EXHIBIT 10.1
HOTEL ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into the 12th day of July 1997, by and
between Hudson Hotels Corporation, a New York corporation ("▇▇▇▇▇▇") and ▇▇▇▇▇▇
Hotels Properties Corp. ("Hudson Properties"), both with its principal office at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, individually and as agent
for a New York corporation to be formed with offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Buyer"), and Equity Inns Partnership, L.P., a
Tennessee limited partnership, with its principal office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Seller").
RECITAL:
Seller desires to sell and Buyer desires to purchase certain properties and
assets of Seller consisting of nine (9) hotel properties operated as Hampton
Inns under franchises from Promus, as identified on Schedule A attached hereto,
under the terms and conditions set forth below. Buyer will be upon formation an
indirect wholly-owned subsidiary of ▇▇▇▇▇▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Properties shall
each be liable jointly and severally as guarantors of the obligations of the
Buyer under this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
and agreements hereinafter contained, the parties hereto agree as follows:
TERMS AND CONDITIONS:
1. Assets Subject to Sale and Purchase.
Buyer agrees to purchase and Seller agrees to sell the following assets of
Seller:
1.1. The nine parcels of real property more particularly described
on Schedule A attached hereto, together with all building and
improvements thereon but excluding the sanitary sewer project
condemnation affecting the hotel property located at
Greensboro, North Carolina, all the awards or proceeds of
which of whatever character shall be divided equally between
Buyer and Seller (each a "hotel property" and together the
"Premises");
1.2. All of Seller's interest in the tangible personal property,
and items of furnishings, fixtures, and equipment, owned by
Seller with respect to the several hotel businesses on the
Premises (collectively the "Personal Property");
1.3. All of Seller's rights in those licenses, permits and
certificates of occupancy held by Seller in connection with
the ownership of each hotel property, but only to the extent
the same are legally assignable to Buyer (the "Owner's
Permits");
1.4 All of Seller's interest in any and all architectural,
engineering and other plans prepared in connection with the
construction of the building and improvements on the Premises
and acquired by Seller in its purchase thereof; and
1
1.5. All of Seller's interest in assignable warranties and
guarantees pertaining to the several hotel properties.
Buyer acknowledges that Crossroads Future Company, L.L.C. (the "Seller's
Tenant") owns all supplies and inventory used in the operation of the several
hotel businesses on the Premises, and Seller's Tenant and the managing agent of
the Seller's Tenant operate and manage the hotel properties located on the
Premises, and that the Seller does not participate in such operation and
management and does not own inventory and supplies or the Contracts related to
the operation and management of the hotel properties located on the Premises.
Seller shall cause Seller's Tenant to transfer to Buyer the following assets
without any consideration:
1.6 All of Seller's Tenant's rights and obligations in those
contracts, leases, and service agreements to which Seller's
Tenant is a party and which relate to the operation of each
hotel property, and which are described in Schedule B attached
hereto, together with any other contracts, leases and service
agreements that the Seller or Seller's Tenant give the Buyer
written notice of prior to the expiration of the Feasibility
Period, as defined herein (the "Contracts");
1.7. All of Seller's Tenant's interest in soft goods and other
inventory, and supplies used in the operation of the several
hotel businesses on the Premises located on the Premises at
Closing (the "Inventory");
1.8 All of Seller's Tenant's rights in those licenses, permits and
certificates of occupancy held by Seller's Tenant in
connection with the operation of each hotel property, but only
to the extent the same are legally assignable to Buyer (the
"Operator's Permits")
1.9. All intangible property, guest ledgers, customer and mailing
lists, brochures, and telephone numbers used in connection
with the operation of the several hotel properties; and
1.10 All books and records relating to the operation and management
of the several hotel properties in Seller's Tenant's
possession and control.
All the real property and assets listed above shall be collectively referred to
herein as the "Purchased Assets."
2. Purchase Price, Deposit, and Payment. The Purchase Price shall be
$47,250,000.
2. 2.1. The Purchase Price shall be allocated for tax purposes
only among the several hotel properties, and between the
Premises and Personal Property relating to each hotel
property, as Seller and Buyer shall agree prior to the
expiration of the "Feasibility Period" (as hereinafter
defined).
2.2. The Purchase Price shall be payable as follows:
2
2.2.1. Buyer shall make a deposit in the amount of $225,000 (together
with any interest earned thereon the "Deposit"), to be
delivered in cash, certified check or bank draft to the
national business unit of Chicago Title Insurance Company,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
(Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇) (Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Esquire) ("Escrow Agent") within three (3) business
days of the Contract Date by Buyer and to be held by Escrow
Agent in accordance with this Agreement.
2.2.2. At closing, Buyer shall cause ▇▇▇▇▇▇ Properties to deliver its
Promissory Note to Seller in the amount of $5,000,000,
increased or decreased, as the case may be, by the Prorations
set out in Section 3 and the Adjustments set out in Section 4,
in substantially the form attached hereto as Exhibit I.
Payment of amounts outstanding under the Note shall be secured
by the grant of a security interest in 2,000,000 newly-issued
shares of ▇▇▇▇▇▇ common stock which shares shall be held in
escrow pursuant to a Pledge Agreement (the "Pledge Agreement")
in the form and substance to be agreed to by Seller and Buyer
prior to the expiration of the Feasibility Period. Payment of
the Note shall be guaranteed by ▇▇▇▇▇▇ under a guaranty
agreement in form and substance acceptable to Seller executed
and delivered at Closing. The guarantee and payment of
amounts outstanding under the Note shall be subordinate to
senior debt of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Properties not to exceed
$30,000,000.
2.2.3. Buyer shall pay to Seller the balance of the Puchase Price by
wire transfer of immediately available funds on the Closing
Date.
2.3. Escrow Agent shall hold the Deposit in an interest-bearing
account. In the event of a termination of this Agreement
pursuant to Sections 22.1-22.5, (unless the Buyer, ▇▇▇▇▇▇
Properties or ▇▇▇▇▇▇ is in default under this Agreement or has
made a material misrepresentation or failed to obtain a
consent or satisfy a condition or contingency solely within
the control of ▇▇▇▇▇▇, ▇▇▇▇▇▇ Properties or Buyer) the Escrow
Agent shall release the Deposit to Buyer, and Seller shall
have no further liability hereunder. In the event of Buyer's,
▇▇▇▇▇▇ Properties' or ▇▇▇▇▇▇'▇ default hereunder, the Escrow
Agent shall release the Deposit to Seller, and Buyer's
liability hereunder shall be limited to said Deposit, which
shall be deemed liquidated damages to Seller and Seller's sole
remedy for the loss of its bargain (provided such limitation
shall not be applicable to a default by Buyer, ▇▇▇▇▇▇ or
▇▇▇▇▇▇ Properties of any covenants other than the obligation
to purchase the Premises, for which such other defaults the
Seller retains all of its rights and remedies at law and in
equity). Any interest earned on the Deposit prior to Closing
shall be payable to Buyer, unless Buyer, ▇▇▇▇▇▇ or ▇▇▇▇▇▇
Properties defaults hereunder, in which case it shall be the
property of Seller as additional liquidated damages.
