 1998, 1997, and 1996, which report is incorporated by reference in this Annual Report on Form 10-K. PricewaterhouseCoopers LLP Memphis, Tennessee March 23, 1999 EX-23.2 8 CONSENT OF KPMG LLP 1 EXHIBIT 23.2 ACCOUNTANTS' CONSENT The Board of Directors RFS, Inc. We consent to incorporation by reference in the Registration Statement (No. 333-03307) on Form S-3 and the Registration Statement (No. 333-19411) on Form S-8 of RFS Hotel Investors, Inc. of our report dated January 23, 1998, relating to the consolidated balance sheets of RFS, Inc. and subsidiary as of December 31, 1997 and 1996, and the related consolidated statements of operations, stockholder's equity, and cash flows for the years then ended, which report is incorporated by reference in the 1998 annual report on Form 10-K of RFS Hotel Investors, Inc. KPMG LLP Memphis, Tennessee March 22, 1999 EX-23.3 9 CONSENT OF ARTHUR ANDERSEN LLP 1 EXHIBIT 23.3 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation of our report on RFS, Inc. and subsidiary dated February 5, 1999 included in this Form 10-K, into the previously filed Registration Statements of RFS Hotel Investors, Inc., File Nos. 333-03307 and 333-19411. ARTHUR ANDERSEN LLP Memphis, Tennessee, March 29, 1999. EX-27.1 10 FINANCIAL DATA SCHEDULE
5 THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE FINANCIAL STATEMENTS OF RFS HOTEL INVESTORS, INC. FOR THE YEAR ENDED DECEMBER 31, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 1,000 YEAR DEC-31-1998 JAN-01-1998 DEC-31-1998 2,014 0 10,656 0 0 0 682,748 58,018 683,991 0 272,799 0 10 251 366,676 683,991 0 96,927 0 0 42,600 0 16,604 37,723 0 37,723 0 0 0 34,068 1.32 1.31
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