EXHIBIT 10.37
21902 Lassen
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
AGREEMENT OF PURCHASE AND SALE
between
PATRIOT AMERICAN HOSPITALITY PARTNERSHIP, L.P.
a Delaware limited partnership
("Patriot")
and
CHATSWORTH SUMMERFIELD ASSOCIATES, L.P.
a Kansas limited partnership
("Summerfield")
TABLE OF CONTENTS
Page
ARTICLE IA PART A..................................................................................... 6
1.1A Part B of this Agreement................................................................... 6
1.1B Part A of this Agreement................................................................... 6
ARTICLE I DEFINITIONS................................................................................ 1
1.1 Definitions................................................................................ 1
ARTICLE II PURCHASE AND SALE OF PROPERTY; DEPOSIT;
PAYMENT OF PURCHASE PRICE; TITLE........................................................... 8
2.1 Purchase and Sale.......................................................................... 8
2.2 Payment of Purchase Price.................................................................. 8
2.3 Deposit.................................................................................... 8
2.4 Submission Matters and Title Information................................................... 8
2.5 Availability of Information and Access..................................................... 9
ARTICLE III SUMMERFIELD'S REPRESENTATIONS
AND WARRANTIES............................................................................. 10
3.1 Organization and Power..................................................................... 10
3.2 Authorization and Execution................................................................ 10
3.3 Non-contravention.......................................................................... 10
3.4 No Special Taxes........................................................................... 11
3.5 Compliance with Existing Laws.............................................................. 11
3.6 Personal Property.......................................................................... 11
3.7 Operating Agreements....................................................................... 11
3.8 Insurance.................................................................................. 11
3.9 Condemnation Proceedings; Roadways......................................................... 11
3.10 Actions or Proceedings..................................................................... 12
3.11 Labor and Employment Matters............................................................... 12
3.13 Submission Matters......................................................................... 12
3.14 Bankruptcy................................................................................. 12
3.15 Hazardous Substances....................................................................... 13
3.16 Occupancy Agreements....................................................................... 13
3.17 Leased Property............................................................................ 14
3.18 Americans With Disabilities Act............................................................ 14
3.19 Structural Condition....................................................................... 14
3.20 Zoning and Platting........................................................................ 14
3.21 Access..................................................................................... 14
3.22 No Commitments............................................................................. 14
3.23 Summerfield Is Not a "Foreign Person"...................................................... 14
3.24 No Other Property Interests................................................................ 14
3.25 Management Agreement....................................................................... 14
3.26 Development Agreement...................................................................... 15
3.27 Relationship to Certain Parties............................................................ 15
3.28 Liquor License............................................................................. 15
3.29 Improvements............................................................................... 15
3.30 Warranties and Guaranties.................................................................. 15
3.31 Limitations on Representations and Warranties.............................................. 15
ARTICLE IV PATRIOT'S REPRESENTATIONS AND WARRANTIES................................................... 16
4.1 Organization and Power..................................................................... 16
4.2 Authority of Patriot....................................................................... 16
4.3 Non-contravention.......................................................................... 16
4.4 Litigation................................................................................. 17
4.5 Submission Matters......................................................................... 17
4.6 Bankruptcy................................................................................. 17
ARTICLE V CONDITIONS PRECEDENT....................................................................... 17
5.1 As to Patriot's Obligations................................................................ 17
5.2 As to Summerfield's Obligations............................................................ 18
ARTICLE VI COVENANTS OF SUMMERFIELD................................................................... 19
6.1 Operating Agreements, Occupancy Agreements
and Management Agreement .................................................................. 19
6.2 Insurance.................................................................................. 20
6.3 Audited Statements......................................................................... 20
6.4 Operation of Properties Prior to Closing................................................... 20
6.5 No Marketing............................................................................... 22
6.6 Liens...................................................................................... 22
6.7 Corporate and Bulk Sales Clearance......................................................... 22
ARTICLE VII CLOSING.................................................................................... 23
7.1 Closing.................................................................................... 23
7.2 Summerfield's Deliveries................................................................... 23
7.3 Patriot's Deliveries....................................................................... 26
7.4 Mutual Deliveries.......................................................................... 27
7.5 Closing Costs.............................................................................. 27
7.6 Revenue and Expense Allocations............................................................ 27
7.7 Summerfield's Accounts Receivable.......................................................... 29
ARTICLE VIII GENERAL PROVISIONS......................................................................... 30
8.1 Condemnation............................................................................... 30
8.2 Risk of Loss............................................................................... 30
8.3 Absence of Broker.......................................................................... 31
8.4 Confidentiality............................................................................ 31
8.5 Employees.................................................................................. 32
8.6 Investment Bankers......................................................................... 32
8.7 Radon Disclosure........................................................................... 32
ARTICLE IX LIABILITY OF PATRIOT, INDEMNIFICATION BY
SUMMERFIELD;DEFAULT; TERMINATION RIGHTS.................................................... 33
9.1 Expenses................................................................................... 33
9.2 Indemnification by Summerfield............................................................. 33
9.3 Indemnification by Patriot................................................................. 33
9.4 Waiver of Rights........................................................................... 34
9.5 Expiration of Representations, Warranties and Covenants.................................... 34
9.6 Deductible Amount.......................................................................... 34
9.7 Exclusivity................................................................................ 34
9.8 No Implied Representations................................................................. 35
9.9 Costs and Attorneys' Fees.................................................................. 35
9.10 Limitation of Liability.................................................................... 35
ARTICLE X TERMINATION AND ENFORCEMENT................................................................ 35
10.1 Termination Events......................................................................... 35
10.2 Termination Procedures..................................................................... 36
10.3 Effect of Termination - LIQUIDATED DAMAGES................................................. 36
10.4 Enforcement Events......................................................................... 37
ARTICLE XI MISCELLANEOUS PROVISIONS................................................................... 38
11.1 Completeness; Modification................................................................. 38
11.2 Assignments................................................................................ 38
11.3 Successors and Assigns..................................................................... 38
11.4 Days....................................................................................... 38
11.5 Governing Law.............................................................................. 38
11.6 Counterparts............................................................................... 38
11.7 Severability............................................................................... 38
11.8 Costs...................................................................................... 38
11.9 Notices.................................................................................... 39
11.10 Escrow Agent............................................................................... 40
11.11 Incorporation by Reference................................................................. 40
11.12 Further Assurances......................................................................... 40
11.13 No Partnership............................................................................. 40
11.14 Time of Essence............................................................................ 40
11.15 Signatory Exculpation...................................................................... 40
11.16 Rules of Construction...................................................................... 41
AGREEMENT OF PURCHASE AND SALE - PART A
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made as of
this 18th day of March, 1998, between PATRIOT AMERICAN HOSPITALITY PARTNERSHIP,
L.P., a Delaware limited partnership ("Patriot"), and CHATSWORTH SUMMERFIELD
ASSOCIATES, L.P., a Kansas limited partnership ("Summerfield")
R E C I T A T I O N S:
▇. ▇▇▇▇▇▇▇▇▇▇▇ is the owner of the hotel property as identified in
Exhibit A1 attached hereto.
B. Patriot is desirous of purchasing the hotel property from
Summerfield and Summerfield is desirous of selling such hotel property to
Patriot, for the purchase price and upon the terms and conditions hereinafter
set forth.
C. It is intended that simultaneously with the execution hereof,
Patriot shall execute and deliver the Shimizu Purchase Agreements (as defined
herein).
D. After the execution and delivery of this Agreement, the partners of
SF Hotel Company, L.P. intend to execute and deliver the Contribution Agreement
(as defined herein) pursuant to which Patriot intends to acquire the management
business and brand names in the Property and in other properties which are the
subject of the Shimizu Purchase Agreement (as defined herein) together with all
the right, title and interest of the partners of SF Hotel Company, L.P. in
certain other real properties as more particularly detailed therein.
NOW, THEREFORE, in consideration of premises and in consideration of
the mutual covenants, promises and undertakings of the parties hereinafter set
forth, and for other good and valuable considerations, the receipt and
sufficiency of which is hereby acknowledged by the parties, it is agreed:
ARTICLE IA
PART A
1.1A Part B of this Agreement. Part B of this Agreement shall be
similar in form and substance to Part B in each of the Shimizu Purchase
Agreements and Part A is attached hereto to the extent that it consists of those
certain definitions, Schedules and Exhibits which are referred to in Part B but
which vary as between this Agreement and each of the Shimizu Purchase
Agreements.
1.1B Part A of this Agreement. The Schedules and Exhibits in Part A of
this Agreement appear as hereinafter set forth.
IN WITNESS WHEREOF, Summerfield and Patriot have caused this Agreement
comprising both PART A and PART B hereof to be executed in their names by their
respective duly authorized representatives.
PATRIOT:
PATRIOT AMERICAN HOSPITALITY PARTNERSHIP L.P., a
Delaware limited partnership
By: PAH GP, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: authorized signatory
Date of Execution: March 18, 1998
SUMMERFIELD:
CHATSWORTH SUMMERFIELD ASSOCIATES, L.P., a Kansas
limited partnership
By: SC Suites Corp., a Delaware corporation, a
general partner
By: /s/ ▇. ▇▇▇▇▇▇▇▇
Name: ▇. ▇▇▇▇▇▇▇▇
Title: Secretary and Treasurer
By: Summerfield Suites Holding Corporation, a
Delaware corporation, a general partner
By: /s/ B. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: B. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
Date of Execution: March 18, 1998
SCHEDULE A1
PART 1
NAME OF SELLER
CHATSWORTH SUMMERFIELD ASSOCIATES, L.P.,
a Kansas limited partnership
PART 2
FF&E CASH RESERVE
Balance as of February 28, 1998 is $248,705.06
PART 3
PURCHASE PRICE
$10,006,248.00 of which $1,000,624.80 thereof is attributed to the
Tangible Personal Property (hereinafter defined)
PART 4
SURVEY
That survey of latest date prepared by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (PLS 5490) of ▇▇▇▇▇▇ and
Associates pertaining to the Real Property.
SCHEDULE A2
SHIMIZU PURCHASE AGREEMENTS
I Agreement of Purchase and Sale of even date herewith by and between
Patriot American Hospitality Partnership, L.P. and Atlanta Buckhead
Summerfield Associates, ▇.▇.
▇▇ Agreement of Purchase and Sale of even date herewith by and between
Patriot American Hospitality Partnership, L.P. and Atlanta Perimeter
Summerfield Associates, L.P.
III Agreement of Purchase and Sale of even date herewith by and between
Patriot American Hospitality Partnership, L.P. and Dulles Summerfield
Associates, ▇.▇.
▇▇ Agreement of Purchase and Sale of even date herewith by and between
Patriot American Hospitality Partnership, L.P. and Malvern Summerfield
Associates, L.P.
V Agreement of Purchase and Sale of even date herewith by and between
Patriot American Hospitality Partnership, L.P. and Orlando
International Summerfield Associates, L.P.
VI Agreement of Purchase and Sale of even date herewith by and between
Patriot American Hospitality Partnership, L.P. and Orlando/Cypress
Pointe Summerfield Associates, L.P.
VII Agreement of Purchase and Sale of even date herewith by and between
Patriot American Hospitality Partnership, L.P. and Princeton
Summerfield Associates, L.P.
VIII Agreement of Purchase and Sale of even date herewith by and between
Patriot American Hospitality Partnership, L.P. and Westport Summerfield
Associates, L.P.
IX Agreement of Purchase and Sale of even date herewith by and between
Patriot American Hospitality Partnership, L.P. and San ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ Associates, L.P.
X Agreement of Purchase and Sale of even date herewith by and between
Patriot American Hospitality Partnership, L.P. and San ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Associates, L.P.
XI Agreement of Purchase and Sale of even date herewith by and between
Patriot American Hospitality Partnership, L.P. and ▇▇▇▇▇▇▇▇▇▇
Summerfield Associates, L.P.
XII Agreement of Purchase and Sale of even date herewith by and between
Patriot American Hospitality Partnership, L.P. and Somerset Summerfield
Associates, L.P.
XIII Agreement of Purchase and Sale of even date herewith by and between
Patriot American Hospitality Partnership, L.P. and Sunnyvale
Summerfield Associates, L.P.
XIV Agreement of Purchase and Sale of even date herewith by and between
Patriot American Hospitality Partnership, L.P. and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Associates, L.P.
SCHEDULE A3
OCCUPANCY AGREEMENTS
NONE
SCHEDULE A4
OPERATING AGREEMENTS
1. Summerfield Suites Hotel - License Agreement dated as of April 7, 1997
between Summerfield Suites Management Company L.P., and Chatsworth
Summerfield Associates, L.P. to be replaced by License Agreement dated
as of Closing Date between Summerfield Suites Management Company, L.P.
and Summerfield HPT Lease Company, L.P.
SCHEDULE A5
INSURANCE POLICIES
SEE ATTACHED
SCHEDULE A6
PERSONAL PROPERTY LEASES
NONE
SCHEDULE A7
AUTHORIZATIONS
CHATSWORTH (SMR), CA
Payee Type of License Status
A. Permits Provided
City of Los Angeles Police Commission Permit Provided
City of Los Angeles Fire Permit Provided
City of Los Angeles Tax Registration Certificate Provided
State of California ABC Qualification of General Manager Provided
City of Los Angeles Certificate of Occupancy - Provided
Spa-Enclosure
City of Los Angeles Certificate of Occupancy - Provided
Hotel - 3 Story (Bldg. 4)?
City of Los Angeles Certificate of Occupancy - Provided
Pool Maintenance Bldg.
City of Los Angeles Certificate of Occupancy - Provided
Hotel - 2 story (Bldg. 3)
City of Los Angeles Certificate of Occupancy - Provided
Hotel - 2 story (Bldg. 2)
City of Los Angeles Certificate of Occupancy - Provided
Hotel - 3 story (Bldg. 6)
City of Los Angeles Certificate of Occupancy - Provided
Pool - Enclosure
City of Los Angeles Certificate of Occupancy - Provided
Hotel w/Office 3-story (Bldg. 1)
City of Los Angeles Certificate of Occupancy - Provided
Hotel - 3 story (Bldg. 5)
County of Los Angeles Hotel/Pool Provided
California State Board of Equalization Seller's Permit Provided
County of Los Angeles Public Health Operating Restaurant Provided
State of California ABC Type 42 On Sale Beer/Wine Provided
State of California ABC Duplicate Type 42 On Sale Beer/Wine Provided
County of Los Angeles Public Health Operating Pool Provided
B. Permits Not Provided or Expired
Appropriate Government Authority Any Spa permit, if applicable Not Provided
Appropriate Government Authority Federal Tax Stamp Permit Not Provided
SCHEDULE A8
DISCLOSURE SCHEDULE
SEE ATTACHED
EXHIBIT A1
LEGAL DESCRIPTION
THAT PORTION OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇ THE CITY OF LOS ANGELES, COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON MAP RECORDED IN BOOK 48, PAGES 16
TO 19 INCLUSIVE OF MAPS, AND A PORTION OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ AND STATE, AS SHOWN ON MAP RECORDED IN BOOK 757, PAGES 22 AND 23 OF
MAPS, AND A PORTION OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ AND STATE, AS SHOWN ON MAP RECORDED IN BOOK 30, PAGE 91 OF MISCELLANEOUS
RECORDS, ALL IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS A
WHOLE AS FOLLOWS:
COMMENCING AT THE NORTHWESTERLY CORNER OF SAID ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇; THENCE
ALONG THE NORTHERLY LINEN OF SAID LAST MENTIONED ▇▇▇ ▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ 37.5 SECONDS EAST 130.00 FEET TO THE EASTERLY LINE OF THE WESTERLY
150.00 FEET OF SAID ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇; THENCE ALONG SAID EASTERLY LINE, NORTH
0 DEGREES 00 MINUTES 15 SECONDS WEST 154.58 FEET TO THE NORTHERLY LINE OF LAST
SAID LOT 1; THENCE ALONG SAID LAST MENTIONED NORTHERLY LINE, SOUTH 89 DEGREES 58
MINUTES 15 SECONDS EAST 136.00 FEET TO THE POINT OF BEGINNING; THENCE
(1) PARALLEL WITH THE WESTERLY LINE OF LAST SAID ▇▇▇ ▇, ▇▇▇▇▇ ▇▇ DEGREES 00
MINUTES 15 SECONDS EAST 504.56 FEET TO THE NORTHERLY LINE OF ▇▇▇ ▇ ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇; THENCE
(2) ALONG SAID LAST MENTIONED NORTHERLY LINE, SOUTH 89 DEGREES 58 MINUTES
37.5 SECONDS EAST 233.35 FEET TO ITS INTERSECTION WITH A LINE LYING
519.35 FEET EASTERLY OF, AND PARALLEL WITH, MEASURED AT RIGHT ANGLES
FROM SAID WESTERLY LINE OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇; THENCE
(3) ALONG SAID LAST MENTIONED PARALLEL LINE, NORTH 00 DEGREES 00 MINUTES 15
SECONDS WEST 504.54 FEET TO SAID NORTHERLY LINE OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇; THENCE
(4) ALONG SAID LAST MENTIONED NORTHERLY LINE, NORTH 89 DEGREES 58 MINUTES
15 SECONDS WEST 233.35 FEET TO ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇.
▇▇▇▇▇▇▇ ▇▇-▇
▇▇▇▇▇ Lassen
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AGREEMENT, dated as of the _______ day of March, 1998 (the
"Effective Date"), by and between CHATSWORTH SUMMERFIELD ASSOCIATES, L.P., a
Kansas limited partnership ("Assignor"), and SUMMERFIELD HPT LEASE COMPANY,
L.P., a Kansas limited partnership ("Assignee"), provides:
WITNESSETH:
THAT for and in consideration of the sum of Ten Dollars ($10.00) cash
in hand paid, the covenants and promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as of the Effective Date as
follows:
(a) Assignment. Assignor hereby transfers and assigns to Assignee the
following, without warranty (except as appears in that certain Agreement of
Purchase and Sale between the parties dated of even date and pertaining to the
Property as hereinafter defined) to Assignee the following, to-wit:
(i) All of Assignor's right, title, interest and benefit,
if any, in, to, and under any and all licenses, permits, certificates
of occupancy, and similar documents pertaining, or applicable to, or in
any way connected with, the ownership or operation of the real property
described on Exhibit A attached hereto and made a part hereof for all
purposes (the "Property") and Assignor's use of the Property as a
hotel, including all improvements and amenities comprising a part of
the Property;
(ii) All right, title and interest and benefit of Assignor,
if any, in, to and under any and all rights, benefits, guaranties,
warranties, affidavits, lien waivers and agreements given heretofore or
due and with respect to the construction or composition of all
improvements comprising a part of the Property or to any appliances,
equipment, furnishings, fixtures or personal property comprising a part
of the Property, including, without limitation, all rights, guaranties,
and warranties inuring to the benefit of Assignor;
(iii) All right, title, and interest of Assignor, if any,
in and to certain (i) personal property leases including all amendments
and modifications thereto and subleases thereof, as listed on Exhibit B
attached hereto and made a part hereof for all purposes (collectively,
the "Leases"), together with all of Assignor's right, title and
interest in and to all security, escrow, breakage, refundable cleaning
fees and similar deposits and fees paid or due under the Leases and all
interest charges required by law to be accrued thereon, all rents,
issues, profits, rights of contract and otherwise with respect to the
Leases, and any estoppel or other similar certificates received by
Assignor and relating to the Leases;
(iv) All right, title, interests and benefits of Assignor,
if any, in and to all plans, specifications, drawings, surveys and
similar documents relating to the Property or to the construction of
buildings and other improvements thereon, thereover or thereunder, or
for the benefit of, or as an appurtenance to, all or any portion of the
Property;
(v) All right, title, and interest of Assignor, if any, in
and to certain operating agreements relating to the Property, including
all amendments and modifications thereto, as listed on Exhibit C
attached hereto and made a part thereof for all purposes (collectively,
the "Operating Agreements");
(vi) All right, title, and interest of Assignor, if any, in
and to all occupancy agreements relating to the Property, including all
amendments and modifications thereto as listed on Exhibit D attached
hereto and made a part hereof for all purposes (collectively, the
"Occupancy Agreements"), together with all of Assignor's right, title
and interest in and to all deposits and fees paid or due under the
Occupancy Agreements and all interest charges required by law to be
accrued thereon, and all rents, issues, profits, rights of contract and
otherwise with respect to the Occupancy Agreements;
(vii) All right, title, and interest of Assignor, if any,
in and to the Intangible Personal Property, as defined in that certain
Transfer Agreement, by and between Assignee and Assignor dated March
___, 1998 (the "Transfer Agreement") relating to the Property and used
in connection with the ownership, operation, leasing, occupancy or
maintenance of the Property.
