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Pooling Agreement
Pooling Agreement (87K)
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POOLING AGREEMENT
THIS POOLING AGREEMENT (this "Agreement") is made as of the 15th day of
June, 2001 (the "Effective Date"), by and among (i) Marriott International,
Inc., a Delaware corporation (hereinafter referred to as "Marriott"), (ii)
Marriott Hotel Services, Inc., a Delaware corporation, Residence Inn By
Marriott, Inc., a Delaware corporation, Courtyard Management Corporation, a
Delaware corporation, SpringHill SMC Corporation, a Delaware corporation, and
Towneplace Management Corporation, a Delaware corporation (the entities named in
this clause (ii) each sometimes hereinafter referred to individually as a
"Manager" and collectively as the "Managers"), and (iii) HPT TRS MI-135, INC., a
Delaware corporation (hereinafter referred to as "Tenant").
RECITALS:
A. Certain of the Managers (as sellers) and Hospitality Properties
Trust, a Maryland real estate investment trust (as purchaser) (hereinafter
referred to as "HPT"), are parties to that certain Purchase and Sale Agreement
dated of even date herewith (the "Limited Service Purchase Contract") with
respect to the three (3) hotels listed on Exhibit A attached hereto as the
properties to be purchased (the "Additional Limited Service Properties").
B. Marriott Kauai, Inc., a Delaware corporation (as seller) and HPT (as
purchaser), are parties to that certain Purchase and Sale Agreement dated of
even date herewith (the "Kauai Purchase Contract") with respect to the
Marriott's Kauai Resort and Beach Club (the "Kauai Hotel"). (The Limited Service
Purchase Contract and the Kauai Purchase Contract are referred to hereinafter
collectively as the "Purchase Contracts," and the Additional Limited Service
Properties and the Kauai Hotel are referred to hereinafter collectively as the
"Additional Properties.")
C. Pursuant to certain Assignment and Assumption Agreements dated of
even date herewith, HPT has assigned its rights under the Limited Service
Purchase Contract to HPTMI Properties Trust, a Maryland real estate investment
trust, with respect to the Additional Limited Service Properties, and to HPTMI
Hawaii, Inc., a Delaware corporation (collectively, "Landlord"), and Landlord
has assumed the obligations of HPT thereunder. Landlord is also, as of the date
hereof, the owner, directly or indirectly, of certain other hotels operated by
Marriott and/or its Affiliates and which are listed on Exhibit B attached hereto
(the "Initial Properties").
D. HPT, Landlord, Tenant and Marriott are parties to that certain
Agreement to Assign, Release, Franchise and Manage dated of even date herewith
(the "Agreement to Lease") with respect to the Additional Properties and the
Initial Properties (each of the four (4) Additional Properties and the
thirty-one (31) Initial Properties a "Property" and collectively the
"Properties").
{PAGE}
E. From and after the date that each Property is made subject to a
Lease and a Management Agreement pursuant to the Agreement to Lease, such
Property shall constitute a "Portfolio Property" and all of such Properties
shall collectively constitute the "Portfolio Properties." Any Property with
respect to which a Manager Deconsolidation Event, a Kauai Deconsolidation Event
or a Tenant Deconsolidation Event has occurred shall thereafter no longer be
considered a Portfolio Property.
F. Simultaneously with the execution and delivery of this Agreement
Marriott and Tenant entered into a guaranty agreement (the "Guaranty Agreement")
pursuant to which, inter alia, Marriott has agreed to guarantee to Tenant
(subject to the terms, conditions and limitations set forth therein) that Tenant
will receive timely payment of Tenant's First Priority with respect to the
Portfolio Properties in certain events.
G. Pursuant to the Agreement to Lease, Tenant has entered into or will
enter into (i) a management agreement with each applicable Manager with respect
to each Portfolio Property (each a "Management Agreement" and collectively the
"Management Agreements"), and (ii) a franchise agreement with Marriott with
respect to each Portfolio Property except with respect to the Kauai Hotel (each
a "Franchise Agreement" and collectively the "Franchise Agreements").
H. Pursuant to the Agreement to Lease it is contemplated that, as each
Lease of an Initial Property is assigned to Tenant, the applicable Manager will
enter into a Management Agreement for such Property (or confirmation of the
applicability of a Management Agreement to such Property, as applicable), and
Tenant and Marriott will enter into a Franchise Agreement for such Property, at
which time such Property will be considered a Portfolio Property in accordance
with the provisions hereof.
