EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
by and among
RESIDENCE INN BY MARRIOTT, INC.,
COURTYARD MANAGEMENT CORPORATION,
NASHVILLE AIRPORT HOTEL, LLC, ST. LOUIS AIRPORT
HOTEL, LLC AND TOWNEPLACE MANAGEMENT CORPORATION,
as Sellers,
and
HOSPITALITY PROPERTIES TRUST,
as Purchaser
---------------------------
December 29, 1998
TABLE OF CONTENTS
SECTION 1. DEFINITIONS......................................................1
1.1 Actual Knowledge of the Designated Individuals.................1
1.2 Agreement......................................................2
1.3 Agreement to Lease.............................................2
1.4 Allocable Purchase Price.......................................2
1.5 Assets.........................................................2
1.6 Business Day...................................................2
1.7 Closing........................................................2
1.8 Closing Date...................................................2
1.9 Contracts......................................................2
1.10 Defective Property.............................................2
1.11 Environmental Reports..........................................3
1.12 Excluded Assets................................................3
1.13 FAS ...........................................................3
1.14 FF&E...........................................................3
1.15 Franchise Agreement............................................3
1.16 Hotel..........................................................3
1.17 HPT ...........................................................3
1.18 Improvements...................................................3
1.19 Intangible Property............................................4
1.20 Interests......................................................4
1.21 Inventories....................................................4
1.22 Leases.........................................................4
1.23 Limited Rent Guaranty......................................4
1.24 LLC Parties................................................4
1.25 Nashville LLC..................................................4
1.26 Nashville Property.............................................4
1.27 Norcross Property..............................................4
1.28 Opening Date...................................................4
1.29 Owner Agreement................................................5
1.30 Permitted Encumbrances.........................................5
1.31 Plans and Specifications.......................................5
1.32 Property.......................................................5
1.33 Properties.....................................................5
1.34 Proprietary Information........................................5
1.35 Purchaser......................................................5
1.36 Real Property..................................................5
1.37 Reserve........................................................6
1.38 Retained Funds.................................................6
1.39 Sellers........................................................6
1.40 St. Louis Property.............................................6
1.41 Stock Pledge...................................................6
1.42 Substantial Completion.........................................6
1.43 Surveys........................................................6
1.44 Tenant.........................................................6
1.45 Title Commitments..............................................6
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1.46 Title Company..................................................6
1.47 Yorktown Property..............................................7
SECTION 2. PURCHASE AND SALE; DILIGENCE......................................7
2.1 Purchase and Sale..............................................7
2.2 Diligence Inspections..........................................7
2.3 Defective Properties...........................................8
2.4 Title Matters..................................................9
2.5 Survey Matters................................................10
2.6 Environmental Reports.........................................11
SECTION 3. PURCHASE AND SALE................................................11
3.1 Closing.......................................................11
3.2 Purchase Price................................................12
SECTION 4. CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE....................12
4.1 Closing Documents.............................................12
4.2 Condition of Properties, Etc..................................14
4.3 Title Policies and Surveys....................................14
4.4 Opinions of Counsel...........................................15
SECTION 5. CONDITIONS TO SELLERS' OBLIGATION TO CLOSE.......................15
5.1 Purchase Price................................................15
5.2 Closing Documents.............................................15
5.3 Opinion of Counsel............................................16
SECTION 6. REPRESENTATIONS AND WARRANTIES OF SELLERS........................16
6.1 Status and Authority of the Sellers...........................16
6.2 Action of the Sellers.........................................17
6.3 No Violations of Agreements...................................17
6.4 Litigation....................................................17
6.5 Existing Agreements, Etc......................................17
6.6 Disclosure....................................................18
6.7 Utilities, Etc................................................18
6.8 Compliance With Law...........................................18
6.9 Not A Foreign Person..........................................19
6.10 Hazardous Substances..........................................19
6.11 Insurance.....................................................20
6.12 Substantial Completion........................................20
6.13 Condition of Properties.......................................20
SECTION 7. REPRESENTATIONS AND WARRANTIES OF PURCHASER......................22
7.1 Status and Authority of the Purchaser.........................22
7.2 Action of the Purchaser.......................................22
7.3 No Violations of Agreements...................................22
7.4 Litigation....................................................23
SECTION 8. COVENANTS OF THE SELLERS.........................................23
8.1 Compliance with Laws, Etc.....................................23
8.2 Approval of Agreements........................................23
8.3 Compliance with Agreements....................................24
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8.4 Substantial Completion........................................24
8.5 Notice of Material Changes or Untrue
Representations...........................................24
8.6 Correction of Defects.........................................24
SECTION 9. APPORTIONMENTS...................................................24
9.1 Real Property Apportionments..................................24
9.2 Closing Costs.................................................25
SECTION 10. DEFAULT.........................................................25
10.1 Default by the Sellers.......................................25
10.2 Default by the Purchaser.....................................26
SECTION 11. SPECIAL PROVISIONS RE NASHVILLE PROPERTY........................26
11.1 Purchaser's Right to Acquire Interests. ....................27
11.2 Additional Closing Documents. ..............................27
11.4 Right to Receive Rent and Payments...........................29
SECTION 12. MISCELLANEOUS...................................................29
12.1 Agreement to Indemnify.......................................29
12.2 Brokerage Commissions........................................30
12.3 Publicity....................................................31
12.4 Notices......................................................31
12.5 Waivers, Etc.................................................33
12.6 Assignment; Successors and Assigns...........................33
12.7 Severability.................................................34
12.8 Counterparts, Etc............................................34
12.9 Governing Law................................................34
12.10 Performance on Business Days.................................35
12.11 Attorneys' Fees..............................................35
12.12 Section and Other Headings...................................35
12.13 Nonliability of Trustees, Etc. .............................35
Schedule A - Property Identification
Schedule B-1-17 - Legal Descriptions of Properties
Schedule C - Form of Surveyor's Certificate
Schedule D - Form of Sellers' Closing Certificate
Schedule E - Form of Architect's Certificate
Schedule F - Form of Substitute Architect's
Certificate
Schedule G - Form of Second Substitute Architect's
Certificate
Schedule H - Form of Engineer's Certificate
Schedule I - Form of Substitute Engineer's Certificate
Schedule J - Form of Second Substitute Engineer's
Certificate
Schedule K - Plans and Specifications
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made as of the 29th day of
December, 1998, by and among RESIDENCE INN BY MARRIOTT, INC., COURTYARD
MANAGEMENT CORPORATION AND TOWNEPLACE MANAGEMENT CORPORATION, each a Delaware
corporation, and NASHVILLE AIRPORT HOTEL, LLC ("Nashville LLC") AND ST. LOUIS
AIRPORT HOTEL, LLC, each a Delaware limited liability company, as sellers, and
HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust ("HPT"),
as purchaser.
