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EXHIBIT 2.8
Execution Copy
AGREEMENT OF PURCHASE
AND SALE
dated as of February 12, 1996
between
Peachtree Corners Hotels, L.P.
a Georgia limited partnership
as Seller,
and
INNKEEPERS USA LIMITED PARTNERSHIP,
a Virginia limited partnership,
as Purchaser
HAMPTON INN
Norcross, Georgia
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Rules of Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II
PURCHASE AND SALE; DEPOSIT;
PAYMENT OF PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . . 6
2.1 Purchase and Sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.2 Deposit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.3 Study Period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.4 Payment of Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.5 Allocation of Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III
CONSTRUCTION OF IMPROVEMENTS . . . . . . . . . . . . . . . . . . . . . 8
3.1 Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.2 Failure to Complete Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.3 Inspection of Construction; Changes in Plans and Design Boards. . . . . . . . . . . . . . . . . . . 8
3.4 Completion of Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.5 Ready for Occupancy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . . . . . . . . . . . 9
4.1 Organization and Power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.2 Authorization and Execution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.3 Noncontravention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.4 No Special Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.5 Compliance with Existing Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.6 Operating Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.7 Warranties and Guaranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.8 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.9 Condemnation Proceedings; Roadways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.10 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.11 Labor Disputes and Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.12 Financial Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.13 Organizational Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.14 Operation of Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.15 Personal Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.16 Bankruptcy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.17 Zoning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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4.18 Historical Districts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.19 Brokerage Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.20 Hazardous Substances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.21 Room Furnishings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.22 License. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.23 Independent Audit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.24 Bulk Sale Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.25 Curb Cuts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.26 Sufficiency of Certain Items . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.27 Noncompetition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.28 Construction Contract. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE V
PURCHASER'S REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . . . . . . . . . . 16
5.1 Organization and Power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.2 Authorization and Execution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.3 Noncontravention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.4 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.5 Bankruptcy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.6 Brokerage Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VI
CONDITIONS AND ADDITIONAL COVENANTS . . . . . . . . . . . . . . . . . . . 17
6.1 Seller's Deliveries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.2 Representations, Warranties and Covenants; Obligations of Seller; Certificate. . . . . . . . . . . . 17
6.3 Title Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.4 Survey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.5 Title to Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.6 Condition of Improvements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.7 Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.8 Land Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.9 Hotel Franchise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.10 PIP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.11 Approval. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.12 License. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.13 Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII
CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.1 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.2 Seller's Deliveries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.3 Purchaser's Deliveries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.4 Mutual Deliveries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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7.5 Closing Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE VIII
CONDEMNATION; RISK OF LOSS . . . . . . . . . . . . . . . . . . . . . 24
8.1 Condemnation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.2 Risk of Loss. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE IX
LIABILITY OF PURCHASER; INDEMNIFICATION BY SELLER;
TERMINATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . 24
9.1 Liability of Purchaser. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
9.2 Indemnification by Seller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
9.3 Termination by Purchaser. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.4 Termination by Seller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE X
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 25
10.1 Completeness; Modification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
10.2 Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
10.3 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
10.4 Days. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.5 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.6 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.7 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.8 Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.9 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.10 Incorporation by Reference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.11 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.12 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.13 No Partnership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.14 Time of Essence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.15 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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LIST OF EXHIBITS
Exhibit A - Land
Exhibit B - [Intentionally omitted.]
Exhibit C - Insurance Policies
Exhibit D - Plans and Specifications
Exhibit E - Site Plan
Exhibit F - Project Budget
Exhibit G - Allocation of Purchase Price
Exhibit H - Architect's Certificate
Exhibit I - Seller's Warranties and Guaranties
Exhibit J - FF&E Contract
Exhibit K - Guaranty
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AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT, dated as of the 12th day of February, 1996, between
PEACHTREE CORNERS Hotels, L.P., a Georgia limited partnership (the "Seller"),
and INNKEEPERS USA LIMITED PARTNERSHIP, a Virginia limited partnership (the
"Purchaser"), provides:
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
1.1 Definitions. The following terms shall have the indicated
meanings:
"Act of Bankruptcy" shall mean if a party hereto or any
general partner thereof shall (a) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its Property, (b) admit in writing
its inability to pay its debts as they become due, (c) make a general
assignment for the benefit of its creditors, (d) file a voluntary petition or
commence a voluntary case or proceeding under the Federal Bankruptcy Code (as
now or hereafter in effect), (e) be adjudicated a bankrupt or insolvent, 1.2(a)
file a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up or composition or adjustment
of debts, (b) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary case
or proceeding under the Federal Bankruptcy Code (as now or hereafter in
effect), or (c) take any corporate or partnership action for the purpose of
effecting any of the foregoing; or if a proceeding or case shall be commenced,
without the application or consent of a party hereto or any general partner
thereof, in any court of competent jurisdiction seeking (1) the liquidation,
reorganization, dissolution or winding-up, or the composition or readjustment
of debts, of such party or general partner, (2) the appointment of a receiver,
custodian, trustee or liquidator or such party or general partner or all or any
substantial part of its assets, or (3) other similar relief under any law
relating to bankruptcy, insolvency, reorganization, winding-up or composition
or adjustment of debts, and such proceeding or case shall continue undismissed;
or an order (including an order for relief entered in an involuntary case under
the Federal Bankruptcy Code, as now or hereafter in effect) judgment or decree
approving or ordering any of the foregoing shall be entered and continue
unstayed and in effect, for a period of 60 consecutive days.
"Architect's Agreement" shall mean the Architect's Agreement
dated August 6, 1995, between Seller and Portman, Fruchtman, Vinson, ▇▇▇▇▇▇▇▇▇▇
Architects, Inc."
"Assignment and Assumption Agreement" shall mean that certain
assignment and assumption agreement whereby the Seller (a) assigns and the
Purchaser assumes the Operating Agreements, to the extent assignable, that have
not been canceled at Purchaser's
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request and (b) assigns all of the Seller's right, title and interest in and to
the Intangible Personal Property, to the extent assignable.
"Authorizations" shall mean all licenses, permits and
approvals required by any governmental or quasi-governmental agency, body or
officer for the ownership, operation and use of the Property or any part
thereof.
"▇▇▇▇ of Sale [Inventory]" shall mean that certain ▇▇▇▇ of
sale conveying title to the Inventory to the Purchaser's property manager,
lessee or designee.
"▇▇▇▇ of Sale [Personal Property]" shall mean that certain
▇▇▇▇ of sale conveying title to the Tangible Personal Property, Intangible
Personal Property and the Reservation System from the Seller to the Purchaser
to the extent conveyable and subject to applicable law and the franchisor of
the Property.
"Broker" shall mean Hodges, Ward, ▇▇▇▇▇▇▇, Inc.
"Closing" shall mean the Closing of the purchase and sale of
the Property pursuant to this Agreement.
"Closing Date" shall mean the date on which the Closing
occurs.
"Completion Date" shall be September 1, 1996; provided,
however, that the Completion Date shall be extended by the length of any
Excused Delays and/or the Seller's Extension Right.
"Construction Contract" shall mean the construction contract
dated August 8, 1995 between Seller and Universal Constructors, Inc., which
provides for construction of the Improvements.
"Deed" shall mean that certain deed conveying title to the
Real Property with special or limited warranty and good, marketable and
insurable title from the Seller to the Purchaser, subject only to Permitted
Title Exceptions. The description of the Land in the Deed shall be by courses
and distances and, if there is a discrepancy between the description of the
Land attached hereto as Exhibit A and the description of the Land as shown on
the Survey, the description of the Land in the Deed shall be identical to the
description shown on the Survey.
"Deposit" shall mean all amounts deposited from time to time
with the Escrow Agent by the Purchaser pursuant to Section 2.2, plus all
interest accrued thereon. The Deposit shall be invested by the Escrow Agent in
a manner acceptable to Seller and the Purchaser and shall be held and disbursed
by the Escrow Agent in strict accordance with the terms and provisions of this
Agreement. Seller and Purchaser hereby agree that it shall be acceptable to
each of them if the Escrow Agent invests the Deposit with ▇▇▇▇▇▇▇▇▇▇
Securities.
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"Design Boards" shall mean the design boards of the Seller's
architect showing the color, texture and design of the furniture, furnishings,
fixtures and interior of the Hotel.
"Employment Agreements" shall mean any and all employment
agreements, written or oral, between the Seller or its managing agent and the
persons employed with respect to the Property.
"Escrow Agent" shall mean Chicago Title Insurance Company.