2.4. Seller will pay all existing assessments and installments of
assessments for local improvements due and payable as of the
Closing Date. Seller has no knowledge of any additional
assessment not appearing on the current tax roll or of record
title.
3
3. Prorations. The following accounts shall be prorated as of Closing
between Seller, Seller's Tenant and Buyer:
3.1. Real estate taxes and assessments and personal property taxes
for the current fiscal year.
3.2. Utility and telephone charges, water and sewer charges and
rents.
3.3. All current rents and amounts payable under leases, service,
supply, operating and maintenance contracts assigned to and
assumed by Buyer, as set forth herein, to the extent same
shall cover periods prior to Closing.
3.4. Current rents, revenues and other payments due under any
office, shop, lounge and store leases, or under any license or
concession agreement assigned to and assumed by Buyer, as set
forth herein.
3.5. Amounts paid or payable as fees for permits and licenses which
are assigned and assignable hereunder by Seller or Seller's
Tenant to Buyer.
3.6. Prepaid advertising fees and charges, and other prepaid
expenses.
4. Adjustments. The following adjustments and purchases or credits shall be made
at Closing:
4.1. Buyer shall purchase from Seller's Tenant, accounts receivable
of registered guests who have not checked out and are
occupying rooms on the evening preceding Closing (the "Guest
Tray Ledger"). All other accounts receivable originating prior
to Closing shall belong to and be the responsibility of Seller
or Seller's Tenant. Buyer shall have no obligation to collect
any such accounts receivable, but in the event Buyer collects
same, it shall remit such amount collected to Seller's Tenant.
4.2. Seller shall cause Seller's Tenant to transfer advance
deposits on future room bookings to Buyer at Closing.
4.3. Room revenue from rooms occupied on the evening preceding the
Closing will be divided equally between Seller's Tenant and
Buyer.
4.4. Cash on hand in the front desk bank at the each property will
be credited to Seller's Tenant.
4.5 To the extent that the Inventory fails to meet the standards
set forth in Section 17.14, Seller's Tenant shall pay to Buyer
the value of the deficiency. To the extent that the Inventory
exceeds those standards, Buyer shall pay to Seller's Tenant
the value of such excess. Buyer shall have a period of thirty
(30) days following Closing to verify the Inventory.
5. Contingencies.
The consummation of the transactions contemplated by this Agreement shall be
contingent upon the satisfaction of the following conditions (which
contingencies shall be deemed waived unless this Agreement is terminated by
written notice by the terminating party to the other party prior to the
4
expiration of the Feasibility Period), in addition to the conditions set forth
elsewhere in this Agreement:
5.1. That Buyer shall have received a written commitment for
financing of this purchase in the form and upon terms
satisfactory to Buyer in its sole and absolute discretion.
This contingency shall be deemed to be satisfied upon delivery
of the evidence called for in Section 6.11.
5.2. That Buyer shall not have exercised its right to terminate the
contract during the Feasibility Period, as defined in Section
6.
5.3. The respective Boards of Directors of Seller, of Buyer and of
▇▇▇▇▇▇ shall have approved this transaction.
6. Feasibility Period.
6.1. Buyer shall have a period ending September 28, 1997 (the
"Feasibility Period") to review the Inspection Items and to
otherwise complete its due diligence investigation and
inspection of the Premises. Buyer shall have the right to
terminate this Agreement at any time prior to the expiration
of the Feasibility Period, by written notice to Seller and
Escrow Agent (the "Termination Notice"), if Buyer is
dissatisfied with any aspect of the Purchased Assets in
Buyer's sole discretion. If Buyer shall terminate this
Agreement pursuant to this Section 6.1 on or before the last
day of the Feasibility Period, then Buyer shall be entitled to
a refund of the Deposit and all accrued interest thereon. If
Buyer shall not have provided notice of termination of this
Agreement pursuant to this Section 6.1 during the Feasibility
Period, then from and after the Feasibility Period Buyer shall
be deemed to have waived its right to terminate this Agreement
as permitted under this Section 6.1 and Section 5 and to
accept the Premises in their present condition.
6.2 The term "Inspection Items" shall mean copies of the following
documents (to the extent in the possession or control of the
Seller or Seller's Tenant):
(a) any title policies, environmental reports,
engineering studies, the PIP's referred to in Section
6.5 below, and surveys of or with respect to any of
the Premises;
(b) the Contracts;
(c) financial statements (the "Financial Statements") for
each hotel property prepared and certified by the
owner thereof (including balance sheets, income
statements and statements of changes in financial
condition) for calendar years 1995 and 1996 and for
the first and second calendar quarters of 1997,
together with an itemized breakdown of room sales per
month, occupancy and ADR for such periods;
(d) the existing audited financial statements (the
"Audited Financials") for the properties in Seller's
possession or control, if any;
(e) any guest registration records (which shall be
available at the property),
5
operating licenses and permits, certificates of
occupancy, municipal approvals and other governmental
permits;
(f) any books and records of the operations of the
Premises necessary to confirm the accuracy of the
Financial Statements and the Audited Financials;
(g) The leases currently in force with respect to each
hotel property; and (h) All architectural,
engineering and other plans relating to any hotel
property.
6.3 Buyer shall be responsible at its expense to obtain new
Franchise Agreements in connection with the sale of the
Purchased Assets of Buyer. Seller agrees, at no expense to
itself, to assist Buyer in obtaining Promus Hotels, Inc.'s
cooperation in this regard. The franchise application fees
which are required to be paid by franchisor in connection with
obtaining new Franchise Agreements or the sale of Purchased
Assets shall be paid by Buyer to franchisor at or prior to the
Closing.
6.4 The Seller agrees to bring all hotel properties located on the
Premises up to Hampton Inn standards set forth in the Product
Improvement Plan ("PIP") issued by Promus Hotels, Inc. in
connection with the June, 1997 acquisition by Seller of such
hotel properties, provided, however, that Seller shall not be
required to spend more than an aggregate of $4,475,600
therefor (which amount includes amounts expended by Seller's
seller and reimbursed by Seller on the properties for the
June, 1997 PIP). Unless Buyer has, on or before the expiration
of the Feasibility Period, terminated this Agreement, Buyer,
at the expense of ▇▇▇▇▇▇ and the Buyer, shall comply with the
requirements of any PIP required by Promus Hotels, Inc. with
respect to the purchase of the Buyer of the hotel and
performing any work with respect to the June, 1997 PIP in
excess of the work done by Seller for the aggregate sum of
$4,475,600 as set forth above.
