EXHIBIT 10.11
JQH RIGHT OF FIRST REFUSAL AGREEMENT
BY AND AMONG
XXXX X. XXXXXXX HOTELS, L.P., AND
XXXX X. XXXXXXX HOTELS TWO, L.P.
(COLLECTIVELY, "NEWCO ENTITIES"),
AND
XXXX X. XXXXXXX ("JQH") AND
AND THE REVOCABLE TRUST OF XXXX X. XXXXXXX DATED
DECEMBER 28, 1989, AS AMENDED AND RESTATED
(THE "JQH TRUST")
DATED AS OF ____________, 2005
JQH RIGHT OF FIRST REFUSAL AGREEMENT
THIS RIGHT OF FIRST REFUSAL AGREEMENT (this "Agreement") is made as of
_____________, 2005 by and among Xxxx X. Xxxxxxx Hotels, L.P., a Delaware
limited partnership, ("LP") and Xxxx X. Xxxxxxx Hotels Two, L.P., a Delaware
limited partnership, ("II LP"), each on behalf of itself and its Subsidiaries
(collectively, the "Newco Entities" and each, a "Newco Entity") and Xxxx X.
Xxxxxxx ("JQH") and the Revocable Trust of Xxxx X. Xxxxxxx dated December 28,
1989, as amended and restated (the "JQH Trust"; sometimes hereinafter JQH and
the JQH Trust are collectively referred to as a "JQH Entity").
WHEREAS, in connection with a transaction whereby JQH Aquisition, LLC, a
Delaware limited liability company ("Newco"), through merger of its wholly-owned
subsidiary with Xxxx X. Xxxxxxx Hotels, Inc., a Delaware corporation ("JQH,
Inc."), acquires all of the interests in JQH, Inc. and, indirectly, certain of
the partnership interests of LP and of II LP, in each case owned by JQH, Inc.,
JQH or certain of his Affiliates (the "Formation Transaction"), JQH desires to
obtain a right of first refusal on certain of the hotel properties owned by LP
or II LP at the date of the Formation Transaction, and the LP and II LP are
willing to grant such a right of first refusal.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration given and received by each party,
receipt of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. For purposes of this Agreement, the following capitalized
terms shall have the meanings set forth below:
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by or under common control with such first
Person. The term "control" (including with correlative meanings, the terms
"controlling," "controlled by" and "under common control with") shall mean
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether by reason of
membership, ownership of voting stock, partnership interests, by contract or
otherwise. For purposes of this Agreement, JQH, Inc., LP and II LP and their
respective Subsidiaries shall not be deemed to be "Affiliates" of JQH.
"Hotel Properties" shall mean interests in real property and personal
property, tangible or intangible (other than any rights to any tradename using
the name "Xxxx X. Xxxxxxx" or "Xxxxxxx"), used in the operation of a hotel
facility, or any interests in any related convention or entertainment facility,
retail facility, parking facility or gaming facility, including, without
limitation, fee interests, leasehold interests, interests in ground leases,
easements and rights of way, air rights, surface rights, subsurface rights, debt
or equity interests in corporations, limited liability companies, joint
ventures, partnerships or other entities holding title to, or a leasehold
interest in, any of the foregoing, interests in mortgages or other security
interests in any of the foregoing, contractual management interests, and debt
instruments as the Person who holds title
to, or a leasehold interest in, such property may hold from time to time (each,
a "Hotel Property").
"Newco Subject Hotels" shall mean those Hotel Properties set forth on
Exhibit A hereto (each, a "Newco Subject Hotel").
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization, other entity or governmental body, in each
case whether in such individual's or entity's own capacity or as an agent or
fiduciary of another Person.
