Exhibit 99.1
PURCHASE AGREEMENT
BETWEEN
RESIDENCE INN III LLC,
AS SELLER,
AND
APPLE HOSPITALITY TWO INC.
AS PURCHASER
Definitions: The following capitalized terms used in this Agreement are defined
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in the sections indicated below:
Accountants Section 13.7
Additional Personalty Article 1(c)
Agreement Introduction
Amended Agreement Section 14.7
Apportionment Date Section 13.1
Appurtenances Article 1(a)
Assignment of Management Agreement Section 9.5
Assignment of Meriden Lease Section 9.4
Bakersfield Parcel Article 1(a)
Bankruptcy Code Section 3.17
Xxxx of Sale or Bills of Sale Section 9.2
Blue Ash Parcel Article 1(a)
Books and Records Article 1(c)
Clear Lake Parcel Article 1(a)
Closing Section 5.1
Closing Date Section 5.1
Closing Documents Section 3.4
Confidentiality Agreement Section 14.9
Contract Date Introduction
Contracts Article 1(d)
Crestline Section 3.9(a)
Current Ledger Section 13.3
Deed or Deeds Section 9.1
Deposit Section 2.3
DEPOSITS Section 2.3
Encumbrances Section 6.2(a)
Environmental Laws Section 3.14
Equipment Leases Article 1(d)
Escrow Agent Section 2.1
Escrow Instructions Section 2.3
Equity Interest Section 14.7
Existing Debt Section 2.1
Feasibility Period Section 6.6(b)
FF&E Article 1(b)
Financial Statements Section 3.16
Fixed Asset Supplies Article 1(b)
Front Desk Closing Hour Section 13.3
Hapeville Parcel Article 1(a)
Hazardous Substances Section 3.14
Improvement Reserve Section 13.1
Improvements Article 1(a)
Initial Deposit Section 2.3
Inn or Inns Article 1(a)
Intangibles Article 1(c)
Inventories Article 1(b)
Land Article 1(a)
Las Colinas Parcel Article 1(a)
Lender Section 2.1
Loan Agreement Section 2.1
Management Agreement Section 3.9(a)
Manager Article 1(c)
Meriden Estoppel Section 9.6
Meriden Parcel Article 1(a)
Meriden Landlord Section 9.6
Meriden Lease Section 9.6
Montgomery Parcel Article 1(a)
Parcel Article 1(a)
Partnership Section 14.7
Permits Section 3.11
Permitted Exceptions Section 6.2(b)
Personal Property Article 1(b)
Plans Article 1(c)
Pleasant Hill Parcel Article 1(a)
Property Article 1(d)
Purchase Price Section 2.1
Purchaser Introduction
San Xxxxx Parcel Article 1(a)
Seller Introduction
Seller Knowledge Individual Section 3.19
Space Leases Article 1(d)
Special Survey Review Period Section 6.2(b)
Surveys Section 6.3
Termination Notice Section 6.6(b)
Tewksbury Parcel Article 1(a)
Title Commitments Section 6.2(a)
Title Company Section 6.2(a)
Title Review Period Section 6.2(b)
Uniform System of Accounts Article 1(b)
Utility Reservations Article 1(a)
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is executed as of the 18th day of
May, 2001 (the "Contract Date") by RESIDENCE INN III LLC, a Delaware limited
liability company ("Seller") and APPLE HOSPITALITY TWO INC., a Virginia
corporation ("Purchaser").
ARTICLE I
Sale
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Subject to Section 14.7 hereof, and to the other terms and conditions set
forth in this Agreement, Seller agrees to sell and convey to Purchaser (or, in
the case of personal property covered by this Agreement, to Purchaser's
designated lessee), and Purchaser agrees to buy and assume (or cause such lessee
to buy and assume) from Seller, all of Seller's right, title and interest in and
to the following:
(a) Those certain parcels of land (each a "Parcel") more particularly
described in Exhibit A attached hereto (collectively, the "Land") located in (1)
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Tewksbury, Massachusetts (the "Tewksbury Parcel"), (2) Meriden, Connecticut (the
"Meriden Parcel"), (3) Hapeville, Georgia (the "Hapeville Parcel"), (4) Blue
Ash, Ohio (the "Blue Ash Parcel"), (5) Montgomery, Alabama (the "Montgomery
Parcel"), (6) Clear Lake, Texas (the "Clear Lake Parcel"), (7) Las Colinas,
Texas (the "Las Colinas Parcel"), (8) San Ramon, California (the "San Xxxxx
Parcel"), (9) Pleasant Hill, California (the "Pleasant Hill Parcel") and (10)
Bakersfield, California (the "Bakersfield Parcel"), together with (i) all
buildings, parking areas, other structures and other improvements located on any
such Parcel (collectively, the "Improvements"), (ii) all water and mineral
rights (if any), development rights and all easements, rights and other
interests appurtenant to the Land and Improvements, including, but not limited
to, (A) all easements, rights of way, rights of ingress and egress, tenements,
hereditaments, privileges, and appurtenances in any way belonging to any Parcel
or Improvements, (B) any land lying in the bed of any alley, highway, street,
road or avenue, open or proposed, in front of or abutting or adjoining any
Parcel, (C) any strips or gores of real estate adjacent to any Parcel, and (D)
the use of all alleys, easements and rights-of-way, if any, abutting, adjacent,
contiguous to or adjoining the Land (collectively, the "Appurtenances"), and
(iii) to the extent assignable and without additional cost to Seller (except
costs that Purchaser agrees to reimburse to Seller), Seller's interest in the
right to receive immediately on and after Closing and continuously consume
thereafter water service, sanitary and storm sewer service, electrical service,
gas service, and telephone service on and for the Land and Improvements, and the
foregoing right shall include but not be limited to (A) the right to the present
and future use of wastewater, drainage, water and other utility facilities to
the extent such use benefits the Land or Improvements, (B) all reservations of
or commitments covering any such use in the future, and (C) all wastewater
capacity reservations
relating to the Land or Improvements (collectively, the "Utility Reservations").