"Excused Delays" shall mean delays caused by fire, earthquake,
inclement weather, acts of God, acts of the public enemy, riot, insurrection,
governmental regulation of the sales of materials or supplies or the
transportation thereof, strikes, boycotts, shortages of material or labor
timely ordered, the Seller's inability to obtain any necessary governmental
approvals and inspections after diligent effort, and any other cause beyond the
reasonable control of the Seller.
"FIRPTA Certificate" shall mean the affidavit of the Seller
under Section 1445 of the Internal Revenue Code certifying that the Seller is
not a foreign corporation, foreign partnership, foreign trust, foreign estate
or foreign person (as those terms are defined in the Internal Revenue Code and
the Income Tax Regulations), in form and substance satisfactory to the
Purchaser.
"Governmental Body" means any federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign.
"Hotel" shall mean the 150-room hotel and related amenities to
be located on the Land.
"Improvements" shall mean the Hotel and all other buildings,
improvements, fixtures and other items of real estate to be built on the Land.
"Insurance Policies" shall mean those certain policies of
insurance described on Exhibit C attached hereto.
"Intangible Personal Property" shall mean all intangible
personal property owned or possessed by the Seller and used in connection with
the ownership, operation, leasing, occupancy or maintenance of the Property,
including, without limitation, the right to use the trade name "Hampton Inn"
and all variations thereof, the Authorizations, escrow accounts, insurance
policies, general intangibles, business records, plans and specifications,
surveys and title insurance policies pertaining to the Real Property and the
Personal Property, all licenses, permits and approvals with respect to the
construction, ownership, operation, leasing, occupancy or maintenance of the
Property, any unpaid award for taking by condemnation or any damage to the Land
by reason of a change of grade or location of or
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access to any street or highway, and the share of the Room Ledger, if any,
determined under Section 7.6, excluding (a) any of the aforesaid rights the
Purchaser elects not to acquire, (b) the Seller's cash on hand, in bank
accounts and invested with financial institutions and (c) accounts receivable
except for the above described share of the Room Ledger, if any.
"Inventory" shall mean all "inventories of merchandise" and
"inventories of supplies" (as such terms are defined in the Uniform System of
Accounts, for Hotels [8th Revised Edition, 1986] as published by the Hotel
Association of New York City, Inc. (as the same may be revised) and similar
consumable supplies.
"Land" shall mean that certain parcel of real estate lying and
being in Gwinett County, Georgia, as more particularly described on Exhibit A
attached hereto, together with all easements, rights, privileges, remainders,
reversions and appurtenances thereunto belonging or in any way appertaining,
and all of the estate, right, title, interest, claim or demand whatsoever of
the Seller therein, in the streets and ways adjacent thereto and in the beds
thereof, either at law or in equity, in possession or expectancy, now or
hereafter acquired.
"Operating Agreements" shall mean the management agreements,
service contracts, supply contracts, leases and other agreements with respect
to the ownership, operation, occupancy or maintenance of the Property.
"Owner's Title Policy" shall mean an owner's policy of title
insurance issued to the Purchaser by the Title Company, pursuant to which the
Title Company insures the Purchaser's ownership of fee simple title to the Real
Property (including the marketability thereof) subject only to Permitted Title
Exceptions. The Owner's Title Policy shall insure the Purchaser in the amount
of the Purchase Price and shall be acceptable in form and substance to the
Purchaser. The description of the Land in the Owner's Title Policy shall be by
courses and distances and shall be identical to the description shown on the
Survey.
"Permitted Title Exceptions" shall mean those exceptions to
title to the Real Property that are satisfactory to the Purchaser as determined
pursuant to Section 2.3(d).
"Plans" shall mean the final plans and specifications and site
plan identified in Exhibits D and E, respectively, for the construction of the
Improvements.
"Project Budget" shall mean the detailed schedule of costs and
expenses to construct and equip the Improvements as set forth on Exhibit F.
"Property" shall mean collectively the Real Property, the
Inventory, the Tangible Personal Property and the Intangible Personal Property.
"Purchase Price" shall mean $9,500,000 payable in the manner
described in Section 2.4.
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"Ready for Occupancy" shall have the meaning set forth in
Section 3.5.
"Real Property" shall mean the Land and the Improvements.
"Reservation System" shall mean the Seller's Reservation
Terminal and Reservation System equipment and software, if any.
"Room Ledger" shall mean the final night's room revenue
(revenue from rooms occupied as of 12:01 a.m. on the Closing Date, exclusive
of food, beverage, telephone and similar charges which shall be retained by the
Seller), including any sales taxes, room taxes or other taxes thereon.
"Seller's Extension Right" shall mean a period of time not to
exceed thirty (30) days which Seller may, at its sole option elect to extend
the Completion Date in the event that Seller is not able on the Completion Date
to deliver the Property to Purchaser for any reason other than Excused Delays.
In the event Seller exercises this right, it shall give Purchaser reasonable
notice thereof and shall pay the Purchaser's additional costs for its Letter of
Credit, if any, during the period of such extension.
"Seller's Organizational Documents" shall mean the current
partnership agreement and certificate of limited partnership of the Seller.
"Study Period" shall mean the period commencing at 9:00 a.m.
on the date hereof, and continuing through 5:00 p.m. on the forty-fifth day
following the date hereof.
"Survey" shall mean the survey prepared pursuant to Section
6.4.
"Tangible Personal Property" shall mean the items of tangible
personal Property consisting of all furniture, fixtures and equipment situated
on, attached to, or used in the operation of the Hotel, to the extent owned by
Seller (excluding all Licensor Signage and the GuesTrak Kiosk System, if any),
and all furniture, furnishings, equipment, machinery, and other personal
property of every kind located on or used in the operation of the Hotel and
owned by the Seller; provided, however, that the Purchaser agrees that, all
Inventory shall be conveyed to the Purchaser's property manager.
"Title Commitment" shall mean the commitment by the Title
Company to issue the Owner's Title Policy.
"Title Company" shall mean a title insurance company selected
by the Purchaser and authorized to conduct a title insurance business in the
State of Georgia.
"Utilities" shall mean public sanitary and storm sewers,
natural gas, telephone, public water facilities, electrical facilities and all
other utility facilities and services necessary for the operation and occupancy
of the Property as a hotel.
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1.2 Rules of Construction. The following rules shall apply to the
construction and interpretation of this Agreement:
(a) Singular words shall connote the plural number as
well as the singular and vice versa, and the masculine shall include the
feminine and the neuter.
(b) All references herein to particular articles,
sections, subsections, clauses or exhibits are references to articles,
sections, subsections, clauses or exhibits of this Agreement.
(c) The table of contents and headings contained herein
are solely for convenience of reference and shall not constitute a part of this
Agreement nor shall they affect its meaning, construction or effect.
(d) Each party hereto and its counsel have reviewed and
revised (or requested revisions of) this Agreement, and therefore any usual
rules of construction requiring that ambiguities are to be resolved against a
particular party shall not be applicable in the construction and interpretation
of this Agreement or any exhibits hereto.
ARTICLE II
PURCHASE AND SALE; DEPOSIT;
PAYMENT OF PURCHASE PRICE
2.1 Purchase and Sale. The Seller agrees to sell and the Purchaser
agrees to purchase the Property for the Purchase Price and in accordance with
the other terms and conditions set forth herein.
2.2 Deposit. The Purchaser shall make on the date hereof an
initial deposit of Nine Hundred Fifty Thousand Dollars ($950,000.00) with the
Escrow Agent. The Deposit, plus all interest that accrues thereon, shall be
returned to Purchaser if it fails, prior to the end of the Study Period, to
notify the Seller in writing, pursuant to Section 2.3, that the Purchaser
elects to proceed to Closing. The Deposit, plus all interest that accrues
thereon, shall be (a) applied at the Closing against the Purchase Price, (b)
returned to the Purchaser pursuant to Sections 2.3 or 9.3 or (c) paid to the
Seller pursuant to Section 9.4. Subject to Section 2.2(c) herein, all interest
on the Deposit shall accrue in favor of the Purchaser.
2.3 Study Period. (a) The Purchaser shall have the right, until
5:00 p.m. on the last day of the Study Period, and thereafter if the Purchaser
notifies the Seller that the Purchaser has elected to proceed to Closing in the
manner described below, to enter upon the Real Property and to perform, at the
Purchaser's expense, such economic, surveying, engineering, environmental,
topographic and marketing tests, studies and investigations, all of which are
to be non-invasive to the structural elements of the Hotel, as the Purchaser
may deem appropriate. If such tests, studies and investigations warrant, in the
Purchaser's sole, absolute and unreviewable discretion, the purchase of the
Property for the purposes contemplated by the Purchaser, then the Purchaser may
elect to proceed to Closing and shall so notify the Seller prior to the
expiration of the Study Period. If for any reason the Purchaser
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does not so notify the Seller of its determination to proceed to Closing prior
to the expiration of the Study Period, or if the Purchaser notifies the Seller,
in writing, prior to the expiration of the Study Period that it has determined
not to proceed to Closing, this Agreement automatically shall terminate, the
Deposit shall be returned to the Purchaser and upon return of the Deposit, the
Purchaser shall be released from any further liability or obligation under this
Agreement, except those provisions of this Agreement which expressly survive a
termination.