(viii) All right, title, and interest of Assignor, if any,
in and to all TWX numbers relating to the Property, being listed on
Exhibit E attached hereto and made a part hereof for all purposes
(collectively, the "TWX Numbers");
(ix) All right, title, and interest of Assignor, if any, in
and to all post office boxes relating to the Property, being more
particularly described on Exhibit F attached hereto and made a part
hereof for all purposes (collectively, the "P.O. Boxes"); and
(b) Assumption. In consideration of the assignments set forth in
paragraph (a) hereof and in accordance with the terms and conditions of the
Transfer Agreement, Assignee hereby assumes the Assumed Liabilities as defined
in the Transfer Agreement which includes, inter alia, the interests assigned in
paragraph (a) hereof (collectively, the "Assigned Interests") provided however
that notwithstanding anything herein to the contrary, the Assigned Interests do
not include any items which are capable of being leased to Tenant (as defined in
the PSA) and which are being assigned to and assumed by Patriot American
Hospitality Partnership L.P. ("PAHLP") pursuant to a certain Assignment and
Assumption Agreement of even date herewith relating to the Property by and
between Assignor and PAHLP.
(c) Further Assurances. Assignor agrees to execute or procure and
deliver to Assignee such other and further documents and instruments, or perform
such other acts as may be reasonably necessary to effect the assignment of the
Assigned Interests contained herein or otherwise evidence or effect the terms
and provisions of this Agreement.
(d) Governing Laws. This Agreement shall be governed by, and construed
and interpreted under, the laws of Delaware.
(e) Successors and Assigns Bound and Benefitted. This Agreement and the
terms and provisions hereof shall inure to the benefit of, and be binding upon,
the respective successors and assigns of Assignor and Assignee.
(f) Counterparts. This Agreement may be executed and delivered in any
number of counterparts, each of which so executed and delivered shall be deemed
to be an original and all of which shall constitute one and the same instrument.
TO HAVE AND TO HOLD all of Assignor's right, title and interest in and
to the Assigned Interests, together with all rights, hereditaments and
appurtenances pertaining thereto, unto Assignee and Assignee's successors and
assigns forever; and Assignor does hereby bind itself and its successors and
assigns to warrant and defend subject to the terms and conditions of the
Transfer Agreement, all of Assignor's right, title and interest in and to the
Assigned Interests unto Assignee and Assignee's successors and assigns, against
every person whomsoever claiming or to claim the same or any part thereof, by,
through or under Assignor, but not otherwise.
IN WITNESS WHEREOF, Assignor and Assignee each has caused this
Agreement to be executed under seal by its duly authorized representative as of
the day and year first above written.
ASSIGNOR:
CHATSWORTH SUMMERFIELD
ASSOCIATES, L.P., a Kansas limited partnership
By: SC Suites Corp., a Delaware corporation, its
general partner
By:
Name:
Title:
By: Summerfield Suites Holding Corporation, a
Delaware corporation, its general partner
By:
Name:
Title:
Date of Execution:
ASSIGNEE:
SUMMERFIELD HPT LEASE COMPANY, L.P.
a Kansas limited partnership
By: Summerfield HPT Lease Company LLC,
a Delaware LLC
By:
Name:
Title:
Date of Execution:
EXHIBIT A ATTACHED TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
Legal Description
THAT PORTION OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇ THE CITY OF LOS ANGELES, COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON MAP RECORDED IN BOOK 48, PAGES 16
TO 19 INCLUSIVE OF MAPS, AND A PORTION OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ AND STATE, AS SHOWN ON MAP RECORDED IN BOOK 757, PAGES 22 AND 23 OF
MAPS, AND A PORTION OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ AND STATE, AS SHOWN ON MAP RECORDED IN BOOK 30, PAGE 91 OF MISCELLANEOUS
RECORDS, ALL IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS A
WHOLE AS FOLLOWS:
COMMENCING AT THE NORTHWESTERLY CORNER OF SAID ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇; THENCE
ALONG THE NORTHERLY LINEN OF SAID LAST MENTIONED ▇▇▇ ▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ 37.5 SECONDS EAST 130.00 FEET TO THE EASTERLY LINE OF THE WESTERLY
150.00 FEET OF SAID ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇; THENCE ALONG SAID EASTERLY LINE, NORTH
0 DEGREES 00 MINUTES 15 SECONDS WEST 154.58 FEET TO THE NORTHERLY LINE OF LAST
SAID LOT 1; THENCE ALONG SAID LAST MENTIONED NORTHERLY LINE, SOUTH 89 DEGREES 58
MINUTES 15 SECONDS EAST 136.00 FEET TO THE POINT OF BEGINNING; THENCE
(1) PARALLEL WITH THE WESTERLY LINE OF LAST SAID ▇▇▇ ▇, ▇▇▇▇▇ ▇▇ DEGREES 00
MINUTES 15 SECONDS EAST 504.56 FEET TO THE NORTHERLY LINE OF ▇▇▇ ▇ ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇; THENCE
(2) ALONG SAID LAST MENTIONED NORTHERLY LINE, SOUTH 89 DEGREES 58 MINUTES
37.5 SECONDS EAST 233.35 FEET TO ITS INTERSECTION WITH A LINE LYING
519.35 FEET EASTERLY OF, AND PARALLEL WITH, MEASURED AT RIGHT ANGLES
FROM SAID WESTERLY LINE OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇; THENCE
(3) ALONG SAID LAST MENTIONED PARALLEL LINE, NORTH 00 DEGREES 00 MINUTES 15
SECONDS WEST 504.54 FEET TO SAID NORTHERLY LINE OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇; THENCE
(4) ALONG SAID LAST MENTIONED NORTHERLY LINE, NORTH 89 DEGREES 58 MINUTES
15 SECONDS WEST 233.35 FEET TO THE POINT OF BEGINNING.
EXHIBIT B ATTACHED TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
Personal Property Leases
None
EXHIBIT C ATTACHED TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
Operating Agreements
CHATSWORTH (SMR), CA
OPERATING AGREEMENTS
1. Summerfield Suites Hotel - License Agreement dated as of April 7, 1997
between Summerfield Suites Management Company L.P., and Chatsworth
Summerfield Associates, L.P. to be replaced by License Agreement dated
of even date herewith between Summerfield Suites Management Company,
L.P. and Summerfield HPT Lease Company, L.P.
EXHIBIT D ATTACHED TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
The Occupancy Agreements
None
EXHIBIT E ATTACHED TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
The TWX Numbers
None
EXHIBIT F ATTACHED TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
The P.O. Boxes
None
EXHIBIT G ATTACHED TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
The Management Agreement
Management Agreement by and between Summerfield Suites Management Company, L.P.
and Chatsworth Summerfield Associates dated January 30, 1990 to be replaced by
Management Agreement of even date herewith by and between Summerfield Suites
Management Company, L.P. and Summerfield HPT Lease Company, L.P.
EXHIBIT A2-2
21902 Lassen
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AGREEMENT, dated as of the _______ day of March, 1998 (the
"Effective Date"), by and between CHATSWORTH SUMMERFIELD ASSOCIATES, L.P., a
Kansas limited partnership ("Assignor"), and PATRIOT AMERICAN HOSPITALITY
PARTNERSHIP, L.P., a Delaware limited partnership ("Assignee"), provides:
WITNESSETH:
THAT for and in consideration of the sum of Ten Dollars ($10.00) cash
in hand paid, the covenants and promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as of the Effective Date as
follows:
(a) Assignment. Assignor hereby transfers and assigns to Assignee the
following, without warranty (except as appears in that certain Agreement of
Purchase and Sale between the parties dated of even date and pertaining to the
Property as hereinafter defined) to Assignee the following, to-wit:
(i) All of Assignor's right, title, interest and benefit,
if any, in, to, and under any and all licenses, permits, certificates
of occupancy, and similar documents pertaining, or applicable to, or in
any way connected with, the ownership or operation of the real property
described on Exhibit A attached hereto and made a part hereof for all
purposes (the "Property") and Assignor's use of the Property as a
hotel, including all improvements and amenities comprising a part of
the Property;
(ii) All right, title and interest and benefit of Assignor,
if any, in, to and under any and all rights, benefits, guaranties,
warranties, affidavits, lien waivers and agreements given heretofore or
due and with respect to the construction or composition of all
improvements comprising a part of the Property or to any appliances,
equipment, furnishings, fixtures or personal property comprising a part
of the Property, including, without limitation, all rights, guaranties,
and warranties inuring to the benefit of Assignor;
(iii) All right, title, and interest of Assignor, if any,
in and to certain (i) personal property leases including all amendments
and modifications thereto and subleases thereof, as listed on Exhibit B
attached hereto and made a part hereof for all purposes (collectively,
the "Leases"), together with all of Assignor's right, title and
interest in and to all security, escrow, breakage, refundable cleaning
fees and similar deposits and fees paid or due under the Leases and all
interest charges required by law to be accrued thereon, all rents,
issues, profits, rights of contract and otherwise with respect to the
Leases, and any estoppel or other similar certificates received by
Assignor and relating to the Leases;
(iv) All right, title, interests and benefits of Assignor,
if any, in and to all plans, specifications, drawings, surveys and
similar documents relating to the Property or to the construction of
buildings and other improvements thereon, thereover or thereunder, or
for the benefit of, or as an appurtenance to, all or any portion of the
Property;
(v) All right, title, and interest of Assignor, if any, in
and to all TWX numbers relating to the Property, being listed on
Exhibit E attached hereto and made a part hereof for all purposes
(collectively, the "TWX Numbers");
(vi) All right, title, and interest of Assignor, if any, in
and to all post office boxes relating to the Property, being more
particularly described on Exhibit F attached hereto and made a part
hereof for all purposes (collectively, the "P.O. Boxes"); and
(b) Assumption. In consideration of the assignments set forth in
paragraph (a) hereof and in accordance with the terms and conditions of that
certain Agreement of Purchase and Sale by and between Assignor and Assignee
dated March ___, 1998 (the "PSA"), Assignee hereby assumes all of Assignor's
obligations arising and accruing from and after the Effective Date under any and
all of the interests assigned in paragraph (a) hereof (collectively, the
"Assigned Interests"), provided however that notwithstanding anything herein to
the contrary, Assignor is not transferring or assigning and Assignee is not
assuming hereunder any items used in the operation of the Hotel which are not
capable of being leased to Summerfield HPT Lease Company, L.P. ("Tenant")
pursuant to the Facility Lease (as defined in the PSA) and which are accordingly
being assigned to and assumed directly by Tenant pursuant to a certain other
Assignment and Assumption Agreement of even date herewith by and between
Assignor and Tenant.
(c) Further Assurances. Assignor agrees to execute or procure and
deliver to Assignee such other and further documents and instruments, or perform
such other acts as may be reasonably necessary to effect the assignment of the
Assigned Interests contained herein or otherwise evidence or effect the terms
and provisions of this Agreement.
(d) Governing Laws. This Agreement shall be governed by, and construed
and interpreted under, the laws of Delaware.
(e) Successors and Assigns Bound and Benefitted. This Agreement and the
terms and provisions hereof shall inure to the benefit of, and be binding upon,
the respective successors and assigns of Assignor and Assignee.
(f) Counterparts. This Agreement may be executed and delivered in any
number of counterparts, each of which so executed and delivered shall be deemed
to be an original and all of which shall constitute one and the same instrument.
TO HAVE AND TO HOLD all of Assignor's right, title and interest in and
to the Assigned Interests, together with all rights, hereditaments and
appurtenances pertaining thereto, unto Assignee and Assignee's
successors and assigns forever; and Assignor does hereby bind itself and its
successors and assigns to warrant and defend subject to the terms and conditions
of the PSA, all of Assignor's right, title and interest in and to the Assigned
Interests unto Assignee and Assignee's successors and assigns, against every
person whomsoever claiming or to claim the same or any part thereof, by, through
or under Assignor, but not otherwise.
IN WITNESS WHEREOF, Assignor and Assignee each has caused this
Agreement to be executed under seal by its duly authorized representative as of
the day and year first above written.
ASSIGNOR:
CHATSWORTH SUMMERFIELD
ASSOCIATES, L.P., a Kansas limited partnership
By: SC Suites Corp., a Delaware corporation, its
general partner
By:
Name:
Title:
By: Summerfield Suites Holding Corporation, a
Delaware corporation, its general partner
By:
Name:
Title:
Date of Execution:
ASSIGNEE:
PATRIOT AMERICAN HOSPITALITY
PARTNERSHIP, L.P., a Delaware limited
partnership
By: PAH GP, INC.
By:
Name:
Title:
Date of Execution:
EXHIBIT A ATTACHED TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
Legal Description
THAT PORTION OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇ THE CITY OF LOS ANGELES, COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON MAP RECORDED IN BOOK 48, PAGES 16
TO 19 INCLUSIVE OF MAPS, AND A PORTION OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ AND STATE, AS SHOWN ON MAP RECORDED IN BOOK 757, PAGES 22 AND 23 OF
MAPS, AND A PORTION OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ AND STATE, AS SHOWN ON MAP RECORDED IN BOOK 30, PAGE 91 OF MISCELLANEOUS
RECORDS, ALL IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS A
WHOLE AS FOLLOWS:
COMMENCING AT THE NORTHWESTERLY CORNER OF SAID ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇; THENCE
ALONG THE NORTHERLY LINEN OF SAID LAST MENTIONED ▇▇▇ ▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ 37.5 SECONDS EAST 130.00 FEET TO THE EASTERLY LINE OF THE WESTERLY
150.00 FEET OF SAID ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇; THENCE ALONG SAID EASTERLY LINE, NORTH
0 DEGREES 00 MINUTES 15 SECONDS WEST 154.58 FEET TO THE NORTHERLY LINE OF LAST
SAID LOT 1; THENCE ALONG SAID LAST MENTIONED NORTHERLY LINE, SOUTH 89 DEGREES 58
MINUTES 15 SECONDS EAST 136.00 FEET TO THE POINT OF BEGINNING; THENCE
(1) PARALLEL WITH THE WESTERLY LINE OF LAST SAID ▇▇▇ ▇, ▇▇▇▇▇ ▇▇ DEGREES 00
MINUTES 15 SECONDS EAST 504.56 FEET TO THE NORTHERLY LINE OF ▇▇▇ ▇ ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇; THENCE
(2) ALONG SAID LAST MENTIONED NORTHERLY LINE, SOUTH 89 DEGREES 58 MINUTES
37.5 SECONDS EAST 233.35 FEET TO ITS INTERSECTION WITH A LINE LYING
519.35 FEET EASTERLY OF, AND PARALLEL WITH, MEASURED AT RIGHT ANGLES
FROM SAID WESTERLY LINE OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇; THENCE
(3) ALONG SAID LAST MENTIONED PARALLEL LINE, NORTH 00 DEGREES 00 MINUTES 15
SECONDS WEST 504.54 FEET TO SAID NORTHERLY LINE OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇; THENCE
(4) ALONG SAID LAST MENTIONED NORTHERLY LINE, NORTH 89 DEGREES 58 MINUTES
15 SECONDS WEST 233.35 FEET TO THE POINT OF BEGINNING.
EXHIBIT B ATTACHED TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
Personal Property Leases
None
EXHIBIT C ATTACHED TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
Operating Agreements
CHATSWORTH (SMR), CA
OPERATING AGREEMENTS
1. Summerfield Suites Hotel - License Agreement dated as of April 7, 1997
between Summerfield Suites Management Company L.P., and Chatsworth
Summerfield Associates, L.P. to be replaced by License Agreement dated
of even date herewith between Summerfield Suites Management Company,
L.P. and Summerfield HPT Lease Company, L.P.