Each Parcel and the Improvements located thereon, together with the related
Appurtenances and Utility Reservations, are sometimes referred to hereinafter
individually, as an "Inn" and collectively, as the "Inns".
(b) The following personalty (collectively the "Personal Property"): (1)
all furniture, furnishings, fixtures, vehicles, rugs, mats, carpeting,
appliances, devices, engines, telephone and other communications equipment,
televisions and other video equipment, plumbing fixtures and other equipment
located in, or used in the operation of, each of the Inns (the "FF&E"), (2) all
items included within the definition of "Property and Equipment" under the
Uniform System of Accounts for the Lodging Industry, Ninth Revised Edition, as
published by the Hotel Association of New York City, Inc. (the "Uniform System
of Accounts") and used in the operation of the Inns, including, without
limitation, linen, china, glassware, tableware, uniforms and similar items,
subject to such depletion or replacement prior to the Closing Date as shall
occur in the ordinary course of business (the "Fixed Asset Supplies"); (3) all
"Inventories" as defined in the Uniform System of Accounts and used in the
operation of the Inns, including, without limitation, provisions in storerooms,
refrigerators, pantries, and kitchens, beverages in wine cellars and bars, other
merchandise intended for sale or resale, fuel, mechanical supplies, stationery,
guest supplies, maintenance and housekeeping supplies and other expensed
supplies and similar items, subject to such depletion or replacement prior to
the Closing Date as shall occur in the ordinary course of business (the
"Inventories"), provided, however, that to the extent that any applicable law
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prohibits the transfer of alcoholic beverages from Seller to Purchaser (or
Purchaser's designated lessee or manager), such beverages shall not be
considered a part of Inventories;
(c) to the extent in Seller's possession or control, (1) all surveys,
architectural, consulting and engineering drawings and blueprints, plans and
specifications, soil reports, engineering reports, inspection reports, and other
technical descriptions and reports related to the Inns (the "Plans"), (2) all
books and records, if any related to the Inns (the "Books and Records"), (3) all
right, title and interest of Seller in, to and under the following related to
the Inns, to the extent assignable: all warranties, guaranties, indemnities, and
claims for the benefit of Seller, all licenses, permits, certificates of
occupancy, and similar documents issued by any federal, state, or municipal
authority, or by any private party without material cost to Seller (the
"Intangibles"), and (4) any and all other items of personalty owned by Seller
and located at each of the Inns (the "Additional Personalty"), but excluding (i)
accounts receivable for periods prior to the Apportionment Date, (ii) property
of guests, (iii) Personal Property leased pursuant to the Equipment Leases, (iv)
information owned by or proprietary to Residence Inn by Marriott, Inc. (the
"Manager"), the manager under the Management Agreement, and (iv) xxxxx cash,
working capital or cash on deposit in
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any account maintained by or for the benefit of Seller, except cash on deposit
as of the Closing Date in the Improvement Reserve (as hereinafter defined).
(d) To the extent assignable, (1) all written service, maintenance,
licensing, concession, and other contracts or agreements related to the
maintenance, ownership, use, possession or operation of the Personal Property or
the Inns (the "Contracts"), (2) all written leases of personal property located
at, or used in the operation of, the Inns (the "Equipment Leases") to which
Seller or Manager is a party and (3) if any, all leases, subleases and other
occupancy agreements, which provide for the use or occupancy of space or
facilities in or relating to the Inns (the "Space Leases"). The Inns, Personal
Property, Plans, Books and Records, Intangibles, Additional Personalty,
Contracts, Equipment Leases and any such Space Leases are sometimes referred to
hereinafter collectively as the "Property".
ARTICLE II
Purchase Price
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2.1 Purchase Price. The purchase price for the Property is ONE HUNDRED
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NINETEEN MILLION DOLLARS ($119,000,000.00), subject to adjustment as described
in Article XIII below (the "Purchase Price"), which shall be payable on the
Closing Date as follows: (i) Purchaser shall assume the outstanding principal
balance as of the Closing Date of the loan made to Seller by Bank of America,
N.A. (together with the current holder of the Existing Debt, the "Lender") in
the original principal amount of FIFTY FIVE MILLION FIVE HUNDRED EIGHTY-EIGHT
THOUSAND DOLLARS ($55,588,000.00) pursuant to that certain Loan Agreement (the
"Loan Agreement") dated as of December 29, 1999 by and between the Lender and
Seller (the "Existing Debt"), which Existing Debt is secured by the Inns, and
(ii) an amount equal to the sum of the Purchase Price, with the adjustments as
described in Article XIII below, less the principal balance as of the Closing
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Date of the Existing Debt and the amount of the credit referred to in Section
2.3, shall be paid to Seller in cash on the Closing Date by wire transfer of
immediately available funds to the Title Company, as escrow agent (the "Escrow
Agent"). All amounts on deposit as of the Closing Date in the Improvement
Reserve shall become the property of Purchaser in consideration for the Purchase
Price, without any adjustment.
