PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
GARDEN HOTEL ASSOCIATES LIMITED PARTNERSHIP,
as Seller,
and
HOSPITALITY PROPERTIES TRUST,
as Purchaser
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March 5, 1996
TABLE OF CONTENTS
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SECTION 1. DEFINITIONS.................................................... 1
1.1 Agreement...................................................... 1
1.2 Agreement to Lease............................................. 1
1.3 Allocable Purchase Price....................................... 1
1.4 Assets......................................................... 1
1.5 Business Day................................................... 2
1.6 Closing........................................................ 2
1.7 Closing Date................................................... 2
1.8 Contracts...................................................... 2
1.9 Defective Property............................................. 2
1.10 Documents...................................................... 2
1.11 Fee Properties................................................. 2
1.12 FF&E........................................................... 2
1.13 FF&E Funded Amount............................................. 2
1.14 FF&E Reserve................................................... 2
1.15 GHALP.......................................................... 2
1.16 Ground Lease Properties........................................ 3
1.17 Ground Leases.................................................. 3
1.18 HPT............................................................ 3
1.19 Improvements................................................... 3
1.20 Intangible Property............................................ 3
1.21 Leases......................................................... 3
1.22 Management Agreements.......................................... 3
1.23 Permitted Encumbrances......................................... 3
1.24 Property....................................................... 4
1.25 Purchase Price................................................. 4
1.26 Purchaser...................................................... 4
1.27 Real Property.................................................. 4
1.28 Retained Funds................................................. 4
1.29 Review Period.................................................. 4
1.30 Seattle Ground Lease........................................... 4
1.31 Seller......................................................... 4
1.32 Surveys........................................................ 4
1.33 Tenant......................................................... 4
1.34 Tenant Leases.................................................. 5
1.35 Title Commitments.............................................. 5
1.36 Title Company.................................................. 5
1.37 Wyndham........................................................ 5
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SECTION 2. PURCHASE AND SALE; DILIGENCE................................... 5
2.1 Purchase and Sale.............................................. 5
2.2 Diligence Inspections.......................................... 5
2.3 Termination Rights............................................. 6
2.4 Title Matters.................................................. 7
2.5 Survey Matters................................................. 7
SECTION 3. PURCHASE AND SALE.............................................. 8
3.1 Closing........................................................ 8
3.2 Purchase Price................................................. 8
SECTION 4. CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE.................. 9
4.1 Closing Documents.............................................. 9
4.2 Condition of Properties........................................ 10
4.3 Title Policies................................................. 11
4.4 Opinions of Counsel............................................ 11
4.5 FF&E Funded Amount............................................. 11
4.6 Appraisal...................................................... 11
4.7 Other Approvals................................................ 11
SECTION 5. CONDITIONS TO SELLER'S OBLIGATION TO CLOSE..................... 12
5.1 Purchase Price................................................. 12
5.2 Closing Documents.............................................. 12
5.3 Opinion of Counsel............................................. 12
5.4 Other Approvals................................................ 12
5.5 No Required HSR Filing......................................... 12
SECTION 6. REPRESENTATIONS AND WARRANTIES OF SELLER....................... 12
6.1 Status and Authority of the Seller............................. 13
6.2 Action of the Seller........................................... 13
6.3 No Violations of Agreements.................................... 13
6.4 Litigation..................................................... 13
6.5 Existing Leases, Agreements, Etc. ............................. 14
6.6 Disclosure..................................................... 14
6.7 Utilities, Etc. ............................................... 14
6.8 Compliance With Law............................................ 14
6.9 Taxes.......................................................... 14
6.10 Not A Foreign Person........................................... 15
6.11 Hazardous Substances........................................... 15
6.12 Insurance...................................................... 15
6.13 Ground Leases.................................................. 15
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SECTION 7. REPRESENTATIONS AND WARRANTIES OF PURCHASER.................... 16
7.1 Status and Authority of the Purchaser.......................... 16
7.2 Action of the Purchaser........................................ 17
7.3 No Violations of Agreements.................................... 17
7.4 Litigation..................................................... 17
SECTION 8. COVENANTS OF THE SELLER........................................ 17
8.1 Compliance with Laws, Etc. .................................... 17
8.2 Approval of Agreements......................................... 18
8.3 Compliance with Agreements..................................... 18
8.4 Estoppel Certificates.......................................... 18
8.5 Notice of Material Changes or Untrue Representations........... 18
8.6 Operation of Properties........................................ 18
SECTION 9. APPORTIONMENTS................................................. 18
9.1 Real Property Apportionments................................... 18
9.2 Closing Costs.................................................. 19
SECTION 10. DEFAULT........................................................ 19
10.1 Default by the Seller.......................................... 19
10.2 Default by the Purchaser....................................... 19
SECTION 11. MISCELLANEOUS.................................................. 20
11.1 Agreement to Indemnify......................................... 20
11.2 Brokerage Commissions.......................................... 21
11.3 Publicity...................................................... 21
11.4 Notices........................................................ 21
11.5 Waivers, Etc. ................................................. 23
11.6 Assignment; Successors and Assigns............................. 23
11.7 Severability................................................... 23
11.8 Counterparts, Etc. ............................................ 24
11.9 Governing Law.................................................. 24
11.10 Performance on Business Days................................... 24
11.11 Attorneys' Fees................................................ 25
11.12 Section and Other Headings..................................... 25
11.13 Nonliability of Trustees....................................... 25
Schedule A - The Properties
Schedule B-1-11 - Legal Descriptions
Schedule C - Form of Surveyor's Certificate
PURCHASE AND SALE AGREEMENT
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THIS PURCHASE AND SALE AGREEMENT is made as of the 5th day of March, 1996,
by and between GARDEN HOTEL ASSOCIATES LIMITED PARTNERSHIP, a Texas limited
partnership ("GHALP"), as seller, and HOSPITALITY PROPERTIES TRUST, a Maryland
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real estate investment trust, as purchaser ("HPT").
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WITNESSETH:
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WHEREAS, GHALP is the owner and holder of the Properties (this and other
capitalized terms used and not otherwise defined herein having the meanings
ascribed to such terms in Section 1); and
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WHEREAS, the Purchaser desires to purchase the Properties, as more fully
set forth below; and
WHEREAS, the Seller is willing to sell the Properties to the Purchaser,
subject to and upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, the Seller and the Purchaser
hereby agree as follows:
SECTION 1. DEFINITIONS.
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Capitalized terms used in this Agreement shall have the meanings set forth
below or in the Section of this Agreement referred to below:
1.1 "Agreement" shall mean this Purchase and Sale Agreement, together
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with Schedules A through C attached hereto, as it and they may be amended from
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time to time as herein provided.
1.2 "Agreement to Lease" shall mean that certain Agreement to Lease, to
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be entered into prior to the expiration of the Review Period, by and between
Wyndham and the Tenant.
1.3 "Allocable Purchase Price" shall mean, with respect to any of the
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Properties, an amount to be agreed upon by the Seller and the Purchaser prior to
the expiration of the Review Period.