(b) During the Study Period, the Seller shall make
available to the Purchaser, its agents, auditors, engineers, attorneys and
other designees, for inspection copies of all architectural and engineering
studies, surveys, title insurance policies, zoning and site plan materials,
correspondence, environmental audits and other related materials or information
if any, relating to the Property which are in, or come into, the Seller's
possession or control.
(c) The Purchaser shall indemnify and defend the Seller
against any loss, damage or claim arising from entry upon the Real Property by
the Purchaser or any agents, contractors or employees of the Purchaser. The
Purchaser, at its own expense, shall restore any damage to the Real Property
caused by any of the tests or studies made by the Purchaser.
(d) During the Study Period, the Purchaser, at its
expense, shall cause an examination of title to the Property to be made, and,
prior to the expiration of the Study Period, shall notify the Seller of any
defects in title shown by such examination that the Purchaser is unwilling to
accept. Within five business days after receipt of such notification, the
Seller shall notify the Purchaser whether the Seller is willing to cure such
defects. If the Seller is willing to cure such defects, the Seller shall act
promptly and diligently to cure such defects at its expense. If such defects
consist of deeds of trust, mechanics' liens, tax liens or other liens or
charges in a fixed sum or capable of computation as a fixed sum, the Seller
shall pay and discharge (and the Escrow Agent is authorized to pay and
discharge at Closing) such defects at Closing. If the Seller is unwilling or
unable to cure any other such defects by Closing, the Purchaser shall elect (1)
to waive such defects and proceed to Closing without any abatement in the
Purchase Price or (2) to terminate this Agreement and receive a full refund of
the Deposit. The Seller shall not, after the date of this Agreement, subject
the Property to any liens, encumbrances, covenants, conditions, restrictions,
easements or other title matters or seek any zoning changes or take any other
action which may affect or modify the status of title without the Purchaser's
prior written consent. All title matters revealed by the Purchaser's title
examination and not objected to by the Purchaser as provided above shall be
deemed Permitted Title Exceptions. If Purchaser shall fail to examine title and
notify the Seller of any such title objections by the end of the Study Period,
all such title exceptions (other than those rendering title unmarketable and
those that are to be paid at Closing as provided above) shall be deemed
Permitted Title Exceptions.
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(e) Within 10 days of the date hereof, the Seller shall provide
the following items to the Purchaser:
(i) Plans.
(ii) Design Boards.
(iii) Construction Contract.
(iv) Architect's Agreement.
(v) Project Budget.
(vi) Payment and performance bonds in form and substance,
and with a corporate surety, satisfactory to the Purchaser. The bonds shall (1)
name the Purchaser as a co-obligee, (2) guarantee the proper completion of all
work specified in the Plans, and (3) guarantee payment of all amounts owed to
subcontractors, materialmen and suppliers with respect to the construction and
equipping of the Improvements.
2.4 Payment of Purchase Price. The Purchase Price shall be paid to
the Seller in the following manner:
(a) The Purchaser shall receive a credit against the
Purchase Price in an amount equal to the Deposit upon receipt by Seller of the
Deposit.
(b) The Purchaser shall pay the balance of the Purchase
Price, as adjusted in the manner specified in Article VII and as set forth
below, to the Seller or other applicable party at Closing by making a wire
transfer of immediately available federal funds to the account of the Seller or
other applicable party as specified in writing by the Seller.
2.5 Allocation of Purchase Price. The parties agree that the
Purchase Price shall be allocated among the various components of the Property
in the manner indicated on Exhibit G attached hereto.
ARTICLE III
CONSTRUCTION OF IMPROVEMENTS
3.1 Construction. The Seller, at the Seller's sole expense, shall
diligently cause the construction and completion of the Improvements in
accordance with the Plans. All personal property used or incorporated in the
Improvements shall be new and shall not contain refurbished or rebuilt
materials. Subject to Excused Delays and/or Seller's Extension Right, the
Seller shall complete the Improvements on or before the Completion Date such
that the Improvements are Ready for Occupancy (as defined below).
3.2 Failure to Complete Construction. If the Improvements are not
Ready for Occupancy on or prior to the Completion Date, as the same may be
extended by Seller's Extension Right and Excused Delays, the Purchaser may
terminate its obligation to acquire
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the Improvements by written notice to Seller of such termination. Upon such
termination, the Purchaser shall have all of the rights and remedies specified
in Section 9.3.
3.3 Inspection of Construction; Changes in Plans and Design
Boards. Until the Improvements are Ready for Occupancy, the Purchaser shall
have the right to inspect the progress of construction and to request changes
in the Plans and Design Boards. The Seller shall use best efforts to cooperate
with the Purchaser and, subject to the reasonable approval of Seller and the
Seller's permanent and construction lenders for the Hotel and Improvements, if
required, implement any such changes requested by the Purchaser; provided, that
(a) the Purchaser shall pay any additional costs required to implement such
changes requested, including, without limitation, architecture fees, increase
in construction costs and other charges payable hereunder caused by delay and
the requested changes, which shall be paid by Purchaser as such become due and
payable by Seller and (b) such requests shall constitute an agreement by the
Purchaser to any reasonable delay in completion of the Improvements caused by
reviewing, processing and implementing such change. Purchaser's obligations to
pay such costs as set forth in this Section 3.3 shall survive either Closing or
the termination of this Agreement.
3.4 Completion of Construction. Immediately prior to the time when
the Improvements are Ready for Occupancy, the Purchaser, the Seller and the
Seller's architect shall agree on a list of items that remain to be completed
(the "Punch List Items"), and Seller shall complete the Punch List Items before
the Closing Date.
3.5 Ready for Occupancy. The Improvements shall be Ready for
Occupancy upon delivery of all of the following to the Purchaser, all of which
shall be satisfactory to the Purchaser in its reasonable discretion.
(a) a certificate of the Seller's architect in the form
attached hereto as Exhibit H;
(b) a copy of (i) a final and unconditional certificate of
occupancy with respect to the Improvements, and (ii) certification by the
appropriate official of the Governmental Body having jurisdiction with respect
to the Improvements as to the applicable zoning of the Property, and
certification by the architect that the Improvements, as completed, comply with
all applicable zoning, land use, subdivision and building laws ordinances and
regulations;
(c) a final waiver of mechanics' and materialmen's liens
executed by the contractor and each subcontractor and materialman, in form and
substance satisfactory to the Purchaser and the Title Company;
(d) a copy of the final, as-built site plan for the
Improvements as approved by the jurisdiction; and
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(e) evidence satisfactory to the Purchaser that the
Improvements have been constructed and equipped in accordance with all
specifications and requirements of the Licensor (as defined below). (The
issuance to Seller of an executed License from the Licensor shall be deemed to
satisfy this requirement; provided that such issuance is not in any way
conditioned upon any further improvements to the Property.)
ARTICLE IV
SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
To induce the Purchaser to enter into this Agreement and to purchase
the Property, the Seller hereby makes the following representations, warranties
and covenants with respect to the Property, upon each of which the Seller
acknowledges and agrees that the Purchaser is entitled to rely and has relied:
4.1 Organization and Power. The Seller is a limited partnership
duly formed, validly existing and in good standing under the laws of the
Commonwealth of Kentucky and is qualified to transact business in the State of
Georgia and has all requisite powers and all governmental licenses,
authorizations, consents and approvals to carry on its business as now
conducted and to enter into and perform its obligations hereunder and under any
document or instrument required to be executed and delivered on behalf of the
Seller hereunder.
4.2 Authorization and Execution. This Agreement has been duly
authorized by all necessary action on the part of the Seller, has been duly
executed and delivered by the Seller, constitutes the valid and binding
agreement of the Seller and is enforceable in accordance with its terms. There
is no other person or entity who has an ownership interest in the Property or
whose consent is required in connection with the Seller's performance of its
obligations hereunder.
4.3 Noncontravention. The execution and delivery of, and the
performance by the Seller of its obligations under, this Agreement do not and
will not contravene, or constitute a default under, any provision of applicable
law or regulation, the Seller's Organizational Documents or any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Seller, or result in the creation of any lien or other encumbrance on any asset
of the Seller. There are no outstanding agreements (written or oral) pursuant
to which the Seller (or any predecessor to or representative of the Seller) has
agreed to sell or has granted an option or right of first refusal to purchase
the Property or any part thereof.