W I T N E S E T H :
WHEREAS, the Sellers are the owners 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
WHEREAS, the Purchaser desires to purchase the Properties from the
Sellers and the Sellers are 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 Sellers and the
Purchaser hereby agree as follows:
SECTION 1. DEFINITIONS.
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 "Actual Knowledge of the Designated Individuals" shall mean, with
respect to any Property, the actual knowledge of the general manager, controller
and chief engineer of the Hotel located at such Property and of the chief
regional engineer of Marriott International, Inc. responsible for the region in
which the applicable Property is located.
1.2 "Agreement" shall mean this Purchase and Sale Agreement, together
with Schedules A through K attached hereto, as it and they may be amended from
time to time as herein provided.
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1.3 "Agreement to Lease" shall mean that certain Agreement to Lease,
dated as of the date hereof, by and between the Tenant and the Purchaser.
1.4 "Allocable Purchase Price" shall mean, with respect to each
Property, the amount set forth in Schedule A opposite the name of such Property,
it being understood and agreed that the aggregate amount of the Allocable
Purchase Prices of the Properties shall be Two Hundred One Million Seven Hundred
Twenty Thousand Dollars ($201,720,000).
1.5 "Assets" shall mean, with respect to any Property, collectively,
all of the Real Property, the FF&E, the Contracts, the Improvements and the
Intangible Property now owned or hereafter (but prior to the Closing Date with
respect to such Property) acquired by the Sellers in connection with or relating
to such Property other than any Excluded Assets with respect to such Property.
1.6 "Business Day" shall mean any day other than a Saturday, Sunday or
any other day on which banking institutions in The Commonwealth of Massachusetts
or the State of Maryland are authorized by law or executive action to close.
1.7 "Closing" shall have the meaning given such term in Section 3.1.
1.8 "Closing Date" shall have the meaning given such term in Section
3.1.
1.9 "Contracts" shall mean, with respect to any Property, all equipment
leases relating to telephone switches and voice mail to which the Sellers are a
party, to the extent the Sellers' interest therein is assignable or
transferable; provided, however, that "Contracts" shall not include any such
agreements to the extent they relate to properties other than the Properties.
1.10 "Defective Property" shall have the meaning given such term in
Section 2.3(a).
1.11 "Environmental Reports" shall have the meaning given such term in
Section 2.6.
1.12 "Excluded Assets" shall mean, with respect to any Property, (i)
any right, title or interest in the name or signage containing the name
"Marriott," "Courtyard," "Residence Inn," "TownePlace" and other marks used, or
that may in the future be used, by the Sellers or their affiliates, (ii) all
property owned by the Sellers, not normally located at such Property and used,
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but not exclusively, in connection with the operation of such Property, (iii)
all items, tangible or intangible, consisting of Proprietary Information, (iv)
computer software, (v) FAS, (vi) any Inventories located at the Properties,
(vii) working capital, including cash and accounts receivable, (viii) all books,
ledger sheets, files and records, (ix) all contracts pertaining to the operation
of the Hotels other than the Contracts, and (x) any software, manuals, brochures
or directives used by the Sellers in the operation of the Hotels that will be
issued by the franchisor to the Tenant, as franchisee, under the Franchise
Agreements.
1.13 "FAS" shall have the meaning given such term in the Leases.
1.14 "FF&E" shall mean, with respect to any Property, all appliances,
machinery, devices, fixtures, appurtenances, equipment, furniture, furnishings
and articles of tangible personal property of every kind and nature whatsoever
owned by the Sellers and located in or at, or used in connection with the
ownership, operation or maintenance of such Property, other than motor vehicles.
1.15 "Franchise Agreement" shall have the meaning given such term in
the Agreement to Lease.
1.16 "Hotel" shall have the meaning given such term in the Leases.
1.17 "HPT" shall have the meaning given such term in the preamble to
this Agreement.
1.18 "Improvements" shall mean, with respect to any Property, all
buildings, fixtures, walls, fences, landscaping and other structures and
improvements situated on, affixed or appurtenant to the Real Property with
respect to such Property.
1.19 "Intangible Property" shall mean, with respect to any Property,
all transferable or assignable (a) permits, certificates of occupancy, operating
permits, sign permits, development rights and approvals granted by any public
body or by any private party pursuant to a recorded instrument relating to such
Property and (b) certificates, licenses, warranties and guarantees and the
Contracts held by the Sellers, other than (x) the Excluded Assets and (y) such
permits, operating permits, certificates, licenses and approvals which are
transferred to the Tenant in order to permit the Tenant to operate such Property
properly in accordance with the terms of the Leases.
1.20 "Interests" shall mean all of the membership interests in the
Nashville LLC.
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1.21 "Inventories" shall have the meaning given such term in the
Leases.
1.22 "Leases" shall mean, collectively, the leases to be entered into
pursuant to the Agreement to Lease.
1.23 "Limited Rent Guaranty" shall have the meaning given such term in
the Agreement to Lease.
1.24 "LLC Parties" shall mean, collectively, the LLC and each of its
members.
1.25 "Nashville LLC" shall have the meaning given such term in the
preamble to this Agreement.
1.26 "Nashville Property" shall mean the full service Marriott Hotel
located at 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx.
1.27 "Norcross Property" shall mean the TownePlace Suites Hotel located
at 0000 Xxx Xxxxxx, Xxxxxxxx, Xxxxxxx.
1.28 "Opening Date" shall mean, with respect to any Property, the date
as of which all Improvements located at such Property, including, without
limitation, all guest rooms and/or suites, shall be open for business to the
public as a Courtyard by Marriott Hotel, Residence Inn by Marriott Hotel,
TownePlace Suites Hotel or Marriott hotel, as the case may be, in accordance
with applicable brand standards.
1.29 "Owner Agreement" shall have the meaning given such term in the
Agreement to Lease.
1.30 "Permitted Encumbrances" shall mean, with respect to any Property,
(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 and other governmental laws,
ordinances and regulations provided the same do not prohibit or impair in any
material respect use of such Property as a Marriott Courtyard, Residence Inn,
TownePlace Suites or Marriott Hotel as contemplated by this Agreement, the
Leases and the Franchise Agreements; (c) such other nonmonetary encumbrances as
do not, in the Purchaser's reasonable opinion, impair marketability and do not
prohibit or impair in any material respect the use of such Property as a fully
functioning Marriott Courtyard, Residence Inn, TownePlace Suites or Marriott
Hotel, as the case may be, as contemplated by this Agreement, the Leases and the
Franchise Agreements; (d) UCC Financing Statements which would be permitted
pursuant to the terms of Section 21.9 of the Leases; and (e) such
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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.
1.31 "Plans and Specifications" shall mean, with respect to each
Property, the plans and specifications identified on Schedule K with respect to
such Property.
1.32 "Property" shall mean any one of the Properties.
1.33 "Properties" shall mean, collectively, all of the Assets relating
to the Properties identified on Schedule A, the legal descriptions of which are
set forth in Schedules B-1 through B-17.