2.2 Allocation of Purchase Price. On or before the date that is five (5)
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business days after the date Purchaser makes its election pursuant to Section
14.7 hereof, the Purchase Price shall be allocated among the Inns and various
items of Personal Property, and such allocation shall be attached hereto as
Exhibit B. Seller and Purchaser agree to file federal, state and local tax
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returns consistent with such allocations.
2.3 Deposit. Within one business day after the date hereof, Purchaser
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shall deliver to the Escrow Agent a deposit in the amount of ONE MILLION ONE
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THOUSAND DOLLARS ($1,001,000.00) in immediately available funds. ONE MILLION
DOLLARS ($1,000,000.00) of this amount (the "Initial Deposit") shall be deemed
fully earned and paid over to Seller as a nonrefundable deposit on May 31, 2001
if this Agreement is not terminated on or before May 31, 2001. The amount of
Purchaser's initial cash deposit with the Escrow Agent pursuant to this Section
2.3, together with all accrued interest thereon, less the amount of the Initial
Deposit, is referred to in this Agreement as the "Deposit." The Initial Deposit
and the Deposit are referred to herein collectively as the "DEPOSITS". In the
event that Purchaser proceeds with the Closing, the full amount of the DEPOSITS
shall be credited towards Purchaser's obligation to pay the cash portion of the
Purchase Price. If the Closing does not occur for any reason, the Deposit shall
be paid over to Seller. The Escrow Agent shall hold the DEPOSITS in accordance
with escrow instructions executed by Seller, Purchaser and the Escrow Agent (the
"Escrow Instructions") substantially in the form attached hereto as Exhibit C.
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ARTICLE III
Seller's Representations, Warranties and Covenants
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In order to induce Purchaser to enter into this Agreement and to consummate
the transactions contemplated hereby, Seller represents and warrants to, and
covenants with, Purchaser as follows:
3.1 Good Standing. Seller is a limited liability company duly organized,
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validly existing and in good standing under the laws of the State of Delaware,
is authorized to conduct the business in which it is now engaged, and is duly
qualified and in good standing in Delaware and in all states where the ownership
of its assets or the conduct of its business makes such qualification necessary.
3.2 Title. Seller has (a) good and marketable leasehold title to the
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Meriden Parcel and good and marketable title to the Improvements located thereon
and (b) good and marketable fee simple title to the other Inns, in each case
subject only to Permitted Exceptions. The Meriden Lease (as defined in Section
9.7 hereof) is in full force and effect and Seller is not aware, and has not
received any notice, of any default thereunder. Seller has provided a true and
complete copy of the Meriden Lease to Purchaser. Seller owns or leases under
valid equipment leases all items of tangible Personal Property used in
connection with the operation of the Inns as currently operated. None of the
items of tangible Personal Property used in the operation of the Inns are owned
by the Manager or any other third party, except for the ownership interest of
the lessor in items of Personal Property that are leased by Seller in connection
with the operation of the Inns.
3.3 Due Authorization. The execution, delivery and performance of this
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Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all requisite limited liability company actions
of Seller, none of which actions have been modified or rescinded, and all of
which
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actions are in full force and effect. This Agreement constitutes a valid and
binding obligation of Seller, enforceable against Seller in accordance with its
terms.
3.4 No Violations or Defaults. The execution, delivery and performance of
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this Agreement and all other documents, instruments and agreements to be
executed and delivered pursuant to this Agreement (the "Closing Documents") by
Seller and the consummation by Seller of the transactions contemplated hereby
will not (a) to the knowledge of Seller, violate any law or any order of any
court or governmental authority with proper jurisdiction; (b) result in a
material breach or default under any contract or other binding commitment of
Seller or any provision of the organizational documents of Seller; or (c)
require any consent or approval or vote that has not been taken or given, or as
of the Closing Date shall not have been taken or given.
3.5 Litigation. There are no actions, suits, arbitrations, governmental
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investigations or other proceedings pending or, to the knowledge of Seller,
threatened against Seller or affecting the Property (or any material portion
thereof) before any court or governmental authority, an adverse determination of
which might adversely affect (a) the financial condition or operations of Seller
or any Inn, (b) Seller's ability to enter into or perform this Agreement or (c)
Seller's title to the Property (or any material portion thereof).
3.6 Condemnation Actions. To the knowledge of Seller, there are no
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pending or threatened condemnation actions or special assessments of any nature
with respect to the Property or any part thereof.
3.7 Contracts. All material Contracts known to Seller related to the
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maintenance ownership, use, possession or operation of the Property, other than
the Management Agreement, the Equipment Leases and the Space Leases (if any) are
listed on Exhibit D attached hereto. Seller has provided to Purchaser true and
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complete copies of all such Contracts. To the knowledge of Seller, (a) all such
Contracts are in full force and effect, and (b) there are no defaults or events
that with notice or the passage of time, or both, would constitute a default by
Seller under any such Contract, nor by any other party thereto.