6.5 The franchise application fees which are required to be paid
by franchisor in connection with obtaining new Franchise
Agreements or the sale of Purchased Assets shall be paid by
Buyer to franchisor at or prior to the Closing.
6.6 Seller and Buyer shall cooperate and take all actions
necessary, in a diligent and expeditious manner, to effectuate
the inspections and reviews contemplated by this Section 6
during the Feasibility Period. Subject to prior written notice
to the Seller's Tenant and the reasonable rules and
regulations of the Seller's Tenant, Buyer and its
representatives and agents shall be provided with access to
the Premises at all reasonable times, in order to inspect the
Premises, including but not limited to, taking soil samples
and test borings and conducting environmental studies,
engineering studies and other such inspections and reviews
reasonably necessary to determine the condition and financial
status of the Purchased Assets.
6.7 Buyer, ▇▇▇▇▇▇ Properties and ▇▇▇▇▇▇ covenant and agree that
the Premises shall not be damaged or impaired in any way as
the result of its activities on the Premises during the
Feasibility Period, and hereby agrees to indemnify and hold
Seller and Seller's Tenant harmless from and against any
claims, causes of action, damages, expenses (including
attorneys' fees) or liabilities of whatsoever nature to the
extent incident to, resulting from or in any way arising out
of the presence in, on or about
6
the Premises of Buyer, or Buyer's agents or representatives,
or out of any test or inspection conducted by or any other act
or omission of Buyer on the Premises. Such indemnity shall
survive the Closing or any termination of this Agreement and
shall not be limited to the Deposit.
6.8 Buyer shall make all inspections provided for herein in good
faith and with due diligence. All inspection fees, appraisal
fees, engineering fees and other expenses of any kind
(including, without limitation, expenses related to
environmental and engineering studies) incurred by Buyer
relating to the inspection of the Premises will be solely
Buyer's and ▇▇▇▇▇▇'▇ expenses and will be paid timely by Buyer
and ▇▇▇▇▇▇, except that Buyer and ▇▇▇▇▇▇ shall not become
liable solely by virtue of this sentence for remediation costs
relating to Hazardous Materials (as defined below) discovered
by Buyer or ▇▇▇▇▇▇ on any hotel property. Seller hereby
reserves the right to have a representative of Seller or the
Seller's Tenant present at the time of making any such
inspection. In making any inspection hereunder, Buyer will,
and will cause any representative of Buyer to, use discretion
so as to not disrupt the operations of Seller's Tenant or any
guest, tenant or customer of the Premises. Buyer shall notify
Seller's Tenant not less than one (1) business day in advance
of making any such inspection.
6.9 If Buyer shall validly terminate this Agreement during the
Feasibility Period pursuant to this Section 6, or if the
Closing shall otherwise fail to occur, Buyer shall return to
Seller the originals and all copies of all material relating
to the Premises furnished to Buyer by Seller pursuant to this
Agreement and shall not make or retain any copies thereof,
together with copies of any materials relating to the Premises
obtained by Buyer, ▇▇▇▇▇▇ or their consultants with respect to
the Premises.
6.10 Buyer shall provide to Seller by August 15, 1997, evidence of
Buyer's unconditional ability to finance the acquisition of
the Premises and the payment of the Purchase Price pursuant to
Section 2.2 of this Agreement. Seller agrees that for purposes
hereof, a comfort letter from Buyer's prospective lender which
provides reasonable assurances as to the availability of
financing shall constitute such evidence.
6.11 It is understood that Buyer's lender will conduct its own due
diligence in connection with the lending and ultimate
securitization of the loan. Seller agrees to cooperate
reasonably with Buyer, Buyer's lender, and its agents, and to
cause Seller's Tenant to so cooperate, to provide the
necessary access and information to enable Buyer's lender to
complete its due diligence.
6.12 If this Agreement is terminated pursuant to this Section 6 and
the Deposit is disbursed as set forth in this Section, then,
except as specifically set forth in this Agreement, neither
party shall have any further obligations or liabilities
hereunder.
7 Conduct of Business to Closing. Seller covenants, represents and warrants,
until the completion of the Closing, unless otherwise agreed in writing by
Buyer, that:
7.1. Seller shall cause the Seller's Tenant to continue normal
maintenance and management of each such property and operation
and marketing of the hotel business
7
in the ordinary course of business consistent with prior
practice.
7.2. Seller and Seller's Tenant shall not engage in any sale or
enter into any transaction, contract or commitment, or incur
any liability or obligation, other than in the ordinary course
of business, which would materially, adversely affect the
Purchased Assets and Seller shall not enter into any new
contract, lease or agreement regarding any hotel property
unless such contract, lease or agreement shall not be binding
upon Buyer or shall be terminable upon not more than 30 days'
notice. Neither Seller nor Seller's Tenant shall prepay
expenses, whether under a contract or otherwise, except in the
ordinary course of business consistent with prior practice;
7.3. Seller shall cause Seller's Tenant to carry and continue in
force through the Closing Date current levels of fire and
extended coverage insurance, as well as theft, liability and
other current insurance coverage, it being agreed that in the
event of a casualty prior to the Closing Date, the rights and
liabilities of the parties shall be determined in accordance
with Paragraph 11 hereof;
7.4. Seller and Seller's Tenant shall not amend, modify or
terminate any Contract without Buyer's consent (which consent
shall not be required if such amendment, modification or
termination would not be binding upon the Buyer after
Closing), except as provided in Section 15 hereof;
7.5. Seller shall use its best efforts to preserve in good order
all papers and records in Seller's or Seller's Tenant's
possession relating to the Purchased Assets;
7.6. Seller shall cause Seller's Tenant to repair and maintain the
Purchased Assets in good state of repair through the Closing
Date, ordinary wear and tear excepted, and shall not dispose
of any or any part of same, or remove any or any part of same
from the Premises;
7.7. Seller shall cause Seller's Tenant to conduct its business in
all respects so as to be in compliance with all terms and
conditions of the Franchise Agreement relating to each hotel
property.
8. Closing.
The closing of the transactions contemplated herein (the "Closing") shall take
place in Memphis, Tennessee at the offices of Seller, on September 30, 1997 at
10:00 AM or such other date and place as the parties hereto shall mutually agree
upon (the "Closing Date"). Time shall be considered to be of the essence of this
Agreement.
8
9. Conditions of Closing.
Closing of the transactions hereunder shall take place provided:
9.1. The contingencies set forth in Paragraph 5 hereof shall have
been satisfied, waived or deemed to be waived due to the
failure of this Agreement to be terminated in a timely manner.
9.2. All of the covenants to be performed by Seller and Buyer
contained in this Agreement will have been performed on or
before Closing.
9.3. The Purchased Assets shall be in substantially the same
condition as of the date hereof, ordinary wear and tear
excluded.