"Sale" shall mean any sale, assignment, transfer or other disposition, in
a single transaction or as part of a single transaction or series of
transactions, of (a) any interest in title to any Newco Subject Hotel or Newco
Subject Hotels (as defined herein), or (b) any direct or indirect ownership or
debt interests in the Person that owns title to any Newco Subject Hotel or Newco
Subject Hotels, as a result of which title to any such Newco Subject Hotel is no
longer owned by Newco, JQH, Inc. or a Subsidiary of either of them. A Sale shall
include (i) any grant of an option to purchase any Newco Subject Hotel or Newco
Subject Hotels or any interest therein or any direct or indirect interest in the
Person that owns title to, or the leasehold of, such Newco Subject Hotel or
Newco Subject Hotels, and (ii) any issuance of any debt or other security
convertible into equity interests in the Person that, directly or indirectly,
holds title to, or the leasehold of, any Newco Subject Hotel or Newco Subject
Hotels. The term "Sale" shall not include (i) a mortgage, deed of trust, or
other collateral assignment intended to provide security for a loan or other
obligation in favor of an unaffiliated third-party lender with a loan-to-value
ratio not exceeding 90% and otherwise on market terms, or any foreclosure on any
such mortgage, lien, or security interest by such unaffiliated third-party
lender, (ii) a lease or sublease of all or any part of a Newco Subject Hotel to
[TRS, a wholly-owned Subsidiary of LP] or any Affiliate of Newco, (iii) any sale
of a portion of the land or improvements relating to a Newco Subject Hotel that
does not include the hotel and does not adversely affect the operation of the
Newco Subject Hotel as a hotel, (iv) any sale, assignment, transfer or other
disposition of all or substantially all, or of the direct or indirect ownership
interests in the Persons that own title to all or substantially all, of the
Newco Subject Hotels, or (v) any transfer of a Newco Subject Hotel as part of an
exchange qualifying for nonrecognition of gain or loss in accordance with the
provisions of Section 1031 of the Internal Revenue Code of 1986. The terms
"Sell" or "Sold" shall mean to dispose of, or to have disposed of, a Newco
Subject Hotel or the direct or indirect ownership interests in the Person that
owns title to a Newco Subject Hotel pursuant to a Sale.
"Subsidiary" of any Person means any other Person that, now or at any time
hereafter, is directly or indirectly owned 50% or more (in terms of voting
securities or other voting ownership or partnership interest) by such first
Person; provided, however, that such other Person shall be deemed to be a
"Subsidiary" only so long as the foregoing test continues to be met.
"Third-Party Lease" shall mean a written, executed lease or sublease of a
Newco Subject Hotel between the Person who holds title to (or the leasehold
interest in) such Newco Subject Hotel, as lessor thereunder, and an unrelated
third party which is not [TRS, a wholly-owned Subsidiary of LP] or an Affiliate
of Newco, as lessee thereunder, whereby such Newco Subject Hotel is leased or
subleased in its entirety to such third party at a specified rental for a period
of time and otherwise on the terms and conditions contained therein.
ARTICLE II
RIGHT OF FIRST REFUSAL
2.1 Right of First Refusal Granted to JQH.
(a) Prior to the Sale of any Newco Subject Hotel, Newco shall provide (or
cause its applicable Subsidiary to provide) to JQH a written purchase and sale
agreement, expressly subject to JQH's rights hereunder, executed by the Person
selling such Newco Subject Hotel and a bona fide third-party buyer, requiring a
cash deposit of at least five percent (5%) of the purchase price, refundable
only if a JQH Acceptance Notice (defined below) is received, but otherwise
nonrefundable, and setting forth the price for each such Newco Subject Hotel and
other material terms upon which such Person has agreed with such third-party
buyer to Sell each such Newco Subject Hotel, together with any written
information provided to such third-party buyer with respect to such Newco
Subject Hotel (the "JQH ROFR Notice"). Upon receipt of the XXX XXXX Xxxxxx, XXX
may elect to purchase any such Newco Subject Hotel from the applicable seller
thereof by providing a notice to Newco or the applicable Subsidiary within
thirty (30) days following the date of the JQH ROFR Notice (the "JQH Acceptance
Notice"). If JQH fails to respond to the JQH ROFR Notice within such thirty-
(30-) day period (the "JQH ROFR Period"), JQH shall be deemed to have declined
to purchase such Newco Subject Hotel pursuant to this Agreement.
(b) If JQH exercises his right of first refusal hereunder and sends a JQH
Acceptance Notice within the JQH ROFR Period, then (i) contemporaneously with
the delivery of the JQH Acceptance Notice, JQH shall deposit a nonrefundable
amount equal to the lesser of (y) the amount of any xxxxxxx money deposit
required to be made by such third-party buyer as set forth in the JQH ROFR
Notice, or (z) one percent (1%) of the purchase price set forth in the JQH ROFR
Notice (the "JQH Deposit") in escrow with a title insurance company or other
escrow agent approved in advance by the parties and (ii) the parties shall close
such sale transaction on substantially identical economic terms, except that (I)
the purchase price payable by JQH shall be net of any broker's commission
payable pursuant to the transaction described in the JQH ROFR Notice, (II) if
the JQH ROFR Notice describes any non-cash consideration payable as all or any
part of the purchase price of such Newco Subject Hotel, then JQH shall have the
right to (A) pay non-cash consideration of a similar type and of equivalent
value, and/or (B) pay cash consideration equivalent in value to such non-cash
consideration, and (III) such Newco Subject Hotel shall be transferred (A) free
and clear of any existing management agreement, (B) free and clear of any liens
or encumbrances or restrictions or agreements of any kind of any Affiliate of LP
or II LP, and (C) if such Newco Subject Hotel is to be transferred subject to an
existing mortgage pursuant to the transaction described in the JQH ROFR Notice,
then Newco, or its applicable Subsidiary selling such Newco Subject Hotel, will
pay any fee payable to the holder of such mortgage by reason of such transfer,
and (D) if any fee is payable to any licensor or franchisor under any License
Agreement affecting such Newco Subject Hotel by reason of such transfer, Newco
or its applicable Subsidiary selling such Newco Subject Hotel, will pay any such
fee. The Sale to JQH of such Newco Subject Hotel shall be closed at the time and
on the date specified in the JQH ROFR Notice, but not earlier than sixty (60)
days following the date of the JQH Acceptance Notice. The closing shall take
place on the terms set forth in the JQH ROFR Notice, except as otherwise
provided herein. If JQH shall fail to consummate such sale transaction in
accordance with its terms, then the applicable seller shall have the right to
sell the
applicable Newco Subject Hotel as set forth in Section 2.1(c) below, and such
seller may, as its sole and exclusive remedy, retain the JQH Deposit as
liquidated damages, and not as a penalty.