3.8 Equipment Leases. All material Equipment Leases known to Seller to
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which Seller or Manager is a party or any portion of the Property is subject are
listed on Exhibit E attached hereto. Seller has provided to Purchaser true and
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complete copies of all such Equipment Leases. To the knowledge of Seller, (a)
all such Equipment Leases are in full force and effect, and (b) there are no
defaults or events that with notice or the passage of time or both, would
constitute a default by Seller under any such Equipment Lease, nor by any other
party thereto.
3.9 Management and Franchise Agreements; Loan Agreement. (a) There are no
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existing management contracts or franchise agreements relating to
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the Property other than that certain Management Agreement by and between Seller
and the Manager, dated as of December 29, 1999, as affected by (1) that certain
letter agreement dated December 29, 1999 by and between Seller, Manager and
Crestline Capital Corporation ("Crestline"), (2) that certain letter agreement
dated December 29, 1999 by and between Crestline and Manager, and (3) that
certain letter agreement dated September 11, 2000 by and between Seller,
Crestline and Manager (collectively, the "Management Agreement"). The Management
Agreement is in full force and effect and has not been further amended, and
there are no defaults or events that with notice or the passage of time, or
both, would constitute a default by Seller or Crestline under the Management
Agreement, nor, to the knowledge of Seller, by Manager thereunder. The amount of
owner's investment (which under the Management Agreement is defined as
Contributed Capital) used in the calculation of the Contingent Management Fee
under the Management Agreement is $59,910,270.00 as of April 20, 2001.
(b) The Loan Agreement is in full force and effect and has not been
further amended, and there are no defaults or events that with notice or the
passage of time, or both, would constitute a default by Seller or Crestline
under the Loan Agreement, nor, to the knowledge of Seller, by Lender thereunder.
The Replacement Reserve Account, the Tax and Insurance Reserve Account, the Debt
Service Reserve Account and any Immediate Repair Escrow Account (each such term
as defined in the Loan Agreement) maintained by the Lender are fully funded as
required by the Loan Agreement, and no Debt Service Sweep Event (as defined in
the Loan Agreement) has occurred during the term of the Loan Agreement. As of
April 20, 2001, the amount held in the Immediate Repair Escrow Account equaled
$394,467.00.
(c) The Improvement Reserve required to be maintained by Seller pursuant
to the Management Agreement is fully funded, as required thereby. As of April
20, 2001, the amount held in the Improvement Reserve, after deduction of all
amounts advanced by the Manager on behalf of Seller and not yet repaid to the
Manager from the Improvement Reserve, equaled $1,594,214.00.
3.10 Space Leases. All material Space Leases known to Seller to which
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Seller or Manager is a party or any portion of the Property is subject are
listed on Exhibit F attached hereto. To the knowledge of Seller, (a) all such
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Space Leases are in full force and effect, and (b) there are no defaults or
events that with notice or the passage of time or both, would constitute a
default by Seller under any such Space Leases, nor by any other party thereto.
3.11 Permits. To the knowledge of Seller, all material licenses
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(including, without limitation, liquor licenses), certificates of occupancy,
permits and approvals required to be issued by any governmental authority or any
third party and used in or necessary to the operation of the Inns as fully
functioning limited-service hotels (the "Permits") have been obtained and are in
full force and effect. To the
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knowledge of Seller, each such Permit is listed on Exhibit G attached hereto,
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and Seller has provided to Purchaser true and complete copies of each such
Permit.
3.12 Sufficiency of Inventories. To the knowledge of Seller, the
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quantities of FF&E, Inventories, and Fixed Asset Supplies in the Inns, including
the provisions for reserves, are sufficient for the operation of the Inns in
accordance with the standard of operation heretofore maintained by Seller and
the Manager.
3.13 Compliance with Laws. Seller has not received any written notice of
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any violation of applicable law in connection with the use and operation of any
of the Inns.
3.14 Environmental Matters. Seller has not received any written notice of
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the presence or release of any substance that is regulated under any
Environmental Laws as a pollutant, contaminant or toxic, radioactive or
otherwise hazardous substance, including petroleum, its derivatives or
byproducts and other hydrocarbons (collectively and individually, "Hazardous
Substances") that would cause any of the Inns to be in violation of any
applicable Environmental Laws and that remains uncured, nor has Seller received
written notice that any Inn is not in compliance with applicable Environmental
Laws. Except as otherwise disclosed in the environmental reports described on
Exhibit H, to the knowledge of Seller (i) there are no Hazardous Substances
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located at, on or under any Inn (except ordinary quantities of cleaning and
maintenance supplies and other materials used in the ordinary course of the
operation of the Inns that are handled in compliance with applicable
Environmental Laws) and (ii) no Hazardous Substances have leaked, escaped or
been discharged, emitted or otherwise released from the Land underlying any Inn
onto any adjoining properties. For the purposes of this Section, "Environmental
Laws" means any and all statutes, laws, regulations and rules in effect on the
date hereof relating to the protection of the environment or to the use,
transportation and disposal of Hazardous Substances.