9.4. Seller shall have received no notice of material violation
with respect to the Premises from any governmental authority.
9.5. The representations and warranties of Seller and of Buyer
contained herein shall be materially true and correct on and
as of the Closing Date, as though they had been made on and as
of the Closing Date.
9.6. Seller and Seller's Tenant have complied in all material
respects with all applicable laws, rules, regulations and
ordinances relating to the Purchased Assets.
10. Closing Obligations of the Parties.
10.1 At Closing, Seller shall execute and deliver, cause Seller's
Tenant to execute and deliver, or deliver, as appropriate, to
Buyer the following items:
10.1.1 The several Deeds with respect to the Premises;
10.1.2 The several Bills of Sale to transfer the
Personal Property in the form attached hereto as
Exhibit III;
10.1.3 The several Bills of Sale for Inventory in the
form attached hereto as Exhibit IV;
9
10.1.4 Assignments and Assumptions of Contracts from
Seller's Tenant in the form attached hereto as
Exhibit V;
10.1.5 Assignment of Owner's Permits, intangible rights
and warranties and guarantees relating to the
condition of the several hotel properties;
10.1.6 Assignment of Operator's Permits, intangible
property, guest ledgers, customer and mailing
lists, brochures and telephone numbers;
10.1.7 Originals, if available, or otherwise copies of
Contracts and Permits, which may be delivered at
the respective hotel property;
10.1.8 Any and all business records and papers related
to the ownership of each hotel property not
previously provided, which may be delivered at
the respective hotel property;
10.1.9 Any and all architectural, engineering and other
plans prepared for or used in connection with the
construction of the building and improvements on
the Premises in Seller's or Seller's Tenant's
possession or control which may be delivered at
the respective hotel;
10.1.10 Certified copies of resolutions of Seller
authorizing the execution of this Agreement and
the consummation of the transactions contemplated
herein;
10.1.11 An opinion of Seller's counsel, dated as of the
Closing Date, stating (a) Seller's corporate
existence and good standing are as stated in
Section 18.1 hereof; (b) except as may be
specified by such counsel, they do not know or
have any reasonable grounds to know of any
litigation, proceeding, suit, action, controversy
or claim existing, pending or threatened against
Seller challenging the validity of this
Agreement; (c) the instruments executed and
delivered to by Seller to Buyer have been duly
authorized, executed and delivered (subject only
to bankruptcy, creditors rights and general
principles of equity);
10.1.12 All necessary releases or payoff letters of lien
or financing statements, pursuant to Paragraph
13.1 hereof;
10.1.13 Tenancy and title affidavit as may be reasonably
and customarily required by the title company;
10.1.14 Proof of payment of all current taxes due which,
if unpaid, would constitute a lien on the
Premises;
10.1.15 Terminations of all management agreements and the
Crossroads lease affecting any hotel property;
and
10.1.16 Such other documents and instruments as are
required by this Agreement to effectuate the sale
of property similar to the Purchased Assets.
10.2 At Closing, Buyer shall execute and deliver to Seller the
following items:
10
10.2.1 Certified copies of resolutions of Buyer's Board
of Directors authorizing the execution of this
Agreement and the consummation of the
transactions contemplated herein;
10.2.2 The cash portion of the balance of the Purchase
Price and such other payments provided for
herein;
10.2.3 The Note;
10.2.4 Written evidence reasonably satisfactory to
Seller that the scheduled repayment of the
mezzanine debt (the "Mezzanine Debt") of ▇▇▇▇▇▇
and ▇▇▇▇▇▇ Properties to Nomura Asset Capital
Corporation ("Nomura") does not provide for the
payment of principal, in whole or in part, prior
to the repayment of the principal amount of the
Note.
10.2.5 Assignment and Assumption of Contracts;
10.2.6 Checks to the order of the appropriate officers
in payment of all applicable real and personal
property transfer tax and copies of any required
tax returns executed therefor by Buyer;
10.2.7 An opinion of Buyer's counsel dated as of the
Closing Date, stating (a) Buyer's corporate
existence and good standing are as stated in
Section 19 hereof; (b) except as may be specified
by such counsel, they do not know or have any
reasonable grounds to know of any litigation,
proceeding, suit, action, controversy or claim
existing, pending or threatened against Buyer
challenging the validity of this Agreement; (c)
the instruments executed and delivered by Buyer
to Seller have been duly authorized, executed and
delivered and are valid and enforceable in
accordance with their terms, (subject only to
bankruptcy, creditors rights and general
principles of equity); and (d) such other
opinions reasonably requested by Seller which are
customarily required by institutional lenders in
loan transactions such as that which is
contemplated by this Agreement and the Note.
10.2.8 Such other documents and instruments as are
required by this Agreement from the Buyer.
10.3 At Closing, ▇▇▇▇▇▇ shall execute and deliver or cause to be
executed and delivered to Seller:
10.3.1 Certified copies of resolutions of ▇▇▇▇▇▇'▇ Board
of Directors authorizing the execution of this
Agreement and the consummation of the
transactions contemplated herein;
10.3.2 Its Guaranty of the Note;
10.3.3 The Pledge Agreement;
10.3.4 An opinion of ▇▇▇▇▇▇'▇ counsel that the Guaranty,
and the Pledge Agreement have been duly
authorized, executed and delivered by ▇▇▇▇▇▇
11
and are the valid and binding obligation of
▇▇▇▇▇▇ enforceable in accordance with their terms
(subject only to bankruptcy, creditors rights and
general equitable principles) and such other
opinions reasonably requested by Seller which are
customarily required by institutional lenders in
loan transactions such as that which is
contemplated by this Agreement and the Note
including, without limitation, opinions
substantially setting forth each of the
representations contained in Section 3 of the
Pledge Agreement (other then those contained in
paragraph (K) thereof), provided that such
opinion of counsel may be appropriately qualified
as to knowledge with respect to certain of such
representations and may expressly state its
reliance upon a certificate of ▇▇▇▇▇▇ and ▇▇▇▇▇▇
Properties to counsel setting forth the
underlying factual basis for such opinions.
10.3.5 Its covenant and agreement not to make any
voluntary prepayment, in whole or in part, of the
Mezzanine Debt or to amend the documentation with
respect to the Mezzanine Debt which would require
the scheduled payment, in whole or in part, of
the principal amount of such Debt prior to the
payment in full of the principal balance of the
Note.
10.3.6 Such other documents and instruments as are
required by this Agreement to effectuate the sale
of property similar to the Purchased Assets.