1.4 "Assets" shall mean, with respect to any Property, collectively, all
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of the Real Property, the FF&E, the Contracts,
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the Documents, the Improvements, the Intangible Property and the Tenant Leases
now owned or hereafter acquired by the Seller in connection with or relating to
such Property.
1.5 "Business Day" shall mean any day other than a Saturday, Sunday or
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any other day on which banking institutions in The Commonwealth of Massachusetts
or the State of Texas are authorized by law or executive action to close.
1.6 "Closing" shall have the meaning given such term in Section 3.1.
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1.7 "Closing Date" shall have the meaning given such term in Section 3.1.
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1.8 "Contracts" shall mean, with respect to any Property, all hotel
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licensing agreements and other service contracts, equipment leases, booking
agreements and other arrangements or agreements to which the Seller is a party
affecting the ownership, repair, maintenance, management, leasing or operation
of such Property, to the extent the Seller's interest therein is assignable or
transferable.
1.9 "Defective Property" shall have the meaning given such term in
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Section 2.3(a).
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1.10 "Documents" shall mean, with respect to any Property, all books,
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records and files relating to the leasing, maintenance, management or operation
of such Property.
1.11 "Fee Properties" shall mean all of the properties identified on
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Schedule A other than the Property located in Seattle, Washington.
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1.12 "FF&E" shall mean, with respect to any Property, all appliances,
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machinery, devices, fixtures, appurtenances, equipment, furniture, furnishings
and articles of tangible personal property of every kind and nature whatsoever
owned by the Seller and located in or at, or used in connection with the
ownership, operation or maintenance of such Property.
1.13 "FF&E Funded Amount" shall mean an amount to be agreed upon by the
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Seller and the Purchaser prior to the expiration of the Review Period.
1.14 "FF&E Reserve" shall have the meaning given such term in the Lease.
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1.15 "GHALP" shall have the meaning given such term in the preambles to
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this Agreement.
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1.16 "Ground Lease Properties" shall mean the Property identified on
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Schedule A as located in Seattle, Washington.
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1.17 "Ground Leases" shall mean the Seattle Ground Lease.
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1.18 "HPT" shall have the meaning given such term in the preambles to
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this Agreement.
1.19 "Improvements" shall mean, with respect to any Property, all
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buildings, fixtures, walls, fences, landscaping and other structures and
improvements situated on, affixed or appurtenant to the Real Property with
respect to such Property.
1.20 "Intangible Property" shall mean, with respect to any Property, all
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transferable or assignable permits, certificates of occupancy, operating
permits, sign permits, development rights and approvals, certificates, licenses,
warranties and guarantees, the Contracts, telephone exchange numbers identified
with such Property held by the Seller, and all other transferable intangible
property, miscellaneous rights, benefits and privileges of any kind or character
with respect to such Property held by the Seller, except to the extent held by
or transferred to the Tenant under the Leases.
1.21 "Leases" shall mean, collectively, the leases to be entered into
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between the Purchaser, as landlord, and the Tenant, as tenant, with respect to
the Properties pursuant to the Agreement to Lease, such Leases to be
substantially on the terms and conditions of the Letter of Intent, dated
February 1, 1996, between the Purchaser and Wyndham.
1.22 "Management Agreements" shall mean the management agreements to be
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entered into between the Tenant and Wyndham providing for the management of the
Properties by Wyndham, which agreements shall (i), from and after the occurrence
of any default or event of default, subordinate all amounts due from the Tenant
to Wyndham to all amounts due from the Tenant to the Purchaser, (ii) require
operation of the Properties under the "Wyndham" name, (iii) prohibit Wyndham
from operating, managing or franchising another Wyndham Gardens hotel within a
designated radius of each of the Properties, (iv) permit termination thereof, at
the Purchaser's option, upon the termination of the applicable Lease and (v)
otherwise be in form and substance and on terms and conditions reasonably
satisfactory to the Purchaser.
1.23 "Permitted Encumbrances" shall mean, with respect to any Property,
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(a) liens for taxes, assessments and governmental charges with respect to such
Property not yet due and payable or due and payable but not yet delinquent; (b)
applicable zoning regulations and ordinances provided the same do not prohibit
or impair in any material respect use of such Property as a Wyndham
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Garden hotel as currently operated and constructed; (c) such other nonmonetary
encumbrances as do not, in the Purchaser's reasonable opinion, impair
marketability and do not materially interfere with the use of such Property as a
fully functioning Wyndham Gardens hotel as currently operated and constructed;
(d) the Ground Leases; (e) UCC Financing Statements which would be permitted
pursuant to the terms of Section 21.9 of the Leases; and (f) such other
nonmonetary encumbrances with respect to such Property which are not objected to
by the Purchaser in accordance with Sections 2.4 and 2.5.
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1.24 "Property" shall mean all of the Assets relating to the properties
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identified on Schedule A, the legal descriptions of which are set forth in
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Schedules B1-B11.
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1.25 "Purchase Price" shall have the meaning given such term in
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Section 3.2.
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1.26 "Purchaser" shall mean HPT and its permitted successors and assigns.
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1.27 "Real Property" shall mean, with respect to any Property which is a
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Fee Property, the real property described in the applicable Schedule B-1 through
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B-11, and, with respect to any Property which is a Ground Lease Property, the
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leasehold estate created by the applicable Ground Lease, together with all
easements, rights of way, privileges, licenses and appurtenances which the
Seller may now own or hereafter acquire with respect thereto.
1.28 "Retained Funds" shall mean an amount equal to Thirteen Million Six
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Hundred Thousand Dollars ($13,600,000).
1.29 "Review Period" shall mean the period commencing on the date of this
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Agreement and expiring forty-five (45) days thereafter or, if sooner, on the
Closing Date.
1.30 "Seattle Ground Lease" shall mean the Ground Lease, dated March 26,
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1987, by and between Xxxx X. Xxxxxx, Xxxxxxx Xxxxxx, Xxx Xxxxxx and Xxxx Xxxxxx,
as landlord, and Ramada Hotel Company, as tenant, as amended from time to time.
1.31 "Seller" shall mean GHALP.
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1.32 "Surveys" shall have the meaning given such term in Section 2.5.
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1.33 "Tenant" shall have the meaning given such term in the Agreement to
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Lease.
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1.34 "Tenant Leases" shall mean, with respect to any Property, all leases,
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rental agreements or other agreements (including all amendments or modifications
thereto) which entitle any person to have rights with respect to the use or
occupancy of any portion of such Property.
1.35 "Title Commitments" shall have the meaning given such term in Section
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2.4.
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1.36 "Title Company" shall mean Chicago Title Insurance Company or such
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other title insurance company as shall have been reasonably approved by the
Purchaser and the Seller.
1.37 "Wyndham" shall mean Wyndham Hotel Company, Ltd., a Texas limited
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partnership.
SECTION 2. PURCHASE AND SALE; DILIGENCE.
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2.1 Purchase and Sale. In consideration of the mutual covenants herein
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contained, the Purchaser hereby agrees to purchase from the Seller and the
Seller hereby agrees to sell to the Purchaser, all of the Seller's right, title
and interest in and to the Properties for the Purchase Price, subject to and in
accordance with the terms and conditions of this Agreement.