3.15 "As-Is, Where-Is" Sale; Limitation on Seller's Representations and
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Warranties. (a) PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SUCH
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REPRESENTATIONS AND WARRANTIES CONCERNING SELLER'S TITLE TO THE PROPERTY OR THE
PHYSICAL CONDITION OR OPERATIONS OF THE PROPERTY AS ARE EXPRESSLY SET FORTH IN
THIS AGREEMENT OR IN THE OTHER CLOSING DOCUMENTS, THE PROPERTY IS SOLD "AS-IS -
WHERE-IS," AND NEITHER SELLER NOR ANY AGENT NOR REPRESENTATIVE OF SELLER HAS
MADE, AND SELLER IS NOT LIABLE FOR OR BOUND IN ANY MANNER BY, ANY EXPRESS OR
IMPLIED WARRANTIES, GUARANTIES, PROMISES, STATEMENTS, INDUCEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY, THE PHYSICAL
CONDITION, OPERATION OR FINANCIAL VIABILITY OF ALL OR ANY PART THEREOF, THE
INCOME AND EXPENSES ATTRIBUTABLE OR LIKELY TO BE ATTRIBUTABLE THERETO, THE USES
WHICH CAN BE MADE
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OF ALL OR ANY PART OF THE PROPERTY OR ANY OTHER MATTER OR THING OF ANY KIND WITH
RESPECT THERETO OR TO THE MARKETS IN WHICH THE INNS ARE LOCATED. WITHOUT
LIMITING THE FOREGOING, PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT OR THE CLOSING DOCUMENTS, SELLER IS NOT
LIABLE FOR OR BOUND BY (AND PURCHASER HAS NOT RELIED UPON) ANY VERBAL OR WRITTEN
STATEMENTS, REPRESENTATIONS, FINANCIAL STATEMENTS OR OTHER INFORMATION OF ANY
KIND SUPPLIED BY OR ON BEHALF OF SELLER AND PERTAINING TO THE INNS OR ANY OTHER
INFORMATION RESPECTING THE INNS FURNISHED BY SELLER OR ANY EMPLOYEE, AGENT,
CONSULTANT OR OTHER PERSON REPRESENTING OR PURPORTEDLY REPRESENTING SELLER.
PURCHASER ACKNOWLEDGES THAT TO THE EXTENT REQUIRED TO BE OPERATIVE, THE
DISCLAIMERS OF REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION ARE
"CONSPICUOUS" DISCLAIMERS FOR PURPOSES OF ANY APPLICABLE LAW, RULE, REGULATION
OR ORDER. PURCHASER ACKNOWLEDGES THAT IT IS EXPERIENCED IN THE PURCHASE,
OWNERSHIP AND OPERATION OF PROPERTY OF THE TYPE COVERED BY THIS AGREEMENT AND
THAT ITS DECISION TO ENTER INTO THIS CONTRACT AND TO PURCHASE THE PROPERTY
FOLLOWING ITS INVESTIGATION THEREOF DURING THE FEASIBILITY PERIOD) IS AND WILL
BE BASED ON ITS OWN DUE DILIGENCE AND ITS OWN EXPERT EVALUATION OF THE CONDITION
AND OPERATION OF THE PROPERTIES AND THEIR SUITABILITY FOR PURCHASER'S PURPOSES.
(b) EXCEPT FOR SUCH REPRESENTATIONS AND WARRANTIES CONCERNING SELLER'S
TITLE TO THE PROPERTY OR THE PHYSICAL CONDITION OR OPERATIONS OF THE PROPERTY AS
ARE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN THE CLOSING DOCUMENTS, AS PART OF
PURCHASER'S AGREEMENT TO PURCHASE AND ACCEPT THE INNS "AS-IS-WHERE-IS" AND NOT
AS A LIMITATION ON SUCH AGREEMENT, PURCHASER HEREBY UNCONDITIONALLY AND
IRREVOCABLY WAIVES AND RELEASES ANY AND ALL ACTUAL OR POTENTIAL RIGHTS PURCHASER
MIGHT HAVE REGARDING ANY FORM OF WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND OR
TYPE, RELATING TO THE PROPERTY. SUCH WAIVER AND RELEASE IS ABSOLUTE,
UNCONDITIONAL, IRREVOCABLE, COMPLETE, TOTAL AND UNLIMITED IN ANY WAY. SUCH
WAIVER AND RELEASE INCLUDES, BUT IS NOT LIMITED TO, A WAIVER AND RELEASE OF
EXPRESS WARRANTIES, IMPLIED WARRANTIES, WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE OR USE, WARRANTIES OF MERCHANTABILITY, WARRANTIES OF HABITABILITY,
STRICT LIABILITY RIGHTS AND CLAIMS OF EVERY KIND AND TYPE, INCLUDING, BUT NOT
LIMITED, TO CLAIMS REGARDING DEFECTS WHICH WERE NOT OR ARE NOT NOW APPARENT OR
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DISCOVERABLE, PRODUCT LIABILITY CLAIMS, PRODUCT LIABILITY TYPE CLAIMS, ANY
RIGHTS AND CLAIMS RELATING TO OR ATTRIBUTABLE TO ENVIRONMENTAL CONDITIONS, AND
ALL OTHER CLAIMS OR RIGHTS OF ANY KIND BASED ON EXPRESS OR IMPLIED WARRANTIES OR
BASED ON PRINCIPLES OF STRICT LIABILITY, WHETHER NOW EXTANT OR HEREAFTER CREATED
OR CONCEIVED.