10.4 At Closing, ▇▇▇▇▇▇ Properties shall execute and deliver or
cause to be executed and delivered to Seller:
10.4.1 Certified copies of resolutions of ▇▇▇▇▇▇
Properties Board of Directors authorizing the
execution of this Agreement and the consummation
of the transactions contemplated herein;
10.4.2 Its Guaranty of the Note;
10.4.3 The Pledge and Irrevocable Proxy Security
Agreement; and
10.4.4 An opinion of ▇▇▇▇▇▇ Properties' counsel as to
the due authorization, issuance and non-
assessibility of the pledged Shares and that the
Guaranty and the Pledge and Irrevocable Proxy
Security Agreement have been duly authorized,
executed and delivered by ▇▇▇▇▇▇ Properties and
are the valid and binding obligations of ▇▇▇▇▇▇
Properties enforceable in accordance with their
respective terms (subject only to bankruptcy,
creditors' rights and general equitable
principles) and such other opinions reasonably
requested by Seller which are customarily
required by institutional lenders in loan
transactions such as that which is contemplated
by this Agreement and the Note including, without
limitation, opinions substantially setting forth
each of the representations contained in Section
3 of the Pledge Agreement (other then those
contained in paragraph (K) thereof), provided
that such opinion of counsel may be appropriately
qualified as to knowledge with respect to certain
12
of such representations and may expressly state
its reliance upon a certificate of ▇▇▇▇▇▇ and
▇▇▇▇▇▇ Properties to counsel setting forth the
underlying factual basis for such opinions.
10.4.5 Its covenant and agreement not to make any
voluntary prepayment, in whole or in part, of the
Mezzanine Debt or to amend the documentation with
respect to the Mezzanine Debt which would require
the scheduled payment, in whole or in part, of
the principal amount of such Debt prior to the
payment in full of the principal balance of the
Note.
11. Risk of Loss.
The risk of material loss or damage to the Purchased Assets by fire or other
casualty or by taking by eminent domain, shall be assumed by Seller and, upon
the happening of such event, Buyer shall have the election of terminating this
Agreement with respect to the damaged property or properties and proceeding on
the remainder without further liability hereunder or of completing this purchase
and receiving the insurance monies collectible by Seller for such loss or damage
or the award for such taking by eminent domain; provided, however, that Buyer
shall not be entitled to elect to terminate this Agreement if the amount of the
loss or damage to the Purchased Assets is less than $500,000.00.
12. Title to Premises.
12.1. Conveyance of the Premises shall be made by special warrant
deed (or its equivalent), duly executed and acknowledged so as
to convey to Seller, Buyer good and marketable fee simple
title to the Premises free and clear of all liens and
encumbrances except as provided herein. Such title shall be
marketable without exception other than the usual printed form
exceptions as would be set forth on a policy of fee title
insurance issued by a recognized title insurance company
licensed to do business in the state in which the particular
hotel property is located, and those exceptions agreed to in
Section 12.3.
12.2. Buyer shall at its cost prepare current instrument survey of
each hotel which is dated after the date hereof and certified
to Seller, Buyer and Buyer's lender, prepared and certified in
accordance with the ALTA/ACSM standards by a licensed land
surveyor and provide a copy to Seller.
12.3 Buyer shall accept title subject to the following conditions
and exceptions (the "Permitted Exceptions"):
13
12.3.1 any facts revealed by the redated and recertified
instrument survey, so long as such facts do not
render title unmarketable, disclose material
encroachments upon or over any boundary either by
an abutting landowner or an improvement on the
Premises, disclose violations of zoning
ordinances or other applicable land use
restrictions, or indicate a condition which may
interfere with the use of the Premises as a
hotel, which determination must be made by Buyer
by written notice thereof to the Seller prior to
the expiration of the Feasibility Period;
12.3.2 encumbrances, restrictions and easements of
record, applicable municipal or other ordinances,
laws, rules and regulations, including, without
limitation, all buildings, zoning and planning
rules, regulations and ordinances, provided the
same do not render title unmarketable, or will
not interfere with the intended use of the
Premises as a hotel, which determination must be
made by Buyer by written notice thereof to the
Seller prior to the expiration of the Feasibility
Period;
12.3.3 liens of unpaid real estate taxes not yet due;
12.3.4 Such other matters not objected to by the Buyer
by written notice thereof to the Seller prior to
the expiration of the Feasibility Period.
12.4 During the Feasibility Period, in the event Buyer learns of
the existence of a title defect which would render title
unmarketable (other than those which it agrees hereby to
accept), Buyer shall promptly notify Seller with all
information Buyer has about the same. In such event, Seller
shall, within two (2) business days following its receipt of
such notice from Buyer, give notice to Buyer as to which of
such defects it deems to be material. Buyer may, within two
(2) business days following its receipt of Seller's notice
(regardless of whether the Feasibility Period has expired or
not), elect to terminate this Contract by giving written
notice thereof to Seller. If Buyer does not terminate this
Contract within such two (2) day period, (a) Seller shall use
its reasonable efforts to cure or correct, at or prior to
Closing, (i) all title defects which it has identified in its
notice to Buyer as being material, and (ii) any other such
defects which Seller agrees in writing to undertake to cure or
correct, and (b) Seller shall, at or prior to Closing, cure or
correct all title defects which were created between the date
of Seller's acquisition of the premises and the Closing
(whether or not the same have been identified by Buyer in its
notice to Seller). With respect to all remaining title
defects, Seller shall, at no material expense to it, cooperate
with Buyer in undertaking any efforts to cure or correct the
same. If Seller is unable to cure or correct to Buyer's
reasonable satisfaction any title defect it is required by the
terms hereof to use reasonable efforts to cure or correct or
is required by the terms hereof to cure or correct, Seller
shall undertake to obtain at its expense for any additional
premium required to insure over such specific defect (Buyer
remaining liable for the basic premium) a policy of title
insurance by a recognized title insurance company licensed to
do business in the state in which the Premises is located and
acceptable to Buyer which shall insure the title to the
Premises without exception other than the Permitted
Exceptions. Should Seller fail to obtain such title insurance,
14
Buyer may terminate this Agreement by giving Seller written
notice thereof, such termination to become effective upon the
giving of such notice, and neither party shall be responsible
for damages to the other hereunder.
13. Personal Property and Inventory.
13.1. Buyer shall obtain state and local UCC searches to the Closing
Date against Seller, Seller's Seller and Seller's Tenant with
respect to Purchased Assets. Buyer shall promptly notify
Seller of any financing statements found to be filed with
respect to the Purchased Assets, together with a copy of such
report, and Seller shall undertake to obtain releases or
payoff letters of them unless subject to capital leases to be
assumed by Buyer hereunder.
13.2. At a mutually convenient time or times during the Feasibility
Period, a representative of Buyer and Seller's Tenant may
inspect and inventory all items of Personal Property and
Inventory. A representative of Seller and Seller's Tenant may
be present during the inspection and inventory.
13.3 With respect to any item of Personal Property or Inventory for
which Seller cannot obtain releases as provided in Section
13.1 Buyer may elect not to purchase the item, but the
Purchase Price shall not be adjusted accordingly.