2.2 Diligence Inspections. For the Review Period, the Seller shall
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permit the Purchaser and its representatives to inspect the Properties and the
Improvements (including, without limitation, all roofs, electric, mechanical and
structural elements, and HVAC systems therein), to perform due diligence, soil
analysis and environmental investigations, to examine the books of account and
records of the Seller with respect to the Properties, including, without
limitation, all leases and agreements affecting the Properties, and make copies
thereof, at such reasonable times as the Purchaser or its representatives may
request by notice to the Seller (which notice may be oral). To the extent that,
in connection with such investigations, the Purchaser, its agents,
representatives or contractors, damages or disturbs any of the Real Property or
the Improvements located thereon, the Purchaser shall return the same to
substantially the same condition which existed immediately prior to such damage
or disturbance. The Purchaser shall indemnify, defend and hold harmless the
Seller from and against any and all expense, loss or damage which the Seller may
incur as a result of any act or omission of the Purchaser or its
representatives, agents or contractors in connection with such examinations and
inspections, other than to the extent that any expense, loss or damage arises
from any act or omission of the Seller. The foregoing indemnification agreement
shall survive the termination of this Agreement and the Closing.
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2.3 Termination Rights. (a) In the event that the Purchaser reasonably
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determines that a Property or group of Properties has structural, environmental,
legal or other operational defects or conditions such that either an
undeterminable amount of expenditures or expenditures equal to or greater than
Ten Million Dollars ($10,000,000) in the aggregate are required in order to
bring such Property or Properties into a satisfactory condition in accordance
with prevailing Wyndham standards for like hotels (any such Property being
hereinafter referred to as a "Defective Property"), the Purchaser shall have the
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right to terminate this Agreement by written notice thereof to the Seller, such
notice to be given prior to the expiration of the Review Period (and time shall
be of the essence with respect to the giving of such notice).
(b) If, prior to the Closing, (i) any Property or Properties suffers a
casualty or condemnation which would cause such Property or Properties to become
a Defective Property, (ii) such Property is not, prior to the Closing, restored
to a condition substantially the same as the condition thereof immediately prior
to such casualty or condemnation, and (iii) the Purchaser provides written
notice of same to the Seller no later than the Closing Date, time being of the
essence, the Purchaser shall have the right to terminate this Agreement by the
giving of written notice thereof to the Seller on the Closing Date (and time
shall be of the essence with respect to the giving of such notice).
(c) If the Purchaser and the Seller shall be unable to agree on the
Allocable Purchase Price of any Property or the FF&E Funded Amount or shall fail
to enter into the Agreement to Lease prior to the expiration of the Review
Period, either party may terminate this Agreement by written notice to the
other, such notice to be given on the first Business Day following the
expiration of the Review Period (and time shall be of the essence with respect
to the giving of such notice).
(d) In the event that the Purchaser, for any reason, is dissatisfied with
the audited operating statements to be provided by the Seller to the Purchaser,
the Purchaser shall have the right, within two (2) Business Days after receipt
thereof, to terminate this Agreement and the transactions contemplated hereby
(and time shall be of the essence with respect to the giving of such notice).
The Seller covenants and agrees to provide such audited operating statements to
the Purchaser as soon as the same are available.
(e) In the event that the Seller shall fail to obtain all required
consents from its partners within seven (7) Business Days after the date hereof,
the Seller may terminate this Agreement, by written notice to the Purchaser,
such notice to be
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given prior to the expiration of such seventh Business Day (and time shall be of
the essence with respect to the giving of such notice).
2.4 Title Matters. The Purchaser acknowledges receipt of a commitment for
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an ALTA extended owner's policy of title insurance with respect to each of the
Properties, together with complete and legible copies of all instruments and
documents referred to as exceptions to title (collectively, the "Title
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Commitments").
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Within ten (10) Business Days after the date of this Agreement, the
Purchaser shall give the Seller notice of any title exceptions (other than
Permitted Encumbrances) which adversely affect such Property in any material
respect and as to which the Purchaser reasonably objects. If, for any reason,
the Seller is unable or unwilling to take such actions as may be required to
cause such exceptions to be removed from the Title Commitments, the Seller shall
give the Purchaser notice thereof; it being understood and agreed that the
failure of the Seller to give such notice within ten (10) Business Days after
the Purchaser's notice of objection shall be deemed an election by the Seller to
remedy such matters. If the Seller shall be unable or unwilling to remove any
title defects to which the Purchaser has reasonably objected, the Purchaser may
elect (i) to terminate this Agreement or (ii) to consummate the transactions
contemplated hereby, notwithstanding such title defect, without any abatement or
reduction in the Purchase Price on account thereof. The Purchaser shall make
any such election by written notice to the Seller given on or to the fifth
Business Day after the Seller's notice of its inability or unwillingness to cure
such defect. Failure of the Purchaser to give such notice shall be deemed an
election by the Purchaser to proceed in accordance with clause (ii) above.
2.5 Survey Matters. Within ten (10) Business Days after the date of this
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Agreement, the Seller shall arrange for the preparation of an ALTA survey with
respect to each of the Properties (the "Surveys"), by a licensed surveyor in the
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jurisdiction in which each such Property is located, which (i) contains an
accurate legal description of the applicable Property, (ii) shows the exact
location, dimension and description (including applicable recording information)
of all utilities, easements, encroachments and other physical matters affecting
such Property, the number of striped parking spaces located thereon and all
applicable building set-back lines, (iii) states whether the applicable Property
is located within a 100- year flood plain and (iv) includes a certification
substantially in the form set forth in Schedule C, addressed to the Purchaser,
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the Title Company and any other persons requested by the Purchaser.
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Within ten (10) Business Days after receipt of the Surveys, the Purchaser
shall give the Seller written notice of any matters shown thereon (other than
Permitted Encumbrances) which adversely affect any such Property in any material
respect and as to which the Purchaser reasonably objects. If, for any reason,
the Seller is unable or unwilling to take such actions as may be required to
remedy the objectionable matters, the Seller shall give the Purchaser prompt
notice thereof; it being understood and agreed that the failure of the Seller to
give such notice within ten (10) Business Days after the Purchaser's notice of
objection shall be deemed an election by the Seller to remedy such matters. If
the Seller shall be unable or unwilling to remove any survey defect to which the
Purchaser has reasonably objected, the Purchaser may elect (i) to terminate this
Agreement or (ii) to consummate the transactions contemplated hereby,
notwithstanding such defect, without any abatement or reduction in the Purchase
Price on account thereof. The Purchaser shall make any such election by written
notice to the Seller given on or prior to the fifth Business Day after the
Seller's notice of its inability or unwillingness to cure such defect and time
shall be of the essence with respect to the giving of such notice. Failure of
the Purchaser to give such notice shall be deemed an election by the Purchaser
to proceed in accordance with clause (ii) above.
SECTION 3. PURCHASE AND SALE.
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3.1 Closing. The purchase and sale of the Properties shall be consummated
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at a closing (the "Closing") to be held at the offices of Xxxxxxxx & Worcester
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LLP, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, or at such other location as
the Seller and the Purchaser may agree, at 10:00 a.m. local time, on a date (the
"Closing Date") which is the later to occur of (i) April 1, 1996, and (ii) the
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date as of which all conditions precedent to the Closing herein set forth have
either been satisfied or waived by the party in whose favor such conditions run.