EXHIBIT D ATTACHED TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
The Occupancy Agreements
None
EXHIBIT E ATTACHED TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
The TWX Numbers
None
EXHIBIT F ATTACHED TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
The P.O. Boxes
None
EXHIBIT G ATTACHED TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
The Management Agreement
Management Agreement by and between Summerfield Suites Management Company, L.P.
and Chatsworth Summerfield Associates dated January 30, 1990 to be replaced by
Management Agreement of even date herewith by and between Summerfield Suites
Management Company, L.P. and Summerfield HPT Lease Company, L.P.
21901 Lassen
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT A3
▇▇▇▇ OF SALE
THE STATE OF CALIFORNIA ss.
ss.
COUNTY OF LOS ANGELES ss.
THIS ▇▇▇▇ OF SALE, dated as of the day of March, 1998 (the "Effective
Date"), from CHATSWORTH SUMMERFIELD ASSOCIATES, L.P., a Kansas limited
partnership ("Summerfield") to PATRIOT AMERICAN HOSPITALITY PARTNERSHIP, L.P., a
Delaware limited partnership ("Patriot" which expression shall include its
successors and assigns), provides:
THAT for and in consideration of the conveyance made herein, the
consideration received therefor by Summerfield and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, as
of the Effective Date, Summerfield hereby grants, bargains, sells, assigns,
transfers, sets over and deliver to Patriot all of the right, title and interest
of Summerfield in and to all personal property, goods and chattels of every kind
and nature (collectively, the "Personal Property") used in connection with that
certain real estate described on Exhibit A attached hereto and made a part
hereof for all purposes, including without limitation, those items more
particularly described on Exhibit B attached hereto and made a part hereof for
all purposes, and also including without limitation, all right, title and
interest of Summerfield in and to all inventories of merchandise, supplies,
stocks and work in process, all machinery, furniture, fixtures and equipment of
every kind and type.
FURTHER, as of the Effective Date, Summerfield hereby covenants and
agrees 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 reasonable
request of Patriot, any and all agreements, instruments, papers, deeds, acts or
things, supplemental, confirmatory or otherwise, as may be reasonably required
by Patriot for the purpose of or in connection with acquiring or more
effectually vesting in Patriot or evidencing the vesting in Patriot of all of
the right, title and interest of Summerfield in and to the Personal Property.
Summerfield warrants that as of the Effective Date it is the owner of
the Personal Property, that the Personal Property is free from all liens and
encumbrances, and that Summerfield has the right to transfer title to and
deliver possession of the Personal Property to Patriot.
And Summerfield for itself, its successors and assigns, warrants, and
defends title to the Personal Property unto Patriot from and against all persons
whomsoever in accordance with the terms and provisions of that certain Agreement
of Purchase and Sale dated , 1998 by and between Patriot and Summerfield.
IN WITNESS WHEREOF, Summerfield has caused this ▇▇▇▇ of Sale to be
executed as of the day and year first above written.
Summerfield:
CHATSWORTH SUMMERFIELD
ASSOCIATES, L.P., a Kansas
limited partnership
(seal) By: SC Suites Corp., a Delaware
corporation, its general partner
By:
Name:
Title:
Date of Execution:
By: Summerfield Suites Holding
Corporation, a Delaware
corporation, its general partner
By:
Name:
Title:
Date of Execution:
STATE OF ______________________ ss.
COUNTY OF _____________________ ss.
On ___________, 199__ before me, the undersigned, a Notary Public in
and for the State of California, duly commissioned and sworn, personally
appeared, __________________________, personally known to me (or proved on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s), acted, executed the instrument.
WITNESS my hand and official seal
Signature ____________________________________
STATE OF ______________________ ss.
COUNTY OF _____________________ ss.
On _____________, 199__ before me, the undersigned, a Notary Public in
and for the State of California, duly commissioned and sworn, personally
appeared, _____________________________ , personally known to me (or proved on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s), acted, executed the instrument.
WITNESS my hand and official seal
Signature ____________________________________
Exhibit A
Legal Description
THAT PORTION OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇ THE CITY OF LOS ANGELES, COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON MAP RECORDED IN BOOK 48, PAGES 16
TO 19 INCLUSIVE OF MAPS, AND A PORTION OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ AND STATE, AS SHOWN ON MAP RECORDED IN BOOK 757, PAGES 22 AND 23 OF
MAPS, AND A PORTION OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ AND STATE, AS SHOWN ON MAP RECORDED IN BOOK 30, PAGE 91 OF MISCELLANEOUS
RECORDS, ALL IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS A
WHOLE AS FOLLOWS:
COMMENCING AT THE NORTHWESTERLY CORNER OF SAID ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇; THENCE
ALONG THE NORTHERLY LINEN OF SAID LAST MENTIONED ▇▇▇ ▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ 37.5 SECONDS EAST 130.00 FEET TO THE EASTERLY LINE OF THE WESTERLY
150.00 FEET OF SAID ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇; THENCE ALONG SAID EASTERLY LINE, NORTH
0 DEGREES 00 MINUTES 15 SECONDS WEST 154.58 FEET TO THE NORTHERLY LINE OF LAST
SAID LOT 1; THENCE ALONG SAID LAST MENTIONED NORTHERLY LINE, SOUTH 89 DEGREES 58
MINUTES 15 SECONDS EAST 136.00 FEET TO THE POINT OF BEGINNING; THENCE
(1) PARALLEL WITH THE WESTERLY LINE OF LAST SAID ▇▇▇ ▇, ▇▇▇▇▇ ▇▇ DEGREES 00
MINUTES 15 SECONDS EAST 504.56 FEET TO THE NORTHERLY LINE OF ▇▇▇ ▇ ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇; THENCE
(2) ALONG SAID LAST MENTIONED NORTHERLY LINE, SOUTH 89 DEGREES 58 MINUTES
37.5 SECONDS EAST 233.35 FEET TO ITS INTERSECTION WITH A LINE LYING
519.35 FEET EASTERLY OF, AND PARALLEL WITH, MEASURED AT RIGHT ANGLES
FROM SAID WESTERLY LINE OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇; THENCE
(3) ALONG SAID LAST MENTIONED PARALLEL LINE, NORTH 00 DEGREES 00 MINUTES 15
SECONDS WEST 504.54 FEET TO SAID NORTHERLY LINE OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇; THENCE
(4) ALONG SAID LAST MENTIONED NORTHERLY LINE, NORTH 89 DEGREES 58 MINUTES
15 SECONDS WEST 233.35 FEET TO THE POINT OF BEGINNING.
EXHIBIT A4
GRANT DEED
RECORDING REQUESTED BY &
WHEN RECORDED MAIL TO:
__________________________________
__________________________________
__________________________________
Attention:________________________
MAIL TAX STATEMENTS TO:
__________________________________
__________________________________
__________________________________
================================================================================
(Space Above for Recorder's Use)
CHATSWORTH
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
CHATSWORTH SUMMERFIELD ASSOCIATES, L.P., a Kansas limited partnership
("Grantor"), hereby grants to __________________________________, a __________
("Grantee"), the following described real property located in the City of Los
Angeles, County of Los Angeles, State of California:
Being more particularly described on "Exhibit A" attached hereto and by
this reference made a part hereof and together with all improvements
now or hereafter situated thereon, together with all rights,
privileges, appurtenances, remainders, reversions and benefits
thereunto in any wise appertaining or belonging.
This Grant Deed is made and accepted upon and subject to the covenants,
terms, and conditions of that certain Agreement of Purchase and Sale dated
___________, 1998, between Grantor and Grantee.
[SIGNATURES TO FOLLOW ON NEXT PAGE]
Dated:___________, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ASSOCIATES, L.P., a
Kansas limited partnership
By: SC Suites Corp., a Delaware corporation,
its general partner
By:
Name:
Title:
By: Summerfield Suites Holding Corporation, a
Delaware corporation, its general partner
By:
Name:
Title:
STATE OF __________________ ss.
COUNTY OF _________________ ss.
On ________, 199__ before me, the undersigned, a Notary Public in and
for the State of California, duly commissioned and sworn, personally appeared,
___________________________ , personally known to me (or proved on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s), acted, executed the instrument.
WITNESS my hand and official seal
Signature ______________________________
STATE OF __________________ ss.
COUNTY OF _________________ ss.
On __________, 199__ before me, the undersigned, a Notary Public in and
for the State of California, duly commissioned and sworn, personally appeared,
______________________ , personally known to me (or proved on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s), acted, executed the instrument.
WITNESS my hand and official seal
Signature ______________________________
EXHIBIT A
Property Description
THAT PORTION OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇ THE CITY OF LOS ANGELES, COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON MAP RECORDED IN BOOK 48, PAGES 16
TO 19 INCLUSIVE OF MAPS, AND A PORTION OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ AND STATE, AS SHOWN ON MAP RECORDED IN BOOK 757, PAGES 22 AND 23 OF
MAPS, AND A PORTION OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ AND STATE, AS SHOWN ON MAP RECORDED IN BOOK 30, PAGE 91 OF MISCELLANEOUS
RECORDS, ALL IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS A
WHOLE AS FOLLOWS:
COMMENCING AT THE NORTHWESTERLY CORNER OF SAID ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇; THENCE
ALONG THE NORTHERLY LINEN OF SAID LAST MENTIONED ▇▇▇ ▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ 37.5 SECONDS EAST 130.00 FEET TO THE EASTERLY LINE OF THE WESTERLY
150.00 FEET OF SAID ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇; THENCE ALONG SAID EASTERLY LINE, NORTH
0 DEGREES 00 MINUTES 15 SECONDS WEST 154.58 FEET TO THE NORTHERLY LINE OF LAST
SAID LOT 1; THENCE ALONG SAID LAST MENTIONED NORTHERLY LINE, SOUTH 89 DEGREES 58
MINUTES 15 SECONDS EAST 136.00 FEET TO THE POINT OF BEGINNING; THENCE
(1) PARALLEL WITH THE WESTERLY LINE OF LAST SAID ▇▇▇ ▇, ▇▇▇▇▇ ▇▇ DEGREES 00
MINUTES 15 SECONDS EAST 504.56 FEET TO THE NORTHERLY LINE OF ▇▇▇ ▇ ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇; THENCE
(2) ALONG SAID LAST MENTIONED NORTHERLY LINE, SOUTH 89 DEGREES 58 MINUTES
37.5 SECONDS EAST 233.35 FEET TO ITS INTERSECTION WITH A LINE LYING
519.35 FEET EASTERLY OF, AND PARALLEL WITH, MEASURED AT RIGHT ANGLES
FROM SAID WESTERLY LINE OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇; THENCE
(3) ALONG SAID LAST MENTIONED PARALLEL LINE, NORTH 00 DEGREES 00 MINUTES 15
SECONDS WEST 504.54 FEET TO SAID NORTHERLY LINE OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇; THENCE
(4) ALONG SAID LAST MENTIONED NORTHERLY LINE, NORTH 89 DEGREES 58 MINUTES
15 SECONDS WEST 233.35 FEET TO THE POINT OF BEGINNING.
EXHIBIT A5
PRO-FORMA TITLE POLICY
SEE ATTACHED
EXHIBIT A6
MANAGER ESTOPPEL CERTIFICATE
_____________, 1998
Summerfield HPT Lease Company L.P.
c/o Summerfield Hotel Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Patriot American Hospitality Hospitality Properties Trust
Partnership, L.P. ("Patriot") ▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Rain ▇▇▇▇▇▇▇ One Post Office Square
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Attention: J. ▇▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
Re: Management Agreement, (herein so called) dated
_______________, between _______________________________
("Summerfield") and Summerfield Suites Management Company,
L.P. ("Manager") with respect to __________________ Hotel
located in the City of ______________________,
___________________ County, _____________________ (the
"Hotel").
Gentlemen:
The undersigned Manager hereby warrants and represents as follows:
1. Manager is aware of the transactions contemplated by Patriot and its
assigns pursuant to (a) Agreement of Purchase and Sale dated _____,1998,
pertaining to the Hotel and made by and between Patriot and [insert name of
Hotel Owner] ( the "PSA") and (b) Contribution Agreement to be entered into by
Patriot, SF Hotel Company L.P. and The Seller Partners as therein defined (the "
Contribution Agreement").
2. The Management Agreement, a true and correct copy of which is
attached hereto as Exhibit A, is presently in full force and effect and has not
been amended, modified, or supplemented except as indicated in this estoppel
certificate. Except as otherwise stated herein, all capitalized terms herein
have the same meaning as that attributed to same in the Management Agreement.
3. The term of the Management Agreement is that period commencing
_________________, 19___ and terminating _______________,19__, with Manager
having the right to extend the term for ______ consecutive extension periods of
___ years each.
4. The fees required to be paid Manager under the Management Agreement
are limited to the amounts set forth in Sections [insert relevant section
references] of the Management Agreement.
5. There are no fees, expense reimbursements, payments or other sums
payable by Summerfield to Manager pursuant to the Management Agreement which
arise from or are attributable to any period prior to the date of this letter.
6. There is currently no application for consent or approval pending
before Summerfield pursuant to the Management Agreement in respect of which
Manager is awaiting a response.
7. The Management Agreement represents the entire agreement between
Summerfield and Manager relating to the Hotel and there are no other agreements
or understandings relating thereto.
8. As of the date of this certificate, no Owner Terminating Events or
Operator Terminating Events have occurred, and Manager has no charge, lien,
cause of action, dispute or claim under the Management Agreement or otherwise,
against Summerfield. Manager confirms that (i) the acquisition of the Hotel by
Patriot or its assignee and (ii) the leasing of the Hotel by Patriot or its
assignee to an entity which is affiliated with Manager (the "Sale Leaseback
Transaction") shall not be deemed to be an Operator Terminating Event, as
defined in the Management Agreement, and Manager waives any entitlement in its
favor to terminate the Management Agreement arising therefrom. Manager also
confirms that neither the Sale Leaseback Transaction nor the transaction
contemplated by the Contribution Agreement will be deemed to give rise to the
Right of First Contract and Manager waives any entitlement in its favor arising
on account of the Sale Leaseback Transaction or the transactions contemplated by
the Contribution Agreement.
9. Neither Summerfield nor Manager is in default in any respect under
any of the terms, covenants and conditions of the Management Agreement and no
state of facts exists which, with the passage of time or the giving of notice,
or both, would constitute a default under the Management Agreement.
10. Manager unconditionally consents to the assignment by Summerfield
of the Management Agreement to Patriot or its assignee.
11. This certification is made knowing that Patriot, its successors and
assigns, are relying upon the representations herein made in acquiring the
Hotel.
EXECUTED as of the day and year above written.
Manager:
Summerfield Suites Management Company, L.P.
By:__________________________________
Name:________________________________
Title:_______________________________
Address for Notice Purposes:
_____________________________________
_____________________________________
_____________________________________
Attachment:
Exhibit A - Management Agreement
EXHIBIT A
MANAGEMENT AGREEMENT
AGREEMENT OF PURCHASE AND SALE - PART B
ARTICLE I
DEFINITIONS
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, (f) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency, reorganization,
winding-up or composition or adjustment of debts, (g) 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 (h) 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 for 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.
"Agreement to Lease" shall mean that certain Agreement to Lease dated
of even date herewith, by and between HPTSHC Properties Trust and Summerfield
HPT Lease Company, L.P. with approved facility lease attached thereto pertaining
to the proposed leaseback of the Property after completion of the transaction
contemplated hereunder.
"Applicable Laws" shall mean any applicable building, zoning,
subdivision, environmental, health, safety or other governmental laws, statutes,
ordinances, resolutions, rules, codes, regulations, orders or determinations of
any Governmental Authority or of any insurance boards of underwriters (or other
body exercising similar functions), or any restrictive covenants or deed
restrictions affecting any Property or the ownership, operation, use,
maintenance or condition thereof.
"Assignment and Assumption Agreements" shall mean the assignment and
assumption agreements in the form of Exhibits A2-1 and A2-2 attached hereto.
"Authorizations" shall mean all licenses, permits and approvals
required by any governmental or quasi-governmental agency, body, department,
commission, board, bureau,
instrumentality or officer, to be in force on the Effective Date or the Closing
Date with respect to the construction, ownership, operation, leasing,
maintenance, or use of the Property (hereinafter defined).
"▇▇▇▇ of Sale - Personal Property" shall mean the ▇▇▇▇ of sale
conveying title to the Tangible Personal Property from Summerfield to Patriot or
its designee (as Patriot shall specify) in the form of Exhibit A3 attached
hereto.
"Cal-FIRPTA Certificate" shall mean an affidavit from Summerfield under
Section 18662 of the California Revenue and Taxation Code, as amended,
certifying that Summerfield is a partnership as determined in accordance with
Subchapter K of Chapter 1 of Subtitle A of the Internal Revenue Code.
"Closing" shall mean the Closing of the purchase of the Property
pursuant to this Agreement, and shall occur on the Closing Date.
"Closing Date" shall mean the date on which the Closing occurs which
shall be determined in accordance with Section 7.1.
"Closing Documents" shall mean the documents defined as such in Section
7.1 hereof.
"Contribution Agreement" shall mean that certain Contribution Agreement
which may be entered into by and between Patriot and SF Hotel Company, L.P.,
pursuant to which Patriot will acquire the management business and brand name in
the Property and each of the other properties as described in the Shimuzu
Purchase Agreements, together with all of the right, title and interest of the
partners of SF Hotel Company, L.P. in certain other real property as described
therein.
"Deed" shall mean the deed in the form of Exhibit A4 attached hereto.
"Deposit" shall mean the amount deposited with Summerfield by Patriot
pursuant to Section 2.3 hereof. The Deposit shall be held and used by
Summerfield in strict accordance with the terms and provisions of this
Agreement.
"Disclosure Schedule" shall mean Schedule A9 attached hereto and made a
part hereof.
"Development Agreement" shall mean with respect to the Property, the
agreement entered into by Summerfield which provided for the development of the
site thereof.
"Effective Date" shall mean the date this Agreement has been fully
executed and delivered by all parties hereto.