13.4 The Personal Property and Inventory shall be sold and
purchased in "as is" condition, and Seller makes no
representations whatsoever, express or implied, in relation to
same.
13.5 With respect to all items of Personal Property which are
subject of warranties, guaranties or service agreements,
Seller shall assign all of its rights under the same to Buyer
to the extent possible, and will cooperate with Buyer in the
enforcement of the same.
14 Indemnity Against Creditors' Claims.
The parties agree to waive the requirements of the bulk transfer provisions of
the applicable Uniform Commercial Code or other applicable law, statue or rule.
Seller will indemnify Buyer and hold it harmless against all claims made by
creditors of Seller, including, but not limited to, reasonable attorneys' fees
and costs of defending such claims. Seller warrants that there are no
liabilities of any nature (accrued, absolute, contingent or otherwise), liens,
encumbrances or security interests on any of the Purchased Assets except as
expressly provided herein.
15 Contracts.
On the Closing Date, Seller shall cause Seller's Tenant to assign to Buyer and
Buyer shall assume the Contracts, all of which Buyer shall have an opportunity
to review before the Closing Date. Seller shall cause Seller's Tenant to perform
all Contracts, insofar as they are required by their terms to be performed by
Seller before the Closing Date and shall indemnify Buyer against any liability
or expense arising out of any breach or default occurring before the Closing
Date. Buyer shall indemnify Seller
15
and Seller's Tenant against any liability or expense arising out of any breach
of such Contracts occurring after the Closing Date. Buyer shall assume no
liability for any contract made by Seller which is not listed in Schedule B. In
addition, and not by way of limitation of the foregoing disclaimer, Buyer shall
assume no liability for any employee, employed by Seller or Seller's Tenant or
at the Premises, and regardless of whether the employment of such employee was
pursuant to written agreement or otherwise. Further, Seller shall terminate as
of Closing the lease with Seller's Tenant relating to each hotel property.
16 Possession.
Possession of the Purchased Assets as described herein shall be delivered by
Seller to Buyer at Closing subject to the Permitted Exceptions.
17 Warranties and Representations of Seller.
Seller represents and warrants to Buyer as follows:
17.1 Seller is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of
Tennessee and has qualified to do business and is in good
standing in each state where a hotel property is located, and
has full power and authority to carry on its current business
and to own, use and sell its assets and properties.
17.2 Seller has full power and authority and all necessary
approvals to enter into this Agreement. The execution and
delivery of this Agreement and the transactions contemplated
hereby do not and will not violate any provision of any
agreement, document, or instrument to which Seller is a party
or by which Seller is bound, except as otherwise noted in this
Agreement. Seller has made no other agreements with any other
party with respect to the Purchased Assets which would
adversely affect the transactions contemplated hereby.
17.3 There is as of the date hereof no litigation, proceeding,
suit, action, controversy, or claim existing, pending, or, to
the best of Seller's knowledge, threatened against Seller
which might materially, adversely affect the transfer of the
Purchased Assets to Buyer. At Closing, Seller will have
complied with all laws, regulations, and ordinances applicable
to the transfer of the Purchased Assets. There are at the date
hereof and at Closing there will be no judgments existing,
whether or not filed, against Seller or Seller's Tenant which
might affect the Purchased Assets, except as herein set forth.
17.4 Seller has received no written notices of any violations of
any laws, ordinances, regulations, rules or orders issued by
any federal, state, or local governmental authority adversely
affecting the Premises, except as noted in this Agreement.
17.5 To Seller's knowledge, there are no options to purchase,
rights of first refusal or other similar agreements with
respect to the Premises which give anyone the right to
purchase the Premises or any part thereof. Neither Seller nor
to the knowledge of Seller, Seller's Tenant is a party to any
contracts, leases, or agreements, written or oral, including
without limitation sales representation contracts, purchase
contracts
16
or restrictive agreements which prohibit the consummation of
this Agreement, except as reflected in the preliminary title
report and Schedule C attached hereto.
17.6 There are as of the date hereof no taxes outstanding against
the Purchased Assets, other than those for which adjustment in
the Purchase Price are to be made. For purposes of this
paragraph, taxes shall include any and all business-related
taxes, including, but not limited to, sales tax, employee
income tax and F.I.C.A. withholding, employment taxes, and
business or license fees.
17.7 Seller is not a foreign entity, foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms
are defined in the Internal Revenue Code and Income Tax
regulations).
17.8 To Seller's knowledge, Seller has filed all federal, estate,
county and local tax returns required to be filed by Seller
and has paid all taxes, interest and penalties that have
become due and payable by Seller. To Seller's knowledge, there
is no tax deficiency or penalty owing with respect to Seller.
17.9 The Seller has no knowledge of, nor has it received any
written notice of, any special taxes or assessments relating
to any hotel property or any part thereof or any planned
public improvements that may result in a special tax or
assessment against any hotel property which is not of public
record.
17.10 Each hotel property contains, as of the Closing Date, not less
than:
17.10.1 A sufficient amount of furniture, furnishings,
color television sets, carpets, drapes, rugs,
floor coverings, mattresses, pillows, bedspreads
and the like, to furnish each guest room, so that
each such guest room is, in fact, fully furnished
in accordance with current Franchisor standards
at the time of Seller's purchase; and
17.10.2 A sufficient amount of towels, washcloths and bed
linens, together with a sufficient supply of
paper goods, soaps, cleaning supplies and other
such supplies and materials, as are reasonably
adequate for the current operations of the Hotel
in accordance with current Franchisor standards
at the time of Seller's purchase.
17.11 The Seller has not received written notice that any Contract is
in default.
18. Warranties and Representations of Buyer.
▇▇▇▇▇▇ hereby represents and warrants to Seller as follows:
18.1 Prior to the expiration of the Feasibility Period, Buyer will
be a corporation duly organized, validly existing and in good
standing under the laws of the State of New York and have full
power and authority to carry on its current business and to
own, use and sell its assets and properties.
18.2 Prior to the expiration of the Feasibility Period, Buyer will
have full power and authority and all necessary approvals to
enter into this Agreement. Execution and delivery of this
Agreement and the consummation of the transactions
contemplated hereby will have been duly authorized by Buyer's
17
Board of Directors prior to expiration of the Feasibility
Period. The execution and delivery of this Agreement and the
transactions contemplated hereby do not and will not violate
any provision of any agreement, document, or instrument to
which Buyer is a party or by which Buyer is bound, except as
otherwise noted in this Agreement. Buyer has made no other
agreements with any other party with respect to the Purchased
Assets which would adversely affect the transactions
contemplated hereby.
18.3 There is as of the date hereof no litigation, proceeding,
suit, action, controversy, or claim existing, pending, or, to
the best of Buyer's knowledge, threatened against Buyer which
might affect the Purchased Assets or the transfer thereof to
Buyer, and there is no basis known to Buyer for any such
litigation, proceeding, suit, action, controversy, or claim.