4.4 No Special Taxes. The Seller has no knowledge of, nor has it
received any notice of, any special taxes or assessments relating to the
Property or any part thereof or any planned public improvements that may result
in a special tax or assessment against the Property.
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4.5 Compliance with Existing Laws. The Seller possesses all
Authorizations, each of which is valid and in full force and effect, and no
provision, condition or limitation of any of the Authorizations has been
breached or violated. The Seller has not misrepresented or failed to disclose
any relevant fact in obtaining all Authorizations, and the Seller has no
knowledge of any change in the circumstances under which those Authorizations
were obtained that result in their termination, suspension, modification or
limitation. The Seller has no knowledge, nor has it received notice within the
past three years, or during the Seller's ownership of the Property, whichever
is less, of any existing or threatened violation of any provision of any
applicable building, zoning, subdivision, environmental or other govern- mental
ordinance, resolution, statute, rule, order or regulation, including but not
limited to those of environmental agencies or insurance boards of underwriters,
with respect to the ownership, operation, use, maintenance or condition of the
Property or any part thereof, or requiring any repairs or alterations other
than those that have been made prior to the date hereof.
4.6 Operating Agreements. As of the date hereof, there are no
Operating Agreements with respect to the Property. The Seller shall not enter
into any new Operating Agreements with respect to the Property, unless (a) any
such Operating Agreement will not bind the Purchaser or the Property after the
Closing Date or (b) the Seller has obtained the Purchaser's prior written
consent to such Operating Agreement. The Seller agrees to cancel and terminate
all Operating Agreements at the Closing, unless the Purchaser requests in
writing at least five (5) business days prior to Closing that one or more
remain in effect after Closing.
4.7 Warranties and Guaranties. The Seller shall not before or
after Closing, release or modify any warranties or guarantees, if any, of
manufacturers, suppliers and installers relating to the Improvements and the
Personal Property or any part thereof, except with the prior written consent of
the Purchaser. A complete list of all such warranties and guaranties in effect
as of this date is attached hereto as Exhibit I.
4.8 Insurance. All of the Seller's Insurance Policies are valid
and in full force and effect, all premiums for such policies were paid when due
and all future premiums for such policies (and any replacements thereof) shall
be paid by the Seller on or before the due date therefor, if due and payable
prior to Closing. The Seller shall pay all premiums on, and shall not cancel or
voluntarily allow to expire prior to Closing, any of the Seller's Insurance
Policies unless such policy is replaced, without any lapse of coverage, by
another policy or policies providing coverage at least as extensive as the
policy or policies being replaced.
4.9 Condemnation Proceedings; Roadways. The Seller has received no
notice of any condemnation or eminent domain proceeding pending or threatened
against the Property or any part thereof. The Seller has no knowledge of any
change or proposed change in the route, grade or width of, or otherwise
affecting, any street or road adjacent to or serving the Real Property.
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4.10 Litigation. There is no action, suit or proceeding pending or
to Seller's knowledge known to be threatened against or affecting the Seller in
any court, before any arbitrator or before or by any Governmental Body which
(a) in any manner raises any question affecting the validity or enforceability
of this Agreement or any other agreement or instrument to which the Seller is a
party or by which it is bound and that is or is to be used in connection with,
or is contemplated by, this Agreement, (b) could materially and adversely
affect the business, financial position or results of operations of the Seller,
(c) could materially and adversely affect the ability of the Seller to perform
its obligations hereunder, or under any document to be delivered pursuant
hereto, (d) could create a lien on the Property, any part thereof or any
interest therein, (e) the subject matter of which concerns any past or present
employee of the Seller or its managing agent or (f) could otherwise adversely
affect the Property, any part thereof or any interest therein or the use,
operation, condition or occupancy thereof.
4.11 Labor Disputes and Agreements. There are no labor disputes
pending or, to the best of the Seller's knowledge, threatened as to the
operation or maintenance of the Property or any part thereof. The Seller is not
a party to any union or other collective bargaining agreement with employees
employed in connection with the ownership, operation or maintenance of the
Property. The Seller is not a party to any Employment Agreements, and neither
the Seller nor its managing agent will, between the date hereof and the date of
Closing, enter into any Employment Agreements or hire a General Manager and
Director of Sales and Marketing for the Hotel without consulting with the
Purchaser with respect to such Employment Agreements and the hiring of the
General Manager or Director of Sales and Marketing. The Purchaser will not be
obligated to give or pay any amount to any employee of the Seller or the
Seller's managing agent unless the Purchaser elects to hire that employee. The
Purchaser shall not have any liability under any pension or profit sharing plan
that the Seller or its managing agent may have established with respect to the
Property or their or its employees.
4.12 Financial Information. All of the Seller's financial
information, including, without limitation, all books and records and financial
statements ("Financial Information") is correct and complete in all respects
and presents accurately the results of the operations of the Property for the
periods indicated. Since the date of the last financial statement included in
the Seller's Financial Information, there has been no material adverse change
in the financial condition or in the operations of the Property.
4.13 Organizational Documents. The Seller's Organizational
Documents are in full force and effect and have not been modified or
supplemented, and no fact or circumstance has occurred that, by itself or with
the giving of notice or the passage of time or both, would constitute a default
thereunder.
4.14 Operation of Property. The Seller covenants, that between the
date that the Hotel first opens to the Public and the Closing Date (if a period
at all) it will (a) operate the Property only in a usual, regular and ordinary
manner consistent with the Seller's general
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business practice, (b) maintain its books of account and records in a usual,
regular and ordinary manner, in accordance with sound accounting principles
applied on a consistent basis and (c) use all reasonable efforts to preserve
its relationships with suppliers and others having business dealings with it.
The Seller shall use its best efforts to take guest room reservations and to
book functions and meetings and otherwise to promote the business of the
Property. The Seller shall provide Purchaser with its marketing plan and all
pre-opening plans and advertising for the Property and shall cooperate with
Purchaser with regard to any inquiries and requests of Purchaser related to the
same. Except as otherwise permitted hereby, from the date hereof until Closing,
the Seller shall not take any action or fail to take action the result of which
(i) would have a material adverse effect on the Property or the Purchaser's
ability to continue the operation thereof after the date of Closing in
substantially the same manner as conducted immediately prior to the date of
Closing, (ii) reduce or cause to be reduced any room rents or any other charges
over which the Seller has operational control, or (iii) would cause any of the
representations and warranties contained in this Article IV to be untrue as of
Closing. From and after the date the Improvements are Ready for Occupancy,
Seller shall deliver to the Purchaser daily reports showing the income and
expenses of the Hotel and all departments thereof, together with such periodic
information with respect to room reservations and other bookings, as the Seller
customarily keeps internally for its own use.
4.15 Personal Property. All of the Tangible Personal Property,
Intangible Personal Property and Inventory being conveyed by the Seller to the
Purchaser or to the Purchaser's managing agent, lessee or designee, are free
and clear, or will be at Closing, of all liens, leases and the Seller has, or
will have at the time of closing, good, merchantable title thereto and the
right to convey same in accordance with the terms of the Agreement.
4.16 Bankruptcy. No Act of Bankruptcy has occurred with respect to
the Seller.
4.17 Zoning. The use and occupancy of the Property for hotel and
restaurant purposes are permitted under all laws applicable thereto without the
necessity of any special use permit, special exception or other special permit,
permission or consent.
4.18 Historical Districts. To the best of Seller's knowledge,
neither the Property, nor any portion thereof, is (a) listed, or eligible to be
listed, in any national, state or local register of historic places or areas,
or (b) located within any designated district or area in which the permitted
uses of land located therein are restricted by regulations, rules or laws other
than those specified under local zoning ordinances.
4.19 Brokerage Commission. Except for the Broker, the Seller has
not engaged the services of, nor is it or will it become liable to, any real
estate agent, broker, finder or any other person or entity for any brokerage or
finder's fee, commission or other amount with respect to the transactions
described herein.
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4.20 Hazardous Substances. Seller has no knowledge: (a) of the
presence of any "Hazardous Substances" (as defined below) on the Property, or
any portion thereof, or, (b) of any spills, releases, discharges, or disposal
of Hazardous Substances that have occurred or are presently occurring on or
onto the Property, or any portion thereof, or (c) of the presence of any PCB
transformers serving, or stored on, the Property, or any portion thereof, and
Seller has no knowledge of any failure to comply with any applicable local,
state and federal environmental laws, regulations, ordinances and
administrative and judicial orders relating to the generation, recycling,
reuse, sale, storage, handling, transport and disposal of any Hazardous
Substances (as used herein, "Hazardous Substances" shall mean any substance or
material whose presence, nature, quantity or intensity of existence, use,
manufacture, disposal, transportation, spill, release or effect, either by
itself or in combination with other materials is either: (1) potentially
injurious to the public health, safety or welfare, the environment or the
Property, (2) regulated, monitored or defined as a hazardous or toxic substance
or waste by any Environmental Authority, or (3) a basis for liability of the
owner of the Property to any Environmental Authority or third party, and
Hazardous Substances shall include, but not be limited to, hydrocarbons,
petroleum, gasoline, crude oil, or any products, by-products or components
thereof, and asbestos).