1.34 "Proprietary Information" shall have the meaning given such term
in the Leases.
1.35 "Purchaser" shall mean HPT and its permitted successors and
assigns.
1.36 "Real Property" shall mean, with respect to any Property, the real
property described in the applicable Schedule B-1 through B-17 to this
Agreement, together with all easements, rights of way, privileges, licenses and
appurtenances which the Sellers may now own or hereafter acquire with respect
thereto.
1.37 "Reserve" shall have the meaning given such term in the Leases.
1.38 "Retained Funds" shall mean, with respect to each Property, the
amount set forth in Schedule A with respect to such Property.
1.39 "Sellers" shall mean, collectively, the persons identified as
sellers in the first paragraph of this Agreement, and their permitted successors
and assigns, jointly and severally.
1.40 "St. Louis Property" shall mean the full service Marriott Hotel
located at I-70 at Xxxxxxx Airport, St. Louis, Missouri.
1.41 "Stock Pledge" shall have the meaning given such term in the
Agreement to Lease.
1.42 "Substantial Completion" shall mean, with respect to any Property,
physical completion of the Improvements on such Property, including, without
limitation, physical completion of a hotel of the brand and consisting of the
number of rooms set
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forth on Schedule A, consistent with the Plans and Specifications therefor
(other than so-called "punch-list" items as do not individually or in the
aggregate impair use of such Property for its intended use), free of all liens
and encumbrances (other than Permitted Encumbrances) such that the Opening Date
shall have occurred and the Improvements may be used for their intended use.
1.43 "Surveys" shall have the meaning given such term in Section 2.5.
1.44 "Tenant" shall mean CRTM17 Tenant Corporation, a Delaware
corporation.
1.45 "Title Commitments" shall have the meaning given such term in
Section 2.4.
1.46 "Title Company" shall mean Commercial Settlements, Inc., as agent
for Commonwealth Title Insurance Company, or such other title insurance company
as shall have been approved by the Purchaser and the Sellers.
1.47 "Yorktown Property" shall mean the TownePlace Suites Hotel located
at 000 X/X Xxxxxxxxxxx Xxx, Xxxxxxxx, Xxxxxxxx.
SECTION 2. PURCHASE AND SALE; DILIGENCE.
2.1 Purchase and Sale. In consideration of the mutual covenants herein
contained, the Purchaser hereby agrees to purchase from the Sellers and the
Sellers hereby agree to sell to the Purchaser, all of the Sellers' right, title
and interest in and to each of the Properties (or, in the case of the Nashville
Property, the Interests as set forth in Section 11.1) for the respective
Allocable Purchase Prices relating thereto, subject to and in accordance with
the terms and conditions of this Agreement.
2.2 Diligence Inspections. At all times prior to Closing, the Sellers
shall 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) and to perform due diligence,
soil analysis and environmental investigations, at such reasonable times as the
Purchaser or its representatives may request by notice to the Sellers (which
notice may be oral). At all such times, the Purchaser and its representatives
shall minimize any resulting interference with the Sellers' ongoing construction
at the Properties or the Sellers' operation of the Properties as a hotel. To the
extent that, in connection with such investigations, the Purchaser, its agents,
representatives
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or contractors, damages or disturbs any of the Assets, 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 Sellers from and against any and all expense, loss or damage
(including, without limitation, reasonable attorneys' fees) which the Sellers
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 any expense, loss or damage arising from any act or
omission of the Sellers. The foregoing indemnification agreement shall survive
the termination of this Agreement and the Closings hereunder. In addition, prior
to the Closing with respect to any Property, the Sellers shall use reasonable
efforts to cooperate with the Purchaser to the extent that the Purchaser
reasonably requests to review copies of specific data and factual materials in
the Sellers' possession relating to such Properties as to which a Closing has
not yet occurred; provided, however, that the Sellers shall specifically not be
required to provide the Purchaser with copies of (x) any records of committee
presentations, reports or similar records, or (y) any records containing
evaluation and/or analytical information prepared by employees of the Sellers or
their affiliates.
2.3 Defective Properties. (a) If, prior to the Closing with respect to
any Property, the Purchaser reasonably determines that a Property has
structural, environmental or legal defects such that (x) expenditures equal to
or greater than three percent (3%) of the Allocable Purchase Price of such
Property are required in order to bring such Property into a satisfactory
condition in the Purchaser's reasonable determination (any such Property being
hereinafter referred to as a "Defective Property"), the Purchaser shall give
written notice thereof to the Sellers, within ten (10) Business Days after
acquiring actual knowledge of the applicable defect (time being of the essence
with respect to the giving of such notice), identifying the Defective Property
or Properties and the specific defects with respect thereto. The Sellers shall
thereupon have the right, but not the obligation, at their sole cost and
expense, to elect, by notice given to the Purchaser within thirty (30) days
after the Purchaser's notice of defect, to cause Substantial Completion of such
Defective Property or Properties, to occur, free of such defects, prior to
December 31, 1999 or, in the case of the Nashville Property or the St. Louis
Property, to cure any such defects with respect thereto, prior to December 31,
1999. Failure of the Sellers to give such notice prior to the expiration of such
30-day period shall be deemed an election by the Sellers to cure such defect. If
the Sellers shall be unwilling or unable to cure such defect, the Purchaser
shall only be required (and the Sellers shall be required to permit the
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Purchaser) to acquire all of the Properties, other than such Defective Property
or Properties.
(b) If, prior to the Closing with respect to any Property (i) such
Property suffers a casualty or condemnation which would cause such Property to
become a Defective Property, (ii) such Property is not, prior to December 31,
1999, restored to a condition of Substantial Completion, and (iii) the Purchaser
provides written notice of same to the Sellers no later than the first
anniversary of the initial Closing Date hereunder, time being of the essence
with respect to the giving of such notice, the Purchaser shall only be required
(and the Sellers shall be required to permit the Purchaser) to acquire all of
the Properties other than such Defective Property or Properties. Promptly upon
learning of the same, the Sellers covenant and agree to provide the Purchaser
with prompt written notice of any casualty or condemnation affecting any
Property.
2.4 Title Matters. Prior to the date hereof, the Sellers and Purchaser
have ordered from the Title Company and directed the Title Company promptly to
deliver to the Purchaser and the Sellers a preliminary title commitment for an
ALTA extended owner's policy and ALTA leasehold 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 Commitments").