At Closing, Buyer will have complied with all laws,
regulations, and ordinances applicable to the transfer of
Purchased Assets. There are at the date hereof and at Closing
there will be no judgments or liens existing, whether or not
filed, against Buyer which might affect the Purchased Assets,
except as herein set forth.
18.4 Buyer is not a foreign entity, foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms
are defined in the Internal Revenue Code and Income Tax
regulations).
18.5 The representations and warranties made by Buyer in this
Agreement shall be true and correct in all material respects
on and as of the Closing Date, with the same force and effect
as though they had been made on and as of the Closing Date,
except to the extent that such representations and warranties
shall be incorrect because of events or changes (not
materially and adversely affecting the Purchased Assets)
occurring or arising after the date hereof.
19. Warranties and Representations of ▇▇▇▇▇▇
▇▇▇▇▇▇ hereby represents and warrants to Seller as follows:
19.1 ▇▇▇▇▇▇ is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York and
has full power and authority to carry on its current business
and to own, use and sell its assets and properties.
19.2 ▇▇▇▇▇▇ has full power and authority and all necessary
approvals to enter into this Agreement. Execution and delivery
of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by ▇▇▇▇▇▇'▇
Board of Directors. The execution and delivery of this
Agreement and the transactions contemplated hereby do not and
will not violate any provision of any agreement, document, or
instrument to which ▇▇▇▇▇▇ is a party or by which ▇▇▇▇▇▇ is
bound, except as otherwise noted in this Agreement. ▇▇▇▇▇▇ has
made no other agreements with any other party with respect to
the Purchased Assets which would adversely affect the
transactions contemplated hereby.
19.3 There is as of the date hereof no litigation, proceeding,
suit, action, controversy, or claim existing, pending, or, to
18
▇▇▇▇▇▇'▇ knowledge, threatened against ▇▇▇▇▇▇ which might
affect the Purchased Assets or the transfer thereof to ▇▇▇▇▇▇,
and there is no basis known to ▇▇▇▇▇▇ for any such litigation,
proceeding, suit, action, controversy, or claim. At Closing,
▇▇▇▇▇▇ will have complied with all laws, regulations, and
ordinances applicable to the transfer of Purchased Assets.
There are at the date hereof and at Closing there will be no
judgments or liens existing, whether or not filed, against
▇▇▇▇▇▇ which might affect the Purchased Assets, except as
herein set forth.
19.4 ▇▇▇▇▇▇ is not a foreign entity, foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms
are defined in the Internal Revenue Code and Income Tax
regulations).
19.5 The representations and warranties made by ▇▇▇▇▇▇ in this
Agreement shall be true and correct in all material respects
on and as of the Closing Date, with the same force and effect
as though they had been made on and as of the Closing Date,
except to the extent that such representations and warranties
shall be incorrect because of events or changes (not
materially and adversely affecting the Purchased Assets)
occurring or arising after the date hereof.
20. Warranties and Representations of ▇▇▇▇▇▇ Properties
▇▇▇▇▇▇ Properties hereby represents and warrants to Seller as follows:
20.1 ▇▇▇▇▇▇ Properties is a corporation duly organized, validly
existing and in good standing under the laws of the State of
New York and has full power and authority to carry on its
current business and to own, use and sell its assets and
properties.
20.2 ▇▇▇▇▇▇ Properties has full power and authority and all
necessary approvals to enter into this Agreement. Execution
and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by
▇▇▇▇▇▇ Properties' Board of Directors. The execution and
delivery of this Agreement and the transactions contemplated
hereby do not and will not violate any provision of any
agreement, document, or instrument to which ▇▇▇▇▇▇ Properties
is a party or by which ▇▇▇▇▇▇ Properties is bound, except as
otherwise noted in this Agreement. ▇▇▇▇▇▇ Properties has made
no other agreements with any other party with respect to the
Purchased Assets which would adversely affect the transactions
contemplated hereby.
20.3 There is as of the date hereof no litigation, proceeding,
suit, action, controversy, or claim existing, pending, or, to
the best of ▇▇▇▇▇▇ Properties' knowledge, threatened against
▇▇▇▇▇▇ Properties which might affect the Purchased Assets or
the transfer thereof to ▇▇▇▇▇▇ Properties, and there is no
basis known to ▇▇▇▇▇▇ Properties for any such litigation,
proceeding, suit, action, controversy, or claim. At Closing,
▇▇▇▇▇▇ Properties will have complied with all laws,
regulations, and ordinances applicable to the transfer of
Purchased Assets. There are at the date hereof and at Closing
there will be no judgments or liens existing, whether or not
19
filed, against ▇▇▇▇▇▇ Properties which might affect the
Purchased Assets, except as herein set forth.
20.4 ▇▇▇▇▇▇ Properties is not a foreign entity, foreign
corporation, foreign partnership, foreign trust or foreign
estate (as those terms are defined in the Internal Revenue
Code and Income Tax regulations).
20.5 The representations and warranties made by ▇▇▇▇▇▇ Properties
in this Agreement shall be true and correct in all material
respects on and as of the Closing Date, with the same force
and effect as though they had been made on and as of the
Closing Date, except to the extent that such representations
and warranties shall be incorrect because of events or changes
(not materially and adversely affecting the Purchased Assets)
occurring or arising after the date hereof.
20
21. Brokerage.
The parties hereto agree that any broker's commission payable to any agent,
broker or realtor as a result of the Contract shall be paid by Seller, and
Seller agrees to hold Purchaser harmless from any claim or cost for such a
commission. Purchaser covenants that it has had no dealings in this transaction
with any agent, realtor, or broker other than Hotel Partners.
22. Termination.
This Agreement may be terminated for the following reasons only:
22.1 Mutual written consent of Buyer and Seller.
22.2 At the sole discretion of Buyer for any reason prior to the
expiration of the Feasibility Period.
22.3 Valid objection to marketability of title to the Premises made
by written notice thereof from the Buyer to the Seller prior
to the expiration of the Feasibility Period and not cured by
satisfactory title insurance or otherwise, as provided in
Section 12.4 hereof.
22.4 If any material representation or warranty contained herein
shall be untrue, so as to materially and adversely affect this
Agreement, then the party to whom such representation or
warranty has run may elect either to terminate this Agreement
or waive in writing such breach.
22.5 Failure to satisfy the conditions or contingencies set forth
herein.
22.6 Default by either party in the performance of any material
term or condition of this Agreement to be performed by that
party.
23. Tax Status.
It is understood that neither of the parties hereto has made any representations
to the others as to the tax status or effect of the transactions contemplated by
this Agreement, and each is taking separate counsel as to such matters.