(c) If JQH fails to deliver a JQH Acceptance Notice prior to the end of
the JQH ROFR Period, then LP, II LP, or the applicable Subsidiary shall, as of
the end of the JQH ROFR Period (or the earlier waiver of such period by JQH ),
be free thereafter to sell the Newco Subject Hotel to such third parties on
substantially identical terms as those set forth in the JQH ROFR Notice, and JQH
shall provide to LP, II LP or the applicable Subsidiary the documents necessary
to release its recorded right of first refusal as provided herein; and such
documents shall be recorded upon closing of the sale of the Newco Subject Hotel
to such third party; provided, however, that if LP, II LP or the applicable
Subsidiary subsequently proposes to sell such Newco Subject Hotel to such third
party for a price (the "Final Price") which is less than the price specified in
the JQH ROFR Notice by an amount in excess of $50,000, then LP, II LP or the
applicable Subsidiary shall, at least thirty (30) days prior to closing of such
Sale, so notify JQH, and JQH shall have a period of fifteen (15) days within
which to execute (at his option) a binding agreement to purchase such Newco
Subject Hotel for the Final Price (net of any broker's commission) and with
substantially identical economic terms as LP, II LP or the applicable Subsidiary
proposed to sell such Newco Subject Hotel to such third party, except as
otherwise provided in Section 2.1(b) herein. If JQH elects to execute such
purchase agreement and delivers a JQH Deposit with respect thereto, LP, II LP or
the applicable Subsidiary shall be obligated to accept it, and the Sale of such
Newco Subject Hotel to JQH will thereafter be finalized in accordance with the
provisions of Section 2.1 (b). If LP, II LP or the applicable Subsidiary has not
succeeded in consummating the Sale of such Newco Subject Hotel to such third
party on substantially identical terms as those contained in the JQH ROFR Notice
within 30 days after the time and date for closing of such transaction as set
forth in the JQH ROFR Notice, then LP, II LP or the applicable Subsidiary shall
again comply with all of the provisions of this Section 2.1 prior to any Sale of
such Newco Subject Hotel.
(d) In the event a Person holding title to (or the leasehold interest in)
any Newco Subject Hotel proposes to enter into a Third-Party Lease of such Newco
Subject Hotel, then a JQH ROFR Notice shall be delivered to JQH prior to the
commencement of such Third-Party Lease, and such JQH ROFR Notice shall include a
copy of the executed Third Party Lease, together with any written information
provided to such third-party lessee with respect to such Newco Subject Hotel.
Upon receipt of the XXX XXXX Xxxxxx, XXX may elect to lease or sublease any such
Newco Subject Hotel from the applicable lessor thereof, on the identical
economic terms as contained in the JQH ROFR Notice, by providing a JQH
Acceptance Notice to Newco or the applicable Subsidiary within the JQH ROFR
Period. If JQH fails to respond to the JQH ROFR Notice with respect to a
Third-Party Lease within the JQH ROFR Period, JQH shall be deemed to have
declined to lease or sublease such Newco Subject Hotel pursuant to this
Agreement. If a JQH Acceptance Notice is delivered to Newco with respect to a
Third-Party Lease, then JQH or the JQH Trust and the Person holding title to (or
the leasehold interest in) such Newco Subject Hotel shall enter into a lease or
sublease, as applicable, of such Newco Subject Hotel on the same terms as
contained in the JQH ROFR Notice with respect to such Third-Party Lease, and any
subsequent Sale of such Newco Subject Hotel remains subject to this Agreement.