"Environmental Damages" shall mean all governmental or third-party
claims, judgments, damages, losses, penalties, fines, liabilities (including,
without limitation, punitive damages and
-2-
strict liability), encumbrances, liens, costs and expenses of investigation and
defense of any claim, whether or not such is ultimately defeated, and of any
settlement or judgment, of whatever kind or nature, contingent or otherwise,
matured or unmatured, including, without limitation, attorneys' fees and
disbursements, remediation costs and consultants' fees, any of which arise as a
result of the existence of Hazardous Materials upon, about or beneath the
Property (except if such Hazardous Materials have migrated from offsite to
beneath the Property) or migrating or threatening to migrate from the Property,
or as a result of the existence of a violation of Environmental Requirements
pertaining to the Property.
"Environmental Requirements" shall mean (i) all applicable statutes,
regulations, rules, policies, ordinances, codes, licenses, permits, orders,
approvals, plans, authorizations, and similar items, of all Governmental
Authorities, and (ii) all judicial, administrative and regulatory decrees,
judgments, directives and orders, in each case of (i) and (ii) relating to the
protection of human health or the environment from Hazardous Materials,
including, without limitation: (a) all requirements thereof, including, without
limitation, those pertaining to reporting, licensing, permitting, investigation
and remediation of emissions, discharges, releases or threatened releases of
Hazardous Materials into the air, surface water, groundwater or land, or
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials; and (b) all requirements
pertaining to the protection of the health and safety of employees or the public
from Hazardous Materials.
"Escrow Agent" shall mean American Title Company, whose address is ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (telephone ▇▇▇-▇▇▇-▇▇▇▇, fax
▇▇▇-▇▇▇-▇▇▇▇).
"Expenses" shall mean expenses, trade payables and other items to be
prorated which are related to the ownership and operation of the Property which
are to be prorated pursuant to Section 7.6 hereof.
"FF&E Cash Reserves" shall mean the cash reserves maintained for the
furniture, fixtures and equipment attached to, located upon, or used in
connection with the ownership, maintenance, or operation of each Property, the
balance of which reserve as of February 28, 1998 is shown in Part 2 of Schedule
A1 attached hereto and made a part hereof.
"Financial Information" shall mean the financial information defined as
such in Section 3.12 hereof.
"FIRPTA Certificate" shall mean an affidavit from Summerfield under
Section 1445 of the Internal Revenue Code, as amended, certifying that it 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
regulations promulgated thereunder), in form and substance satisfactory to
Patriot.
-3-
"Governmental Authority" shall mean any federal, state, county,
municipal or other government or any governmental or quasi-governmental agency,
department, commission, board, bureau, officer or instrumentality, foreign or
domestic, or any of them, having jurisdiction over Summerfield, Patriot or the
Property.
"Hazardous Materials" shall mean any chemical substance: (i) which is
or becomes defined as a "hazardous substance," "hazardous waste," "hazardous
material," "pollutant," "contaminant," or "toxic," "explosive," "corrosive,"
"flammable," "infectious," "radioactive," "carcinogenic," or "mutagenic"
material under any law, regulation, rule, order, or other authority of the
federal, state or local governments, or any agency, department, commission,
board, or instrumentality thereof, regarding the protection of human health or
the environment from such chemical substances including, but not limited to, the
following federal laws and their amendments, analogous state and local laws, and
any regulations promulgated thereunder: the Clean Air Act, the Clean Water Act,
the Oil Pollution Control Act, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1986, the Emergency Planning and Community
Right to Know Act, the Solid Waste Disposal Act, the Resource Conservation and
Recovery Act, the Safe Drinking Water Act, the Federal Insecticide, Fungicide
and Rodenticide Act, and the Toxic Substances Control Act, including, without
limitation, asbestos, lead and gasoline and other petroleum products (including
crude oil or any fraction thereof); (ii) without limitation, which contains
gasoline, diesel fuel or other petroleum hydrocarbons; (iii) without limitation,
which contains drinking biphenyls or asbestos or asbestos-containing materials,
or lead, or urea formaldehyde foam insulation; or (iv) without limitation, radon
gas.
"Hotel" shall mean the hotel and related amenities located on the Land.
"Improvements" shall mean the Hotel and all other buildings,
improvements, fixtures and other items of real estate located on the Land.
"Insurance Policies" shall mean all policies of insurance maintained by
or on behalf of Summerfield pertaining to the Property, its operation (including
but not limited to policies dealing with ▇▇▇▇▇▇▇'▇ compensation and other
employee-related claims), or any part thereof together with those policies of
insurance which were maintained by or on behalf of Summerfield for the two (2)
years prior to the Effective Date.
"Intangible Personal Property" shall mean all intangible personal
property owned by Summerfield in its capacity as owner of the Property, and used
in connection with the ownership, operation, leasing, occupancy or maintenance
of the Property, including, without limitation, (1) the Authorizations, (2)
utility and development rights and privileges, business records, plans and
specifications pertaining to the Property, (3) any unpaid award for taking by
condemnation or any damage to the Real Property by reason of a change of grade
or location of or access to any street or highway which was not effective prior
to the Effective Date, (4) the share of the Rooms Ledger determined under
Section 7.6 hereof, and (5) the balance of the FF&E Cash Reserve as of the
Closing Date, excluding (a) any of the aforesaid rights which Patriot elects not
to acquire, (b) cash
-4-
reserves for taxes and insurance, (c) the pre-Closing working capital on hand,
and (d) the pre-Closing accounts receivable for the Hotel; provided, however,
Intangible Personal Property shall not include any of the foregoing to the
extent transferred by Summerfield to Tenant pursuant to the Transfer Agreements.
"Land" shall mean the parcel of real estate lying and being in the
County, and State as more particularly described on Exhibit A1 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 Summerfield
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.
"Leased Property" shall mean all leased items of Tangible Personal
Property.
"Loan Agreement" shall mean that certain Loan Agreement dated March 18,
1998, by and between Patriot American Hospitality Operating Partnership, L.P.
("PAHOP") and SF Hotel Company, L.P. pursuant to which PAHOP will lend and SF
Hotel Company, L.P. will borrow $17,083,333.00 in exchange for a note
convertible into a preferred partnership interest in SF Hotel Company, L.P., and
which note convertible is in approved form appended thereto.
"Management Agreement" shall mean the Management Agreements defined in
the Transfer Agreement relating to the Property.
"Manager" shall mean Summerfield Suites Management Company, L.P., in
its capacity as manager under the Management Agreement.
"Material Adverse Effect" shall mean in relation to Patriot any effect
that is materially adverse to the financial condition and results of operation
of the Property or a material increase in the obligations that Patriot is
required to assume in connection herewith and, in relation to Summerfield, any
effect that is materially adverse to the financial conditions and results of
operation of the Property or a material increase in the obligations that
Summerfield is obligated to retain in connection herewith.
"Occupancy Agreements" shall mean all leases, concession or occupancy
agreements (if any) in effect with respect to the Real Property under which any
tenants (other than Hotel guests) or concessionaires occupy space upon the Real
Property.
"Operating Agreements" shall mean all management, service, supply and
maintenance contracts, if any, in effect with respect to the Property and all
other contracts (other than the Development Agreement, the Occupancy Agreements,
and the Management Agreement) that affect the Property or are otherwise related
to the construction, ownership, operation, occupancy or maintenance of the
Property.
-5-
"Owner's Title Policy" shall mean the owner's policy of title insurance
to be issued to Patriot by the Title Company in the form described in the Pro
Forma Title Policy (hereinafter defined).
"Permitted Liens" shall mean any liens (i) relating to or created,
arising or existing in connection with any tax or other governmental charge or
levy not yet due or, to the extent listed in the Disclosure Schedule, being
protested in good faith, (ii) relating to or created, arising or existing in
connection with any legal proceeding being contested in good faith, to the
extent listed in the Disclosure Schedule, (iii) other liens described in the
Disclosure Schedule, or (iv) any liens which are Permitted Title Exceptions.
"Permitted Title Exceptions" shall mean those exceptions to title to
the Real Property that appear on the Pro Forma Title Policy at Exhibit A5
attached hereto.
"Personal Property" shall mean collectively the Tangible Personal
Property and the Intangible Personal Property.
"Personal Property Leases" shall mean the leases pursuant to which
Summerfield leases, or will lease, the Leased Property.
"Pro Forma Title Policy" shall mean the pro forma policy of title
insurance in the form of Exhibit A5 attached hereto.
"Property" shall mean the Real Property and the Personal Property.
"Purchase Price" shall mean the sum specified in Part 3 of Schedule A1
attached hereto which sum shall be payable in the manner described in Section
2.2 hereof and subject to prorations as set forth herein.
"Real Property" shall mean the Land and the Improvements.
"Retained Liabilities" shall mean (except to the extent insured against
by the Owner's Title Policy) all obligations and liabilities (whether known,
unknown, accrued, absolute, matured, unmatured, contingent or otherwise),
created on or prior to the Closing Date (except those created by Patriot),
whether arising prior to or after Closing, (a) arising out of indebtedness of
Summerfield or indebtedness which affects the Property or any part thereof, (b)
arising out of contracts or agreements by which Summerfield is bound and which
are not the subject of prorations under Section 7.6 hereof, and (c) Summerfield
Expenses.
"Rooms Ledger" shall mean the final night's room revenue for the Hotel
(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
Summerfield), including any sales taxes, room taxes or other taxes thereon.
-6-
"Shimizu Purchase Agreements" shall mean collectively all of the
Agreements more particularly described in Schedule A2 attached hereto and made a
part hereof regarding the intended purchase by Patriot of the properties
described in each Agreement.
"Submission Matters" shall mean all items described in Section 2.4(a)
hereof.
"Summerfield Expenses" shall mean Expenses which are the responsibility
of Summerfield under Section 7.6.
"Summerfield's Organizational Documents" shall mean the current
partnership agreement and certificate of limited partnership and all amendments
thereto of each of the entities comprising Summerfield and its general partners.
"Survey" shall mean the survey described in Part 4 of Schedule A1
attached hereto and made a part hereof.
"Tangible Personal Property" shall mean the items of tangible personal
property consisting of all furniture, fixtures, equipment, machinery and other
personal property of every kind and nature (but expressly excluding cash-on-hand
and ▇▇▇▇▇ cash funds) located on or in the Real Property, used in the operation
of the Hotel and owned by Summerfield on the Closing Date, including, without
limitation, unopened inventories of food and beverages and the stock of linens,
towels, paper goods, soaps, cleaning supplies, china, glassware, silverware,
tablecloths, napkins, television sets, carpets, drapes, rugs, floor coverings,
mattresses, pillows, bed spreads and miscellaneous guest supplies, engineering
cleaning supplies and the like.
"Tenant" shall mean Summerfield HPT Lease Company, L.P.
"Title Company" shall mean Escrow Agent on behalf of Chicago Title
Insurance Company.
"Transfer Agreements" shall mean the agreements between Summerfield or
an affiliate of Summerfield and Tenant pertaining to the transfer of certain
assets and the prorations of certain liabilities associated with the Hotel.
"UCC Reports" shall mean the reports of searches of the Uniform
Commercial Code records of both the County and State in which the Property is
located.
"Utilities" shall mean public sanitary and storm sewers, natural gas,
telephone, public water facilities, electrical facilities and all other utility
facilities and services necessary or appropriate for the operation and occupancy
of the Property as a hotel.
"Warranties and Guaranties" shall mean all warranties and guaranties
relating to the Improvements or the Tangible Personal Property or any part
thereof, if any.
-7-
ARTICLE II
PURCHASE AND SALE OF PROPERTY; DEPOSIT;
PAYMENT OF PURCHASE PRICE; TITLE
2.1 Purchase and Sale. Summerfield agrees to sell and Patriot agrees to
purchase the Property for the Purchase Price and in accordance with and subject
to, the terms and conditions hereinafter set forth.
2.2 Payment of Purchase Price. The Purchase Price shall be paid to
Summerfield at Closing by making a wire transfer of immediately available
federal funds to a designated account on behalf of Summerfield or other
applicable party as specified in writing by Summerfield.
2.3 Deposit. Within three (3) days after the execution hereof by both
Summerfield and Patriot and as a condition precedent to the effectiveness of
this Agreement, Patriot shall deliver to Escrow Agent cash in the amount of
$333,333.33 (the "Deposit"). Escrow Agent shall hold the Deposit pursuant to the
terms, conditions and provisions of this Agreement. The Deposit shall be either
(a) returned to Patriot pursuant to Article X or at Closing, or (b) delivered to
Summerfield pursuant to Article X hereto.
2.4 Submission Matters and Title Information.
(a) Summerfield has delivered the following to Patriot:
(1) Complete copies of all Occupancy Agreements in
effect as of the Effective Date, which are described on Schedule A3
attached hereto and made a part hereof.
(2) Complete copies of all Operating Agreements in
effect as of the Effective Date, which are described on Schedule A4
attached hereto and made a part hereof.
(3) A schedule setting forth the type and amounts of
insurance coverage maintained by Summerfield with respect to the
Property as of the Effective Date as described on Schedule A5 attached
hereto and made a part hereof.
(4) Financial and operating statements for the
Property through January, 1998 and for the previous calendar years in
which the Property was operating.
(5) The operating and capital expenditure budget for
the Property for the current calendar year and for the previous
calendar years in which the Property was operating.
(6) A complete list of all Leased Property and
complete copies of all Personal Property Leases, in effect as of the
Effective Date which are described on Schedule A6 attached hereto and
made a part hereof.
-8-
(7) Copies of invoices for all ad valorem taxes and
special assessments assessed against the Property for the current
calendar year and prior calendar year, either statements for Utilities
payable for the current calendar year and the prior calendar year or
such other information as Patriot has reasonably required itemizing the
payment of utilities for the Hotel, and such information as Patriot has
reasonably required regarding current renditions or assessments on the
Property or notices relative to change in valuation for ad valorem
taxes.
(8) Copies of all parking, structural, mechanical or
other engineering reports or engineering studies related to the
Property together with copies of all soil tests, masonry tests,
percolation tests, water, oil, gas, mineral, radon, formaldehyde, PCB
or other environmental tests, audits or reports, market studies and
site plans related to the Property.
(9) Copies of complete sets of all architectural,
mechanical, structural and/or electrical plans and specifications used
in connection with the construction of or alterations or repairs to the
Property.
(10) Copies of complete sets of prototype plans for
the Property.
(11) A complete copy of the Management Agreement and
any other documents executed by Manager which modify the Management
Agreement or provide third parties with rights against Manager with
respect to the Management Agreement.
(12) Complete copies of the Authorizations listed at
Part A of Schedule A7 attached hereto and made a part hereof.
(13) Complete copies of audited financial statements
for the entities comprising Summerfield for the fiscal years ending
December 29, 1995 and January 3, 1997, and unaudited Financial
Information for calendar year 1997 and January 1998.
(14) Survey
(15) UCC Reports
(16) Pro Forma Title Policy.
2.5 Availability of Information and Access. Until the Closing, (a)
Summerfield shall, at its sole cost and expense, make available at Summerfield's
corporate offices in Wichita to Patriot, its agents, auditors, engineers.
attorneys, potential lessees and other designees, for inspection and/or copying,
copies of all correspondence, books, records, tax returns, bank statements,
financial statements, advance reservations and room bookings and function
bookings, rate schedules and any and all other materials or information relating
to the Property, and (b) upon reasonable prior notice, Summerfield shall make
available to Patriot, its agents, auditors, engineers, attorneys, potential
-9-
lessees and other designees, the Property for purposes of inspection provided
that Patriot shall not cause any damage thereto and shall, in any event, be
liable to make good any damage which may thereby be occasioned by any act or
default on Patriot's part.
ARTICLE III
SUMMERFIELD'S REPRESENTATIONS AND WARRANTIES
To induce Patriot to enter into this Agreement and to acquire the
Property in the manner provided herein, Summerfield hereby makes the following
representations and warranties, upon each of which Summerfield acknowledges and
agrees that Patriot and its permitted assignees are entitled to rely and have
relied, subject to the limitation set forth in Section 3.31 hereof:
3.1 Organization and Power. Summerfield is a limited partnership duly
formed, validly existing and in good standing under the laws of the State of
Kansas and is qualified to transact business in the state of Kansas and in the
state in which the Property is located, 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 Summerfield hereunder.
3.2 Authorization and Execution. This Agreement has been duly
authorized by all necessary action on the part of Summerfield, has been duly
executed and delivered by Summerfield, constitutes the valid and binding
agreement of Summerfield, and is enforceable in accordance with its terms
subject to applicable bankruptcy, reorganization, insolvency and moratorium laws
and general principles of equity. The person or persons executing this Agreement
on behalf of Summerfield have the authority to do so.
3.3 Non-contravention. The execution and delivery of, and the
performance by Summerfield of its obligations under, this Agreement do not and
will not contravene, or constitute a default under any of Summerfield's
Organizational Documents, any judgment, injunction, order or decree binding upon
Summerfield or to which the Property is subject, or, to Summerfield's knowledge,
do not and will not contravene, or constitute a default under, any provision of
applicable law or regulation, any agreement, or other instrument binding upon
Summerfield or to which the Property is subject, or result in the creation of
any lien or other encumbrance on any asset of Summerfield. Other than the
Transfer Agreements, there are no outstanding agreements (written or oral)
pursuant to which Summerfield, (or any predecessor to or representative of
Summerfield) has agreed to sell or has granted an option or right of first
refusal to purchase the Property or any part thereof except for those that will
be waived or released at or prior to Closing.
3.4 No Special Taxes. Summerfield has no knowledge of, nor has it
received any written notice of, any special taxes or assessments, including any
withholding taxes or "rollback" taxes, 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 except as otherwise reflected in the Pro-Forma
Title
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Policy. Any taxes or assessments due and payable pursuant to the Permitted Title
Exceptions will be paid by the Closing Date. To the best of Summerfield's
knowledge, there are no taxes (whether special or otherwise) charges or
assessments affecting the Property which are subject to reinstatement or
escalation on a predetermined basis, specific to such Property.
3.5 Compliance with Existing Laws. Summerfield 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. Summerfield has no knowledge of any termination,
suspension, modification or limitation affecting any of the Authorizations.
Summerfield has no knowledge, nor has it received written notice within the past
two (2) years, of any existing or threatened violation of any provision of any
Applicable Laws 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 to the Property other than those that have been made
prior to the date hereof.