24. Limitations and Survival of Representations.
The Buyer and ▇▇▇▇▇▇ each acknowledges that it has or will conduct its own due
diligence with respect to the Purchased Assets, and, except as otherwise
expressly provided herein, shall accept the Purchased Assets "as is, where is"
and in its present condition, subject to reasonable use, wear, tear and natural
deterioration between date hereof and the date of closing, without any reduction
in the purchase price for any change in such condition. Except as expressly
provided in this Agreement, neither Seller nor Seller's Tenant has made and does
not make any representations or warranties, either express or implied, with
respect to the Seller, Seller's Tenant or the Purchased Assets, including,
without limitation, the financial performance of the Purchased Assets, the
operations of the Purchased Assets, the physical condition, fitness for a
particular purpose or merchantability of any of the Purchased Assets, the status
of title and survey with respect to the Purchased Assets, or the compliance of
the Seller or Seller's Tenant or the Purchased Assets with any law, ordinance or
21
regulation, including, without limitation, those related to the environment,
zoning, land use, subdivision laws, handicap access or building codes. In
entering into this Agreement, Buyer nor ▇▇▇▇▇▇ has not been induced by and has
not relied upon any representations, warranties or statements, whether express
or implied, made by any third party, including, without limitation, the Seller,
the broker or their agents, employees or other representatives of the Seller,
Seller's Tenant or by any broker or any other person representing or purporting
to represent the Seller or Seller's Tenant, which are not expressly set forth
herein.
The representations, warranties, covenants, and agreements herein contained on
the part of each of the parties shall be deemed and construed to be continuing
representations, warranties, covenants, and agreements that shall survive the
Closing for the period of one (1) year after Closing. Seller and Buyer each
agree respectively to indemnify and hold harmless the other against and with
respect to all damages, deficiencies or liabilities resulting from any
misrepresentations, breach of warranty or nonfulfillment of any covenant or
agreement on the part of each respective party hereunder, or from any
misrepresentation in or occasioned by any certificate or other instrument
furnished or to be furnished by each of them, respectively, hereunder, and any
and all assessments, judgments, costs and legal and other reasonable expenses
incidental to any of the foregoing.
25. Covenant of Further Assurances.
From time to time, before and for the period of six (6) months after Closing,
Seller will execute and deliver such further instruments of conveyance and
transfer reasonably requested and take such other action as Buyer reasonably may
require to more effectively convey and transfer to Buyer any of the Purchased
Assets and otherwise fulfill its agreements hereunder, and will assist Buyer in
its reduction to possession of the Purchased Assets. From time to time before
and for a period of six (6) months after Closing, Buyer, ▇▇▇▇▇▇ Properties and
▇▇▇▇▇▇ will execute and deliver such further instruments and take such other
actions as Seller reasonably may require with respect to this Agreement, the
Note, the Guaranty and the Security Agreement.
26. Sales Tax.
Any sales tax payable in connection with the transfer of the Personal Property
shall be borne by Buyer.
27. Expenses.
27.1 Except as otherwise specifically provided herein, each party
shall pay its own expenses in connection with this Agreement
and the consummation of the transactions contemplated herein.
In particular, Buyer shall pay all transfer taxes, conveyance
fees, documentary stamps and other similar taxes and charges
imposed by any governmental authority in connection with the
conveyance of the Premises to Buyer regardless of customary
practice in each jurisdiction. Buyer shall pay any recording
fees relating to the deeds and other instruments of conveyance
and any mortgage or deed of trust recording taxes or fees in
connection with the financing obtained by Buyer.
22
27.2 Unless Seller is required to obtain title insurance because of
the existence of a title defect which would render title to
the Premises unmarketable as provided in Section 12.4 hereof,
and except to the extent of such title insurance obtained by
Seller, Buyer shall pay the premiums for fee or mortgagee
title insurance with respect to the Premises.
28. Miscellaneous.
28.1 This Agreement shall be binding upon and inure to the benefit
of the respective heirs, personal representatives, fiduciaries
and successors of Seller and Buyer.
28.2 This Agreement may not be assigned by either party without the
prior written consent of the other party.
28.3 Any and all notices or communications required or desired to
be given in connection with this Agreement shall be in
writing, sent by registered or certified mail, postage
prepaid, return receipt requested, or by overnight courier to
the parties at the address set forth above or to such other
address as either party may from time to time designate in
writing to the other party, and shall be effective upon
receipt.
28.4 This Agreement shall be construed and enforced in accordance
with the laws of the state where the applicable hotel property
is located, but the Note, the Pledge Agreement and the Escrow
Agreement shall be governed by New York law;
28.5 A waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed as a waiver of
any other subsequent breach thereof or of any other provision.
28.6 This Agreement and the Schedules and Exhibits hereto annexed
represent the entire agreement between the parties hereto with
respect to the transactions contemplated hereby and may be
modified only by a subsequent written document executed by the
party to be charged therewith.
28.7 The headings of the paragraphs of this Agreement are inserted
for convenience only and do not constitute a part of this
Agreement.
28.8 This Agreement may be signed in counterparts, each of which
shall be deemed to be an original and all of which together
shall constitute one and the same instrument.
28.9 Seller and Buyer agree to structure the transactions
contemplated by this Agreement as a tax-deferred exchange of
real estate by Seller, and Buyer agrees to execute and deliver
any documents reasonably requested by Seller to effectuate
such exchange.
23
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day
and year first written above.
BUYER:
▇▇▇▇▇▇ HOTELS CORPORATION
as agent for a New York Corporation to be formed
Date: August 12, 1997 By: /s/ E. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
Name: E. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇ HOTELS PROPERTIES CORP.
as agent for a New York corporation to be formed
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
SELLER:
EQUITY INNS PARTNERSHIP, L.P.
Date: August 12, 1997 By: EQUITY INNS TRUST,
General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Secretary
▇▇▇▇▇▇:
▇▇▇▇▇▇ HOTELS CORPORATION
Date: August 12, 1997 By: /s/ E. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
Name: E. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President and Chief Executive Officer
▇▇▇▇▇▇ HOTELS
PROPERTIES CORP.
Date: August 12, 1997 By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
24
Crossroads Future Company, L.L.C., Seller's Tenant, joins in the execution
hereof for the purpose of consenting to the provisions hereof relating to
Seller's Tenant and agreeing to reasonably cooperate with Seller and Buyer in
consummation of this Agreement and to execute and deliver the documents required
to be delivered by Seller's Tenant hereunder.
CROSSROADS FUTURE
COMPANY, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Secretary
List of Schedules
A - Legal Descriptions
B - Schedule of Contracts
List of Exhibits
I - Note
II - Reserved
III - ▇▇▇▇ of Sale (Personal Property)
IV - ▇▇▇▇ of Sale (Inventory)
V - Assignment and Assumption of Contracts
25