In the event that the Closing shall not have occurred on or before April 30,
1996, either party shall, subject to the last clause of this sentence, have the
right, by the giving of written notice, to terminate this Agreement; provided,
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however, that, if the parties shall, on April 30, 1996, be diligently proceeding
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toward closing, either party may extend such outside Closing Date to May 15,
1996.
3.2 Purchase Price. (a) At the Closing, the Purchaser shall pay to the
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Seller, for the Properties, a purchase price (the "Purchase Price") in the
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amount of One Hundred Thirty-Five Million Three Hundred Twenty Thousand Dollars
($135,320,000), except that there shall be added to or deducted from the
Purchase Price such amounts as may be required pursuant to Section 9.
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(b) The Purchase Price shall be payable as follows:
(i) At the Closing, the Purchase Price less the Retained Funds shall
be payable by wire transfer of immediately available funds on
the Closing Date to an account or accounts to be designated by
the Seller prior to the Closing; and
(ii) The Retained Funds shall be payable by wire transfer of
immediately available funds on a pro rata basis, based on the
Allocable Purchase Prices, upon the expiration or sooner
termination of any of the Leases of the Properties (other than
any termination arising from the occurrence of any Default or
Event of Default (as defined therein)) by the tenant under the
Leases, to an account or accounts to be designated by the Seller
prior to such date.
The provisions of this Section 3.2, shall survive the expiration or sooner
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termination of this Agreement.
SECTION 4. CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE.
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The obligation of the Purchaser to acquire the Properties on the Closing
Date shall be subject to the satisfaction of the following conditions precedent
on and as of the Closing Date:
4.1 Closing Documents. The Seller shall have delivered to the Purchaser:
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(a) A good and sufficient warranty deed with covenants against grantor's
acts, or its local equivalent, with respect to all of the Properties which are
Fee Properties, in proper statutory form for recording, duly executed and
acknowledged by the Seller, conveying good and marketable title to the
applicable Fee Properties, free from all liens and encumbrances other than the
Permitted Encumbrances;
(b) With respect to all of the Properties which are Ground Lease
Properties, an assignment and assumption agreement, in form and substance
reasonably satisfactory to the Seller and the Purchaser, duly executed and
acknowledged by the Seller, with respect to all of the Seller's right, title and
interest in, to and under the Ground Leases together with the written consent of
each of the lessors under the applicable Ground Leases if such consent is
required pursuant to the terms of such Ground Leases;
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(c) An estoppel certificate, in form and substance reasonably satisfactory
to the Purchaser, from each of the lessors under the applicable Ground Leases,
confirming, to such lessor's knowledge, that each such Ground Lease is in full
force and effect, the amount of the rents and other sums payable thereunder,
that, to the knowledge of the lessor thereunder, no default or event which with
the giving of notice and/or lapse of time could constitute a default has
occurred and is continuing thereunder, and regarding such other matters as the
Purchaser may reasonably require;
(d) A xxxx of sale and assignment agreement, in form and substance
reasonably satisfactory to the Seller and the Purchaser, duly executed and
acknowledged by the Seller, with respect to all of the Seller's right, title and
interest in, to and under the FF&E, the Contracts, the Documents, the Intangible
Property and the Tenant Leases with respect to the Properties;
(e) To the extent the same are in the Seller's possession, originally,
fully executed copies of all agreements pertaining to the Properties;
(f) Duly executed copies of the Leases, all of the Incidental Documents
(as such term is defined in the Leases) and all other documents required to be
delivered to the Purchaser to the Agreement to Lease;
(g) Duly executed copies of the Management Agreements;
(h) Certified copies of all charter documents, applicable corporate
resolutions and certificates of incumbency with respect to the Seller and its
general partner, the Tenant and the manager under the Management Agreements; and
(i) Such other conveyance documents, certificates, deeds, affidavits and
other instruments as the Purchaser or the Title Company may reasonably require.
4.2 Condition of Properties. (a) All of the Properties and all
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Improvements located thereon shall, except as otherwise provided in Section 2.3,
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be in substantially the same physical condition as on the date of this
Agreement, ordinary wear and tear excepted;
(b) No material default or event which with the giving of notice and/or
lapse of time could constitute a material default shall have occurred and be
continuing under any material agreement benefiting or affecting the Properties
in any respect;
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(c) No action shall be pending or threatened for the condemnation or
taking by power of eminent domain of all or any material portion of the
Properties; and
(d) All material licenses, permits and other authorizations necessary for
the current use, occupancy and operation of the Properties shall be in full
force and effect.
4.3 Title Policies. The Title Company shall be prepared, subject only to
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payment of the applicable premium and delivery of all conveyance documents in
recordable form, to issue title insurance policies to the Purchaser, in form and
substance satisfactory to the Purchaser in accordance with Section 2.4, together
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with such affirmative coverages as the Purchaser may reasonably require and
shall have been determined by the Title Company as available prior to the
expiration of the Review Period.
4.4 Opinions of Counsel. (a) The Purchaser shall have received a written
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opinion from counsel to the Seller, which counsel shall be reasonably acceptable
to the Purchaser, in form and substance reasonably satisfactory to the
Purchaser, regarding the organization and authority of the Seller, the Tenant
and the manager under the Management Agreements, the enforceability of this
Agreement, the Leases and the Incidental Documents (as defined in the Leases),
the Management Agreements and such other matters with respect to the
transactions contemplated by this Agreement as the Purchaser may reasonably
require.
(b) The Purchaser shall have received a written opinion from local counsel
to the Purchaser, in form and substance reasonably satisfactory to the
Purchaser, regarding the compliance of the Properties with respect to zoning
(except where zoning endorsements are available), licensing and such other
matters as the Purchaser may reasonably require, but only to the extent opinions
on such matters are customary in the jurisdiction in which the applicable
Property is located.
4.5 FF&E Funded Amount. The FF&E Funded Amount shall have been deposited
------------------
in an account or accounts reasonably acceptable to the Purchaser.
4.6 Appraisal. As of the Closing Date, the Purchaser shall have received
---------
and approved an original appraisal report, dated within sixty (60) days prior to
the Closing Date, addressed to the Purchaser, prepared by a qualified real
estate appraiser reasonably satisfactory to the Purchaser and indicating an
aggregate fair market value for the Properties of not less than the Purchase
Price (and an allocation among such properties consistent with the Allocable
Purchase Prices), such appraisals
-12-
to be otherwise in form and substance reasonably acceptable to the Purchaser.
4.7 Other Approvals. The Seller and the Purchaser shall have received, in
---------------
form and substance reasonably satisfactory to the Seller and the Purchaser, all
required approvals and waivers, as may be necessary or appropriate to consummate
the transactions contemplated by this Agreement.
SECTION 5. CONDITIONS TO SELLER'S OBLIGATION TO CLOSE.