3.6 Personal Property. To Summerfield's knowledge, all of the Personal
Property, excluding the Leased Property, being conveyed by Summerfield hereunder
are free and clear of all liens and encumbrances, except for the Permitted
Liens, or those which will be discharged by Summerfield at Closing, and
Summerfield has good and merchantable title thereto and the right to convey same
in accordance with the terms of this Agreement.
3.7 Operating Agreements. There are no management, service, consulting,
brokerage, supply or maintenance contracts in effect with respect to the
Property other than the Operating Agreements described on Schedule A4 hereto.
Summerfield has performed in all material respects all of its obligations under
each of the Operating Agreements and there are no defaults under any of the
Operating Agreements. To Summerfield's knowledge, all other parties to the
Operating Agreements have performed all of their obligations thereunder in all
material respects, and are not in default thereunder in any material respect.
Summerfield has received no notice of any intention by any of the parties to any
of the Operating Agreements to cancel the same, nor has Summerfield canceled any
of same.
3.8 Insurance. All of Summerfield's Insurance Policies are valid and in
full force and effect and to Summerfield's knowledge Summerfield has complied
with all requirements of the insurance carriers of the Insurance Policies.
3.9 Condemnation Proceedings; Roadways. Summerfield has received no
written notice of any condemnation or eminent domain proceeding pending or
threatened against the Property or any part thereof. Summerfield has no
knowledge of any change in the route or width of any street or road adjacent to
or serving the Property or any part thereof, and Summerfield has received no
written notice of any proposed change in the route, grade or width of, or
otherwise affecting, any street or road adjacent to or serving the Property or
any part thereof.
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3.10 Actions or Proceedings. There is no action, suit or proceeding
pending or to Summerfield's knowledge threatened against or concerning
Summerfield or the Property in any court, before any arbitrator or before or by
any Governmental Authority which (a) in any manner raises any question affecting
the validity or enforceability of this Agreement, (b) could materially and
adversely affect the business, financial position or results of operations of
Summerfield or the Property, (c) could materially and adversely affect the
ability of Summerfield to perform its obligations hereunder, (d) could create a
lien on the Property or any part thereof or any interest therein, (e) is
material and concerns any past or present employee of Manager who worked at the
Hotel or (f) could otherwise adversely affect the Property or any part thereof
or any interest therein or the use, operation, condition or occupancy thereof.
3.11 Labor and Employment Matters. Neither Summerfield nor Manager is a
party to any oral or written employment contracts or agreements with respect to
the Property which will be binding on Patriot. There are no labor disputes or
organizing activities pending or threatened as to the operation or maintenance
of the Property, or any part thereof. Neither Summerfield nor Manager is a party
to any union or other collective bargaining agreement with employees employed in
connection with the ownership, operation or maintenance of the Property.
3.12 Financial Information and Submission Matters. All of Summerfield's
financial information, including, without limitation, all books and records and
financial statements ("Financial Information") fairly represents in all material
respects the financial condition of Summerfield and presents accurately the
results of the operations of the Property for the periods indicated. Between the
date of the last audited financial statement included in Summerfield's Financial
Information which was submitted to Patriot and the Effective Date, there has
been no event which (i) would be reported in footnotes to an audited financial
statement if one were available for such period or (ii) has resulted in a
Material Adverse Effect on the financial condition or in the operations of the
Property except to the extent disclosed in the unaudited financial statements
which have been delivered to Patriot prior to the Effective Date.
3.13 Submission Matters. All Submission Matters have been delivered by
Summerfield to Patriot pursuant to this Agreement and, with respect to
Submission Matters described in Section 2.4(a)(3), are true, correct and
complete in all material respects and, with respect to Submission Matters
described in Sections 2.4(a)(8), (9) and (10) Summerfield has no reason to
believe that they are not, true, correct and complete in all material respects.
Summerfield warrants the accuracy of replies as given by Summerfield (which
shall mean B. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇ and the General Manager of the Hotel) to Patriot,
its employees, agents and advisors in response to queries raised by them during
Patriot's due diligence investigation.
3.14 Bankruptcy. No Act of Bankruptcy has occurred with respect to
Summerfield.
3.15 Hazardous Substances. Summerfield has not received any written
notice that any previous owner, tenant, occupant or user of the Property has,
engaged in or permitted any operations or activities upon, or any use or
occupancy of the Property or any portion thereof, for the purpose
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of or in any way involving the handling, manufacture, treatment, storage, use,
generation, release, discharge, refining, dumping or disposal of any Hazardous
Materials on, under, in or about the Property in violation of any Applicable
Laws.
(a) Summerfield has not received any written notice nor has
knowledge that any Hazardous Materials have migrated from or to the
Property upon, about, or beneath other properties in violation of any
Environmental Requirements;
(b) None of the Property, nor the existing or, to
Summerfield's knowledge, prior uses, fail or failed to materially
comply with Environmental Requirements;
(c) To Summerfield's knowledge, there are no permits, licenses
or other authorizations which are required under any Environmental
Requirements with regard to the current uses of the Property and which
have not been obtained and complied with.
(d) Neither Summerfield nor, to Summerfield's knowledge, any
prior owner, occupant or user of the Property has received any written
notice concerning any alleged violation of Environmental Requirements
in connection with the Property or any liability for Environmental
Damages in connection with the Property for which Summerfield (or
Patriot after Closing) may be liable.
(e) To Summerfield's knowledge, no Hazardous Materials are
constructed, deposited, stored or otherwise located on, under, in or
about the Property in violation of any Environmental Requirements.
(f) There exists no writ, injunction, decree, order or
judgment outstanding, nor any lawsuit, claim, proceeding, citation,
summons, or, to Summerfield's knowledge investigation, pending or to
Summerfield's knowledge threatened, relating to any alleged violation
of Environmental Requirements on the Property, or relating to any
Environmental Damages.
(g) No above ground (or, to Summerfield's knowledge,
underground) chemical treatment or storage tanks, or gas or oil ▇▇▇▇▇
are located on the Property.
3.16 Occupancy Agreements. There are no leases, concessions or
occupancy agreements in effect with respect to the Property other than the
Occupancy Agreements described on Schedule A3 hereto. Except as specifically
provided in the Occupancy Agreements, no tenant or concessionaire is entitled to
any rebates, allowances, free rent or rent abatement for any period after the
Closing of the transaction contemplated hereby. Summerfield has received no
notice of any intention by any of the parties to any of the Occupancy Agreements
to cancel the same, nor has Summerfield canceled any of same. No brokerage
commissions or compensation of any kind shall be due in connection with the
Occupancy Agreements, and the rents or revenues to be derived therefrom.
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3.17 Leased Property. All Personal Property Leases are in good standing
and free from default by Summerfield and, to Summerfield's knowledge, by the
lessor thereof.
3.18 Americans With Disabilities Act. Summerfield has received no
written notice that the Property is not in compliance with the Americans With
Disabilities Act.
3.19 Structural Condition. Except as disclosed in writing by
Summerfield to Patriot or Wyndham International, Inc. or their affiliates and as
contained in any engineering reports concerning the Property delivered to
Patriot, there is to Summerfield's knowledge, no latent material defect in the
Improvements or structural elements thereof, mechanical systems (including,
without limitation, all heating, ventilating, air conditioning, plumbing,
electrical, utility and sprinkler systems) therein, the utility system servicing
the Property and the roofs.
3.20 Zoning and Platting. Summerfield has no knowledge of any
proceeding and has received no written notice of any threatened action or
proceeding which could result in a modification or termination of the present
zoning of the Property.
3.21 Access. Summerfield has no knowledge of any pending and has
received no written notice of any threatened, governmental proceeding which
would limit or result in the termination of the Property's existing access to
and from public streets or roads.
3.22 No Commitments. To Summerfield's knowledge, no commitments have
been made to any Governmental Authority, utility company, school board, church
or other religious body, or any homeowners' association or any other
organization, group or individual, relating to the Property which would impose
an obligation upon Patriot to make any contribution or dedication of money or
land or to construct, install or maintain any improvements of a public or
private nature on or off the Property.
3.23 Summerfield Is Not a "Foreign Person". Summerfield is not a
"foreign person" within the meaning of Section 1445 of the Internal Revenue
Code, as amended (i.e., a foreign corporation, foreign partnership, foreign
trust, foreign estate or foreign person as those terms are defined in the
Internal Revenue Code and regulations promulgated thereunder).
3.24 No Other Property Interests. There are no property interests,
buildings, structures or other improvements or personal property that are owned
by Summerfield which are necessary for the operation of the Hotel, that are not
being conveyed pursuant to this Agreement.
3.25 Management Agreement. There are no management contracts in effect
with respect to the Property other than the Management Agreement. Summerfield
has performed in all material respects all of its obligations under the
Management Agreement and there are no defaults by Summerfield under the
Management Agreement. To Summerfield's knowledge, all other parties (whether one
or more) to the Management Agreement have performed all of their respective
obligations thereunder in all material respects, and are not in default
thereunder in any material
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respect. Summerfield has received no written notice of any intention by any of
the parties to the Management Agreement to cancel the same, nor has Summerfield
canceled the same.
3.26 Development Agreement. There is no Development Agreement currently
in effect with respect to the Property. There are no outstanding obligations to
be performed by any of the parties to any previous Development Agreement and, to
the extent that same may have existed, such Development Agreement may be
regarded as of the Effective Date hereof as having been performed in full and of
no further force or effect.
3.27 Relationship to Certain Parties. Summerfield does not, to its
knowledge, have a direct or indirect relationship to the Central States,
Southeast and Southwest Areas Pension Fund within the meaning of Section
514(c)(9)(B)(iv) of the Internal Revenue Code of 1986, as amended. The list of
partners in Summerfield as delivered by Summerfield to Patriot is true, correct
and complete.
3.28 Liquor License. Summerfield possesses all liquor licenses,
alcoholic beverage licenses and other permits and Authorizations necessary to
continue operating the facilities presently located in the Hotel and all such
liquor licenses, alcoholic beverage licenses and other permits and
Authorizations are valid and are held in the names of the operators of such
businesses or affiliates thereof.
3.29 Improvements. All Improvements have been constructed and are
owned, used and operated in accordance with the requirements of the Permitted
Title Exceptions.
3.30 Warranties and Guaranties. Summerfield shall not, on or before
Closing, release or modify the Warranties and Guaranties, if any, except with
the prior written consent of Patriot, which consent shall not be unreasonably
withheld or delayed and which shall be deemed given if not given or refused
within five (5) business days of Summerfield's request therefor in writing.
3.31 Limitations on Representations and Warranties. Each of the
representations and warranties contained in this Article III and its various
subparagraphs are intended for the benefit of Patriot and may be waived in whole
or in part, by Patriot, but only by an instrument in writing signed by Patriot.
Each of the representations and warranties shall be deemed to be modified by
such matters disclosed by (a) the Submission Matters, (b) Patriot's own due
diligence investigations prior to the Effective Date, and (c) the Disclosure
Schedule. All rights and remedies arising in connection with the untruth or
inaccuracy of any such representations and warranties as of the Closing Date
shall survive the Closing. Patriot shall promptly notify Summerfield of an
apparent untruth or inaccuracy regarding a representation or warranty given by
Summerfield hereunder if it learns of such inaccuracy following the Effective
Date from its own due diligence activities. Summerfield, at its sole cost and
expense, shall then have until the Closing Date to cure such matters to
Patriot's satisfaction, if Summerfield so elects. If Summerfield gives Patriot
written notice prior to Closing of the untruth or inaccuracy of any
representation or warranty, or Patriot otherwise obtains actual knowledge prior
to Closing of the untruth or inaccuracy of any representation or
-15-
warranty, and Patriot nevertheless elects to close this transaction, Patriot
shall be entitled to exercise all available remedies for such breach as set
forth in Article IX hereof (subject to the condition that Patriot shall have
given Summerfield prompt written notice of such untruth or inaccuracy and the
above opportunity to cure). Any such written notice from Summerfield to Patriot
shall state in the first paragraph thereof and in all capitalized letters that
"THIS NOTICE IS GIVEN PURSUANT TO THE PURCHASE AND SALE AGREEMENT MADE AS OF
MARCH 18, 1998 AND RELATES TO THE UNTRUTH OR INACCURACY OF SUMMERFIELD'S
REPRESENTATIONS OR WARRANTIES." Patriot shall be deemed to have actual knowledge
of the untruth or inaccuracy of any representation or warranty only if such
matters are disclosed by (a) the Submission Matters, (b) Patriot's due diligence
investigation prior to the Effective Date, or (c) Disclosure Schedule and
Patriot receives written notice from Summerfield satisfying the foregoing
requirements. Except to the extent otherwise expressly provided in the second
sentence of this Section, no written notice, investigation, audit, inspection,
review or the like shall be deemed to terminate the effect of any such
representations, warranties and covenants, it being understood that Patriot has
the right to rely thereon and that each such representation and warranty
constitutes a material inducement to Patriot to execute this Agreement and to
close the transaction contemplated hereby and to pay the Purchase Price to
Summerfield.
Whenever the term "to Summerfield's knowledge" or "known to
Summerfield" is used or reference to Summerfield's belief or reason to believe
is made in this Agreement or in any representations and warranties given to
Patriot at closing, such knowledge or belief shall be the actual knowledge or
belief of B. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇, and the general manager
of the Hotel only, without any inquiry.
ARTICLE IV
PATRIOT'S REPRESENTATIONS AND WARRANTIES
To induce Summerfield to enter into this Agreement and to sell the
Property to Patriot, Patriot hereby makes the following representations and
warranties, upon each of which Patriot acknowledges and agrees that Summerfield
is entitled to rely and has relied:
4.1 Organization and Power. Patriot is duly organized, validly existing
and in good standing under the laws of the State of Delaware and has all
partnership powers and all governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted and to enter into
and perform its obligations under this Agreement and any document or instrument
required to be executed and delivered on behalf of Patriot hereunder.
4.2 Authority of Patriot. This Agreement has been duly authorized by
all necessary action on the part of Patriot, has been duly executed and
delivered by Patriot, constitutes the valid and binding agreement of Patriot and
is enforceable in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency and moratorium laws and general principles of equity.
The person executing this Agreement on behalf of Patriot has the authority to do
so.
-16-
4.3 Non-contravention. The execution and delivery of this Agreement and
the performance by Patriot of its obligations hereunder do not and will not
contravene, or constitute a default under, any provisions of applicable law or
regulation, or any agreement, judgment, injunction, order, decree or other
instrument binding upon Patriot or result in the creation of any lien or other
encumbrance on any asset of Patriot.
4.4 Litigation. There is no action, suit or judicial or administrative
proceeding, pending or to Patriot's knowledge threatened, against or affecting
Patriot in any court or before any arbitrator or before any Governmental
Authority which (a) in any manner raises any question affecting the validity or
enforceability of this Agreement, (b) could materially and adversely affect the
business, financial position or results of operations of Patriot, and (c) could
materially and adversely affect the ability of Patriot to perform its
obligations hereunder.
4.5 Submission Matters. Patriot confirms that the Submission Matters
which it received prior to the Effective Date are satisfactory in all material
respects. Patriot acknowledges receipt of all of the items listed in the
Schedules attached hereto and, to the extent that there are additional items
included in the Submission Matters which are not listed in the Schedules
attached hereto, Patriot confirms that it is not aware of any items which have
not been received by it but which should have been furnished to it.
4.6 Bankruptcy. No Act of Bankruptcy has occurred with respect to
Patriot.
Wherever the term "to Patriot's knowledge" or "known to Patriot" is used in this
Agreement or in any representations and warranties given to Summerfield at
Closing, such knowledge shall be the actual knowledge of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ only, without any further inquiry.
ARTICLE V
CONDITIONS PRECEDENT
5.1 As to Patriot's Obligations. Patriot's obligation to purchase the
Property is subject to the satisfaction of the following conditions precedent:
(a) Summerfield's Deliveries. Summerfield shall have delivered
to or for the benefit of Patriot, on or before the Closing Date, all of the
documents and other information required of Summerfield pursuant to Sections 7.2
and 7.4 hereof.
(b) Representations, Warranties and Covenants: Obligations of
Summerfield. All of Summerfield's representations and warranties (set forth in
Article III) shall be true and correct in all respects as of the Closing Date as
if then made (provided that, for purposes of determining the accuracy of such
warranties and representations, any inaccuracy that does not have a Material
Adverse Effect in relation to Patriot shall be disregarded); Summerfield shall
have performed in all respects all of its covenants and other obligations under
this Agreement (provided that, for purposes
-17-
of determining the compliance by Summerfield of such covenants as of the Closing
Date, any non-compliance by Summerfield that does not have a Material Adverse
Effect in relation to Patriot shall be disregarded); and none of the following
events have occurred with respect to the Property which could in Patriot's
reasonable judgment, materially and adversely affect the Property:
(1) a structural failure causing human fatalities;
(2) human fatalities caused by disease which is
specifically identified with the Property such as the occurrence of
Legionnaires disease; and
(3) human fatalities caused by the failure of
life/safety systems.
(c) Title Insurance. The commitment of Title Company to issue
the Owner's Title Policy to Patriot.
(d) Shimizu Purchase Agreements and Transfer Agreements. The
simultaneous consummation of the purchases contemplated by the Shimizu Purchase
Agreements and the Transfer Agreements, other than due to (a) the failure on the
part of Patriot to comply with or perform its obligations thereunder, or (b) the
occurrence of Patriot's election to terminate any Shimizu Purchase Agreement
under Section 8.1 or Section 8.2 thereof (and the termination of the related
Transfer Agreement), or (c) the occurrence of Patriot's election to terminate
one (1) Shimizu Purchase Agreement pursuant to Section 10.1(c) of such Agreement
(and the termination of the related Transfer Agreement).
(e) Agreement to Lease. The execution and delivery of the
Agreement to Lease by the parties hereto so that same is in full force and
effect and, on the Closing Date, the performance by Tenant (as defined therein)
of its obligations thereunder and the concurrent satisfaction of the conditions
precedent therein to closing thereunder and the execution and delivery by Tenant
of the Facility Lease (as defined therein).
(f) Loan Agreement. The execution and delivery of the Loan
Agreement by the parties thereto so that same is in full force and effect and,
on the Closing Date, the performance by the Borrower (as defined therein) of its
obligations thereunder and execution by Borrower of the Note (as defined
therein).