Seller's Initials Purchaser's Initials
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3.16 Financial Information. Seller has previously delivered to Purchaser
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operating statements for the Inns prepared by the Manager for fiscal years 1998,
1999 and 2000 and the period ending April 20, 2001 (collectively, the "Financial
Statements"). To the knowledge of Seller, all such information has been
prepared in accordance with generally accepted accounting principles applied
consistently with past practices and fairly presents the results of operations
of the Inns for the periods represented thereby, and has been relied upon by
Seller in the ordinary course of business of the operation of the Inns.
3.17 Solvency. Seller is not insolvent within the meaning of Title 11 of
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the United States Code, as amended (the "Bankruptcy Code"), nor has it ceased to
pay its debts as they become due. Seller has not filed or taken any action to
file a voluntary petition, case or proceeding under any section or chapter of
the Bankruptcy Code, or under any similar law or statute of the United States or
any state thereof, relating to bankruptcy, insolvency, reorganization, winding
up or composition or adjustment of its debts; and no such petition, case or
proceeding has been filed against it which has not been dismissed, vacated or
stayed on appeal; and it has not been adjudicated as a bankrupt or insolvent or
consented to, nor filed an answer admitting or failing reasonably to contest an
allegation of bankruptcy or insolvency. Seller has not sought, or consented to
or acquiesced in, the appointment of any receiver, trustee, liquidator or other
custodian of it or a material part of its assets, and has not made or taken any
action to make a general assignment for the benefit of creditors or an
arrangement, attachment or execution has been levied and no tax lien or other
governmental or similar lien has been filed, against it or a material part of
its properties, which has not been duly and fully discharged prior to the date
hereof.
3.18 Employees. Seller has no employees. All employees employed
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exclusively at the Inns are the employees of Manager. To the knowledge of
Seller, there are no (i) unions organized at any Inn, no union organizing
attempt, strikes, organized work stoppage or slow down, or any other labor
dispute pending with respect to any of the employees at any Inn, or (ii)
collective bargaining or other labor agreements to which Seller or Manager or
any Inn is bound with respect to any employees employed by Manager with regard
to any Inn.
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3.19 Knowledge. Any and all references in this Agreement to the
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"knowledge" of Seller, to things "known" to Seller or any similar phrases or
references, shall mean the actual and present knowledge, after making due
inquiry of the Manager and the appropriate executive employees at each Inn (i.e.
the General Manager, Chief Engineer, if any, and the Controller of such Inn), of
Xxxxx X. Xxxxxx, Senior Vice President and Controller of Crestline, Xxxxx X. X.
Xxxxxx, Senior Vice President and General Counsel of Crestline and Xxxxxxx
Xxxxxxxxx, Director, Asset Management for Crestline (collectively the "Seller
Knowledge Individual"). Neither the actual, present knowledge of any other
individual or entity, nor the constructive knowledge of the Seller Knowledge
Individual or of any other individual or entity shall be imputed to the Seller
Knowledge Individual.
ARTICLE IV
Purchaser's Representations, Warranties and Covenants
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In order to induce Seller to enter into this Agreement and to consummate
the transactions contemplated hereby, Purchaser represents and warrants to, and
covenants with, Seller as follows:
4.1 Good Standing. Purchaser is a corporation duly organized, validly
-------------
existing and in good standing under the laws of Virginia, is authorized to
conduct the business in which it is now engaged and is, or as of the Closing
Date shall be, qualified to do business in Virginia and in all states where the
ownership of its assets or the conduct of its business makes such qualification
necessary.
4.2 Due Authorization. The execution, delivery and performance of this
-----------------
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all requisite corporate actions of Purchaser
(none of which actions have been modified or rescinded, and all of which actions
are in full force and effect). This Agreement constitutes a valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms.
4.3 No Violations or Defaults. The execution, delivery and performance of
-------------------------
this Agreement and the Closing Documents by Purchaser and the consummation by
Purchaser of the transactions contemplated hereby will not (a) to the knowledge
of Purchaser, violate any law or any order of any court or governmental
authority with proper jurisdiction; (b) result in a material breach or default
under any contract or other binding commitment of Purchaser or any provision of
the organizational documents of Purchaser; or (c) require any consent or
approval or vote that has not been taken or given, or as of the Closing Date
shall not have been taken or given.
4.4 Litigation. There are no actions, suits, arbitrations, governmental
----------
investigations or other proceedings pending or, to the knowledge of Purchaser,
10
threatened against Purchaser before any court or governmental authority, an
adverse determination of which might adversely affect (a) the financial
condition or operations of Purchaser or (b) Purchaser's ability to enter into or
perform this Agreement.