--------- ------------------------------------------
The obligation of the Seller to convey the Properties on the Closing Date
to the Purchaser is subject to the satisfaction of the following conditions
precedent on and as of the Closing Date:
5.1 Purchase Price. The Purchaser shall deliver to the Seller the
--------------
Purchase Price (less the amount of the Retained Funds), payable hereunder,
adjusted as herein provided.
5.2 Closing Documents. The Purchaser shall have delivered to the Seller:
-----------------
(a) Duly executed and acknowledged counterparts of the documents described
in Section 4.1, where applicable; and
-----------
(b) Certified copies of all charter documents, applicable resolutions and
certificates of incumbency with respect to the Purchaser.
5.3 Opinion of Counsel. The Seller shall have received a written opinion
------------------
from Xxxxxxxx & Worcester LLP, counsel to the Purchaser, in form and substance
reasonably satisfactory to the Seller, regarding the organization and authority
of the Purchaser, the enforceability of this Agreement, the Leases and the
Incidental Documents and such other matters with respect to the transactions
contemplated by this Agreement as the Seller may reasonably require.
5.4 Other Approvals. The Seller and the Purchaser shall have received, in
---------------
form and substance reasonably satisfactory to the Seller and the Purchaser, all
required approvals and waivers, as may be necessary or appropriate to consummate
the transactions contemplated by this Agreement.
5.5 No Required HSR Filing. No filing pursuant to the Xxxx Xxxxx Xxxxxx
----------------------
Antitrust Improvements Act of 1976, as amended, shall be required with respect
to the transactions contemplated by this Agreement.
-13-
SECTION 6. REPRESENTATIONS AND WARRANTIES OF SELLER.
--------- ----------------------------------------
To induce the Purchaser to enter into this Agreement, the Seller represents
and warrants to the Purchaser as follows:
6.1 Status and Authority of the Seller. The Seller is a limited
----------------------------------
partnership duly organized, validly existing and in good standing under the laws
of the State of Texas. Each of the general partner of the Seller and its
general partner is a corporation duly organized, validly existing and in
corporate good standing under the laws of its state of incorporation. Each of
the Seller, the general partner of the Seller and its general partner has all
requisite power and authority under the laws of its state of formation and its
respective charter documents to enter into and perform its obligations under
this Agreement and to consummate the transactions contemplated hereby. Each of
the Seller, the general partner of the Seller and its general partner has duly
qualified to transact business in each jurisdiction in which the nature of the
business conducted by it requires such qualification.
6.2 Action of the Seller. Each of the Seller, the general partner of the
--------------------
Seller and its general partner has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and upon the execution
and delivery of any document to be delivered by the Seller on or prior to the
Closing Date, such document shall constitute the valid and binding obligation
and agreement of the Seller, enforceable against the Seller and such general
partners in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application affecting the rights and remedies of creditors.
6.3 No Violations of Agreements. Except as disclosed in writing to the
---------------------------
Purchaser prior to the expiration of the Review Period, neither the execution,
delivery or performance of this Agreement by the Seller, nor compliance with the
terms and provisions hereof, will result in any breach of the terms, conditions
or provisions of, or conflict with or constitute a default under, or result in
the creation of any lien, charge or encumbrance upon any Property pursuant to
the terms of any indenture, mortgage, deed of trust, note, evidence of
indebtedness or any other material agreement or instrument by which the Seller
is bound.
6.4 Litigation. Except as disclosed in writing to the Purchaser prior to
----------
the expiration of the Review Period, the Seller has received no written notice
of and, to the Seller's knowledge, no action or proceeding is pending or
threatened and no investigation looking toward such an action or proceeding has
-14-
begun, which (a) questions the validity of this Agreement or any action taken or
to be taken pursuant hereto, (b) will result in any material adverse change in
the business, operation, affairs or condition of any of the Properties, (c)
result in or subject the Properties to a material liability, or (d) involves
condemnation or eminent domain proceedings against any part of the Properties.
6.5 Existing Leases, Agreements, Etc. To the Seller's knowledge, other
--------------------------------
than the Ground Leases and any other agreements provided to the Purchaser not
less than ten (10) Business Days prior to the expiration of the Review Period,
there are no material agreements affecting the Properties which will be binding
on the Purchaser subsequent to the Closing Date.
6.6 Disclosure. To the Seller's knowledge, there is no fact or condition
----------
which materially and adversely affects the business or condition of the
Properties which has not been set forth in this Agreement or in the other
documents, certificates or statements furnished to the Purchaser in connection
with the transactions contemplated hereby.
6.7 Utilities, Etc. To the Seller's knowledge, all utilities and services
--------------
necessary for the use and operation of the Properties (including, without
limitation, road access, gas, water, electricity and telephone) are available
thereto, are of sufficient capacity to meet adequately all needs and
requirements necessary for the current use and operation of such Properties and
for their respective intended purposes. To the Seller's knowledge, no fact,
condition or proceeding exists which would result in the termination or material
impairment of the furnishing of such utilities to the Properties.
6.8 Compliance With Law. Except as disclosed in writing to the Purchaser
-------------------
prior to the expiration of the Review Period, to the Seller's knowledge (i) the
Properties and the use and operation thereof do not violate any material
federal, state, municipal and other governmental statutes, ordinances, by-laws,
rules, regulations or any other legal requirements, including, without
limitation, those relating to construction, occupancy, zoning, adequacy of
parking, environmental protection, occupational health and safety and fire
safety applicable thereto; and (ii) there are presently in effect all material
licenses, permits and other authorizations necessary for the current use,
occupancy and operation thereof. Except as disclosed in writing to the
Purchaser prior to the expiration of the Review Period, the Seller has not
received written notice of any threatened request, application, proceeding,
plan, study or effort which would materially adversely affect the present use or
zoning of any of the Properties or which would modify or realign
-15-
any adjacent street or highway in a manner which would materially adversely
affect the use and operation of the Properties.
6.9 Taxes. To the Seller's knowledge, other than the amounts disclosed by
-----
tax bills, no taxes or special assessments of any kind (special, bond or
otherwise) are or have been levied with respect to any of the Properties, or any
portion thereof, which are outstanding or unpaid, other than amounts not yet due
and payable or, if due and payable, not yet delinquent.
6.10 Not A Foreign Person. The Seller is not a "foreign person" within
--------------------
the meaning of Section 1445 of the United States Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
6.11 Hazardous Substances. Except as disclosed to the Purchaser or as
--------------------
described in any environmental report delivered to the Purchaser, to the
Seller's knowledge, none of the Seller nor any tenant or other occupant or user
of any of the Properties, or any portion thereof, has stored or disposed of (or
engaged in the business of storing or disposing of) or has released or caused
the release of any hazardous waste, contaminants, oil, radioactive or other
material on any of the Properties, or any portion thereof, the removal of which
is required or the maintenance of which is prohibited or penalized by any
applicable Federal, state or local statutes, laws, ordinances, rules or
regulations, and, to the Seller's knowledge, except as disclosed to the
Purchaser or as described in any environmental report delivered to the
Purchaser, the Properties are free from any such hazardous waste, contaminants,
oil, radioactive and other materials, except any such materials maintained in
accordance with applicable law.
