EXHIBIT 10.38
ASSIGNMENT OF RIGHTS UNDER
AGREEMENTS OF PURCHASE AND SALE
THIS ASSIGNMENT OF RIGHTS UNDER AGREEMENTS OF PURCHASE AND SALE (the
"Assignment") is made as of this 18th day of March 1998, by PATRIOT AMERICAN
HOSPITALITY PARTNERSHIP, L.P., a Delaware partnership ("Assignor"), to and for
the benefit of HPTSHC PROPERTIES TRUST, a Maryland real estate investment trust
("Assignee").
W I T N E S S E T H:
WHEREAS, pursuant to fifteen Agreements of Purchase and Sale, each
dated as of March 18, 1998 (collectively, the "Purchase Agreements"), by and
between Assignor and the Kansas limited partnership identified therein as
"Summerfield" (collectively, "Summerfield"), Assignor has agreed to acquire
certain hotel properties (as hereinafter defined, the "Properties"), each as
more particularly described in the Purchase Agreements;
WHEREAS, Assignor desires to assign the Purchase Agreements and all of
Assignor's rights pursuant thereto to Assignee; and
WHEREAS, Assignee desires to accept such Assignment and succeed to all
of Assignor's rights, benefits, and interests under the Purchase Agreements; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged by the parties, Assignor
hereby agrees as follows:
1. Assignor hereby transfers, conveys, assigns and delivers unto
Assignee all of Assignor's right and benefits in, to and under the Purchase
Agreements.
2. Assignee hereby assumes all of the obligations of Assignor under the
Purchase Agreements.
3. Assignor represents and warrants to Assignee that:
i. Assignor has not previously assigned any of Assignor's
interest in the Purchase Agreements to any other person or entity;
ii. The Purchase Agreements have not been amended, modified or
supplemented in any way, and represent the entire agreement of the
parties thereto as to the subject matter thereof; Assignor has not made
any election, consented to any matter or exercised any option or right
provided to it under the Purchase Agreements not previously disclosed
in writing to Assignee;
iii. To the best of Assignor's knowledge, all representations
and warranties by Summerfield under or in connection with the Purchase
Agreements, or in any document,
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certificate or agreement delivered in connection therewith, are true
and correct on the date hereof; and
iv. Assignor has furnished to Assignee all materials provided
to Assignor by Summerfield under Section 2.4 of each Purchase
Agreement.
4. Assignor shall protect, indemnify and hold harmless Assignee for,
from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and reasonable expenses (including, without limitation,
reasonable attorneys' fees), imposed upon or incurred by or asserted against
Assignee under any Purchase Agreement or hereunder, excluding, however, (i) the
payment of the Purchase Price by Assignee specified in Part 3 of Schedule A1 of
each Purchase Agreement, and (ii) any liability of Assignee arising under any
Purchase Agreement that is determined, in a final non-appealable judgment by a
court of competent jurisdiction, to have resulted from the gross negligence,
wilful misconduct or failure of Landlord to perform the obligations of purchaser
thereunder that arise after the effective date of the Assignment Agreement. The
obligations of Assignor under this paragraph 4 shall expire and be of no further
force and effect from and after the date that a Lease Agreement with respect to
the Properties has been entered into by Assignee, as landlord, and Summerfield
HPT Lease Company, L.P., as tenant.
5. Nonliability of Trustees, Etc. THE DECLARATION OF TRUST ESTABLISHING
ASSIGNEE, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE
"DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF
THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HPTSHC PROPERTIES TRUST" REFERS
TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT
INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE
OR AGENT OF ASSIGNEE SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR
SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, ASSIGNEE. ALL PERSONS
DEALING WITH ASSIGNEE, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF ASSIGNEE FOR
THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
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IN WITNESS THEREOF, the parties hereto have executed and delivered this
Assignment as of the date above first written.
ASSIGNOR:
PATRIOT AMERICAN HOSPITALITY PARTNERSHIP
L.P., a Delaware limited partnership
By: PAH GP, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
ASSIGNEE:
HPTSHC PROPERTIES TRUST, a Maryland real
estate investment trust
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Its: President