Each of the conditions contained in this Section 5.1 are intended for the
benefit of Patriot and may be waived in whole or in part, by Patriot, but only
by an instrument in writing signed by Patriot.
5.2 As to Summerfield's Obligations. Summerfield's obligations
hereunder are subject to the satisfaction of the following conditions precedent:
(a) Patriot's Deliveries. Patriot shall have delivered to or
for the benefit of Summerfield, on or before the Closing Date, the Purchase
Price and all of the documents and other
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payments required of Patriot pursuant to Sections 7.3 and 7.4 hereof.
(b) Representations, Warranties and Covenants; Obligations of
Patriot. All of Patriot's representations and warranties made in this Agreement
shall be true and correct in all respects as of the Closing Date as if then made
(provided, for purposes of determining the accuracy of such warranties and
representations any inaccuracy that does not have a Material Adverse Effect on
Summerfield shall be disregarded) and Patriot shall have performed in all
material respects all of its covenants and other obligations under this
Agreement (provided, for purposes of determining the compliance by Patriot with
such covenants as of the Closing Date, any non-compliance by Patriot that does
not have a Material Adverse Effect in relation to Summerfield shall be
disregarded).
(c) Shimizu Purchase Agreements and Transfer Agreements. The
simultaneous consummation of the purchases contemplated by the Shimizu Purchase
Agreements and the Transfer Agreements, other than due to (a) the failure on the
part of Summerfield to comply with or perform its obligations thereunder, or (b)
the occurrence of Patriot's election to terminate any Shimizu Purchase Agreement
under Section 8.1 or Section 8.2 thereof (and the termination of the related
Transfer Agreement), or (c) the occurrence of Summerfield's election to
terminate one (1) Shimizu Purchase Agreement pursuant to Section 10.1(d) of such
Agreement (and the termination of the related Transfer Agreement).
(d) Agreement to Lease. The execution and delivery of the
Agreement to Lease by the parties hereto so that same is in full force and
effect and, on the Closing Date, the performance by HPT of its obligations
thereunder and the execution and delivery by Landlord of the Facility Lease (as
defined therein).
(e) Loan Agreement. The execution and delivery of the Loan
Agreement by the parties thereto so that same is in full force and effect and,
on the Closing Date, the performance by PAHOP of its obligations thereunder and
funding of the Loan by PAHOP.
Each of the conditions contained in this Section 5.2 are intended for the
benefit of Summerfield and may be waived in whole or in part, by Summerfield,
but only by an instrument in writing signed by Summerfield.
ARTICLE VI
COVENANTS OF SUMMERFIELD
To induce Patriot to enter into this Agreement and to purchase the
Property, and to pay the Purchase Price therefor, Summerfield covenants and
agrees to the following:
6.1 Operating Agreements, Occupancy Agreements and Management
Agreement. Summerfield shall not change, modify, extend, renew or terminate any
existing, or enter into any, new Occupancy Agreements, Operating Agreements, and
Management Agreement, maintenance or repair contract, supply contract, lease in
which it is lessee or other agreements with respect to the
-19-
Property, nor shall Summerfield enter into any agreements modifying the
Operating Agreements, Occupancy Agreements, and Management Agreement unless (a)
any such agreement or modification will not bind Patriot or the Property after
the date of Closing or (b) Summerfield has obtained Patriot's prior written
consent to such agreement or modification, which consent shall not be
unreasonably withheld or delayed and which shall be deemed given if not given or
refused within five (5) business days of Summerfield's request therefor in
writing. Summerfield agrees not to cancel any Operating Agreements unless
Patriot requests in writing that one or more should be terminated. Summerfield
shall not apply all or any part of the security or damage deposit of a tenant
under any Occupancy Agreement to obligations of such tenant except in the
ordinary course of business unless such tenant has vacated its portion of the
Property as of the Closing Date. Patriot and Summerfield hereby acknowledge that
Tenant shall, pursuant to the Transfer Agreements, assume the Operating
Agreements, and the Management Agreement (collectively, the "Agreements") that
are not terminated by Patriot pursuant to the terms hereof (all of the
Agreements not so terminated being herein called the "Assumed Agreements"). With
respect to the Assumed Agreements, Tenant shall be required at Closing to assume
all obligations thereunder accruing from and after the Closing Date.
Notwithstanding anything to the contrary set forth herein, the existing
Management Agreement between Summerfield and Manager shall be terminated and
shall be replaced by the Management Agreement to be entered into as of the
Closing Date.
6.2 Insurance. Summerfield shall pay or cause to be paid all premiums
on, and shall not allow the cancellation or expiration of any 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.
6.3 Audited Statements. Summerfield has delivered to Patriot copies of
the audited financial statements for the fiscal years ending December 29, 1995
and January 3, 1997, and shall cooperate with Patriot's representatives and
independent public accountants to enable them to contact the auditors who
prepared such audited financial statements and to obtain, at Patriot's expense,
a reissuance of such audited financial statements in the same form and content
as presented to Patriot. Summerfield shall pay for the cost of preparation of
audited financial statements for the current fiscal year and shall ensure that
such audited financial statements shall be furnished to Patriot no later than
March 31, 1998.
6.4 Operation of Properties Prior to Closing. Summerfield covenants and
agrees with Patriot that, between the Effective Date (or such other date as
specified below) and the Closing Date:
(a) Subject to the restrictions contained herein, Summerfield
shall operate the Property in the same manner in which it has been operated
prior to the execution of this Agreement, so as to keep such Property and 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,
equipment, roofs, structural members and furnaces) in good condition, reasonable
wear and tear excepted, and so as to maintain the
-20-
existing caliber of the Hotel operations conducted at the Property and the
reasonable good will of all tenants of the Property and all employees, guests
and other customers of the Hotel.
(b) Summerfield shall maintain its books of account and
records in the usual, regular and ordinary manner, in accordance with sound
accounting principles applied on a basis consistent with the basis used in
keeping its books in prior years.
(c) Summerfield shall maintain in full force and effect all
Insurance Policies.
(d) Summerfield shall use and operate the Property in
compliance in all material respects with Applicable Laws and the requirements of
any mortgage, lease, Occupancy Agreement, Operating Agreement and Insurance
Policy affecting the Property.
(e) Summerfield shall cause to be paid prior to delinquency
all ad valorem, occupancy and sales taxes due and payable with respect to the
Property or the operation of the Hotel and may, in good faith, contest or seek
reimbursement of taxes paid; provided that such contest does not subject the
Property to any potential liability or lien and does not subject Patriot to any
potential liability in the event of an unsuccessful or unsatisfactory outcome to
the contest.
(f) Summerfield shall not permit the inventory of food,
beverages, stock of linens, towels, paper goods, soaps, cleaning supplies,
china, glassware, silverware, table cloths,
napkins, miscellaneous guest supplies and engineering cleaning supplies
constituting a portion of the Tangible Personal Property to be diminished other
than as a result of the ordinary and necessary operation of the Hotel by
Summerfield.
(g) Summerfield shall not remove or cause or permit to be
removed any part or portion of the Real Property or the Tangible Personal
Property without the express written consent of Patriot unless the same is
replaced, prior to Closing, with similar items of at least equal suitability,
quality and value, free and clear of any liens or security interests other than
Permitted Liens.
(h) Summerfield and Manager shall continue to use commercially
reasonable efforts to take guest room reservations and to book functions and
meetings and otherwise to promote the business of the Property or any of them in
generally the same manner as Summerfield and Manager did prior to the execution
of this Agreement; and all advance room bookings and reservations and all
meetings and function bookings shall be booked at rates, prices and charges
heretofore customarily charged by Summerfield or Manager for such purposes, and
in accordance with Summerfield's or Manager's published rate schedules.
(i) Summerfield shall not make any agreements, other than
those described in subparagraph (h) above, which shall be binding upon Patriot
with respect to the Property or that otherwise cannot be terminated without
penalty upon thirty (30) days notice unless approved by Patriot pursuant to
Section 6.1.
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(j) Summerfield shall promptly deliver to Patriot upon
Patriot's request such reports showing the revenue and expenses of the Hotel and
all departments thereof, together with such periodic information with respect to
room reservations and other bookings, as Summerfield customarily keeps or
receives internally for its own use.
(k) Summerfield shall not enter into any employment agreements
which would be binding on Patriot with respect to the Property.
(l) Summerfield shall promptly advise Patriot of any
litigation, arbitration or administrative hearing concerning or affecting the
Property of which Summerfield obtains written notice or of which Summerfield has
knowledge.
(m) Summerfield shall not, by act or omission, breach or cause
to be breached any of the terms and conditions on its part to the part to be
performed and observed and as more particularly contained in the Operating
Agreements and the Management Agreement.
(n) Summerfield shall continue to make deposits into the FF&E
Cash Reserve in accordance with the Management Agreement and shall only expend
funds from such FF&E Cash Reserve pursuant to the capital expenditure budget, a
copy of which has been furnished to Patriot. Summerfield must obtain Patriot's
prior written approval for any proposed expenditures which have not otherwise
been sanctioned in the capital expenditure budget.
(o) Within three (3) days from the Effective Date, Summerfield
shall furnish to Patriot copies of the Authorizations referred to at Part B of
Schedule A7 together with all other Authorizations required for the proper use
of the Property and the Hotel thereon.
6.5 No Marketing. Neither Summerfield nor Manager shall market the
Property for sale or enter into discussions or negotiations with potential
purchasers of the Property.
6.6 Liens. Summerfield shall not, after the date of this Agreement,
subject the Real Property to or permit or suffer to exist 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 Patriot's prior written consent unless same
are discharged at or prior to Closing.
6.7 Corporate and Bulk Sales Clearance.
(a) If the property is located in a State in which the
transaction contemplated by this Agreement is subject to bulk sales laws then
Summerfield shall do everything necessary to comply with those laws including
the timely filing of written notices and requisite applications in the manner
specified in such bulk sales laws and shall furnish copies thereof to Patriot.
In addition, Summerfield shall obtain, prior to the Closing Date, all lien
certificates and shall use diligent efforts to obtain, prior to the Closing
Date, all clearance certificates which may be obtained pursuant to
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those laws. Copies of all such certificates shall be delivered to Patriot
promptly after receipt of same by Summerfield.
(b) If Summerfield fails to obtain any such clearance
certificate, then Patriot shall have the right to require Summerfield to enter
into such agreements and deposit such sums with the Title Company, which shall
include at Patriot's option all sums shown on any lien certificate obtained,
plus the parties' reasonable estimate of those unsettled or undetermined
liabilities of Seller as may be required for payment to the appropriate
governmental authorities to protect Patriot against loss by reason of the
non-payment by Summerfield of all taxes and other sums payable by Summerfield to
the date of conveyance and Summerfield's failure to obtain and deliver clearance
certificates showing that all reports have been filed with the relevant State
Authority and that all such taxes and other sums have been paid.
(c) Alternatively, Patriot shall have the right to reduce the
Purchase Price by an amount equal to all unpaid taxes and liabilities which are
the subject of such lien certificates or clearance certificates and apply the
amount by which the Purchase Price is so reduced to pay such taxes.
(d) Summerfield shall indemnify Patriot and save and hold
Patriot harmless from and against any claims, suits, demands, liabilities or
obligations of any kind or nature whatsoever, including all costs of defending
same, and reasonable attorneys' fees paid or incurred
in connection therewith, arising out of or relating to any claim made by any
third party or any liability asserted by any third party that any applicable
bulk sales law or like statute has not been complied with. The provisions of
this Section 6.7 shall survive the Closing of the transaction contemplated
hereby.
The foregoing covenants of Summerfield are for the benefit of Patriot
or its assignee of its permitted rights under this Agreement. The covenants
appearing at Sections 6.1, 6.2, 6.4, 6.5 and 6.6 above shall terminate and be of
no further force and effect after the Closing Date.
ARTICLE VII
CLOSING
7.1 Closing. The Closing shall occur on a business day designated by
Patriot, with at least five (5) days notice to Summerfield (which day shall be
no later than March 25, 1998). As more particularly described below, at the
Closing the parties hereto will (i) execute all of the documents listed in
Sections 7.2, 7.3 and 7.4 hereof (the "Closing Documents"), (ii) deliver the
same to Escrow Agent, and (iii) take all other action required to be taken in
respect of the transactions contemplated hereby. The Closing will occur at the
offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Rain ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, or at such other place as Patriot shall designate by written notice
to Summerfield given at least three (3) days prior to the Closing. At the
Closing, Escrow Agent shall return the Deposit to Patriot and shall update the
title to the Properties, Escrow Agent shall record the Deeds, release and date,
where appropriate, the Closing Documents in
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accordance with the joint instructions of Summerfield and Patriot. As provided
herein, the parties hereto will agree upon adjustments and prorations to certain
items which cannot be exactly determined at the Closing and will make the
appropriate adjustments with respect thereto. Possession of the Properties shall
be delivered to Patriot at the Closing, subject only to Permitted Title
Exceptions, Permitted Liens and the rights of tenants under the Occupancy
Agreements and guests in possession.
7.2 Summerfield's Deliveries. At the Closing, Summerfield shall
deliver, if not previously delivered by Summerfield pursuant to the terms
hereof, to Escrow Agent all of the following instruments, each of which, where
applicable, shall have been duly executed and, where applicable, acknowledged
and/or sworn on behalf of Summerfield and shall be dated as of the Closing Date:
(a) The Deed.
(b) The ▇▇▇▇ of Sale - Personal Property.
(c) The Assignment and Assumption Agreements to Tenant and
Patriot respectively.
(d) A Manager estoppel letter substantially in the form of
Exhibit A6 attached hereto.
(e) Certificates from the applicable State taxing authority
and local taxing authorities stating that all occupancy and sales taxes due and
payable for the Property have been paid and, if any such taxes have not been
paid, the amount due and payable as of the Closing Date.
(f) Certificate(s)/Registration of Title to Tenant for any
vehicle owned by Summerfield and used in connection with the Property.
(g) Such agreements, affidavits (including any requisite
affidavits of title), estoppel certificates, statements, confirmations, releases
of lien, receipts or evidence of payments made or such other documents as may be
required by the Title Company to issue the Owner's Title Policy subject only to
the Permitted Title Exceptions.
(h) The Owner's Title Policy.
(i) The FIRPTA Certificate (or alternative, if the Property is
located in California, the CAL-FIRPTA Certificate).
(j) All original Warranties and Guaranties in Summerfield's
possession or reasonably available to Summerfield.
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(k) Appropriate resolutions of the partners comprising
Summerfield, together with all other necessary approvals and consents of
Summerfield and such documentary and other evidence as may be reasonably
required by Escrow Agent, authorizing and evidencing the authorization of (i)
the execution on behalf of Summerfield of this Agreement and the authority of
the person or persons who are executing the various documents to be executed and
delivered by Summerfield prior to, at or otherwise in connection with the
Closing, and (ii) the performance by Summerfield of its obligations hereunder
and under such documents.
(l) Current, valid, final and unconditional certificates of
occupancy for the Real Property and Improvements, issued by the appropriate
Governmental Authority.
(m) If Tenant is assuming Summerfield's obligations under any
or all of the Operating Agreements pursuant to the Transfer Agreements, the
originals of such agreements, and with respect to the material Operating
Agreements, consent to the assignment thereof acknowledged and approved by the
other parties to such Operating Agreements to the extent required by such
Operating Agreements.
(n) With respect to the material Personal Property Leases, (1)
the written consent of the lessors of such leases to such assignment, if
required by such Personal Property Leases, and (2) executed originals of all
such leases in Summerfield's possession or reasonably available to Summerfield.
(o) Copies of all Insurance Policies, all of which (other than
for any policy of worker's compensation) shall include an endorsement thereto
noting Tenant as an additional insured with respect to occurrences on or after
the date which is two (2) years prior to the Effective Date.
(p) To the extent in Summerfield's possession or reasonably
available to Summerfield, originals of the following items (which shall be
deemed delivered by Summerfield under this Section 7.2 if delivered to Tenant or
the property manager at the Hotel): (1) complete sets of all architectural,
mechanical, structural and/or electrical plans and specifications used in
connection with the construction of or alterations or repairs to the Property;
and (2) as built plans and specifications for the Property, with copies thereof
to Patriot upon receipt of Patriot's written request therefor.
(q) To the extent assignable, a written instrument executed by
Summerfield, conveying and transferring to Tenant all of Summerfield's right,
title and interest in any telephone numbers and TWX numbers relating to the
Property, and, if Summerfield maintains a post office box, conveying to Tenant
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.
(r) Duplicate originals or copies of all agreements, leases,
concession agreements and other instruments materially affecting the Property
and the Hotel and/or restaurant business
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conducted thereon in Summerfield's possession or control, which shall be deemed
delivered by Summerfield under this Section 7.2 if delivered to Tenant or the
property manager at the Hotel.
(s) All current real estate and personal property tax bills in
Summerfield's possession or under its control for taxes and assessments not yet
due and payable.
(t) If available, by delivery to the property manager at the
Hotel, a complete set of all guest registration cards, guest transcripts, guest
histories, and all other available guest information.
(u) All books, records, operating reports, appraisal reports,
files and other materials in Summerfield's possession or control which are
necessary in Patriot's discretion to maintain continuity of operation of the
Property (which items shall be deemed delivered by Summerfield under this
Section 7.2 if delivered to Tenant or the property manager at the Hotel).
(v) A current UCC Report showing no financing statements
covering the Property other than Permitted Liens and liens to be discharged on
the Closing Date.
(w) Executed originals of all Occupancy Agreements and, to the
extent available, Authorizations transferred or assigned to Patriot or Tenant,
as appropriate, at Closing as required hereunder (which items shall be deemed
delivered by Summerfield under this Section 7.2 delivered to Tenant or the
property manager at the Hotel).
(x) Summerfield's share of the closing costs and prorations
calculable hereunder which may be deducted from the Purchase Price.
(y) The liquor licenses for the Property, together with such
consents and estoppels as may reasonably be required by Tenant from the holders
of any of the liquor licenses for the Property, and any other necessary
documents which may be required to effectuate the transfer of liquor licenses.
(z) Any requisite certificate of value that must be executed
pursuant to statutory or regulatory requirements of the State in which the
Property is situate.