6.12 Insurance. The Seller has received no written notice from any
---------
insurance carrier of defects or inadequacies in the Properties which, if
uncorrected, would result in a termination of insurance coverage or an increase
in the premiums charged therefor.
6.13 Ground Leases. The copies of the Ground Leases heretofore delivered
-------------
by the Seller to the Purchaser are true, correct and complete copies thereof;
the Ground Leases have not been amended except as evidenced by amendments
similarly delivered and constitute the entire agreement between the Seller and
the applicable other parties. To the Seller's knowledge, the Ground Leases are
in full force and effect and no default or event which with the giving of notice
and/or lapse of time could constitute a default thereunder has occurred with
respect to the Seller or, to the Seller's knowledge, the applicable ground
lessor.
-16-
The representations and warranties made in this Agreement by the Seller
shall be continuing and shall be deemed remade by the Seller as of the Closing
Date with the same force and effect as if made on, and as of, such date;
provided, however, that, the Seller shall have the right, from time to time
-------- -------
prior to the Closing Date, to modify the representations and warranties as a
result of changes in condition of the Properties by notice to the Purchaser and,
in such event, the Purchaser shall have the rights provided in Section 2.3. The
-----------
Seller's liability with respect to all representations and warranties made in
this Agreement by the Seller with respect to the Properties shall survive the
Closing for a period of one year.
Except as otherwise expressly provided in this Agreement or any documents
to be delivered to the Purchaser at the Closing, the Seller disclaims the making
of any representations or warranties, express or implied, regarding the
Properties or matters affecting the Properties, whether made by the Seller, on
the Seller's behalf or otherwise, including, without limitation, the physical
condition of the Properties, title to or the boundaries of the Real Property,
pest control matters, soil conditions, the presence, existence or absence of
hazardous wastes, toxic substances or other environmental matters, compliance
with building, health, safety, land use and zoning laws, regulations and orders,
structural and other engineering characteristics, traffic patterns, market data,
economic conditions or projections, and any other information pertaining to the
Properties or the market and physical environments in which they are located.
The Purchaser acknowledges (i) that the Purchaser has entered into this
Agreement with the intention of making and relying upon its own investigation or
that of third parties with respect to the physical, environmental, economic and
legal condition of each Property and (ii) that the Purchaser is not relying upon
any statements, representations or warranties of any kind, other than those
specifically set forth in this Agreement or in any document to be delivered to
the Purchaser at the Closing made by the Seller. The Purchaser further
acknowledges that it has not received from or on behalf of the Seller any
accounting, tax, legal, architectural, engineering, property management or other
advice with respect to this transaction and is relying solely upon the advice of
third party accounting, tax, legal, architectural, engineering, property
management and other advisors. Subject to the provisions of this Agreement, the
Purchaser shall purchase the Properties in their "as is" condition on the
Closing Date.
-17-
SECTION 7. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
--------- -------------------------------------------
To induce the Seller to enter in this Agreement, the Purchaser represents
and warrants to the Seller as follows:
7.1 Status and Authority of the Purchaser. The Purchaser is a Maryland
-------------------------------------
real estate investment trust duly organized, validly existing and in trust good
standing under the laws of the State of Maryland, and has all requisite power
and authority under the laws of such state and under its charter documents to
enter into and perform its obligations under this Agreement and to consummate
the transactions contemplated hereby. The Purchaser has duly qualified and is
in good standing as a trust or unincorporated business association in each
jurisdiction in which the nature of the business conducted by it requires such
qualification.
7.2 Action of the Purchaser. The Purchaser has taken all necessary
-----------------------
action to authorize the execution, delivery and performance of this Agreement,
and upon the execution and delivery of any document to be delivered by the
Purchaser on or prior to the Closing Date such document shall constitute the
valid and binding obligation and agreement of the Purchaser, enforceable against
the Purchaser in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of
general application affecting the rights and remedies of creditors.
7.3 No Violations of Agreements. Neither the execution, delivery or
---------------------------
performance of this Agreement by the Purchaser, nor compliance with the terms
and provisions hereof, will result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any property or assets of the
Purchaser pursuant to the terms of any indenture, mortgage, deed of trust, note,
evidence of indebtedness or any other agreement or instrument by which the
Purchaser is bound.
7.4 Litigation. No investigation, action or proceeding is pending and, to
----------
the Purchaser's actual knowledge, no action or proceeding is threatened and no
investigation looking toward such an action or proceeding has begun, which
questions the validity of this Agreement or any action taken or to be taken
pursuant hereto.
The representations and warranties made in this Agreement by the Purchaser
shall be continuing and shall be deemed remade by the Purchaser as of the
Closing Date with the same force and effect as if made on, and as of, such date.
The Purchaser's liability with respect to all representations and warranties
made
-18-
in this Agreement by the Purchaser shall survive the Closing for a period
of one year.
SECTION 8. COVENANTS OF THE SELLER.
--------- -----------------------
The Seller hereby covenants with the Purchaser between the date of this
Agreement and the Closing Date as follows:
8.1 Compliance with Laws, Etc. To comply in all material respects with
-------------------------
(i) all laws, regulations and other requirements from time to time applicable of
every governmental body having jurisdiction of the Properties or the use or
occupancy of the Improvements located thereon and (ii) all terms, covenants and
conditions of the Ground Leases and all instruments of record and other
agreements affecting Properties.
8.2 Approval of Agreements. Except as otherwise authorized by this
----------------------
Agreement or in the ordinary course of business, not to enter into, modify,
amend or terminate the Ground Leases or any other agreement with respect to the
Properties which would encumber or be binding upon such Properties from and
after the Closing Date without in each instance obtaining the prior written
consent of the Purchaser.
8.3 Compliance with Agreements. To comply each and every material term,
--------------------------
covenant and condition contained in the Ground Leases and any other material
document or agreement affecting the Properties.
8.4 Estoppel Certificates. To request, and use reasonable efforts to
---------------------
obtain, from the Manager and the landlords under the Ground Leases,
certifications, in form and substance reasonably satisfactory to the Purchaser,
regarding the status of the Ground Leases.
8.5 Notice of Material Changes or Untrue Representations. Upon learning of
----------------------------------------------------
any material change in any condition with respect to any of the Properties or of
any event or circumstance which makes any representation or warranty of the
Seller to the Purchaser under this Agreement untrue or misleading in any
material respect, promptly to notify the Purchaser thereof (the Purchaser
agreeing, on learning of any such fact or condition, promptly to notify the
Seller thereof).
8.6 Operation of Properties. To continue to operate each of the
-----------------------
Properties as a Wyndham Garden hotel in a good and businesslike fashion
consistent with their past practices and to cause each of the Properties to be
maintained in good working order and condition in a manner consistent with their
past practice.
-19-
SECTION 9. APPORTIONMENTS.