I. The parties desire that (i) the revenues generated by the operations
of the Portfolio Properties be pooled for purposes of paying operating expenses
of the Portfolio Properties, fees and other amounts due to Marriott, the
Managers and Tenant, and distributions to various other persons, and (ii)
working capital and reserves of the Portfolio Properties be managed on a pooled
basis, all as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Marriott, each Manager, and Tenant hereby covenant and agree as
follows:
ARTICLE I
DEFINED TERMS
1.01 Definitions.
The following capitalized terms as used in this Agreement shall have
the meanings set forth below:
268388
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HPT
As referenced in this Pooling Agreement:
Hospitality Properties
Trust, – iii) HPT TRS MI-135, INC., a
Delaware corporation (hereinafter referred to as "Tenant").
RECITALS:
A. Certain of the Managers (as sellers) and Hospitality Properties
Trust, a Maryland real estate investment trust (as purchaser) (hereinafter
referred to as "HPT"), are parties to that certain Purchase and Sale Agreement
_____________
Hospitality Properties Trust
– Maryland 21201
Attn: James D. Wright, Esq.
Telecopier No. (410) 244-7742
if to Tenant to:
HPT TRS MI-135, INC.
c/o Hospitality Properties Trust
400 Centre Street
Newton, Massachusetts 02458-2076
Attn: President
Telecopier No. (617) 969-5730
-23-
{PAGE}
with a copy to:
Sullivan & Worcester,
_____________
dt 176231
;
Marriott Int'l
As referenced in this Pooling Agreement:
Marriott International,
Inc – AGREEMENT
THIS POOLING AGREEMENT (this "Agreement") is made as of the 15th day of
June, 2001 (the "Effective Date"), by and among (i) Marriott International,
Inc ., a Delaware corporation (hereinafter referred to as "Marriott"), (ii)
Marriott Hotel Services, Inc., a Delaware corporation, Residence Inn By
Marriott, Inc., a
_____________
Marriott International, Inc – if to Marriott (and/or if to a Manager, addressed to such Manager in
care of Marriott, at the following address):
-22-
{PAGE}
Marriott International, Inc .
10400 Fernwood Road, Dept. 52/924.11
Bethesda, Maryland 20817
Attn: Treasurer
Telecopier No. (301) 380-5067
with a copy to:
Marriott
_____________
Marriott International, Inc – International, Inc.
10400 Fernwood Road, Dept. 52/924.11
Bethesda, Maryland 20817
Attn: Treasurer
Telecopier No. (301) 380-5067
with a copy to:
Marriott International, Inc .
10400 Fernwood Road, Dept. 52/923
Bethesda, Maryland 20817
Attn: Assistant General Counsel -- Lodging Operations
Telecopier No. (301) 380-6727
and a
_____________
Marriott International, Inc – Fernwood Road, Dept. 52/923
Bethesda, Maryland 20817
Attn: Assistant General Counsel -- Lodging Operations
Telecopier No. (301) 380-6727
and a copy to:
Marriott International, Inc .
10400 Fernwood Road, Dept. 52/11.10
Bethesda, Maryland 20817
Attn: Lodging - Senior Vice President, Finance
Telecopier No. (301) 380-3667
and
_____________
MARRIOTT INTERNATIONAL, INC – IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement with the intention of creating an instrument under seal.
MARRIOTT:
WITNESS: MARRIOTT INTERNATIONAL, INC .
/s/ Laura H. Brophy By: /s/ Timothy J. Grisius (SEAL)
Name: Laura H. Brophy Name: Timothy J. Grisius
Title: Authorized Signatory
MANAGERS:
_____________
dt 275941
;
 Sullivan
As referenced in this Pooling Agreement:
Sullivan & Worcester, – Hospitality Properties Trust
400 Centre Street
Newton, Massachusetts 02458-2076
Attn: President
Telecopier No. (617) 969-5730
-23-
{PAGE}
with a copy to:
Sullivan & Worcester, LLP
One Post Office Square
Boston, Massachusetts 02109
Attn: Alexander A. Notopoulos, Esq.
Sander E. Ash, Esq.
Telecopier No. (617) 338-2880
_____________
dt 190718
;
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Venable
As referenced in this Pooling Agreement:
Venable, – Road, Dept. 52/11.10
Bethesda, Maryland 20817
Attn: Lodging - Senior Vice President, Finance
Telecopier No. (301) 380-3667
and a copy to:
Venable, Baetjer and Howard, LLP
1800 Mercantile Bank and Trust Building
2 Hopkins Plaza
Baltimore, Maryland 21201
Attn: James D. Wright, Esq.
Telecopier
_____________
dt 170538
;
Venable Baetjer
As referenced in this Pooling Agreement:
Venable, Baetjer – Road, Dept. 52/11.10
Bethesda, Maryland 20817
Attn: Lodging - Senior Vice President, Finance
Telecopier No. (301) 380-3667
and a copy to:
Venable, Baetjer and Howard, LLP
1800 Mercantile Bank and Trust Building
2 Hopkins Plaza
Baltimore, Maryland 21201
Attn: James D. Wright, Esq.
Telecopier No. (
_____________
dt 173388
;
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