4.21 Room Furnishings. All public spaces, lobbies, meeting rooms,
and each room in the Hotel available for guest rental shall be furnished in
accordance with Licensor's standards for the Hotel and room type.
4.22 License. The Seller has a valid commitment from Promus Hotels,
Inc. (the "Licensor") to issue a license with respect to the Hotel (the
"License") after the Improvements are Ready for Occupancy. At Closing, the
License will be valid and in full force and effect, and Seller will not be in
default with respect thereto (with or without the giving of any required notice
and/or lapse of time).
4.23 Independent Audit. Seller shall provide access by Purchaser's
representatives, to all financial and other information relating to the
Property which would be sufficient to enable them to prepare audited financial
statements in conformity with Regulation S-X of the Securities and Exchange
Commission (the "Commission") and to enable them to prepare a registration
statement, report or disclosure statement for filing with the Commission.
Seller shall also provide to Purchaser's representatives a signed
representative letter which would be sufficient to enable an independent public
accountant to render an opinion on the financial statements related to the
Property.
4.24 Bulk Sale Compliance. Seller shall indemnify Purchaser against
any claim, loss or liability arising under all bulk sales laws applicable to
and in connection with the transaction contemplated herein.
4.25 Curb Cuts. To the best of Seller's knowledge, all curb cut
street permits or licenses required for vehicular access to and from the
Property from any adjoining public street have been obtained and paid for and
are in full force and effect.
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4.26 Sufficiency of Certain Items. The Property, on the Closing
Date, shall contain not less than:
(a) 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; and
(b) a two (2) sets of towels, washcloths and bed linens,
so that there are two sets of towels, washcloths and linens for each guest room
(one on the beds and one on the shelves or in the laundry), together with a
sufficient supply of paper goods, soaps, cleaning supplies and other such
supplies and materials, as are reasonably adequate for the current operation of
the Hotel.
4.27 Noncompetition. The Seller shall, for a period of five (5)
years from Closing Date, not engage in (a) the construction or development of
any new hotels and (b) the purchase or operation of any Limited Service Hotels
(as hereinafter defined), located within five (5) miles of any point on the
perimeter of the Property. The term Limited Service Hotel shall mean hotels
with no full service restaurant on premises and no room service. For purposes
of this paragraph, the Seller shall be deemed to be engaged in a competitive
business if it or any of its present or future employees, shareholders, or
partners (while any of them is also an employee, shareholder, or partner of the
Seller), is an owner, shareholder, principal, partner, employee, agent, or
independent contractor of any such business or is a lender to any such
business, or is a guarantor of the debts of any such business, or is entitled
to compensation, dividends, profits, or any other payments or other things of
value from any such business. Notwithstanding the foregoing, that certain
"Courtyard by Marriott" under development on Peachtree Road at Tower Place, so
called in the City of Atlanta, Georgia, shall not be deemed a competitive
business.
4.28 Construction Contract. The Construction Contract constitutes an
arms-length agreement between unrelated and unaffiliated parties, except that
certain FF&E contract with Impac Design & Construction, Inc., attached hereto
as Exhibit J.
4.29 As Is.
(a) Seller makes no representations and warranties to
Purchaser other than as specifically set forth herein;
(b) The Property will, on the Closing Date, be
transferred "as is" without warranty or representation of any kind or character
except as specifically set forth herein, including without limitation, any
representation as to physical condition, value, compliance with legal
requirements, the existence or status of contracts affecting the Property or
absence of toxic or hazardous substances. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, THERE IS NO WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR
FITNESS FOR A SPECIFIC PURPOSE. Purchaser will make
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inspections of the Property as it deems appropriate, and has not received any
warranties or representations by Seller of any kind, whether written or oral,
except as specifically set forth herein.
The term "to the best of Seller's knowledge" or similar phrase shall mean the
knowledge of the following persons after making inquiry into the files in their
possession relating to the construction, operation, ownership, maintenance and
management of the Property: ▇▇▇▇▇▇ ▇. ▇▇▇▇, the president of the general
partner of Seller, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, the chief financial officer of the general
partner of Seller, and the general manager of the Hotel.
Each of the representations and warranties contained in this Article IV and its
various subparagraphs are intended for the benefit of the Purchaser and may be
waived in whole or in part, by the Purchaser, but only by an instrument in
writing signed by the Purchaser. Except for those representations and
warranties set forth in Section 4.20, each of said representations and
warranties of this Article IV shall survive the closing of the transactions
contemplated hereby for the earlier to occur of one (1) year after the Closing
Date or a sale assignment or other transfer of the Property by Purchaser
(unless Purchaser makes a claim by notice in writing to Seller in connection
with the untruth or inaccuracy of such representation or warranty within such
one (1) year period, in which event the representation or warranty that is the
subject of such claim shall survive until such claim is finally resolved)
except to the extent that Seller gives Purchaser written notice prior to
Closing of the untruth or inaccuracy of any representation or warranty, or
Purchaser otherwise obtains actual knowledge prior to Closing of the untruth or
inaccuracy of any representation or warranty, and Purchaser nevertheless elects
to close this transaction. The representations and warranties set forth in
Section 4.20 shall survive the Closing for the earlier to occur of two (2)
years after the Closing Date or a sale, assignment or other transfer of the
Property by Purchaser. Except to the extent otherwise expressly provided in the
immediately preceding sentence, no investigation, audit, inspection, review or
the like conducted by or on behalf of Purchaser shall be deemed to terminate
the effect of any such representation, warranties and covenants, it being
understood that Purchaser has the right to rely thereon and that each such
representation and warranty constitutes a material inducement to Purchaser as a
result of the inaccuracy or breach of any of the representations and warranties
of Seller hereunder to the extent provided herein other than representations
and warranties as to which Seller has give Purchaser written notice prior to
Closing of the truth or inaccuracy or which Purchaser otherwise obtains actual
knowledge of the untruth or inaccuracy; provided, however, the foregoing
limitation on Seller's indemnity shall not limit Purchaser's remedy as
otherwise described herein.
As used herein Purchaser's "actual knowledge" shall mean the knowledge
of the following persons; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the president of the general
partner of the Purchaser, and ▇▇▇▇▇▇▇▇ ▇▇▇▇, the president of ▇ ▇ Hotel, Inc.
ARTICLE V
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PURCHASER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
To induce the Seller to enter into this Agreement and to sell the
Property, the Purchaser hereby makes the following representations, warranties
and covenants with respect to the Property, upon each of which the Purchaser
acknowledges and agrees that the Seller is entitled to rely and has relied:
5.1 Organization and Power. The Purchaser is a limited partnership
duly organized, validly existing and in good standing under the laws of the
Commonwealth of Virginia, and has all requisite partnership powers and all
governmental licenses, authorizations, consents and approvals to carry on its
business as now conducted and to enter into and perform its obligations under
this Agreement and under any document or instrument required to be executed and
delivered on behalf of the Purchaser hereunder.
5.2 Authorization and Execution. This Agreement has been duly
authorized by all necessary action on the part of the Purchaser, has been duly
executed and delivered by the Purchaser, and constitutes the valid and binding
agreement of the Purchaser, and is enforceable in accordance with its terms.
5.3 Noncontravention. The execution and delivery of this Agreement
and the performance by the Purchaser of its obligations hereunder do not and
will not contravene, or constitute a default under, any provisions of
applicable law or regulation, the Purchaser's organizational documents,
partnership agreement or any agreement, judgment, injunction, order, decree or
other instrument binding upon the Purchaser or result in the creation of any
lien or other encumbrance on any asset of the Purchaser.
5.4 Litigation. There is no action, suit or proceeding, pending or
known to be threatened, against or affecting the Purchaser in any court or
before any arbitrator or before any Governmental Body which (a) in any manner
raises any question affecting the validity or enforceability of this Agreement
or any other agreement or instrument to which the Purchaser is a party or by
which it is bound and that is to be used in connection with, or is contemplated
by, this Agreement, (b) could materially and adversely affect the business,
financial position or results of operations of the Purchaser, (c) could
materially and adversely affect the ability of the Purchaser to perform its
obligations hereunder, or under any document to be delivered pursuant hereto,
(d) could create a lien on the Property, any part thereof or any interest
therein or (e) could adversely affect the Property, any part thereof or any
interest therein or the use, operation, condition or occupancy thereof.