--------- --------------
9.1 Real Property Apportionments. Representatives of the Purchaser and
----------------------------
the Seller shall perform any and all of the adjustments and apportionments which
are appropriate and usual for a transaction of this nature and taking into
account the simultaneous execution of the Leases. The adjustments hereunder
shall be calculated or paid in an amount based upon a fair and reasonable
estimated accounting performed and agreed to by representatives of the Seller
and the Purchaser at the Closing. Subsequent final adjustments and payments
shall be made in cash or other immediately available funds as soon as
practicable after the Closing Date and in any event within ninety (90) days
after such Closing Date, based upon an agreed accounting performed by
representatives of the Seller and the Purchaser. In the event the parties have
not agreed with respect to the adjustments required to be made pursuant to this
Section 9.1 within such ninety-day period, upon application by either party, a
-----------
certified public accountant reasonably acceptable to the Purchaser and the
Seller shall determine any such adjustments which have not theretofore been
agreed to between the Seller and the Purchaser. The charges of such accountant
shall be borne by the Purchaser.
9.2 Closing Costs. The Seller shall pay all costs and expenses associated
-------------
with the transactions contemplated hereby except that the Purchaser shall be
solely responsible for the fees of Xxxxxxxx & Worcester LLP, special counsel to
the Purchaser. The Purchaser hereby acknowledges receipt of an expense deposit
in the amount of Fifty Thousand Dollars ($50,000), which deposit shall be
credited against costs incurred by the Purchaser in connection with the
transactions contemplated hereby (other than the fees of Xxxxxxxx & Worcester
LLP).
The obligations of the parties under this Section 9 shall survive the
---------
Closing.
SECTION 10. DEFAULT.
---------- -------
10.1 Default by the Seller. If the Seller shall have made any
---------------------
representation or warranty herein which shall be untrue or misleading in any
material respect, or if the Seller shall fail to perform any of the material
covenants and agreements contained herein to be performed by the Seller and such
failure continues for a period of ten (10) days after notice thereof from the
Purchaser, the Purchaser may terminate this Agreement and/or the Purchaser may
pursue any and all remedies available to it at law or in equity, including, but
not limited to, a suit for specific performance or other equitable relief;
provided, however, that, in no event shall the monetary damages payable by the
-------- -------
Seller
-20-
hereunder exceed Two Million Dollars ($2,000,000) in the aggregate.
10.2 Default by the Purchaser. If the Purchaser shall have made any
------------------------
representation or warranty herein which shall be untrue or misleading in any
material respect, or if the Purchaser shall fail to perform any of the covenants
and agreements contained herein to be performed by it and such failure shall
continue for a period of ten (10) days after notice thereof from the Seller, the
Seller may, as its sole and exclusive remedy at law and in equity, terminate
this Agreement, whereupon, the Purchaser shall pay to the Seller, as liquidated
damages and not as a penalty, the sum of Two Million Dollars ($2,000,000).
SECTION 11. MISCELLANEOUS.
---------- -------------
11.1 Agreement to Indemnify. (a) Subject to any express provisions of
-----------------------
this Agreement to the contrary, (i) the Seller shall indemnify and hold harmless
the Purchaser from and against any and all obligations, claims, losses, damages,
liabilities, and expenses (including, without limitation, reasonable attorneys'
and accountants' fees and disbursements) arising out of (x) events, contractual
obligations, acts or omissions of the Seller that occurred in connection with
the ownership or operation of any Property prior to the Closing or (y) any
damage to property of others or injury to or death of any person or any claims
for any debts or obligations occurring on or about or in connection with any
Property or any portion thereof at any time or times prior to the Closing, and
(ii) the Purchaser shall indemnify and hold harmless the Seller from and against
any and all obligations, claims, losses, damages, liabilities and expenses
(including, without limitation, reasonable attorneys' and accountants' fees and
disbursements) arising out of (x) events, contractual obligations, acts or
omissions of Purchaser that occur in connection with the ownership or operation
of any Property after the Closing, or (y) any damage to property of others or
injury to or death of any person or any claims for any debts or obligations
occurring on or about any Property or any portion thereof at any time or times
after the Closing.
(b) Whenever it is provided in this Agreement that an obligation of the
Seller will be assumed by the Purchaser after the Closing, the Purchaser shall
be deemed to have also agreed to indemnify and hold harmless the Seller and
their respective successors and assigns from and against all claims, losses,
damages, liabilities, costs, and expenses (including, without limitation,
reasonable attorneys' and accountants' fees and expenses) arising from any
failure of the Purchaser to perform the obligation so assumed after the Closing.
-21-
(c) Whenever either party shall learn through the filing of a claim or the
commencement of a proceeding or otherwise of the existence of any liability for
which the other party is or may be responsible under this Agreement, the party
learning of such liability shall notify the other party promptly and furnish
such copies of documents (and make originals thereof available) and such other
information as such party may have that may be used or useful in the defense of
such claims and shall afford said other party full opportunity to defend the
same in the name of such party and shall generally cooperate with said other
party in the defense of any such claim.
(d) The provisions of this Section 11.1 shall survive the Closing and the
------------
termination of this Agreement.
11.2 Brokerage Commissions. Each of the parties hereto represents to the
---------------------
other parties that it dealt with no broker, finder or like agent in connection
with this Agreement or the transactions contemplated hereby other than
Donaldson, Lufkin, Xxxxxxxx Securities Corporation ("DLJ"), and that it
---
reasonably believes that there is no basis for any other person or entity to
claim a commission or other compensation for bringing about this Agreement or
the transactions contemplated hereby. The Seller shall indemnify and hold
harmless the Purchaser and its respective legal representatives, heirs,
successors and assigns from and against any loss, liability or expense,
including, reasonable attorneys' fees, arising out of any claim or claims for
commissions or other compensation for bringing about this Agreement or the
transactions contemplated hereby made by any broker, finder or like agent other
than DLJ, if such claim or claims are based in whole or in part on dealings with
the Seller. The Purchaser shall indemnify and hold harmless the Seller and their
legal representatives, heirs, successors and assigns from and against any loss,
liability or expense, including, reasonable attorneys' fees, arising out of any
claim or claims for commissions or other compensation for bringing about this
Agreement or the transactions contemplated hereby made by any broker, finder or
like agent, if such claim or claims are based in whole or in part on dealings
with the Purchaser and the Purchaser shall be solely responsible for the payment
of any fees due DLJ. Nothing contained in this section shall be deemed to
create any rights in any third party. The provisions of this Section 11.2 shall
------------
survive the Closing and any termination of this Agreement.
11.3 Publicity. The parties agree that no party shall, with respect to
---------
this Agreement and the transactions contemplated hereby, contact or conduct
negotiations with public officials, make any public pronouncements, issue press
releases or otherwise furnish information regarding this Agreement or the
transactions contemplated to any third party without the consent of the other
-22-
parties, which consent shall not be unreasonably withheld. No party, or its
employees shall trade in the securities of any parent or affiliate of the Seller
or of the Purchaser until a public announcement of the transactions contemplated
by this Agreement has been made. No party shall record this Agreement or any
notice thereof.
11.4 Notices. (a) Any and all notices, demands, consents, approvals,
-------
offers, elections and other communications required or permitted under this
Agreement shall be deemed adequately given if in writing and the same shall be
delivered either in hand, by telecopier with written acknowledgment of receipt,
or by mail or Federal Express or similar expedited commercial carrier, addressed
to the recipient of the notice, postpaid and registered or certified with return
receipt requested (if by mail), or with all freight charges prepaid (if by
Federal Express or similar carrier).