(aa) A Residency Affidavit (if the Property is located in
Georgia).
(bb) If the Property is located in New Jersey the delivery by
Summerfield of a Letter of Non-applicability or a Negative Declaration in
accordance with the Industrial Site Recovery Act ("ISRA") N.J.S.A. 13:1K-6 et
seq. and the regulations issued thereunder.
(cc) An opinion from Summerfield's in-house counsel, ▇▇▇▇
▇▇▇▇▇, stating that Summerfield has duly authorized, executed and delivered to
Patriot this Agreement and all of the conveyance documents to be delivered by
Summerfield hereunder.
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(dd) The Deposit.
7.3 Patriot's Deliveries. At the Closing, Patriot shall deliver to
Escrow Agent for the benefit of Summerfield:
(a) The Purchase Price and Patriot's share of closing costs in
immediately available funds.
(b) any other document or instrument reasonably requested by
Summerfield or required hereby.
(c) An opinion of Patriot's counsel as to due authorization,
execution and delivery of this Agreement.
7.4 Mutual Deliveries. At the Closing, Patriot and Summerfield shall
mutually execute and deliver each to the other:
(a) A closing statement reflecting the adjustments and
prorations required hereunder and the allocation of income and expenses required
hereby which will be final, subject to subsequent adjustment pursuant to the
last paragraph of Section 7.6 hereof.
(b) Such other documents, instruments and undertakings as may
be required by the liquor authorities of the State where a Property is located,
or of any county or municipality or governmental entity having jurisdiction with
respect to the transfer or issue of liquor licenses or alcoholic beverage
licenses or permits for the operation of the Hotel by Tenant, to the extent not
theretofore executed and delivered.
(c) Such other and further documents, papers and instruments
as may be reasonably required and mutually agreed to by the parties hereto or
their respective counsel.
7.5 Closing Costs. Except as is explicitly provided in this Agreement,
each party hereto shall pay its own legal fees and expenses. All filing fees for
the Deed and the transfer, recording, sales or other similar taxes and surtaxes
due with respect to the transfer of title shall be evenly divided between
Summerfield and Patriot. Summerfield shall pay for the costs associated with the
releases of any deeds of trust, mortgages and other financing encumbering a
Property and for any costs associated with any corrective instruments.
Summerfield shall also pay all taxes (and, if required by applicable law, all
withholding for taxes) attributable to capital gain or income from the sale of
the Property to the extent that Patriot could otherwise have liability therefor.
Summerfield and Patriot shall each pay for half of all costs for all surveys,
environmental and other property reports, title searches, premiums for the
issuance of the Title Policy and all endorsements thereto and deletions
therefrom which are customarily required by institutional investors purchasing
property comparable to the Property. All other costs (except any costs incurred
by Summerfield or
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Patriot for its own account) in carrying out the transactions contemplated
hereunder shall be paid by the party which customarily pays for such costs in
the applicable jurisdiction.
7.6 Revenue and Expense Allocations. All revenues 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 Summerfield, Patriot and Tenant as provided
herein. Summerfield shall be entitled to all revenue and shall be responsible
for all expenses for the period of time up to but not including the Closing
Date, and, pursuant to the Facility Lease referred to in the Agreement to Lease,
Tenant shall be entitled to all revenue and shall be responsible for all
expenses for the period of time from, after and including the Closing Date
(provided that housekeeping costs and the Rooms Ledger for the date of Closing
shall be shared equally between Tenant and Summerfield pursuant to the Transfer
Agreement). Subject to the last paragraph in this Section 7.6, such adjustments
shall be shown on the closing statements to be prepared as agreed upon by
Summerfield, Patriot (without regard to whether it has assigned its interest
hereunder), any assignee of Patriot and Tenant (with such supporting
documentation as the parties thereto may require being attached as exhibits to
the closing statements) and shall be deducted from or added to the Purchase
Price. Without limiting the generality of the foregoing, the following items of
revenue and expense shall be allocated at Closing unless the information which
is necessary for such allocation is not then available, in which event these
items shall be allocated as provided in the last paragraph of this Section 7.6:
(a) Current rents.
(b) Real estate and personal property taxes.
(c) Revenue and expenses under those Operating Agreements
which will be assigned to and assumed by Tenant.
(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 Summerfield, including any taxes.
(f) Installments due in 1998 on account of municipal or other
governmental improvement liens and special assessments; provided however,
Summerfield shall also be responsible for and make payment to Tenant at Closing
for the amount of such liens and special assessments which will accrue after
Closing to the extent (i) that the installments for such liens and special
assessments were not disclosed in the financial statements provided to Patriot
prior to the Effective Date, or (ii) of the amount, if any, by which the
installments for such liens and special assessments is scheduled to increase in
periods after Closing from the amounts disclosed in the financial statements
provided to Patriot prior to the Effective Date.
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(g) Insurance premiums.
(h) License and permit fees, where transferable.
(i) All other revenues and expenses of the Property,
including, but not limited to, such things as restaurant, bar and meeting room
income and expenses and the like.
(j) Charges and fees due under the Management Agreement.
(k) Sales, occupancy and liquor taxes.
(l) Use taxes (if any).
(m) Payment of costs and expenses associated with accrued but
unpaid salary, earned but unpaid vacation pay, accrued but unearned vacation
pay, pension and welfare benefits, the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA") benefits, employee fringe
benefits, employee termination payments or any other employee benefits due to
Summerfield's, or Manager's employees.
(n) Such other items as are usually and customarily prorated
between purchasers and sellers of hotel properties in the area where the
Property is located.
Pursuant to the Transfer Agreements, Tenant shall receive from
Summerfield a credit for the total of (i) prepaid rents, (h) prepaid room
receipts and deposits, function receipts and deposits and other reservation
receipts and deposits, (iii) unforfeited security deposits together with
interest thereon held by Summerfield under the Occupancy Agreements, and (iv)
the value of any complimentary rooms (based upon the "rack" rate for each room)
and any complimentary food or beverages (based upon the advertised rate for each
food and beverage) provided by Summerfield from and after 12:01 a.m. on the
Closing Date. At Closing, Summerfield shall, pursuant to the Transfer Agreement,
sell to Tenant in connection with the Hotel, and Tenant shall acquire from
Summerfield, the so-called "guest ledger" as mutually approved by Patriot,
Summerfield and Tenant for the Hotel of guest accounts receivable payable to the
Hotel as of the check out time for the Hotel on the Closing Date (based on
guests and customers then using the Hotel) both (1) in occupancy from the
preceding night through check out time the morning of the Closing Date, and (2)
previously in occupancy prior to check out time on the Closing Date; provided,
however, that the term "guest ledger" shall not include any accounts receivable
which have been or are to be paid by any means other than a credit card.
Pursuant to the Transfer Agreements, Tenant shall receive a credit for
the current book value of any capital lease affecting the Property which shall
be quantified in accordance with generally accepted accounting principles.
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All subdivision and platting costs and expenses heretofore incurred by
Summerfield, including, without limitation, all subdivision exactions, fees and
costs and all dedication of land for parks and other public uses or payment of
fees in lieu thereof, shall be paid by Summerfield on or prior to the Closing
Date.
If accurate allocations cannot be made by Closing because current bills
or other necessary information are not obtainable (as, for example, in the case
of utility bills and/or real estate or personal property taxes) or appeals are
pending, the parties shall allocate such revenue or expenses on the best
available information, subject to adjustment upon receipt of the final ▇▇▇▇ or
other evidence of the applicable revenue or expense. Any revenue received or
expense incurred by Summerfield, Patriot or Tenant with respect to the Property
after the date of Closing shall be promptly allocated in the manner described
herein or the Transfer Agreement, as appropriate, and the parties shall promptly
pay or reimburse any amount due. The obligation to make the adjustments
described herein shall survive the Closing of the transaction contemplated by
this Agreement.
7.7 Summerfield's Accounts Receivable. At the Closing, Summerfield
shall prepare a list of its outstanding accounts receivable as of midnight on
the date prior to the Closing, specifying the name of each account and the
amount due to Summerfield, and shall be entitled to retain such accounts
receivable.
ARTICLE VIII
GENERAL PROVISIONS
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, Summerfield shall promptly give
written notice thereof to Patriot. If all or a Substantial Portion (as
hereinafter defined) of the Real Property is, or is to be, so condemned or sold,
Patriot shall have the right to terminate this Agreement pursuant to Section
10.1(g) hereof, and upon such a termination it is acknowledged that the related
Transfer Agreement will be terminated by the parties thereto. If Patriot 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 Patriot at Closing, and the amount of such credit
shall constitute an Award under Article 11 of the Facility Lease as defined in
the Agreement to Lease. Summerfield shall not settle or compromise any such
proceeding without Patriot's prior written consent. If Patriot elects to
terminate this Agreement by giving Summerfield written notice thereof prior to
the Closing, the Deposit shall be promptly returned to Patriot and all rights
and obligations of Summerfield and Patriot hereunder (except those set forth
herein which expressly survive a termination of this Agreement) shall terminate
immediately. In the event any portion of the Real Property is affected by a
condemnation, sale or eminent domain action and such condemnation, sale or
eminent domain action does not constitute a Substantial Portion of the Real
Property, this Agreement shall remain in full force and effect without a
reduction in the Purchase Price except as provided below. In the event of any
such condemnation, sale or eminent domain action that does not constitute a
Substantial Portion of the
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Real Property, Patriot shall be entitled to any and all claims that Summerfield
may have to condemnation awards or any and all causes of action with respect to
such condemnation, sale or eminent domain action (all of which shall be assigned
by Summerfield to Patriot at Closing), and Summerfield shall credit to Patriot
at Closing, by an appropriate adjustment to the Purchase Price, an amount equal
to all payments (if any) theretofore received by Summerfield with respect to
such condemnation, sale or eminent domain action, and the amount of such credit
shall constitute an Award under Article 11 of the Facility Lease. For purposes
of this Section 8.1, a "Substantial Portion" shall mean a condemnation of in
excess of $500,000.00 of the Real Property. This provision shall survive the
Closing of the transaction contemplated hereby.
8.2 Risk of Loss. The risk of any loss or damage to any Property prior
to the Closing Date shall remain upon Summerfield. If any such loss or damage
which constitutes Substantial Loss or Damage occurs prior to Closing, Patriot
shall have the right to terminate this Agreement pursuant to Section 10.1(g)
hereto, and upon such termination it is acknowledged that the related Transfer
Agreement will be terminated by the parties thereto. If Patriot 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 Patriot
at Closing and Patriot shall receive as a credit against the Purchase Price the
amount of any deductibles under the policies of insurance covering such loss or
damage, and the amount of such credit shall constitute insurance proceeds under
Article 10 of the Facility Lease. If Patriot elects to terminate this Agreement
by giving Summerfield written notice thereof prior to the Closing, the Deposit
shall be promptly returned to Patriot and all rights and obligations of
Summerfield and Patriot hereunder (except those set forth herein which expressly
survive a termination of this Agreement) shall terminate immediately. In the
event of such termination, Patriot agrees that, to the extent that it is
commercially reasonable or prudent for it to do so, it shall, in good faith,
enter into negotiations with Summerfield for the redevelopment by Summerfield of
the damaged or destroyed Property and the sale thereof to Patriot upon
completion and stabilization, provided however that Patriot shall not be under
any obligation whatsoever to conclude such negotiations and may at any time
withdraw therefrom. In the event any Property or any part thereof or any of the
items constituting the Personal Property should be damaged or destroyed as a
result of fire or other casualty and such damage does not constitute Substantial
Loss or Damage and such damage is not repaired prior to Closing, the rights and
obligations of Summerfield and Patriot hereunder with respect to that Property
shall not be affected by such destruction or damage and Patriot shall accept
title to that Property in its destroyed or damaged condition. In such event, at
the Closing, Patriot shall receive a credit against the Purchase Price equal to
the amount of damage to that Property resulting from such loss or damage, and
the amount of such credit shall constitute insurance proceeds under Article 10
of the Facility Lease. For purposes of this Section 8.2, "Substantial Loss or
Damage" shall mean loss or damage, the cost for repair of which (as mutually
determined by Patriot and Summerfield at the time of such loss or damage)
exceeds $500,000.00 for the Real Property. In the event that Patriot and
Summerfield are unable to agree on the cost of repair of any Substantial Loss or
Damage, then such cost of repair shall be determined by an insurance adjuster
selected by Summerfield and approved by Patriot, such approval not to be
unreasonably withheld. This provision shall survive the Closing of the
transaction contemplated hereby.
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8.3 Absence of Broker. There is no real estate broker involved in this
transaction. Patriot warrants and represents to Summerfield that Patriot has not
dealt with any real estate broker in connection with this transaction, nor has
Patriot been introduced to the Property or to Summerfield by any real estate
broker, and Patriot shall indemnify Summerfield and save and hold Summerfield
harmless from and against any claims, suits, demands or liabilities of any kind
or nature whatsoever arising on account of the claim of any person, or
corporation to a real estate brokerage commission or a finder's fee as a result
of having dealt with Patriot, or as a result of having introduced Patriot to
Summerfield or to the Property. In like manner, Summerfield warrants and
represents to Patriot that Summerfield has not dealt with any real estate broker
in connection with this transaction, nor has Summerfield been introduced to
Patriot by any real estate broker, and Summerfield shall indemnify Patriot and
save and hold Patriot harmless from and against any claims, suits, demands or
liabilities of any kind or nature whatsoever arising on account of the claim of
any person, firm or corporation to a real estate brokerage commission or a
finder's fee as a result of having dealt with Summerfield in connection with
this transaction.
8.4 Confidentiality. Each party hereto shall use its reasonable efforts
to ensure that all confidential information which such party or any of its
respective representatives may now possess or may hereafter create or obtain
relating to the consummation of this transaction or the financial condition,
results of operations, business, properties, assets, liabilities or future
prospects of the other party, any affiliate or subsidiary of the other party or
any tenant, customer or supplier of such other party, shall not be published,
disclosed or made accessible by any of them, in each case without the prior
written consent of the other party; provided, however, that such restriction
shall not apply: (i) to the extent the disclosure may otherwise be required by
applicable law, court process or by obligations pursuant to any listing
agreement with any national securities exchange; (ii) to the extent such
information shall have otherwise become publicly available; (iii) to disclosure
to a lender(s) for the purpose of obtaining financing in connection with this
transaction; or (iv) to third parties in connection with the obtaining of any
consent or the providing of any contractually required notification. After
Closing, Patriot shall, in its sole discretion, be free to disclose previously
confidential information related (1) to the operation of the Hotel (to the
extent that such information is of a type which is customarily disclosed by a
public company such as Patriot) and (2) to the purchase of the Hotel.
8.5 Employees. Patriot shall not have any liability under any pension,
profit sharing or welfare benefit plan that Summerfield or Manager may have
established with respect to the Property or its employees.
8.6 Investment Bankers. For purposes of this Section 8.7, "Investment
Bankers" shall mean (1) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, and (2) NationsBank ▇▇▇▇▇▇▇▇▇▇ Securities, Inc. of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Summerfield warrants and represents that there
are no other investment bankers involved in this transaction and that
Summerfield shall be liable to pay the fees and expenses of Investment Bankers.
Summerfield shall indemnify Patriot and save and hold Patriot harmless from and
against any
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claims, suits, demands or liabilities of any kind or nature whatsoever arising
on account of any claim of Investment Bankers or other such party whatsoever who
have dealt with Summerfield in that regard. In like manner, Patriot shall
indemnify Summerfield and save and hold Summerfield harmless from and against
any claims, suits, demands or liabilities of any kind or nature whatsoever
arising on account of the claims of any person or corporation other than
Investment Bankers who may be advising Patriot in relation to the transaction
contemplated hereby.
8.7 Radon Disclosure. If the Property is located in the State of
Florida, then as required by Florida legislation there is included herein the
following disclosure namely that Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient qualities, may present
health risks to persons who are exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from
the county public health unit.
ARTICLE IX
LIABILITY OF PATRIOT, INDEMNIFICATION BY SUMMERFIELD;
DEFAULT; TERMINATION RIGHTS
9.1 Expenses. Patriot is not assuming any liability for Summerfield
Expenses, and Summerfield hereby indemnifies and holds Patriot harmless from and
against any and all claims, costs, penalties, damages, losses, liabilities and
reasonable expenses (including reasonable attorneys' fees) that may at any time
be incurred by Patriot and its affiliates as a result of Summerfield's failure
to pay or provide Patriot with a credit for all Summerfield Expenses pursuant to
Section 7.6 hereof. The provisions of this Section 9.1 shall survive the Closing
of the transaction contemplated hereby. If either of the parties hereto receives
notification, in the form of an invoice, of a payment which is properly payable
by the other, then the party to whom the invoice was sent shall, within
twenty-five (25) days from receipt thereof (the "Notice Period") notify the
other party that payment is due, failing which, the other party shall not be
liable for payment of any penalty charge or interest accruing thereon for the
period commencing from the expiration of the Notice Period.
9.2 Indemnification by Summerfield. Summerfield hereby indemnifies and
holds Patriot harmless from and against any and all claims, costs, penalties,
damages, losses, liabilities and reasonable expenses (including reasonable
attorneys' fees) that may at any time be incurred by Patriot, whether before or
after Closing:
(a) that arise as a result of any inaccuracy or breach by
Summerfield of any of its representations, warranties or covenants set forth
herein; provided the ability to recover hereunder is subject to the limitations
set forth in Section 9.5 and Section 9.6 of this Agreement, and
(b) that arise as a result of any failure on the part of
Summerfield to discharge the Retained Liabilities when due.
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The provisions of this Section 9.2 shall survive the Closing of the
transaction contemplated hereby.
9.3 Indemnification by Patriot. Patriot hereby indemnifies and holds
Summerfield harmless from and against any and all claims, costs, penalties,
damages, losses, liabilities and reasonable expenses (including reasonable
attorneys' fees) that may at any time be incurred by Summerfield, whether before
or after Closing that arise as a result of any inaccuracy or breach by Patriot
of any of its representations, warranties or covenants set forth herein. The
provisions of this Section 9.3 shall survive the Closing of the transaction
contemplated hereby.