5.5 Bankruptcy. No Act of Bankruptcy has occurred with respect to
the Purchaser.
5.6 Brokerage Commission. The Purchaser has not engaged the
services of, nor is it or will it become liable to, any real estate agent,
broker, finder or any other person or
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entity for any brokerage or finder's fee, commission or other amount with
respect to the transaction described herein.
ARTICLE VI
CONDITIONS AND ADDITIONAL COVENANTS
The Purchaser's obligations hereunder are subject to the satisfaction
of the following conditions precedent and the compliance by the Seller with the
following covenants:
6.1 Seller's Deliveries. The Seller shall have delivered to the
Escrow Agent or the Purchaser, as the case may be, on or before the date of
Closing, all of the documents and other information required of Seller pursuant
to Section 7.2.
6.2 Representations, Warranties and Covenants; Obligations of
Seller; Certificate. All of the Seller's representations and warranties made in
this Agreement shall be true and correct as of the date hereof and as of the
date of Closing as if then made, there shall have occurred no material adverse
change in the financial condition of the Property since the date hereof, the
Seller shall have performed all of its covenants and other obligations under
this Agreement and the Seller shall have executed and delivered to the
Purchaser at Closing a certificate to the foregoing effect.
6.3 Title Insurance. Good and marketable fee simple title to the
Real Property shall be insurable as such by the Title Company at or below its
regularly scheduled rates subject only to Permitted Title Exceptions as
determined in accordance with Section 2.3.
6.4 Survey. The Purchaser shall have obtained a current Survey of
the Land delineating the boundary lines of the Land, the location of the
Improvements, all rights of way and easements thereon and contiguous public
roads and otherwise acceptable to the Purchaser. The Survey shall be prepared
for the benefit of, and shall be certified to, the Purchaser and the Title
Company. Furthermore, the Survey shall be adequate for the Title Company to
delete any exception for general survey matters in the Owner's Title Policy.
6.5 Title to Property. The Purchaser shall have determined that
the Seller is the sole owner of good and marketable fee simple title to the
Real Property and to the Tangible Personal Property free and clear of all
liens, leases, encumbrances, restrictions, conditions and agreements except for
Permitted Title Exceptions. The Seller shall not have taken any action from the
date hereof and through and including the date of Closing that would adversely
affect the status of title to the Real Property.
6.6 Condition of Improvements. The Improvements and the Tangible
Personal Property (including but not limited to the mechanical systems,
plumbing, electrical, wiring, appliances, fixtures, heating, air conditioning
and ventilating equipment, elevators, boilers,
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equipment, roofs, structural members and furnaces) shall be in the same
condition at Closing as they are as of the date it is Ready for Occupancy,
reasonable wear and tear excepted. Prior to Closing, the Seller shall not have
diminished the quality or quantity of maintenance and upkeep services
heretofore provided to the Real Property and the Tangible Personal Property and
the Seller shall not have diminished the Inventory. The Seller shall not have
removed or caused or permitted to be removed any part or portion of the Real
Property or the Tangible Personal Property unless the same is replaced, prior
to Closing, after consultation with and prompt acceptance by the Purchaser,
which shall not be unreasonably withheld, with similar items of at least equal
quality and quantity.
6.7 Utilities. All of the Utilities shall be installed in and
operating at the Property, and service shall be available for the removal of
garbage and other waste from the Property. Between the date hereof and the date
of Closing, the Seller shall have received no notice of any extraordinary
increase or proposed increase in the rates charged for the Utilities from the
rates in effect as of the date hereof.
6.8 Land Use. The use and occupancy of the Property for hotel and
restaurant purposes are permitted as a matter of right as a principal use under
all laws applicable thereto without the necessity of any special use permit,
special exception or other special permit, permission or consent.
6.9 Hotel Franchise. Purchaser or its designee shall have received
a franchise with respect to the Hotel from the Licensor for a minimum term of
ten (10) years from the date hereof, all upon terms and conditions acceptable
to Purchaser. Purchaser will use its best efforts to obtain such approval and
shall pay all costs and expenses associated therewith, except with respect to
any improvements to the Property required by Licensor, which Seller shall pay
for at its sole cost and expense. Seller shall assist Purchaser in all respects
thereto.
6.10 Approval. The obligations of the Purchaser under this
Agreement are subject to the approval of (i) the board of directors of
Innkeepers Financial Corporation, a Virginia corporation, general partner of
the Purchaser, and (ii) the board of trustees of Innkeepers USA Trust, a
Maryland real estate investment trust (the "REIT").
6.11 License. From the date hereof to and including the Closing
Date, Seller shall comply with and perform all of the duties and obligations of
licensee under the License and/or Commitment to License.
6.12 Construction. A condition precedent to the acquisition of the
Real Property shall be that the Improvements shall be constructed, and shall
have been completed in a good and workmanlike manner, free from defects and in
accordance with the Plans and all applicable laws, rules, ordinances and
regulations.
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ARTICLE VII
CLOSING
7.1 Closing. Closing shall be held at 10:00 a.m. at the
Washington, D.C. offices of Hunton & ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or at a location that is mutually
acceptable to the parties, on or before September 1, 1996. Possession of the
Property shall be delivered to the Purchaser at Closing, subject only to
Permitted Title Exceptions and guests of the Hotel.
7.2 Seller's Deliveries. At Closing, the Seller shall deliver to
Purchaser all of the following instruments, each of which shall have been duly
executed and, where applicable, acknowledged on behalf of the Seller and shall
be dated as of the date of Closing:
(a) The certificate required by Section 6.2.
(b) The Deed.
(c) The ▇▇▇▇ of Sale [Inventory].
(d) The ▇▇▇▇ of Sale [Personal Property].
[(e) Certificate(s)/Registration of Title for any
vehicle owned by the Seller and used in connection with the Property.]
(f) Such agreements, affidavits or other
documents as may be required by the Title Company to issue the Owner's Title
Policy with affirmative coverage over mechanics' and materialmen's liens.
(g) The FIRPTA Certificate.
(h) True, correct and complete copies of all
warranties, if any, of manufacturers, suppliers and installers possessed by the
Seller and relating to the Improvements and the Personal Property, or any part
thereof.
(i) Certified copies of the Seller's
Organizational Documents.
(j) Appropriate resolutions of the general
partner of Seller certified by the secretary of said partner, together with all
other necessary approvals and consents of the Seller, authorizing (A) the
execution on behalf of the Seller of this Agreement and the documents to be
executed and delivered by the Seller prior to, at or otherwise in connection
with Closing, and (B) the performance by the Seller of its obligations
hereunder and under such documents.
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(k) If the Purchaser is assuming the Seller's
obligations under any or all of the Operating Agreements, the originals or
certified true and correct copies of such agreements, duly assigned to the
Purchaser and with such assignment acknowledged and approved by the other
parties to such Operating Agreements.
(l) The written consent of the Licensor to the
transfer of the license, if applicable, and if so required.
(m) A valid, final and unconditional certificate
of occupancy for the Real Property and Improvements, issued by the appropriate
governmental authority.
(n) A written instrument executed by the Seller
to the extent the Seller has the right and authority to do so, conveying and
transferring to the Purchaser all of the Seller's right, title and interest in
any telephone numbers and facsimile numbers relating to the Property, and, if
the Seller maintains a post office box, conveying to the Purchaser all of its
interest in and to such post office box and the number associated therewith, so
as to assure a continuity in operation and communication.
(o) All current real estate and personal property
tax bills in the Seller's possession or under its control.
(p) An affidavit from the chief executive officer
of the Seller setting forth the date through which all employees have been paid
and setting forth and describing, in detail, as to each employee, all accrued
but unpaid vacation pay and other fringe benefits.
(q) A complete set of all guest registration
cards, guest transcripts, guest histories, and all other available guest
information. Such information as set out in this Section 7.2(r) shall be deemed
delivered at Closing if provided to the Purchaser at the Property.
(r) An updated schedule of employees, showing
salaries and duties with a statement of the length of service of each such
employee, brought current to a date not more than 48 hours prior to the
Closing.
(s) A complete list of all advance room
reservations, functions and the like, in reasonable detail so as to enable the
Purchaser to honor the Seller's commitments in that regard.
(t) A list of the Seller's outstanding accounts
receivable as of midnight on the date prior to the Closing, specifying the name
of each account and the amount due the Seller.