(b) All notices required or permitted to be sent hereunder shall be deemed
to have been given for all purposes of this Agreement upon the date of
acknowledged receipt, in the case of a notice by telecopier, and, in all other
cases, upon the date of receipt or refusal, except that whenever under this
Agreement a notice is either received on a day which is not a Business Day or is
required to be delivered on or before a specific day which is not a Business
Day, the day of receipt or required delivery shall automatically be extended to
the next Business Day.
(c) All such notices shall be addressed,
if to the Seller to:
Wyndham Hotels and Resorts
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxx X. Xxxxxxx
[Telecopier No. (000) 000-0000]
with a copy to:
Locke, Purnell, Rain, Xxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx Xxxx, Esq.
[Telecopier No. (000) 000-0000]
-23-
If to the Purchaser, to:
Hospitality Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx
[Telecopier No. (000) 000-0000]
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
[Telecopier No. (000) 000-0000]
(d) By notice given as herein provided, the parties hereto and their
respective successor and assigns shall have the right from time to time and at
any time during the term of this Agreement to change their respective addresses
effective upon receipt by the other parties of such notice and each shall have
the right to specify as its address any other address within the United States
of America.
11.5 Waivers, Etc. Any waiver of any term or condition of this Agreement,
------------
or of the breach of any covenant, representation or warranty contained herein,
in any one instance, shall not operate as or be deemed to be or construed as a
further or continuing waiver of any other breach of such term, condition,
covenant, representation or warranty or any other term, condition, covenant,
representation or warranty, nor shall any failure at any time or times to
enforce or require performance of any provision hereof operate as a waiver of or
affect in any manner such party's right at a later time to enforce or require
performance of such provision or any other provision hereof. This Agreement may
not be amended, nor shall any waiver, change, modification, consent or discharge
be effected, except by an instrument in writing executed by or on behalf of the
party against whom enforcement of any amendment, waiver, change, modification,
consent or discharge is sought.
11.6 Assignment; Successors and Assigns. This Agreement and all rights
----------------------------------
and obligations hereunder shall not be assignable by any party without the
written consent of the other parties, except that (x) the Purchaser may assign
this Agreement to any entity wholly owned, directly or indirectly, by HPT
(provided that, in the event this Agreement shall be assigned to any entity
--------
wholly owned, directly or indirectly, by HPT, HPT shall remain liable for the
obligation of the "Purchaser" hereunder) and (y) after Closing, the Seller may
assign its surviving rights
-24-
hereunder to the Tenant, Wyndham or any affiliate of either of them. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective legal representatives, successors and permitted
assigns. This Agreement is not intended and shall not be construed to create any
rights in or to be enforceable in any part by any other persons.
11.7 Severability. If any provision of this Agreement shall be held or
------------
deemed to be, or shall in fact be, invalid, inoperative or unenforceable as
applied to any particular case in any jurisdiction or jurisdictions, or in all
jurisdictions or in all cases, because of the conflict of any provision with any
constitution or statute or rule of public policy or for any other reason, such
circumstance shall not have the effect of rendering the provision or provisions
in question invalid, inoperative or unenforceable in any other jurisdiction or
in any other case or circumstance or of rendering any other provision or
provisions herein contained invalid, inoperative or unenforceable to the extent
that such other provisions are not themselves actually in conflict with such
constitution, statute or rule of public policy, but this Agreement shall be
reformed and construed in any such jurisdiction or case as if such invalid,
inoperative or unenforceable provision had never been contained herein and such
provision reformed so that it would be valid, operative and enforceable to the
maximum extent permitted in such jurisdiction or in such case.
11.8 Counterparts, Etc. This Agreement may be executed in two or more
-----------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof and shall supersede and take the place of any other
instruments purporting to be an agreement of the parties hereto relating to the
subject matter hereof. This Agreement may not be amended or modified in any
respect other than by the written agreement of all of the parties hereto.
11.9 Governing Law. This Agreement shall be interpreted, construed,
-------------
applied and enforced in accordance with the laws of The Commonwealth of
Massachusetts applicable to contracts between residents of Massachusetts which
are to be performed entirely within Massachusetts, regardless of (i) where this
Agreement is executed or delivered; or (ii) where any payment or other
performance required by this Agreement is made or required to be made; or (iii)
where any breach of any provision of this Agreement occurs, or any cause of
action otherwise accrues; or (iv) where any action or other proceeding is
instituted or pending; or (v) the nationality, citizenship, domicile, principal
place of business, or jurisdiction of organization or
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domestication of any party; or (vi) whether the laws of the forum jurisdiction
otherwise would apply the laws of a jurisdiction other than The Commonwealth of
Massachusetts; or (vii) any combination of the foregoing.
To the maximum extent permitted by applicable law, any action to enforce,
arising out of, or relating in any way to, any of the provisions of this
Agreement may be brought and prosecuted in such court or courts located in The
Commonwealth of Massachusetts as is provided by law; and the parties consent to
the jurisdiction of said court or courts located in The Commonwealth of
Massachusetts and to service of process by registered mail, return receipt
requested, or by any other manner provided by law.
11.10 Performance on Business Days. In the event the date on which
----------------------------
performance or payment of any obligation of a party required hereunder is other
than a Business Day, the time for payment or performance shall automatically be
extended to the first Business Day following such date.
11.11 Attorneys' Fees. If any lawsuit or arbitration or other legal
---------------
proceeding arises in connection with the interpretation or enforcement of this
Agreement, the prevailing party therein shall be entitled to receive from the
other party the prevailing party's costs and expenses, including reasonable
attorneys' fees incurred in connection therewith, in preparation therefor and on
appeal therefrom, which amounts shall be included in any judgment therein.
11.12 Section and Other Headings. The headings contained in this
--------------------------
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
11.13 Nonliability of Trustees. THE DECLARATION OF TRUST ESTABLISHING
------------------------
HPT, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE "DECLARATION"),
-----------
IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF
MARYLAND, PROVIDES THAT THE NAME "HOSPITALITY PROPERTIES TRUST" REFERS TO THE
TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR
PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF HPT
SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY
OBLIGATION OF, OR CLAIM AGAINST, HPT. ALL PERSONS DEALING WITH HPT, IN ANY WAY,
SHALL LOOK ONLY TO THE ASSETS OF HPT FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as a sealed instrument as of the date first above written.
SELLER:
GARDEN HOTEL ASSOCIATES LIMITED
PARTNERSHIP
By: Garden Hotel Partners L.P., general
partner
By: Garden Hotel Corporation No. 2,
general partner
By: /s/ Elise Moleley Xxxxxx
----------------------------------
Its: Secretary
------------------------------
By: /s/ Xxxx Xxxxxxx
----------------------------------
Its: Vice President
------------------------------
PURCHASER:
HOSPITALITY PROPERTIES TRUST
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Its: /s/ Managing Trustee
-------------------------------------
Schedule A
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The Properties
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Schedule B-1 through B-11
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Legal Descriptions of Properties
--------------------------------
Schedule C
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Form of Surveyor's Certificate
------------------------------