2.2 License Agreements; Mortgages.
(a) Each of LP and II LP agrees that, from and after the date hereof, any
franchise agreement or license agreement (each, a "License Agreement") amended,
modified or extended, and any new License Agreement executed by LP or II LP in
connection with a Newco Subject Hotel shall specify that a transfer of such
Newco Subject Hotel to JQH or the JQH Trust is permitted under such License
Agreement, without consent of such licensor or franchisor, and each of LP and II
LP will use its best efforts to negotiate that no fee is payable by reason of
any such permitted transfer.
(b) Each of LP and II LP agrees that, from and after the date hereof, any
mortgage or deed of trust document ("Mortgage") amended, modified or extended,
and any new Mortgage executed by LP or II LP in connection with a Newco Subject
Hotel shall specify that a transfer of such Newco Subject Hotel to JQH or the
JQH Trust is permitted under such Mortgage, without consent of such lender or
mortgagee, and each of LP and II LP will use its best efforts to negotiate that
no fee is payable by reason of any such permitted transfer.
(c) Each of LP and II LP and any applicable Affiliate thereof agrees to
deliver to any lender, mortgagee, licensor or franchisor under a Mortgage or a
License Agreement affecting any applicable Newco Subject Hotel, any and all
financial and other information which may reasonably be requested by any such
lender or franchisor in connection with its agreement to permit transfer of any
Newco Subject Hotel to JQH or the JQH Trust.
2.3 Transfers in Violation Void. Any Sale by LP or II LP of any Newco
Subject Hotel in violation of the terms and provisions of this Agreement shall
be void and of no force or effect.
ARTICLE III
GENERAL PROVISIONS
3.1 Term of Agreement.
(a) This Agreement shall continue in effect from the date hereof until the
earlier to occur of: (i) full redemption or other permitted disposition by JQH
and his Affiliates of all of his and their preferred interests in LP, or (ii)
JQH's death. Within forty-five (45) days after JQH's death, the JQH Trust (or
other applicable JQH Entity) agrees to deliver to Newco or at Newco's direction,
recordable releases of each of the rights of first refusal granted to JQH
hereunder.
(b) In the event of (i) the occurrence of a material default by Borrower
under the Loan Agreement dated as of _______, 2005 between Project Holdco
("Borrower"), as Borrower and Project Lendco ("Lender"), as Lender (the "Line of
Credit Agreement"), which is not cured within thirty (30) days after receipt by
Borrower of notice from Lender of such material default, and (ii) no material
funding default by Lender has occurred under the Line of Credit Agreement, then
a Sponsor Entity shall have the right, upon delivery of at least fifteen (15)
days' prior written notice, to suspend the effectiveness of this Agreement
during the period that both (i) and (ii) above are undisputed. In the event that
the existence of a material funding default by Lender or the existence of a
material default by Borrower is disputed as between the parties (in any such
case, a "Disputed LOC Default"), then the parties to this Agreement agree (which
agreement
shall have no effect on any rights or obligations of Borrower or Lender under
the Line of Credit Agreement) to submit such dispute to an arbitration
proceeding, such arbitration to be completed within seventy-five (75) days of
receipt by Sponsor Entity of a notice from JQH of a Disputed LOC Default (a
"Disputed LOC Default Notice"), held in a neutral city and conducted in
accordance with the rules of the American Arbitration Association in effect at
the date such Disputed LOC Default Notice is given, but not under the authority
of that Association. Such arbitration proceeding shall be conducted by an
arbitrator who is a partner at a nationally recognized accounting firm, or any
other person with experience in the matter or matters to be arbitrated, mutually
selected by Sponsor Entity and JQH. If JQH and Sponsor Entity fail to agree on
an arbitrator within fifteen (15) days (the "Arbitrator Selection Period") of
Sponsor Entity's receipt of a Disputed LOC Default Notice from JQH, then, within
ten (10) days after the expiration of the Arbitrator Selection Period, JQH and
Sponsor Entity each shall select one arbitrator who is a partner at a nationally
recognized accounting firm, or any other person with experience in the matter or
matters to be arbitrated, who shall then select a third arbitrator who meets the
qualifications specified above to conduct the arbitration. The decision of the
arbitrator shall be binding upon the parties to this Agreement, and neither
party shall have the right to appeal any such decision (except in the case of
manifest error). The thirty- (30-) day cure period, or, if applicable, the
fifteen- (15-) day notice period referenced in the preceding sentence shall
commence upon the issuance of an arbitration decision by such arbitrator.