9.4 Waiver of Rights. Summerfield hereby agrees that it and its
affiliates will not seek indemnification, contribution or reimbursement from the
Manager for any payments which it is required to make under Section 9.1 or
Section 9.2 hereof.
9.5 Expiration of Representations, Warranties and Covenants. All of the
representations and warranties of Summerfield set forth in this Agreement and
the covenants set forth in Article VI of this Agreement shall terminate and
expire, and shall cease to be of any force or effect, at 10:00 a.m. (California
time) on the day which is one hundred eighty (180) days after the Closing Date,
and all liability of Summerfield with respect to such representations,
warranties and covenants shall thereupon be extinguished; provided, however,
that if, prior to such one hundred eighty (180) days expiration date, Patriot
shall have given written notice to Summerfield of its intention to exercise its
remedies hereunder with respect to a specific representation, warranty or
covenant and specifying the breach thereof in reasonable detail and prior to
fifteen (15) business days after such one hundred eighty (180) days expiration
date shall have filed a lawsuit in a court of competent jurisdiction claiming a
breach of such a representation, warranty or covenant, then the specific
indemnification claim set forth in such written notice shall survive such one
hundred eighty (180) days expiration date (and shall not be extinguished
thereby).
9.6 Deductible Amount. Without limiting the effect of any of Section
9.5 hereof, Summerfield shall not be required to make any indemnification
payment with respect to any breach of any of its representations, warranties or
covenants, except to the extent that the cumulative amount of the damages
actually incurred by Patriot which is subject to indemnification under Section
9.2(a) of this Agreement and Section 9.2(a) of the Shimizu Purchase Agreements
exceeds the Deductible Amount; and Summerfield shall only be required to pay,
and shall only be liable for, the amount by which the cumulative amount of the
damages actually incurred by Patriot actually exceeds the Deductible Amount. The
"Deductible Amount" shall be $250,000.00. The total amount of the payments that
Summerfield can be required to make under Section 9.2(a) of this Agreement and
Section 9.2(a) of the Shimizu Purchase Agreements shall be limited in the
aggregate to a maximum of $5,000,000.00, and the cumulative liability of
Summerfield and the parties defined as "Summerfield" in the Shimizu Purchase
Agreements shall in no event exceed such amount.
9.7 Exclusivity. The right of each party hereto to assert
indemnification claims and receive indemnification payments pursuant to this
Article IX shall be the sole and exclusive right
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and remedy exercisable by such party following the Closing with respect to any
breach by the other party hereto of any representation, warranty or covenant
contained herein. The indemnification provided for in this Article IX shall be
the exclusive right and remedy following the Closing with respect to any
inaccuracy in any representation or warranty, and with respect to any failure to
perform or comply with any covenant or agreement contained in this Agreement or
in any certificate delivered pursuant to this Agreement or in connection with
the transactions contemplated hereby or in respect of any other matter subject
to indemnification hereunder, and no claim or cause of action following the
Closing with respect to any misrepresentation or any breach or default as to any
representation, warranty, agreement or covenant contained in this Agreement
shall be enforceable unless made in accordance with the procedures, and within
the time periods, set forth in this Article IX.
9.8 No Implied Representations. Patriot and Summerfield acknowledge
that, except as expressly provided in Articles III and IV, none of the parties
has made or is making any representations or warranties whatsoever, implied or
otherwise. Without limiting the generality of the foregoing, Patriot
acknowledges that Summerfield has not made and is not making any representations
or warranties with respect to any forecasts or other information, or any
documents, made available by or on behalf of Summerfield or any of its
representatives to Patriot or any of its representatives, except to the extent
set forth in any express representation or warranty in Article III.
9.9 Costs and Attorneys' Fees. In the event of any litigation or
dispute between the parties arising out of or in any way connected with this
Agreement, resulting in any litigation, then the prevailing party in such
litigation shall be entitled to recover its costs of prosecuting and/or
defending same, including, without limitation, reasonable attorneys' fees at
trial and all appellate levels. The provisions of this Section 9.9 shall survive
the Closing of the transaction contemplated hereby.
9.10 Limitation of Liability. Notwithstanding anything herein to the
contrary, except in the case of fraud by either party, the liability of each
party hereto resulting from the breach or default by either party or pursuant to
any indemnity provided for in this Agreement shall be limited to actual damages
incurred by the injured party and except in the case of fraud by either party,
the parties hereto hereby waive their rights to recover from the other party
consequential, punitive, exemplary, and speculative damages. The provisions of
this Section 9.10 shall survive the Closing of the transaction contemplated
hereby.
ARTICLE X
TERMINATION AND ENFORCEMENT
10.1 Termination Events. This Agreement may be terminated prior to the
Closing:
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(a) by Patriot if the timely satisfaction of any condition set
forth in Section 5.1 has become impossible (other than as a result of any
failure on the part of Patriot to comply with or perform any covenant or
obligation of Patriot set forth in this Agreement);
(b) by Summerfield if the timely satisfaction of any condition
set forth in Section 5.2 has become impossible (other than as a result of any
failure on the part of Summerfield to comply with or perform any covenant or
obligation set forth in this Agreement);
(c) by Patriot if any condition set forth in Section 5.1 has
not been satisfied by the Closing Date;
(d) by Summerfield if any condition set forth in Section 5.2
has not been satisfied by the Closing Date;
(e) by Patriot if the Closing has not taken place by 10:00
a.m. (local time) on March 25, 1998 (other than as a result of any failure on
the part of Patriot to comply with or perform any covenant or obligation of
Patriot set forth in this Agreement);
(f) by Summerfield if the Closing has not taken place by 10:00
a.m. (local time) on March 25, 1998 (other than as a result of the failure on
the part of Summerfield to comply with or perform any covenant or obligation set
forth in this Agreement);
(g) by Patriot, in accordance with Section 8.1 or 8.2 hereof;
(h) by either Patriot or Summerfield if a court of competent
jurisdiction or other governmental entity shall have issued a final and
nonappealable order, decree or ruling, or shall have taken any other action
after the date of this Agreement, having the effect of permanently restraining,
enjoining or otherwise prohibiting the consummation of the transactions to be
consummated on the Closing Date; or
(i) by the mutual consent of Patriot and Summerfield.
10.2 Termination Procedures. If Patriot wishes to terminate this
Agreement pursuant to Section 10.1(a), Section 10.1(c) or Section 10.1(e),
Patriot shall deliver to Summerfield a written notice stating that Patriot is
terminating this Agreement and setting forth a brief description of the basis on
which Patriot is terminating this Agreement. If Summerfield wishes to terminate
this Agreement pursuant to Section 10.1(b), Section 10.1(d) or Section 10.1(f),
Summerfield shall deliver to Patriot a written notice stating that Summerfield
is terminating this Agreement and setting forth a brief description of the basis
on which Summerfield is terminating this Agreement. With respect to a condition
other than the one described in Section 10.1(f) above, Patriot will have ten
(10) days in which to cure the condition which gives rise to the right to
terminate. With respect to a condition other than as described in Section
10.1(e) above, Summerfield will have ten (10) days in which to cure the
condition which gives rise to the right to terminate.
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10.3 Effect of Termination - LIQUIDATED DAMAGES. If this Agreement is
terminated pursuant to Section 10.1 and 10.2 hereof, all further obligations of
the parties under this Agreement shall terminate, except those which expressly
survive the termination of this Agreement; provided, however, that:
(a) if prior to, or as a result of, the termination of this
Agreement, Patriot shall have breached any provision of this Agreement, the
Deposit shall be delivered to Summerfield as its sole and exclusive remedy for
such default, it being agreed that, in the event of such a default, the damages
Summerfield would sustain as a result thereof would be difficult if not
impossible to ascertain; therefore, Summerfield and Patriot agree that, in an
effort to cause the amount of such damages to be certain, Summerfield may retain
the Deposit as full and complete liquidated damages and as Summerfield's sole
remedy;
/s/ /s/
Summerfield Patriot
(b) if prior to, or as a result of, the termination of this
Agreement, Summerfield shall have breached any provision of this Agreement, the
Deposit shall be promptly returned to Patriot and Summerfield shall reimburse
Patriot for all reasonable out-of-pocket and documented expenses incurred by
Patriot in connection with the preparation and negotiation of this Agreement,
the investigation by Patriot of the Property, and the compliance by Patriot with
its obligations under this Agreement, such amount not to exceed $67,000.00; and
The parties hereto stipulate and agree that the provisions of this
Section 10.3 are reasonable and appropriate under the circumstances existing at
the same time this Agreement is made.
/s/ /s/
Summerfield Patriot
10.4 Enforcement Events. Without prejudice to the existence of all
other rights or remedies available to the parties as provided herein, suit may
be brought for specific performance of this Agreement and for the collection of
attorneys' fees pursuant to Section 9.9 hereof:
(a) by Patriot if the Closing has not taken place by 10:00
o'clock a.m. (local time) on March 25, 1998 (other than as a result of failure
on the part of Patriot to comply with or perform any covenants or obligations of
Patriot as set forth in this Agreement);
(b) by Summerfield if the Closing has not taken place by 10:00
o'clock a.m. (local time) on March 25, 1998 (other than as a result of failure
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on the part of Summerfield to comply with or perform any covenants or
obligations of Summerfield as set forth in this Agreement) provided Summerfield
ensures that the Deposit is delivered to Patriot prior to filing such suit;
(c) by Patriot, if Summerfield shall have breached any
provision of this Agreement which could have a Material Adverse Effect on the
Property or Patriot; or
(d) by Summerfield, if Patriot shall have breached any
provision of this Agreement which could have a Material Adverse Effect on
Summerfield or the Property provided Summerfield ensures that the Deposit is
delivered to Patriot prior to filing such suit;
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Completeness; Modification. This Agreement constitutes the entire
agreement between the parties hereto with respect to the transactions
contemplated hereby and supersedes all prior and contemporaneous 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.
11.2 Assignments. Patriot may assign its rights hereunder without the
consent of Summerfield however, any such assignment shall not relieve Patriot of
its obligations under this Agreement.
11.3 Successors and Assigns. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns.
11.4 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.
11.5 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 Delaware.
11.6 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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11.7 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.
11.8 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.
11.9 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 Summerfield: Summerfield Hotel Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇ Godward LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
And with a copy to: SC Suites Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
And with a copy to: Max E. Greenberg, Trager, Toplitz & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
If to Patriot: Patriot American Hospitality Partnership L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇
-39-
With a copy to: Hospitality Properties Trust
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
And with a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Rain ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇▇ ▇▇▇▇
And with a copy to: ▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Escrow Agent: American Title Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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 Escrow Agent in a manner described in this Section 11.9.
11.10 Escrow Agent. Escrow Agent referred to in the definition thereof
contained in Section 1.1 hereof has agreed to act as such for the convenience of
the parties without fee or other charges for such services as Escrow Agent.
Escrow Agent shall not be liable: (a) to any of the parties for any act or
omission to act except for its own willful misconduct; (b) for any legal effect,
insufficiency, or undesirability of any instrument deposited with or delivered
by Escrow Agent or exchanged by the parties hereunder, whether or not Escrow
Agent prepared such instrument; (c) for any loss or impairment of funds that
have been deposited in escrow while those funds are in the course of collection,
or while those funds are on deposit in a financial institution, if such loss or
impairment results from the failure insolvency or suspension of a financial
institution; (d) for the expiration of any time limit or other consequence of
delay, unless a properly executed written instruction, accepted by Escrow Agent,
has instructed Escrow Agent to comply with said time limit; (e) for the default,
error, action or omission of either party to the escrow. Escrow Agent, in its
capacity as escrow agent, shall be entitled to rely on any document or paper
received by it, believed by such Escrow Agent, in good faith, to be bona fide
and genuine. In the event of any dispute as to the disposition of the Deposit,
or any monies held in escrow, or of any documents held in escrow, Escrow Agent
may, if such Escrow Agent so elects, interplead the matter by filing an
interpleader action in a court of general jurisdiction in the county or circuit
where an individual Real Property is located (to the jurisdiction of which both
parties do hereby consent), and pay into the registry of the court the Deposit,
or deposit any such documents with respect to which there is a dispute in the
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Registry of such court, whereupon such Escrow Agent shall be relieved and
released from any further liability as Escrow Agent hereunder. Escrow Agent
shall not be liable for Escrow Agent's compliance with any legal process
subpoena, writ, order, judgment and decree of any court, whether issued with or
without jurisdiction, and whether or not subsequently vacated, modified set
aside or reversed.
11.11 Incorporation by Reference. All of the exhibits attached hereto
are by this reference incorporated herein and made a part hereof.
11.12 Further Assurances. Summerfield and Patriot 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 as described herein.
11.13 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 Summerfield and Patriot
specifically established hereby.
11.14 Time of Essence. Time is of the essence with respect to every
provision hereof.
11.15 Signatory Exculpation. The signatory(ies) for Patriot and
Summerfield is/are executing this Agreement in his/their capacity as
representative of Patriot or Summerfield as the case may be, and not
individually and, therefore, shall have no personal or individual liability of
any kind in connection with this Agreement and the transactions contemplated by
it.
11.16 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 have participated in the
preparation of this Agreement, and therefore any usual rules of construction
requiring that ambiguities are to be resolved against a
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particular party shall not be applicable in the construction and interpretation
of this Agreement or any exhibits hereto.
11.17 Effect of Sale. It is agreed that S.C. Suites Corp shall have no
liabilities or obligations pursuant to any documents to which they are not a
party either individually or as general partner of a party executing such
documents.
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RECEIPT OF ESCROW AGENT
American Title Company, as Escrow Agent, acknowledges receipt of the
amount of $333,333.33 from Patriot as described in Section 2.3 of the foregoing
Agreement of Purchase and Sale, said sum to be held pursuant to the terms and
provisions of said Agreement.
DATED this 20th day of March, 1998
AMERICAN TITLE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
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DESCRIPTION OF OTHER PURCHASE AND SALE AGREEMENTS
[The following note regarding other Purchase and Sale Agreements does not form a
part of the foregoing Purchase and Sale Agreement.]
The accompanying Agreement of Purchase and Sale between Patriot
American Hospitality Partnership, L.P. and Chatsworth Summerfield Associates,
L.P. is one of 15 separate purchase and sale agreements which together formed a
series of related transactions. The 14 other agreements (the "Related Purchase
and Sale Agreements"), each with a separate seller and relating to a separate
parcel or parcels of real estate and related assets (as described below), were
on the substantially same terms and conditions as the accompanying Agreement of
Purchase and Sale, except for variances described below.
Parts 1 through 3 of Exhibit A to each of the 14 Related Purchase and
Sale Agreements describe the seller, the FF&E cash reserve as of 2/28/98 and the
purchase price for the respective properties. The respective sellers named in
the Related Purchase and Sale Agreements, the property locations, the reserves
and the purchase prices in the respective Related Purchase and Sale Agreements
are as follows:
FF & E CASH
RESERVE AS PURCHASE
NAME OF SELLER PROPERTY LOCATION OF 2/28/98 PRICE
Malvern ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ $112,210.95 $16,702,184.00
Associates, L.P. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Princeton Summerfield ▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇ South $219,289.64 $17,135,363.00
Associates, L.P. ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dulles Summerfield ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ $199,124.86 $14,769,565.00
Associates, L.P. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Orlando International ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ $801,065.41 $19,947,407.00
Summerfield ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Associates, L.P.
Orlando/Cypress ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ $506,094.06 $22,197,980.00
Pointe Summerfield ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Associates, L.P.
Atlanta Buckhead ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ $66,655.10 $9,292,317.00
Summerfield ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Associates, L.P.
Atlanta Perimeter ▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇. $127,016.01 $11,504,294.00
Summerfield ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Associates, L.P.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ $178,419.79 $9,329,874.00
Associates, L.P. ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $346,023.94 $14,748,207.00
Associates, L.P. ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Somerset Summerfield ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $335,217.44 $23,607,072.00
Associates, L.P. ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Schaumburg ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. $144,968.43 $12,075,270.00
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Associates, L.P.
Sunnyvale ▇▇▇ ▇▇▇▇▇▇ ▇▇. $407,847.81 $26,530,762.00
Summerfield Sunnyvale, CA
Associates, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇. $176,942.46 $21,430,335.00
Associates, L.P. ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
San Bruno ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $156,467.19 $10,723,122.00
Summerfield ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Associates, L.P.
The other provisions which varied among the accompanying Agreement of
Purchase and Sale and one or more of the Related Purchase and Sale Agreements
(each, a "Purchase and Sale Agreement") were the following:
o The description of the predecessor operating agreement
attached (i) as Schedule A4 to the Purchase and Sale
Agreement, and (ii) as Exhibit C to the forms of Assignment
and Assumption Agreements which are attached as Exhibits A2-1
and A2-2 to the Purchase and Sale Agreement.
o The list of insurance policies of the seller attached as
Schedule A5 to the Purchase and Sale Agreement.
o The list of personal property leases of the seller attached
(i) as Schedule A6 to the Purchase and Sale Agreement, and
(ii) as Exhibit B to the forms of Assignment and Assumption
Agreements which are attached as Exhibits A2-1 and A2-2 to the
Purchase and Sale Agreement.
o The list of third party authorizations of the seller,
including permits provided and permits to be provided or
expired, attached as Schedule A7 to the Purchase and Sale
Agreement.
o The disclosure schedule attached as Schedule A8 to the
Purchase and Sale Agreement.
o The legal description of the applicable property attached (i)
as Exhibit A1 to the Purchase and Sale Agreement, (ii) as
Exhibit A to the forms of Assignment and Assumption Agreements
which are attached as Exhibit A2-1 and A2-2 to
the Purchase and Sale Agreement, (iii) as Exhibit A to the
▇▇▇▇ of Sale which is attached as Exhibit A3 to the Purchase
and Sale Agreement, and (iv) as Exhibit A to the form of deed
which is attached as Exhibit A4 to the Purchase and Sale
Agreement.
o Description of the Management Agreement with Summerfield
Suites Management Company, L.P. attached as Exhibit G to the
forms of Assignment and Assumption Agreements which are
attached as Exhibits A2-1 and A2-2 to the Purchase and Sale
Agreement.
o The form of deed for the applicable property attached as
Exhibit A4 to the Purchase and Sale Agreement.
o The pro-forma title policy attached as Exhibit A5 to the
Purchase and Sale Agreement.