ARTICLE V
Closing
-------
5.1 Closing. The consummation of the purchase and sale of the Property
-------
as contemplated by this Agreement (the "Closing") shall take place at the
offices of Xxxxx & Xxxxxxx L.L.P., 000 00xx Xxxxxx X.X., Xxxxxxxxxx, X.X. on the
date (the "Closing Date") that coincides with the end of the Accounting Period
(as defined in the Management Agreement) in which the Lender grants its consent
to the transfer and assumption of the Existing Debt and other matters
contemplated by Sections 2.1, 7.4 and 8.3 hereof, but in no event later than
August 31, 2001, unless Seller and Purchaser mutually agree on an alternative
date or alternative location. If the Closing does not occur for any reason by
August 31, 2001, the provisions of Sections 7.9, 8.8 and/or Article X hereof
shall apply, as applicable. All of Seller and Purchaser's deliveries, the cash
payment of the Purchase Price and sufficient additional cash necessary for the
parties to pay the costs contemplated by Section 5.2 shall be delivered in
escrow to the Escrow Agent. All transactions at the Closing shall be
interdependent and are to be considered simultaneous, so that none are effective
until all are effective.
5.2 Costs. Seller and Purchaser each agree to pay fifty percent (50%) of
-----
all (i) transfer and recording taxes and fees connected with the transfer of the
Property and the recordation or registration of the Deeds, assignments of lease
or other instruments of title, (ii) fees of the Escrow Agent in connection with
the Escrow Instructions and (iii) bulk sales taxes and other personal property
taxes associated with the Closing, if any. Purchaser shall pay for the costs
and premiums of title insurance, including, without limitation, the costs and
expenses of all endorsements thereto, all surveys of the Inns prepared for the
Closing and all environmental and engineering reports. Purchaser shall pay any
fees relating to or in connection with the assumption or transfer of the
Existing Debt from Seller to Purchaser (including, without limitation, the
payment of the assumption fee under the Loan Agreement, the Lender's attorneys'
fees reasonably related to the assignment and assumption of the Existing Debt,
to the extent payable by the Borrower under the Loan Agreement, the costs and
expenses of the Lender's due diligence review, to the extent payable by the
Borrower under the Loan Agreement, and the costs of preparing or recording
amendments to the mortgages and UCC filings affecting the Property, including
any applicable transfer, mortgage or recording fees or taxes, but excluding the
costs of Seller's counsel, if any, relating to the assignment and assumption of
the Existing Debt). If and to the extent not waived by Manager, Purchaser shall
pay any and all sums required to be paid in connection with the transactions
contemplated hereby pursuant to Section 5.03 of the Management
11
Agreement. Except as otherwise provided for herein, each party shall pay its own
accountants and attorneys' fees incurred in connection with the preparation,
negotiation and execution of this Agreement and the consummation of the
transactions contemplated hereby.
ARTICLE VI
Actions Pending Closing; Feasibility Period
-------------------------------------------
6.1 Conduct of Business; Maintenance and Operation of Property. Between
----------------------------------------------------------
the Contract Date and the Closing Date, Seller shall continue to carry on the
business of the Inns as currently conducted and consistent with prior practice,
and in compliance in all material respects with the terms and conditions of the
Management Agreement. Without limiting the generality of the foregoing, Seller
shall:
(i) Cause the Property to be maintained in its present order and
condition, normal wear and tear excepted and casualties of the kind that do not
give Purchaser the right to terminate this Agreement pursuant to Section 12.2
hereof, so that the Property shall, except for normal wear and tear, be in
substantially the same condition on the Closing Date as on the Contract Date;
(ii) Use reasonable efforts to (A) maintain, or cause to be
maintained, the present level of insurance with respect to the Inns in full
force and effect until the Closing Date, and (B) remain in compliance in all
material respects with the Meriden Lease;
(iii) To the extent that Seller has received written notice of any
litigation, arbitration, or administrative hearing before any court or
governmental agency concerning or affecting any Inn which is instituted or
threatened after the Contract Date, advise Purchaser promptly of such
litigation, arbitration or administrative hearing;
(iv) Not take, or omit to take, any action that would have the
effect of violating any of the covenants or agreements of Seller contained in
this Agreement in any material respect; or
(v) Pay or cause to be paid all taxes, assessments and other
impositions levied or assessed on the Inns or any part thereof prior to the date
on which the payment thereof is delinquent, and comply with all federal, state,
and municipal laws, ordinances, regulations, and orders relating to the Inns;
provided, however, that Seller shall have the right to contest such taxes,
-------- -------
assessments or other impositions in accordance with applicable law.
6.2 Title Insurance. (a) Seller shall cooperate with Purchaser in
---------------
obtaining, at Purchaser's sole cost, a binding commitment for an owner's policy
of
12
title insurance (the "Title Commitments") relating to each of the Inns to be
issued by LandAmerica Title Insurance Company or other title insurance company
reasonably acceptable to Purchaser and Lender (the "Title Company"), committing
to insure Purchaser's good and marketable (a) leasehold interest to the Meriden
Parcel (and its ownership interest in the Improvements located thereon) and (b)
fee simple title to the other Inns. The Title Policies shall show no liens,
mortgages, deeds of trust, security interests, pledges, charges, options,
encroachments, easements, covenants, leases, reservations or restrictions of any
kind (the "Encumbrances") other than (i) the liens securing solely the Existing
Debt, (ii) applicable zoning regulations and ordinances, (iii) liens for taxes,
assessments and governmental charges not yet due and payable and (iv) the
Permitted Exceptions.