3.2 Successors and Assigns. This grant of a right of first refusal to JQH
is personal to JQH, and JQH's interest herein in such capacity may not be
assigned to any other Person, including any Affiliate of JQH or his estate, and
any attempted assignment by JQH of such right of first refusal granted pursuant
to this Agreement shall be null and void. Notwithstanding the foregoing
sentence, JQH may assign his right of first refusal to the JQH Trust, subject to
the provisions of this Agreement. Except as provided in the foregoing sentences,
this Agreement shall inure to the benefit of, and be binding upon, the parties
hereto and their successors by operation of law or otherwise. Notwithstanding
anything herein to the contrary, following delivery of a JQH Acceptance Notice,
JQH may assign the right to purchase or lease such Newco Subject Hotel to the
JQH Trust.
3.3 Delivery of Information. Each of LP, II LP and any applicable
Subsidiary or Affiliate thereof agrees to deliver to the other parties hereto
any and all broker solicitations and correspondence and any and all written
offers to purchase or expressions of interest in any Newco Subject Hotel,
identifying the interested party (whether solicited or unsolicited), within ten
(10) days after receipt thereof. In addition, subject to the provisions of
Section 3.15 herein, each of LP, II LP and any applicable Subsidiary or
Affiliate thereof agrees, to the extent not otherwise delivered in accordance
with any other Formation Transaction document, to deliver to the other parties
hereto (for informational purposes only) annual operating statements of each
Newco Subject Hotel, together with annual budgets for each Newco Subject Hotel.
3.4 Amendments; Waivers. This Agreement may not be amended or modified
except by an instrument in writing signed by, or on behalf of, each of the
parties hereto. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver or
deprive such party of the right to insist later on adherence hereto, or
thereafter to insist upon strict adherence to that term or any other term of
this Agreement. Any
waiver must be in writing and signed by the party against whom enforcement is
sought in order to be effective.
3.5 Governing Law. The interpretation and construction of this Agreement
and (unless otherwise expressly provided herein) all amendments hereof and
waivers and consents hereunder shall, to the extent the particular subject
matter is controlled by state law, be governed by and be construed in accordance
with the substantive law of the State of Delaware, without regard to the
conflicts of laws principles thereof.
3.6 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVER, (B) IT UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY
AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 3.6.
3.7 Jurisdiction; Service of Process. Any action or proceeding seeking to
enforce any provision of, or based on any right arising out of, this Agreement
shall be brought against any of the parties only in the Courts of the State of
Delaware or, if it has or can acquire jurisdiction, in the United States
District Court for the District of Delaware, and each of the parties consents to
the exclusive jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on any party anywhere in the world.
3.8 Entire Agreement. This Agreement constitutes a complete statement of
all of the binding agreements among the parties as of the date hereof with
respect to the subject matter contained herein and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, between them with respect to such subject matter.
3.9 Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given (a) when delivered by hand or
certified mail, return receipt requested, postage prepaid, (b) when transmitted
by telecopier (providing electronic confirmation of transmission) or (c) when
received if sent by overnight courier (providing proof of delivery), to the
addressee at the following addresses or telecopier numbers (or to such other
address or telecopier number as a party may specify from time to time by notice
hereunder):
(i) If to JQH:
Xxxx X. Xxxxxxx
300 Xxxx X. Xxxxxxx Xxxxxxx,
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx and
Xxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to LP, II LP or Newco:
Xxxxxxxx X. Xxxxxx
XX Holdings, LLC
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxx Xxxxxxx, LLC
Three First National Plaza,
70 West Madison Street, Suite 4100
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx and
Xxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
3.10 Titles and Headings. Titles and headings to sections herein are
inserted for the convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement. References to
"Sections" refer to Sections of this Agreement, unless otherwise stated.
3.11 Severability. If any term or provision of this Agreement or the
application thereof to any party hereto or set of circumstances shall, in any
jurisdiction and to any extent, be finally held to be invalid or unenforceable,
such term or provision shall only be ineffective as to such jurisdiction, and
only to the extent of such invalidity or unenforceability, without invalidating
or rendering unenforceable any other terms or provisions of this Agreement or
under any other circumstances, and the parties shall negotiate in good faith a
substitute provision which comes as close as possible to the invalidated or
unenforceable term or provision, and puts the parties in a position as nearly
comparable as possible to the position they would have been in but for such
finding of invalidity or unenforceability, while remaining valid and
enforceable.
3.12 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be considered an original, but all of which together shall
constitute one and the same instrument.
3.13 Remedies Including Injunction and Specific Performance.
(a) In the event that any Newco Entity shall fail to perform any of its
obligations under this Agreement, a JQH Entity shall be entitled, in addition to
any other remedy that may be available at law or in equity as a result of such
failure, to obtain an injunction and/or specific performance of any such
obligations as a remedy for such breach, and each Newco Entity further waives
any requirements for securing or posting a bond in connection with any such
remedy.