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(u) Written notice executed by Seller notifying
all interested parties, including all tenants under any leases of the Property,
that the Property has been conveyed to the Purchaser and directing that all
payments, inquiries and the like be forwarded to the Purchaser at the address
to be provided by the Purchaser.
(v) All keys for the Property, which shall be
deemed delivered at Closing if provided to Purchaser at the Property.
(w) All books, records, operating reports,
appraisal reports, files and other materials in the Seller's possession or
control which are necessary in the Purchasers discretion to maintain continuity
of operation of the Property, which shall be deemed delivered at Closing if
provided to Purchaser, in whole or in part, at the Property, with the remainder
at the Closing.
(x) To the extent permitted under applicable law,
documents of transfer necessary to transfer to the Purchaser the Seller's
employment rating for workmens' compensation and state unemployment tax
purposes.
(y) An assignment of all warranties and
guarantees from all contractors and subcontractors, manufacturers, and
suppliers in effect with respect to the Improvements, to the extent the same
can be assigned.
(z) Complete set of "as-built" drawings for the
Improvements.
(aa) Such agreements, affidavits or other
documents as may be required by the Title Company in order to issue affirmative
mechanics lien coverage in the Owner's Title Policy for the Property.
(ab) Any other document or instrument reasonably
requested by the Purchaser or required hereby.
7.3 Purchaser's Deliveries. At Closing, the Purchaser shall pay or
deliver to the Seller the following:
(a) The Purchase Price described in Section 2.4.
(b) Any other document or instrument reasonably requested
by the Seller or required hereby.
(c) Appropriate consents of the partners of the Purchaser
if required by Purchaser's Organizational Documents, together with appropriate
resolutions of the board of directors of the general partner of the Purchaser,
and all other necessary approvals of the consents of the Purchaser and the
REIT, authorizing (A) the execution on behalf of the Purchaser of this
Agreement and the documents to be executed and delivered by the Seller
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prior to, at or otherwise in connection with Closing, and (B) the performance
by the Purchaser of its obligations hereunder and under such documents.
7.4 Mutual Deliveries. At Closing, the Purchaser and the Seller
shall mutually execute and deliver each to the other:
(a) The Assignment and Assumption Agreement.
(b) A closing statement reflecting the Purchase Price and
the adjustment and prorations required hereunder and the allocation of income
and expenses required hereby.
(c) Such transfer forms, if any, as may be required by
Licensor, to the extent not theretofore executed.
(d) Such other and further documents, papers and
instruments as may be reasonably requested by either party hereto or their
respective counsel.
7.5 Closing Costs. Except as is otherwise provided in Article
VIII, each party hereto shall pay its own legal fees and expenses. All filing
fees for the Deed and the real estate transfer, recording or other similar
taxes due with respect to the transfer of title shall borne equally by the
Purchaser and the Seller. The Seller shall pay for preparation of the documents
to be delivered by the Seller hereunder, and for the releases of any deeds of
trust, mortgages and other financing encumbering the Property and for any costs
associated with any corrective instruments. The Purchaser shall pay all charges
for title insurance premiums and all other costs (except any costs incurred by
the Seller for its own account) in carrying out the transactions contemplated
hereunder.
7.6 Income and Expense Allocations. All income, except any
Intangible Personal Property, and expenses with respect to the Property, and
applicable to the period of time before and after Closing, determined in
accordance with sound accounting principles consistently applied, shall be
allocated between the Seller and the Purchaser. The Seller shall be entitled to
all income and responsible for all expenses for the period of time up to but
not including the date of Closing, and the Purchaser shall be entitled to all
income and responsible for all expenses for the period of time from, after and
including the date of Closing. Only adjustments for ground rent, if applicable,
and real estate taxes shall be shown on the settlement statements (with such
supporting documentation as the parties hereto may require being attached as
exhibits to the settlement statements) and shall increase or decrease (as the
case may be) the amount payable by the Purchaser pursuant to Section 2.4. All
other such adjustments shall be made by separate agreement between the parties
and shall be payable by check or wire directly between the parties. Without
limiting the generality of the foregoing, the following items of income and
expense shall be allocated at Closing:
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(a) Current and prepaid rents, including, without
limitation, prepaid room receipts, function receipts and other reservation
receipts.
(b) Real estate and personal property taxes.
(c) Amounts under Operating Agreements to be assigned to
and assumed by the Purchaser.
(d) Utility charges (including but not limited to charges
for water, sewer and electricity).
(e) Value of fuel stored on the Property at the price
paid for such fuel by the Seller, including any taxes.
(f) All prepaid reservations and contracts for rooms
confirmed by Seller prior to the Closing Date for dates after the Closing Date,
all of which the Purchaser shall honor.
(g) The Room Ledger, if any, shall be divided equally
between the parties.
(h) Wages, vacation pay, pension and welfare benefits and
other fringe benefits of all persons employed at the Property who the Purchaser
elects to employ.
(i) Such other items as are usually and customarily
prorated between purchasers and sellers of hotel properties in the area where
the Property is located.
The Seller shall be required to pay all sales taxes and similar
impositions currently up to, but not including, the date of Closing.
Purchaser shall not be obligated to collect any accounts receivable or
revenues accrued prior to the Closing Date for Seller, but if Purchaser
collects same, such amounts will be promptly remitted to Seller in the form
received.
If accurate allocations cannot be made at Closing because current
bills are not obtainable (as, for example, in the case of utility bills or tax
bills), the parties shall allocate such income or expenses at Closing on the
best available information, subject to adjustment upon receipt of the final
▇▇▇▇ or other evidence of the applicable income or expense. The obligation to
make the adjustment shall survive the closing of the transaction contemplated
by this Agreement. Any income received or expense incurred by the Seller or the
Purchaser with respect to the Property after the date of Closing shall be
promptly allocated in the manner described herein and the parties shall
promptly pay or reimburse any amount due. The Seller shall pay at Closing all
special assessments and taxes applicable to the Property then due and owing
except real estate taxes, which shall be prorated between the parties.
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ARTICLE VIII
CONDEMNATION; RISK OF LOSS
8.1 Condemnation. In the event of any actual or threatened taking,
pursuant to the power of eminent domain, of all or any portion of the Real
Property, or any proposed sale in lieu thereof, the Seller shall give written
notice thereof to the Purchaser promptly after the Seller learns or receives
notice thereof. If all or any part of the Real Property is, or is to be, so
condemned or sold, the Purchaser shall have the right to terminate this
Agreement pursuant to Section 9.3. If the Purchaser elects not to terminate
this Agreement, all proceeds, awards and other payments arising out of such
condemnation or sale (actual or threatened) shall be paid or assigned, as
applicable, to the Purchaser at Closing.
8.2 Risk of Loss. The risk of any loss or damage to the Property
prior to the recordation of the Deed, or delivery of the Deed and physical
possession of the Property at Closing, shall remain upon the Seller. If any
such loss or damage occurs prior to Closing, the Purchaser shall have the right
to terminate this Agreement pursuant to Section 9.3. If the Purchaser elects
not to terminate this Agreement, all insurance proceeds and rights to proceeds
arising out of such loss or damage shall be paid or assigned, as applicable, to
the Purchaser at Closing.
ARTICLE IX
LIABILITY OF PURCHASER; INDEMNIFICATION BY SELLER;
TERMINATION RIGHTS
9.1 Liability of Purchaser. Except for any obligation expressly
assumed or agreed to be assumed by the Purchaser hereunder, the Purchaser does
not assume any obligation of the Seller or any liability for claims arising out
of any occurrence prior to Closing.
9.2 Indemnification by Seller. The Seller hereby indemnifies and
holds the Purchaser harmless from and against any and all claims, costs,
penalties, damages, losses, liabilities and expenses (including reasonable
attorneys' fees), that may at any time be incurred by the Purchaser, whether
before or after Closing, as a result of any material breach by the Seller of
any of its representations, warranties, covenants or obligations set forth
herein, except for any breach of a representation or warranty of which
Purchaser had actual knowledge prior to the Closing and nevertheless elected to
consummate the Closing. Purchaser hereby indemnifies and holds Seller harmless
from and against any and all claims, costs, penalties, damages, losses,
liabilities and expenses (including reasonable attorneys' fees) that may at any
time be incurred by Seller, whether before or after Closing, as a result of any
breach in any material respect by Purchaser of any of its representations,
warranties, covenants or obligations set forth herein, except for any breach of
a representation or warranty of which Seller had actual knowledge prior to
Closing and nevertheless elected to consummate the Closing. The provisions of
this Section shall survive the Closing of the transaction contemplated hereby
for a period of one (1) year after the Closing Date (unless
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Purchaser or Seller makes a claim by notice in writing to the other party in
connection with any such representation, warranty, covenant or obligation that
is the subject of such claim shall survive until such claim is finally
resolved).