Within fifteen (15) Business Days after receipt of a Title Commitment
with respect to any Property, the Purchaser shall give the Sellers 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 Sellers are unable or unwilling to take such
actions as may be required to cause such exceptions to be removed from the Title
Commitments, the Sellers shall give the Purchaser notice thereof; it being
understood and agreed that the failure of the Sellers to give such notice within
fifteen (15) Business Days after the Purchaser's notice of objection shall be
deemed an election by the Sellers not to remedy such matters. If the Sellers
shall be unwilling or unable to remove any title defects to which the Purchaser
has reasonably objected, the Purchaser may elect (i) to terminate this Agreement
with respect to the affected Property, in which event, this Agreement shall be
of no further force and effect with respect to such Property or (ii) to
consummate the transactions contemplated hereby, notwithstanding such title
defect, without any abatement or reduction in the Allocable Purchase Price of
the affected Property on account thereof. The Purchaser shall make any such
election by written notice to the Sellers given on or prior to the fifth
Business Day after the Sellers' notice of their inability or unwillingness to
cure such defect. Failure of the
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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. Prior to the date hereof, the Sellers and the
Purchaser have arranged for the preparation of an as-built ALTA survey with
respect to each of the Properties (collectively, the "Surveys"), by a licensed
surveyor in the 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 in the form set forth in Schedule C for the benefit of the
parties identified therein.
Within fifteen (15) Business Days after receipt of a Survey with
respect to any Property, the Purchaser shall give the Sellers 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 Sellers are unable or unwilling to
take such actions as may be required to remedy the objectionable matters, the
Sellers shall give the Purchaser prompt notice thereof; it being understood and
agreed that the failure of the Sellers to give such notice within fifteen (15)
Business Days after the Purchaser's notice of objection shall be deemed an
election by the Sellers not to remedy such matters. If the Sellers 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
with respect to the affected Property, in which event this Agreement shall
terminate and be of no further force or effect with respect to the affected
Property or (ii) to consummate the transactions contemplated hereby,
notwithstanding such defect, without any abatement or reduction in the Allocable
Purchase Price of the affected Property on account thereof. The Purchaser shall
make any such election by written notice to the Sellers given on or prior to the
fifth Business Day after the Sellers' notice of their 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.
2.6 Environmental Reports. In a timely manner, the Sellers and
Purchaser shall order, with respect to each Property, Phase I environmental
reports from an environmental engineering firm
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reasonably acceptable to the Purchaser and the Sellers (collectively, the
"Environmental Reports").
Within fifteen (15) Business Days after receipt of an Environmental
Report with respect to any Property, the Purchaser shall give the Sellers notice
of any matters or omissions therein as to which the Purchaser reasonably
objects. If, for any reason, the Sellers are unable or unwilling to take such
actions as may be required to cause such matters to be remedied or addressed to
the reasonable satisfaction of the Purchaser, the Sellers shall give the
Purchaser notice thereof; it being understood and agreed that the failure of the
Sellers to give such notice within fifteen (15) Business Days after the
Purchaser's notice of objection shall be deemed an election by the Sellers not
to remedy such matters. If the Sellers shall be unwilling or unable to remedy or
address any matters or omissions to which the Purchaser has reasonably objected,
the Purchaser may elect (i) to terminate this Agreement with respect to the
affected Property, in which event, this Agreement shall be of no further force
and effect with respect to such Property or (ii) to consummate the transactions
contemplated hereby, notwithstanding such defect, without any abatement or
reduction in the Allocable Purchase Price of the affected Property on account
thereof. The Purchaser shall make any such election by written notice to the
Sellers given on or prior to the fifth Business Day after the Sellers' notice of
their 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.
SECTION 3. PURCHASE AND SALE.
3.1 Closing. (a) The purchase and sale of the Properties or, in the
case of the Nashville Property in accordance with Section 11, the Interests,
shall be consummated at one or more closings (each, a "Closing") to be held at
the offices of Xxxxxxxx & Worcester LLP, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx, or at such other location as the Sellers and the Purchaser may
agree, at 10:00 a.m. local time, the Closing with respect to any Property to
occur on a date (each, a "Closing Date") designated in writing by the Sellers,
which date shall not be less than ten (10) Business Days nor more than thirty
(30) Business Days after notice from the Sellers to the Purchaser that
Substantial Completion and the Opening Date have occurred with respect to such
Property (and which notice shall identify the proposed Closing Date) or, if
later, the date as of which all conditions precedent to the Closing herein set
forth with respect to the applicable Property have either been satisfied or
waived by the party in whose favor such conditions run. In the event that
Closings with respect to all of the Properties shall not
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have occurred on or before December 31, 1999, provided that no action for
specific performance shall have been commenced by the Purchaser to enforce this
Agreement, any party shall, provided such party shall not be in default
hereunder, have the right, by the giving of written notice, to terminate this
Agreement with respect to all of the Properties as to which a Closing has not
yet occurred as of the date of termination.
3.2 Purchase Price. The Allocable Purchase Prices shall be payable as
follows:
(a) At each Closing, the Allocable Purchase Price of each Property
being closed on less the amount of the Retained Funds with respect thereto shall
be payable by wire transfer of immediately available funds on the applicable
Closing Date to an account or accounts to be designated by the Sellers prior to
such Closing; and
(b) Except as otherwise provided in the Leases, the Retained Funds with
respect to each such Property shall be payable by wire transfer of immediately
available funds upon the expiration or sooner termination of the Lease with
respect to such Property, in accordance with the terms of the applicable Lease,
to an account or accounts to be designated by the Sellers prior to such date.
SECTION 4. CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE.
The obligation of the Purchaser to acquire each of the Properties on
the applicable Closing Date shall be subject to the satisfaction or waiver of
the following conditions precedent on and as of such Closing Date:
4.1 Closing Documents. Except as otherwise set forth in Section 11 with
respect to the Nashville Property if the Purchaser shall elect to acquire the
Interests, the Sellers shall have delivered to the Purchaser with respect to the
applicable Property:
(a) A good and sufficient warranty deed with covenants against
grantor's acts, or its local equivalent, in proper statutory form for recording,
duly executed and acknowledged by the Sellers, conveying good and marketable
title to the applicable Properties, free from all liens and encumbrances other
than the Permitted Encumbrances;
(b) A xxxx of sale and assignment agreement, in form and substance
reasonably satisfactory to the Sellers and the Purchaser, duly executed and
acknowledged by the Sellers, with respect to all of the Sellers' right, title
and interest in, to and under the FF&E, the Contracts, the Intangible Property
and
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the Sellers' rights under all builder's warranties with respect to the
applicable Properties;
(c) To the extent the same are in the Sellers' possession, originally,
fully executed copies of all agreements constituting Assets;
(d) Duly executed copies of the Leases, the Limited Rent Guaranty, the
Stock Pledge and all of the Incidental Documents (as such term is defined in the
Leases);
(e) The tenant under the Leases shall have entered into a Franchise
Agreement with respect to each of the applicable Properties;
(f) With respect to each Property other than the Nashville Property or
the St. Louis Property, a copy of the final duly issued certificate of occupancy
for the applicable Property;
(g) With respect to each Property other than the Nashville Property or
the St. Louis Property, a Sellers' closing certificate in the form attached
hereto as Schedule D;
(h) With respect to each Property other than the Nashville Property and
the St. Louis Property, an architect's certificate in the form attached hereto
as Schedule E or, if despite using commercially reasonable efforts but without
incurring any material out of pocket expenses, the Sellers are unable to obtain
(i) a third party architect's certificate addressed to HPT prior to the
applicable Closing Date, a certificate in the form attached hereto as Schedule F
or (ii) any third party architect prior to the applicable Closing Date, a
certificate in the form attached hereto as Schedule G;
(i) With respect to each Property other than the Nashville Property and
the St. Louis Property, an engineer's certificate in the form attached hereto as
Schedule H or, if despite using commercially reasonable efforts but without
incurring any material out of pocket expenses, the Sellers are unable to obtain
(i) a third party engineer's certificate addressed to HPT prior to the
applicable Closing Date, a certificate in the form attached hereto as Schedule I
or (ii) any third party engineer's certificate prior to the applicable Closing
Date, a certificate in the form attached hereto as Schedule J;
(j) Certified copies of all charter documents, applicable corporate
resolutions and certificates of incumbency with respect to the Sellers, the
tenant under the Leases, the Guarantor under the Limited Rent Guaranty and such
other persons as the Purchaser may reasonably require; and
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(k) Such other conveyance documents, certificates, deeds, affidavits
and other instruments as the Purchaser may reasonably require.