(b) In the event that any Newco Entity shall default in the performance of
any of its obligations hereunder in any material respect, then a JQH Entity
shall have the right (i) to payment by such Newco Entity of any and all
attorneys' fees and costs, including any court costs and costs of any
consultants incurred by such JQH Entity in seeking to enforce its rights under
this Agreement, and (ii) to purchase any Newco Subject Hotel in relation to
which the Newco Entity failed to perform its obligations under this Agreement,
in accordance with the provisions of this Agreement, except that the purchase
price payable by such JQH Entity to purchase such Newco Subject Hotel shall
equal eighty percent (80%) of the price otherwise payable hereunder.
3.14 Recording. Each of the parties hereto agrees that this Agreement
evidences a right in real property of each of the parties hereto, and each
agrees that this Agreement, or a Memorandum of this Agreement summarizing its
material terms, shall be recorded in the appropriate recording office for each
Newco Subject Hotel at closing of the Formation Transaction.
3.15 Confidentiality. Except as otherwise required by law or judicial
order or decree or by any governmental authority, JQH and any applicable JQH
Entity shall maintain the confidentiality of all nonpublic information obtained
by it under this Agreement in a JQH ROFR Notice or pursuant to Section 3.3
herein, unless such information becomes known to the public in a manner
unrelated to such JQH Entity. It is understood and agreed that such nonpublic
information may be disclosed to attorneys, consultants, officers, directors,
members or agents of any JQH Entity, to the extent deemed necessary by such JQH
Entity, subject to such attorneys', consultants', officers', directors',
members' or agents' maintaining the confidentiality of such information as set
forth herein.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
XXXX X. XXXXXXX HOTELS, L.P.
By: Xxxx X. Xxxxxxx Hotels, Inc., its general
partner
By: _________________________________
Name: _______________________________
Title: ______________________________
XXXX X. XXXXXXX HOTELS II, L.P.
By: Xxxx X. Xxxxxxx Hotels, L.P., its general
partner
By: Xxxx X. Xxxxxxx Hotels, Inc., its
general partner
By: _________________________________
Name: _______________________________
Title: ______________________________
JQH ACQUISITION, LLC
By: _________________________________
Name: _______________________________
Title: ______________________________
_____________________________________
XXXX X. XXXXXXX
_____________________________________
XXXX X. XXXXXXX, as Trustee of the
REVOCABLE TRUST OF XXXX X. XXXXXXX
STATE OF____________________ )
) SS.
COUNTY OF___________________ )
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that _____________, ______________ of Xxxx X.
Xxxxxxx Hotels, Inc., general partner of Xxxx X. Xxxxxxx Hotels, L.P.,
personally known to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me this day in person and acknowledged
that he/she signed and delivered the said instrument as his/her free and
voluntary act and deed and the free and voluntary act and deed of such general
partner on behalf of such partnership for the uses and purposes therein set
forth.
GIVEN under my hand and notarial seal this ______ day of
____________, 2005.
___________________
Notary Public
My commission expires: _________________________
STATE OF____________________ )
) SS.
COUNTY OF___________________ )
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that _____________, ______________ of Xxxx X.
Xxxxxxx Hotels, Inc., general partner of Xxxx X. Xxxxxxx Hotels, L.P., as
general partner of Xxxx X. Xxxxxxx Hotels II, L.P., personally known to me to be
the same person whose name is subscribed to the foregoing instrument, appeared
before me this day in person and acknowledged that he/she signed and delivered
the said instrument as his/her free and voluntary act and deed and the free and
voluntary act and deed of such general partner on behalf of such partnership for
the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ______ day of
____________, 2005.
___________________
Notary Public
My commission expires: _________________________
STATE OF____________________ )
) SS.
COUNTY OF___________________ )
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that ______________, ________________ of JQH
Acquisition, LLC, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before me this day in person
and acknowledged that he/she signed and delivered the said instrument as his/her
free and voluntary act and deed and the free and voluntary act of such limited
liability company for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ______ day of
____________, 2005.
___________________
Notary Public
My commission expires: _________________________
STATE OF____________________
) SS.
COUNTY OF___________________ )
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxx X. Xxxxxxx, personally known to me to be
the same person whose name is subscribed to the foregoing instrument, appeared
before this day in person and acknowledged that he signed and delivered the said
instrument as his free and voluntary act and deed for the uses and purposes
therein set forth.
GIVEN under my hand and notarial seal this ______ day of
____________, 2005.
___________________
Notary Public
My commission expires: _________________________
STATE OF____________________
) SS.
COUNTY OF___________________ )
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxx X. Xxxxxxx, the Trustee of the XXXX X.