9.3 Termination by Purchaser. If any condition set forth herein
cannot or will not be satisfied prior to Closing, or upon the occurrence of any
other event that would entitle the Purchaser to terminate this Agreement and
its obligations hereunder, and the Seller fails to cure any such matter within
ten business days after notice thereof from the Purchaser, the Purchaser, at
its option, may elect either (a) to terminate this Agreement, in which event
the Deposit shall be forthwith returned to the Purchaser and all other rights
and obligations of the Seller and the Purchaser hereunder shall terminate
immediately, or (b) to waive its right to terminate and, instead, to proceed to
Closing. Notwithstanding any termination hereof, the parties shall nevertheless
remain liable under Sections 4.19 and 5.6. If the Purchaser terminates this
Agreement as a consequence of a misrepresentation or breach of a warranty or
covenant by the Seller, or a failure by the Seller to perform its obligations
hereunder, at Purchaser's option, either the Deposit shall be promptly returned
to Purchaser and, in addition, Seller shall be obligated upon demand to
reimburse Purchaser for Purchaser's reasonable out-of-pocket investigation,
financing and other costs, including reasonable attorney fees, relating to
Purchaser's entering into this Agreement, inspecting the Property and preparing
for a Closing of the transaction contemplated hereby, not to exceed One Hundred
Thousand Dollars ($100,000.00) (which reimbursement obligation shall survive
such termination), and the parties hereto shall be released from all further
obligations hereunder except those which expressly survive a termination of
this Agreement, or Purchaser may elect to proceed to Closing and shall have the
right to pursue specific performance. In addition, if the Closing does not
occur on or before September 1, 1996, as the same may be extended through
Seller's Extension Right, as a consequence of a misrepresentation or breach of
a warranty or covenant by the Seller, or a failure by the Seller to perform its
obligation hereunder, and Purchaser elects to proceed to Closing on a later
date, Seller shall (i) reimburse Purchaser for any actual additional fees and
expenses incurred by Purchaser in extending the Letter of Credit from September
1, 1996 until the Closing date if the Closing is completed during the period of
Seller's Extension Right and (ii) in the event Closing is not completed during
the period of Seller's Extension Right, then Seller, in addition to the fees
and expenses incurred for extending the Letter of Credit, shall also pay to
Purchaser $1,041.10 for each day that Closing is extended beyond the date of
expiration of the Seller's Extension Right. Impac Hotel Development, Inc. shall
unconditionally guaranty all of Seller's monetary obligations under this
Section 9.3 pursuant to the guaranty attached as Exhibit K hereto.
9.4 Termination by Seller. If, prior to Closing, the Purchaser
defaults in performing any of its obligations under this Agreement (including
its obligation to purchase the Property), and the Purchaser fails to cure any
such default within ten business days after notice thereof from the Seller,
then the Seller's sole remedy for such default shall be to terminate this
Agreement and retain the Deposit. The Seller and the Purchaser agree that, in
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the event of such a default, the damages that the Seller would sustain as a
result thereof would be difficult if not impossible to ascertain. Therefore,
the Seller and the Purchaser agree that, the Seller shall retain the Deposit as
full and complete liquidated damages and as the Seller's sole remedy.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Completeness; Modification. This Agreement constitutes the
entire agreement between the parties hereto with respect to the transactions
contemplated hereby and supersedes all prior discussions, understandings,
agreements and negotiations between the parties hereto. This Agreement may be
modified only by a written instrument duly executed by the parties hereto.
10.2 Assignments. The Purchaser may freely assign its rights
hereunder to an affiliate of the Purchaser without the consent of the Seller.
Except as otherwise set forth in this section, neither the Seller nor the
Purchaser shall have the right to assign all or any part of its interest in
this Agreement without the prior written consent of the other party, which
consent shall not be unreasonably withheld, conditioned or delayed,and any such
attempted assignment without the other party's consent shall be null and void
and of no force and effect.
10.3 Successors and Assigns. This Agreement shall bind and inure to
the benefit of the parties hereto and their respective successors and assigns.
10.4 Days. If any action is required to be performed, or if any
notice, consent or other communication is given, on a day that is a Saturday or
Sunday or a legal holiday in the jurisdiction in which the action is required
to be performed or in which is located the intended recipient of such notice,
consent or other communication, such performance shall be deemed to be
required, and such notice, consent or other communication shall be deemed to be
given, on the first business day following such Saturday, Sunday or legal
holiday. Unless otherwise specified herein, all references herein to a "day" or
"days" shall refer to calendar days and not business days.
10.5 Governing Law. This Agreement and all documents referred to
herein shall be governed by and construed and interpreted in accordance with
the laws of the State of Georgia.
10.6 Counterparts. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required. It shall not be necessary
that the signature on behalf of both parties hereto appear on each counterpart
hereof. All counterparts hereof shall collectively constitute a single
agreement.
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10.7 Severability. If any term, covenant or condition of this
Agreement, or the application thereof to any person or circumstance, shall to
any extent be invalid or unenforceable, the remainder of this Agreement, or the
application of such term, covenant or condition to other persons or
circumstances, shall not be affected thereby, and each term, covenant or
condition of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
10.8 Costs. Regardless of whether Closing occurs hereunder, and
except as otherwise expressly provided herein, each party hereto shall be
responsible for its own costs in connection with this Agreement and the
transactions contemplated hereby, including without limitation fees of
attorneys, engineers and accountants.
10.9 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered by hand,
transmitted by facsimile transmission, sent prepaid by Federal Express (or a
comparable overnight delivery service) or sent by the United States mail,
certified, postage prepaid, return receipt requested, at the addresses and with
such copies as designated below. Any notice, request, demand or other
communication delivered or sent in the manner aforesaid shall be deemed given
or made (as the case may be) when actually delivered to the intended recipient.
If to the Seller: Peachtree Corners Hotels, L.P.
a Georgia limited partnership
c/o Impac Hotel Group
The Lenox Building
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Reece & Lang
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Purchaser: Innkeepers USA Limited Partnership
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: 407/▇▇▇-▇▇▇▇
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with a copy to: Hunton & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Or to such other address as the intended recipient may have specified in a
notice to the other party. Any party hereto may change its address or designate
different or other persons or entities to receive copies by notifying the other
party and the Escrow Agent in a manner described in this Section.
10.10 Incorporation by Reference. All of the exhibits attached
hereto are by this reference incorporated herein and made a part hereof.
10.11 Survival. All of the representations, warranties, covenants
and agreements of the Seller and the Purchaser made in, or pursuant to, this
Agreement shall survive for a the Closing and shall not merge into the Deed or
any other document or instrument executed and delivered in connection herewith.
10.12 Further Assurances. The Seller and the Purchaser each covenant
and agree to sign, execute and deliver, or cause to be signed, executed and
delivered, and to do or make, or cause to be done or made, upon the written
request of the other party, any and all agreements, instruments, papers, deeds,
acts or things, supplemental, confirmatory or otherwise, as may be reasonably
required by either party hereto for the purpose of or in connection with
consummating the transactions described herein.
10.13 No Partnership. This Agreement does not and shall not be
construed to create a partnership, joint venture or any other relationship
between the parties hereto except the relationship of seller and Purchaser
specifically established hereby.
10.14 Time of Essence. Time is of the essence with respect to every
provision hereof.
10.15 Confidentiality. Seller and its representatives, including any
brokers or other professionals representing Seller, shall keep the existence
and terms of this Agreement strictly confidential, except to the extent
disclosure is compelled by law, and then only to the extent of such compulsion.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be executed in their names by their respective duly-authorized
representatives.
SELLER:
Peachtree Corners Hotels, L.P., a
Georgia limited partnership
By: Peachtree Corners Lodging Associates, Inc.,
a Georgia corporation, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, President
PURCHASER:
INNKEEPERS USA LIMITED PARTNERSHIP, a
Virginia limited partnership
By: Innkeepers Financial Corporation, a Virginia
corporation, its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title: President
------------------------------------
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EXHIBIT A
LAND
37
EXHIBIT B
[INTENTIONALLY OMITTED]
38
EXHIBIT C
INSURANCE POLICIES
39
EXHIBIT D
PLANS AND SPECIFICATIONS
40
EXHIBIT E
SITE PLAN
41
EXHIBIT F
PROJECT BUDGET
42
EXHIBIT G
ALLOCATION OF PURCHASE PRICE
43
EXHIBIT H
ARCHITECT'S CERTIFICATE
44
EXHIBIT I
SELLER'S WARRANTIES AND GUARANTIES
45
EXHIBIT J
FF&E CONTRACT
46
EXHIBIT K
GUARANTY