4.2 Condition of Properties, Etc.
(a) 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
applicable Properties;
(b) 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; and
(c) The Purchaser shall have received an engineer's report, in form and
substance reasonably satisfactory to the Purchaser, confirming that Substantial
Completion has occurred or, in the case of the Nashville Property and the St.
Louis Property, that such Properties are in a physical condition satisfactory to
the Purchaser.
4.3 Title Policies and Surveys.
(a) The Title Company shall be prepared, subject only to payment of the
applicable premium and delivery of all conveyance documents in recordable form,
to issue title insurance policies to the Purchaser with respect to the
applicable Properties, in form and substance satisfactory to the Purchaser in
accordance with Section 2.4, together with such affirmative coverages as the
Purchaser may reasonably require and shall have been determined by the Title
Company as available as provided in Section 2.4.
(b) The Purchaser shall have received an as-built survey with respect
to the applicable Properties, such survey to be consistent with the requirements
of Section 2.5.
4.4 Opinions of Counsel. The Purchaser shall have received a written
opinion from counsel to the Sellers (which may be its in-house counsel), in form
and substance reasonably satisfactory to the Purchaser, regarding the
organization and authority of the Sellers and the Tenant, the guarantor under
the Limited Rent Guaranty and such other persons as the Purchaser may reasonably
require, the enforceability of this Agreement, the Leases, the Limited Rent
Guaranty, the Stock Pledge and the Incidental Documents (as defined in the
Leases) and such other matters with respect to the transactions contemplated by
this Agreement as the Purchaser may reasonably require.
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SECTION 5. CONDITIONS TO SELLERS' OBLIGATION TO CLOSE.
The obligation of the Sellers to convey each of the Properties (or the
Interests, as provided in Section 11, in the case of the Nashville Property) on
the applicable Closing Date to the Purchaser is subject to the satisfaction or
waiver of the following conditions precedent on and as of such Closing Date:
5.1 Purchase Price. The Purchaser shall deliver to the Sellers the
Allocable Purchase Prices of the applicable Properties as provided in Section
3.2.
5.2 Closing Documents. The Purchaser shall have delivered to the
Sellers:
(a) Duly executed and acknowledged counterparts of the documents
described in Section 4.1, where applicable;
(b) A certificate of a duly authorized officer of the Purchaser
confirming the continued truth and accuracy of the representations and
warranties of the Purchaser in this Agreement;
(c) A duly executed original counterpart of the Owner Agreement;
(d) Certified copies of all charter documents, applicable resolutions
and certificates of incumbency with respect to the Purchaser and such other
persons as the Sellers or the Tenant may reasonably require; and
(e) The Purchaser shall have caused an aggregate amount of Three
Million Three Hundred Seventy-Seven Thousand Seven Hundred Dollars ($3,377,700)
to be deposited in the Reserve at the time of the initial Closing hereunder.
5.3 Opinion of Counsel. The Sellers and the Tenant shall have received
a written opinion from Xxxxxxxx & Worcester LLP, counsel to the Purchaser, in
form and substance reasonably satisfactory to the Sellers, regarding the
organization and authority of the Purchaser and the landlord under the Leases,
the enforceability of this Agreement and the Leases and such other matters with
respect to the transactions contemplated by this Agreement as the Sellers and
the Tenant may reasonably require.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF SELLERS.
To induce the Purchaser to enter into this Agreement, the Sellers
represent and warrant to the Purchaser as follows:
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6.1 Status and Authority of the Sellers. Each of the Sellers is duly
organized, validly existing and in good standing under the laws of its state of
formation, and has all requisite power and authority under the laws of such
state 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 Sellers and all members of the Sellers have duly qualified
to transact business in each jurisdiction in which the nature of the business
conducted by it requires such qualification, except where such failure to
qualify would not have a material adverse effect on any of the Sellers or the
transactions contemplated hereby.
6.2 Action of the Sellers. Each of the Sellers and all members of the
Sellers have 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 Sellers on or prior to any Closing, such
document shall constitute the valid and binding obligation and agreement of each
of the Sellers, enforceable against each of the Sellers 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 and general principles of equity.
6.3 No Violations of Agreements. Neither the execution, delivery or
performance of this Agreement by the Sellers, 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 agreement or instrument by which any of the Sellers is bound.
6.4 Litigation. The Sellers have received no written notice of and, to
the Sellers' actual knowledge, no action or proceeding is pending or, to the
Sellers' actual knowledge, threatened and the Sellers have received no written
notice of and, to the Sellers' actual knowledge, no investigation looking toward
such an action or proceeding has 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) may result in or subject any of the Properties to a
material liability, or (d) involves condemnation or eminent domain proceedings
against any material part of the Properties.
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6.5 Existing Agreements, Etc. Other than (x) documents recorded in the
public records, (y) the documents to be assigned to the Purchaser pursuant to
the terms hereof, and (z) agreements and easements with governmental bodies and
utility companies which are reasonably necessary for the development and
operation of the Properties as contemplated by this Agreement and the Leases,
there are no material agreements, leases, licenses or occupancy agreements
affecting the Properties which will be binding on the Purchaser subsequent to
the Closing Date.
6.6 Disclosure. (a) With respect to each of the Properties other than
the Nashville Property or the St. Louis Property, to the Sellers' actual
knowledge, there is no fact or condition which materially and adversely affects
the physical condition of such Property 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.
(b) With respect to each of the Nashville Property or the St. Louis
Property, to the Actual Knowledge of the Designated Individuals, there is no
fact or condition which materially and adversely affects the physical condition
of such Property 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. With respect to each of the Properties other than
the Nashville Property or the St. Louis Property, all utilities and services
necessary for the use and operation of such Property (including, without
limitation, road access, water, electricity and telephone) are available
thereto, are of sufficient capacity to meet adequately all needs and
requirements necessary for the use and operation of such Property and for its
respective intended purposes. With respect to each of the Properties other than
the Nashville Property or the St. Louis Property, to the Sellers' knowledge, no
fact, condition or proceeding exists which would result in the termination or
impairment of the furnishing of such utilities to such Property.