XXXXXXX REVOCABLE TRUST, personally known to me to be the same person whose name
is subscribed to the foregoing instrument, appeared before this day in person
and acknowledged that he signed and delivered the said instrument as his free
and voluntary act and deed for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ______ day of
____________, 2005.
___________________
Notary Public
My commission expires: _________________________
EXHIBIT A
NEWCO SUBJECT HOTELS [AND LEGAL DESCRIPTIONS]
1. Embassy Suites Hotel and Xxxxxxxxxx Conference Center
000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Promus Hotels; Term: 08/18/1995-08/17/2015
Hotel Type: Full Service
2. Holiday Inn Capitol Plaza
000 X Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Holiday Inn; Term: 09/13/04-09/12/09
Hotel Type: Full Service
3. Holiday Inn Denver International Airport
00000 Xxxx 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Holiday Inn; Term: 10/29/82-12/26/07
Hotel Type: Full Service
4. Hilton Fort Xxxxxxx
000 Xxxx Xxxxxxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Hilton; Term: (not received)
5. Coral Springs Marriott Hotel
00000 Xxxxx Xxx Xxxxxxxxx, Xxxxx Xxxxxxx, Xxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Marriott; Term: 06/07/02-06/06/22
Hotel Type: Full Service
6. Cedar Rapids Marriott
0000 Xxxxxxx Xxxx, Xxxxx Xxxxxx, Xxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Marriott; Term: 08/30/04-08/29/24
Hotel Type: Full Service
7. Embassy Suites On the River
000 X. Xxxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Promus Hotels; Term: 10/09/90-10/08/10
Hotel Type: Full Service
8. Sheraton West Des Moines (Leasehold Property)
0000 00xx Xxxxxx
Xxxx Xxx Xxxxxx, Xxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Sheraton; Term: (not received)
Hotel Type: Full Service
9. Capitol Plaza Hotel
000 Xxxx XxXxxxx Xxxxxx, Xxxxxxxxx Xxxx, Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels LP
License / Franchise Description: independent
Hotel Type: Full Service
10. Holiday Inn Joplin Hotel and Convention Center
0000 Xxxxx Xxxx Xxxx, Xxxxxx, Xxxxxxxx 00000
Owner of Hotel: Xxxx X. Xxxxxxx Hotels, LP
Owner of Convention Center: Xxxx X. Xxxxxxx Hotels, LP (Leasehold Interest)
License / Franchise Description: Holiday Inn; Term: 06/03/00-06/29/15
Hotel Type: Full Service
11. Embassy Suites Hotel - Kansas City International Airport
0000 Xxxxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Promus Hotels; Term: 04/10/89-04/09/09
Hotel Type: Full Service
12. Homewood Suites by Hilton - Kansas City International Airport
0000 XX Xxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Promus Hotels; Term: 05/17/96-05/16/17
Hotel Type: Limited Service
13. Holiday Inn Springfield North
0000 Xxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Holiday Inn; Term: 12/23/92-09/17/07
Hotel Type: Full Service
14. Renaissance Charlotte Suites Hotel
0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Marriott; Term: 09/27/97-09/26/07
Hotel Type: Full Service
15. Embassy Suites Greensboro Airport
000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Promus Hotels; Term: 02/07/89-02/07/09
Hotel Type: Full Service
16. Homewood Suites Greensboro
000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Promus Hotels; Term: 09/05/96-09/04/16
Hotel Type: Limited Service
17. Embassy Suites Omaha (Old Market)
000 X. 00xx Xxxxxx, Xxxxx, Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Promus Hotels; Term: 10/02/95-10/01/15
Hotel Type: Full Service
18. Albuquerque Marriott Pyramid North
0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Marriott; Term: 12/16/02-12/16/22
Hotel Type: Full Service
19. Holiday Inn Reno Downtown
0000 Xxxx Xxxxx Xxxxxx, Xxxx, Xxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Holiday Inn; Term: 07/03/92-07/03/12
Hotel Type: Full Service
20. Holiday Inn Portland Airport
0000 XX Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxx 00000
Owner of Hotel: Xxxx X. Xxxxxxx Hotels, LP
Owner of Convention Center: Xxxx X. Xxxxxxx Hotels, LP (Leasehold Interest)
License / Franchise Description: Holiday Inn; Term: 02/28/01-02/27/06
Hotel Type: Full Service
21. Embassy Suites Columbia - Greystone
000 Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Promus Hotels; Term: 01/20/88-01/19/98
Hotel Type: Full Service
22. Embassy Suites Golf Resort and Conference Center (Leasehold Property)
000 Xxxxxx Xxxxxxxxx, Xxxxxxxxxx, XX 00000
Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Promus Hotels; Term: 04/26/93-04/25/13
Hotel Type: Full Service
23. Embassy Suites Charleston Convention Center
0000 Xxxxxxxxxxxxx Xxxx, Xxxxx Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Promus Hotels; Term: 02/18/00-06/25/19
Hotel Type: Full Service
24. Holiday Inn Beaumont Plaza
0000 X-00 Xxxxx xx Xxxxxx Xxxx, Xxxxxxxx, Xxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Holiday Inn; Term: 11/13/03-11/12/13
Hotel Type: Full Service
25. Embassy Suites Outdoor World at DFW Airport
0000 Xxxx Xxx Xxxxx, Xxxxxxxxx, Xxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Promus Hotels; Term: 08/03/99-08/02/17
Hotel Type: Full Service
26. Marriott Houston Hobby Airport
0000 Xxxx Xxxxxxx, Xxxxxxx, Xxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Marriott; Term: 07/02/02-07/01/22
Hotel Type: Full Service
27. Hampton Inn & Suites Mesquite at Rodeo Center
0000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Promus Hotels; Term: 04/22/99-04/21/19
Hotel Type: Limited Service
28. Marriott Madison West
1313 Xxxx X. Xxxxxxx Xx., Xxxxxxxxx, Xxxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Marriott; Term: 01/16/98-01/15/18
Hotel Type: Full Service
29. Embassy Suites Hotel - Little Rock
00000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels Two, LP
License / Franchise Description: Promus Hotels; Term: 05/22/02-05/21/24
Hotel Type: Full Service
30. Holiday Inn Northwest Arkansas and Convention Center
0000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000
Owner: Northwest Arkansas Hotel Ltd. Co.
License / Franchise Description: Holiday Inn; Term: 12/08/92-07/30/09
Hotel Type: Full Service
31. Hampton Inn & Suites of Northwest Arkansas
0000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000
Owner: Northwest Arkansas Hotel Ltd. Co.
License / Franchise Description: Promus Hotels; Term: 10/17/95-10/16/15
Hotel Type: Limited Service
32. Holiday Inn Palo Verde - Tucson Airport
0000 Xxxxx Xxxx Xxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels Two, LP
License / Franchise Description: Holiday Inn; Term: 02/28/02-02/28/07
Hotel Type: Full Service
33. Marriott University Park (Leasehold Property)
000 X. Xxxxxx Xxxxxx, Xxxxxx, XX 00000
Xxxx X. Xxxxxxx Hotels Two, LP
License / Franchise Description: Marriott; Term: 08/12/96-09/11/16
Hotel Type: Full Service
34. Embassy Suites On Monterey Bay (Leasehold Property)
0000 Xxxxxx Xxx Xxx, Xxxxxxx, XX 00000
Xxxx X. Xxxxxxx Hotels Two, LP
License / Franchise Description: Promus Hotels; Term: 11/07/95-11/06/15
Hotel Type: Full Service
35. World Golf Renaissance Resort (Air Rights Easement)
000 Xxxxx Xxxxxx Xxxxx, Xx. Xxxxxxxxx, Xxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Marriott; Term: 07/19/99-07/19/19
Hotel Type: Full Service
36. The Embassy Suites Hotel Tampa USF/Xxxxx Gardens (Leasehold Property)
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx, XX 00000
Xxxx X. Xxxxxxx Hotels Two, LP
License / Franchise Description: Promus Hotels; Term: 07/10/95-07/09/15
Hotel Type: Full Service
37. Radisson Quad City Plaza
000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels Two, LP
License / Franchise Description: Radisson Hotels; Term: 08/18/95-12/31/15
Hotel Type: Full Service
38. Capitol Plaza
0000 XX Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels Two, LP
License / Franchise Description: independent
Hotel Type: Full Service
39. Holiday Inn University Plaza
0000 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels Two, LP
License / Franchise Description: Holiday Inn; Term: 04/02/02-04/02/12
Hotel Type: Full Service
40. Embassy Suites Hotel Raleigh-Durham/Research Triangle East
000 Xxxxxxxx Xxxx Xxxxxxxxx, Xxxx, Xxxxx Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels, LP
License / Franchise Description: Promus Hotels; Term: 09/23/97-09/22/17
Hotel Type: Full Service
41. Renaissance Oklahoma City Hotel
00 Xxxxx Xxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels Two, LP
License / Franchise Description: Marriott; Term: 08/19/98-08/19/18
Hotel Type: Full Service
42. Embassy Suites Portland Airport (Leasehold Property)
0000 XX 00xx Xxxxxx, Xxxxxxxx, XX 00000
Xxxx X. Xxxxxxx Hotels Two, LP
License / Franchise Description: Promus Hotels; Term: 09/30/98-09/29/18
Hotel Type: Full Service
43. Embassy Suites Charleston
000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Hotels Two, LP
License / Franchise Description: Promus Hotels; Term: 12/01/97-11/30/17
Hotel Type: Full Service