6.8 Compliance With Law. (a) With respect to each of the Properties
other than the Nashville Property or the St. Louis Property, to the Sellers'
actual knowledge (i) such Property 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 or, at
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the Closing there will be, in effect all material licenses, permits and other
authorizations necessary for the then current use, occupancy and operation
thereof. The Sellers have 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 any street or highway adjacent to such Property.
(b) With respect to each of the Nashville Property and the St. Louis
Property, to the Actual Knowledge of the Designated Individuals, (i) such
Property 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 or, at the Closing there will
be, in effect all material licenses, permits and other authorizations necessary
for the then current use, occupancy and operation thereof (The Purchaser hereby
acknowledging that, the Sellers, after diligent inquiry, have been unable to
locate the certificates of occupancy for either the Nashville Property or the
St. Louis Property).
6.9 Not A Foreign Person. None of the Sellers is a "foreign person"
within the meaning of Section 1445 of the United States Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
6.10 Hazardous Substances. (a) With respect to each of the Properties
other than the Nashville property or the St. Louis Property, except as disclosed
to the Purchaser or as described in any environmental report delivered to the
Purchaser, to the Sellers' knowledge, none of the Sellers or any other occupant
or user of such Property, 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 such Property, 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 Sellers' actual knowledge, except as disclosed to the
Purchaser or as described in any environmental report delivered to the
Purchaser, such Property is free from any such hazardous waste, contaminants,
oil, radioactive and other materials, except any such materials maintained in
accordance with applicable law.
(b) With respect to each of the Nashville Property and the St. Louis
Property, except as disclosed to the Purchaser or as
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described in any environmental report delivered to the Purchaser or obtained by
the Purchaser from any environmental consulting firm, to the Actual Knowledge of
the Designated Individuals, none of the Designated Individuals or any other
occupant or user of such Property, 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 such Property, 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 Actual Knowledge of the Designated
Individuals, except as disclosed to the Purchaser or as described in any
environmental report delivered to the Purchaser, such Property is free from any
such hazardous waste, contaminants, oil, radioactive and other materials, except
any such materials maintained in accordance with applicable law.
6.11 Insurance. The Sellers have received no written notice from any
insurance carrier of defects or inadequacies in any of the Properties which, if
uncorrected, would result in a termination of insurance coverage or an increase
in the premiums charged therefor.
6.12 Substantial Completion. (Other than the Nashville Property, the
Norcross Property, the St. Louis Property and the Yorktown Property on which
existing Hotels are located), as of the date hereof, the Sellers reasonably
anticipate that Substantial Completion of all of the Properties will occur on or
before December 31, 1999.
6.13 Condition of Properties. To the actual knowledge of the Sellers,
each of the Properties (other than the Nashville Property and the St. Louis
Property) is, or on the applicable Closing Date will be, in good working order
and repair, mechanically and structurally sound, free from material defects in
materials and workmanship.
The representations and warranties made in this Agreement by the
Sellers are made as of the date hereof and shall, except with respect to the
matters set forth in Section 6.12, be deemed remade by the Sellers as of each
Closing Date for the Property or Properties then being conveyed by the Sellers,
with the same force and effect as if made on, and as of, such date; provided,
however, that, the Sellers shall have the right, from time to time prior to the
applicable Closing Date, with respect to any Property as to which a Closing has
not yet occurred, to modify the representations and warranties as a result of
changes in the physical condition of or receipt of additional information
regarding any such Properties by notice to the Purchaser and, in such event, the
Purchaser shall have the rights provided in
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Section 2.3. All representations and warranties made in this Agreement by the
Sellers shall survive the applicable 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 Sellers disclaim
the making of any representations or warranties, express or implied, regarding
the Properties or matters affecting the Properties, whether made by the Sellers,
on the Sellers' 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 Sellers or anyone acting on the
Sellers' behalf. The Purchaser further acknowledges that it has not received
from or on behalf of the Sellers 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.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
To induce the Sellers to enter in this Agreement, the Purchaser
represents and warrants to the Sellers as follows:
7.1 Status and Authority of the Purchaser. The Purchaser is a Maryland
real estate investment trust duly organized, validly existing 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
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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, except where such failure to qualify would
not have a material adverse effect on the Purchaser or the transactions
contemplated hereby.
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 and general
principles of equity.
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 are made as of the date hereof and shall be deemed remade by the
Purchaser as of the applicable Closing Date with the same force and effect as if
made on, and as of, such date. All representations and warranties made in this
Agreement by the Purchaser shall survive the applicable Closing for a period of
one year.
SECTION 8. COVENANTS OF THE SELLERS.
The Sellers hereby covenant with the Purchaser as follows:
8.1 Compliance with Laws, Etc. From the date of this Agreement to the
Closing Date for any Property, to comply in all material respects, with (i) all
laws, regulations and other
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requirements affecting such Property from time to time applicable of every
governmental body having jurisdiction of such Property or the use or occupancy
of the Improvements located thereon and (ii) all terms, covenants and
conditions, instruments of record and other agreements affecting such Property.
8.2 Approval of Agreements. From the date of this Agreement to the
Closing Date for any Property, except as otherwise authorized by this Agreement,
not to enter into, modify, amend or terminate any agreement which would encumber
or be binding upon such Property from and after the applicable Closing Date,
without in each instance obtaining the prior written consent of the Purchaser,
which consent shall not be unreasonably withheld, delayed or conditioned;
provided, however, the Sellers shall not be required to obtain the consent of
the Purchaser as to any agreements or easements with government bodies and
utility companies necessary for the development and operation of such Property
as contemplated by this Agreement and the Leases (it being understood and
agreed, however, that the Purchaser shall retain any rights to object to the
same set forth elsewhere in this Agreement).
8.3 Compliance with Agreements. From the date of this Agreement to the
Closing Date for any Property, to comply with each and every material term,
covenant and condition contained in any document or agreement affecting such
Property.
8.4 Substantial Completion. From the date of this Agreement to the
Closing Date for any Property, to use reasonable efforts to cause Substantial
Completion of such Property to occur as soon as reasonably practicable after the
date hereof, subject to any events of force majeure.
8.5 Notice of Material Changes or Untrue Representations. From the date
of this Agreement to the Closing Date for any Property, upon learning of any
material change in any condition with respect to such Property or of any event
or circumstance which makes any representation or warranty of the Sellers to the
Purchaser under this Agreement untrue, promptly to notify the Purchaser thereof
(the Purchaser agreeing, on learning of any such fact or condition, promptly to
notify the Sellers thereof).
8.6 Correction of Defects. Other than with respect to the Nashville
Property and the St. Louis Property, to complete, at the Sellers' sole cost, all
punch-list items and to correct, at the Sellers' sole cost, all defects that are
discovered and disclosed by or to the Sellers within one hundred eighty (180)
days after the applicable Closing Date. The Purchaser shall cooperate with the
Sellers in enforcing any applicable warranties or guaranties with respect to
such defects. The provisions of this Section 8.6 shall survive any Closing under
this Agreement.
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SECTION 9. APPORTIONMENTS.
9.1 Real Property Apportionments. Representatives of the Purchaser and
the Sellers shall perform any and all of the adjustments and apportionments
which are appropriate and usual for a transaction of this nature, taking into
account the applicable provisions 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 Sellers and the
Purchaser at the applicable 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 Sellers 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
Sellers shall determine any such adjustments which have not theretofore been
agreed to between the Sellers and the Purchaser. The charges of such accountant
shall be borne fifty percent (50%) by the Sellers and fifty percent (50%) by the
Purchaser.
9.2 Closing Costs. The Sellers and the Purchaser shall share equally
all costs and expenses associated with the transaction contemplated hereby,
including, without limitation, title and recording fees and taxes, local counsel
fees (limited to those incurred in connection with usual and customary local
counsel services in similar real estate transactions), title insurance for both
the Purchaser and the Tenant, marketing studies, survey and environmental
reports, except that each party shall pay its own attorneys' and accountants'
fees and costs in connection with this transaction.
The obligations of the parties under this Section 9 shall survive the
Closings.
SECTION 10. DEFAULT.
10.1 Default by the Sellers. If the Sellers shall have made any
representation or warranty herein which shall be untrue in any material respect
when made or updated as herein provided, or if the Sellers shall fail to perform
any of the material covenants and agreements contained herein or the Agreement
to Lease to be performed by them and such failure continues for a period of ten
(10) days (or such additional period, not to extend beyond December 31, 1999, as
may be reasonably required to
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effectuate a cure of the same) after notice thereof from the Purchaser, the
Purchaser may terminate this Agreement with respect to the affected Property or
Properties 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, (x) in no event
shall the Sellers be liable for consequential damages and (y) in no event shall
the aggregate liability of the Sellers hereunder exceed an amount equal to the
sum of (i) ten percent of the Allocable Purchase Price of the affected Property
or Properties, (ii) actual costs and expenses incurred by the Purchaser with
respect to the affected Property or Properties, (iii) costs of collection
(including, without limitation, reasonable attorneys' fees) and (iv) interest at
10% per annum on all such amounts from the date of demand until paid. It is
understood and agreed that for purposes of this Section 10.1, if a default
results from a false representation or warranty, such default shall be deemed
cured if the events, conditions, acts or omissions giving rise to the falsehood
are cured within the applicable cure period even though, as a technical matter,
such representation or warranty was false as of the date actually made.
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 or the Agreement to Lease to be performed by it
and such failure shall continue for a period of ten (10) days (or such
additional period, not to extend beyond December 31, 1999, as may be reasonably
required to effectuate a cure of the same) after notice thereof from the
Sellers, the Sellers may, as their sole and exclusive remedy, at law, in equity,
terminate this Agreement with respect to any Property or Properties as to which
a Closing shall not yet have occurred, whereupon, the Purchaser shall pay to the
Sellers, as liquidated damages and not as a penalty, an amount equal to the sum
of (i) ten percent of the Allocable Purchase Price of the affected Property or
Properties, (ii) actual costs and expenses incurred by the Sellers with respect
to the affected Property or Properties, (iii) costs of collection (including,
without limitation, reasonable attorneys' fees) and (iv) interest at 10% per
annum on all such amounts from the date of demand until paid. It is understood
and agreed that for purposes of this Section 10.2, if a default results from a
false representation or warranty, such default shall be deemed cured if the
events, conditions, acts or omissions giving rise to the falsehood are cured
within the applicable cure period even though, as a technical matter, such
representation or warranty was false as of the date actually made.
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SECTION 11. SPECIAL PROVISIONS RE NASHVILLE PROPERTY.
11.1 Purchaser's Right to Acquire Interests. The Purchaser may, in its
sole discretion, elect, by notice given to the Sellers prior to the Closing Date
with respect to the Nashville Property, to acquire the Interests (in lieu of the
Nashville Property) for the Allocable Purchase Price of the Nashville Property,
subject to and in accordance with the terms and conditions of this Section 11
and Article 9.
11.2 Additional Closing Documents. The members of the LLC shall have
delivered to the Purchaser in lieu of the documents described in Section
4.1(a)and (b), an assignment of the Interests, in form and substance reasonably
satisfactory to the Purchaser and such members, duly executed and acknowledged
by each such member, conveying the Interests, free from all liens and
encumbrances.
11.3 Additional Representations and Warranties. In addition to the
representations and warranties set forth in Section 6, if the Purchaser shall
elect to acquire the Interests, the Nashville LLC and its members shall be
deemed to make the following representations and warranties to the Purchaser as
of the applicable Closing Date, each of which shall survive such Closing:
(a) Neither the execution, delivery or performance of this Agreement by
the LLC Parties, 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 the Interests, the Nashville LLC or any LLC Party pursuant to
the terms of any indenture, mortgage, deed of trust, note, evidence of
indebtedness or any other agreement or instrument by which the LLC, the
Interests or any of the LLC Parties is bound.
(b) No LLC Party has received written notice of and, to the actual
knowledge of each of the LLC Parties, no action or proceeding is pending or, to
the actual knowledge of each of the LLC Parties, threatened and no LLC Party has
received written notice of and, to the actual knowledge of each of the LLC
Parties, no investigation looking toward such an action or proceeding has begun,
which (i) will result in any material adverse change in the business, operation,
affairs or condition the Nashville LLC or (ii) may result in or subject any of
the Interests or the Nashville LLC to a material liability.
(c) Other than (x) documents recorded in the public records, (y) the
documents to be assigned to the Purchaser pursuant to the terms hereof, and (z)
agreements and easements
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with governmental bodies and utility companies which are reasonably necessary
for the development and operation of the Properties as contemplated by this
Agreement and the Leases, there are no material agreements, leases, licenses or
occupancy agreements affecting the Interests or the Nashville LLC which will be
binding on the Purchaser or Nashville LLC subsequent to the Closing Date.
(d) The Nashville LLC has prepared and timely filed with the
appropriate governmental authorities all federal, state and local income and
business tax returns and all sales and use and other tax returns; such returns
are true, correct and complete in all material respects; and any and all taxes
due and payable for periods ending on or prior to the applicable Closing Date
will have been paid by the Closing Date, and any and all taxes in respect of
periods commencing on or prior to the applicable Closing Date and ending after
such date shall be apportioned in the manner prescribed by Article 9 and Section
11.1 herein.
(e) Except for its cash accounts, the sole asset of the Nashville LLC
is the Nashville Property. As of the applicable Closing Date, the Nashville LLC
will have no outstanding, unsatisfied or executory obligations or liabilities,
subsequent to the applicable Closing Date. Capitol Hotel Services, Inc. owns
good and indefeasible title to one hundred percent (100%) of the Interests, free
and clear of all liens, mortgages, pledges, security interests, conditional
sales or other title retention agreements, encumbrances, claims, rights,
covenants, restrictions, warrants, options, or charges of any kind. The
Nashville LLC is duly formed and validly existing in the State of Delaware.
(f) The Nashville LLC has no employees, is not a party to any
employment agreements and has no former employees.
(g) For federal income tax purposes, Nashville LLC has at all times
since it organization been classified as a "disregarded entity" under Section
301.7701-3(b)(l)(ii) of the Treasury Regulations under the Internal Revenue Case
of 1986, as amended, and for all state and local income tax purposes, Nashville
LLC has at all times since its organization been similarly classified under
comparable provisions of state and local income tax law.
11.4 Right to Receive Rent and Payments. The Purchaser and the Sellers
agree that Capitol Hotel Services, Inc. shall be entitled to receive (a) any and
all distributions of rent due under the lease agreement applicable to the
Nashville Property accruing up to the date of the Closing of the Nashville
Property and (b) any refunds or payments due under the contract pursuant to
which the Nashville LLC acquired the Nashville Property, and such parties agree
to execute any documentation reasonably
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necessary to effectuate such agreement. The provisions of this Section 11.4
shall survive the Closing on such Property.
SECTION 12. MISCELLANEOUS.
12.1 Agreement to Indemnify. (a) Subject to any express provisions of
this Agreement to the contrary, from and after any closing, with respect to the
applicable Property, (i) the Sellers 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 or
contractual obligations, acts, or omissions of the Sellers that occurred in
connection with the ownership or operation of any Property prior to the
applicable 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 applicable Closing, and (ii) the Purchaser shall indemnify and hold
harmless the Sellers 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 Purchaser that occur in
connection with the ownership or operation of any Property after the applicable
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 applicable
Closing. The provisions of this Section 12.1 shall apply neither to any
liabilities or obligations with respect to hazardous substances, the liabilities
of the parties with respect thereto being governed by applicable law nor to any
liabilities or obligations with respect to the physical condition of the
Properties, the liabilities of the parties with respect thereto being governed
by other provisions of this Agreement.
(b) Whenever it is provided in this Agreement that an obligation of the
Sellers will be assumed by the Purchaser after the applicable Closing, the
Purchaser shall be deemed to have also agreed to indemnify and hold harmless the
Sellers 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
applicable Closing.
(c) Whenever either party shall learn through the filing of a claim or
the commencement of a proceeding or otherwise of the
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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 12.1 shall survive the Closings
hereunder and the termination of this Agreement.
12.2 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, 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 Sellers shall indemnify and hold
harmless the Purchaser and its 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 Sellers. The Purchaser shall indemnify and hold harmless the
Sellers and their respective 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. Nothing contained in this section shall be deemed
to create any rights in any third party. The provisions of this Section 12.2
shall survive the Closings hereunder and any termination of this Agreement.
12.3 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 hereby to any third party without the consent of the
other parties, which consent shall not be unreasonably withheld, except as may
be required by law or as may be reasonably necessary, on a confidential basis,
to inform any rating agencies, potential sources of financing, financial
analysts, or to entities involved with a sale of a controlling interest in the
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Sellers, the Purchaser or any of their affiliates or to receive legal,
accounting and/or tax advice; provided, however, that, if such information is
required to be disclosed by law, the party so disclosing the information will
use reasonable efforts to give notice to the other parties as soon as such party
learns that it must make such disclosure.
12.4 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 Sellers to:
Marriott International, Inc.
00000 Xxxxxxxx Xxxx, Xxxx. 52/924.11
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxx
[Telecopier No. (000) 000-0000]
with a copy to:
Marriott International, Inc.
00000 Xxxxxxxx Xxxx, Xxxx. 52/923.00
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx, Esq.
[Telecopier No. (000) 000-0000]
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and to:
Xxxxxxx, Xxxxxxx and Xxxxxx, LLP
1800 Mercantile Bank & Trust Building
Two Xxxxxxx Plaza
Baltimore, MD 21201-2978
Attn: Xxxxx X. Xxxxxx, Esq.
[Telecopier No. (000) 000-0000]
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.
12.5 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.
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12.6 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 the Purchaser may assign this
Agreement to any entity wholly owned, directly or indirectly, by the Purchaser;
provided, however, that, in the event this Agreement shall be assigned to any
entity wholly owned, directly or indirectly, by the Purchaser, Hospitality
Properties Trust shall remain fully and primarily liable for the obligations of
the "Purchaser" hereunder. 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.
12.7 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.
12.8 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.
12.9 Governing Law. This Agreement shall be interpreted, construed,
applied and enforced in accordance with the laws of the State of Maryland
applicable to contracts between residents of Maryland which are to be performed
entirely within Maryland,
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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
domestication of any party; or (vi) whether the laws of the forum jurisdiction
otherwise would apply the laws of a jurisdiction other than the State of
Maryland; (vii) the location of the Properties or any applicable Property, or
(viii) 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 State of Maryland as is provided by law; and the parties consent to the
jurisdiction of said court or courts located in the State of Maryland and to
service of process by registered mail, return receipt requested, or by any other
manner provided by law.
12.10 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.
12.11 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.
12.12 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.
12.13 Nonliability of Trustees, Etc. THE DECLARATION OF TRUST
ESTABLISHING THE PURCHASER, 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 THE PURCHASER SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY,
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FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE PURCHASER. ALL PERSONS DEALING WITH
THE PURCHASER, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF THE PURCHASER FOR
THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as a sealed instrument as of the date first above written.
SELLERS:
RESIDENCE INN BY MARRIOTT, INC.
By: /s/ Xxxxxxxxx X. Xxxxx
Its (Vice) President
COURTYARD MANAGEMENT CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxx
Its (Vice) President
TOWNEPLACE MANAGEMENT CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxx
Its (Vice) President
NASHVILLE AIRPORT HOTEL, LLC
By: Capitol Hotel Services, Inc.,
its sole member
By: /s/ Xxxxxxxxx X. Xxxxx
Its (Vice) President
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ST. LOUIS AIRPORT HOTEL, LLC
By:Capitol Hotel Services, Inc.,
its sole member
By:/s/ Xxxxxxxxx X. Xxxxx
Its (Vice) President
PURCHASER:
HOSPITALITY PROPERTIES TRUST
By: /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, President
CONSENT OF CAPITOL HOTEL
SERVICES, INC. TO SECTION 11
CAPITOL HOTEL SERVICES, INC.
By:/s/ Xxxxxxxxx X. Xxxxx
Its (Vice) President