(b) At or before 6:00 p.m. (Bethesda, Maryland time) on May 22, 2001 (the
period between the date hereof and such time being the "Title Review Period"),
Purchaser agrees to notify Seller in writing of any objections to exceptions
appearing in the Title Commitments or, except with respect to the Hapeville
Parcel and the Meriden Parcel, matters appearing on the Surveys that, in each
case, could reasonably be expected to materially and adversely affect the
ability of Purchaser's lessee or manager to continue to operate the affected Inn
or Inns as Residence Inn by Marriott hotel properties. On or before 6:00 p.m.
(Bethesda, Maryland time) on June 8, 2001 (the period between the date hereof
and such time being the "Special Survey Review Period"), the Purchaser agrees to
notify the Seller of any matters affecting the Inns located on the Hapeville
Parcel and the Meriden Parcel that are reflected on the Surveys obtained by
Purchaser for those Parcels and that were not shown on the survey of such
Parcels previously delivered to Purchaser and that could reasonably be expected
to materially and adversely affect the ability of the Purchaser's lessee or
manager to continue to operate such Inns as Residence Inn by Marriott hotel
properties. Within five (5) business days following Seller's receipt of the
notifications contemplated by the first and second sentences, respectively, of
this Section 6.2(b), Seller shall notify Purchaser that (a) it will, prior to
the Closing Date, eliminate or correct (or commit in writing to eliminate or
correct) the matters to which Purchaser has objected pursuant to this Section
6.2, as described in such notifications, or (b) it declines to eliminate or
correct the specified matters (or some combination of the foregoing, specifying
the matters Seller agrees to eliminate or correct and those it does not).
Notwithstanding the foregoing, Seller shall be obligated to eliminate, or cause
the Title Company to insure Purchaser, at no cost or expense to Purchaser,
against loss by reason of, any monetary lien(s) affecting any of the Inns up to
a sum of $50,000.00 for any individual Inn or $250,000.00 in the aggregate for
all of the Inns collectively, whichever is less, excluding liens created by
Purchaser. If Seller commits in writing to take such actions as may be required
to correct such matters or as may be required by the Title Company to remove all
exceptions to title to which Purchaser has reasonably and timely objected, then
Purchaser shall have no right to terminate this Agreement pursuant to this
Section 6.2(b). If Seller elects not to take such actions, Purchaser may
terminate this Agreement in its sole discretion by providing written notice to
Seller within five (5)
13
business days after Purchaser's receipt of the notice of Seller's election,
whereupon the DEPOSITS (less and except the Initial Deposit to the extent that
the Initial Deposit may have become fully earned pursuant to Section 2.3 hereof)
shall be returned to Purchaser. If Seller agrees to take all such actions, or if
Purchaser subsequently elects to accept any matters which Seller has declined to
eliminate or correct and continue this Agreement, Purchaser and Seller shall,
before the end of the five (5) business day period described in the immediately
preceding sentence, initial a list of all title exceptions that Purchaser agrees
to accept (the "Permitted Exceptions"), which list shall be attached hereto as
Exhibit I.
---------
6.3 Survey. Seller shall cooperate with Purchaser in obtaining, at
------
Purchaser's sole cost, an as-built survey of each of the Inns (the "Surveys"),
certified to Purchaser, Purchaser's lender and the Title Company by a land
surveyor or professional engineer. Purchaser shall be responsible for ensuring
that such Surveys are ordered in time so that they can be received and reviewed
by Purchaser prior to the end of the Title Review Period (or, in the case of the
Inns located on the Hapeville Parcel and the Meriden Parcel, by the end of the
Special Survey Review Period).
6.4 No Action. Between the Contract Date and the Closing Date, Seller
---------
shall not take or permit any action that would invalidate, void or make untrue
any representation or warranty provided under this Agreement. If any event
occurs prior to Closing that would cause any of Seller's representations or
warranties to become untrue, Seller shall notify Purchaser immediately in
writing of such occurrence.
6.5 Cooperation. Seller shall cooperate with Purchaser in securing any
-----------
necessary transfer or issuance of any Permits, including, without limitation,
any liquor licenses that are currently held in the name of Seller, to Purchaser
(or to Purchaser's lessee or manager on behalf of Purchaser) promptly following
the Closing Date. Seller shall cooperate with Purchaser in registering in
Purchaser's name the registered portion of the Tewksbury Land with the Land
Court in Boston. Prior to the Closing Date, Seller shall (at its own expense,
except with respect to the Lender's consent to the assumption of the Existing
Debt by Purchaser) use reasonable efforts and cooperate with Purchaser to obtain
all third party consents and approvals required in order for Purchaser to
purchase the Property and to assume the Existing Debt. Purchaser shall use its
commercially reasonable best efforts to obtain the Lender's consent to the
assumption of the Existing Debt.
6.6 Inspection and Access; Feasibility Period. (a) Purchaser shall have
-----------------------------------------
the right, at its own risk, cost and expense and at any date or dates prior to
Closing, to enter, or cause its agents or representatives to enter, upon the
Inns at any reasonable time and upon reasonable prior notice to Seller and
Manager, for the purpose of making surveys or other tests, inspections,
investigations and/or studies of all or any part of the Property. In addition,
Purchaser may, at its own risk, cost
14
and expense, conduct such architectural, environmental, economic and other
studies of the Property as Purchaser may, in its sole discretion, deem
desirable. Purchaser shall not make any physical alterations to the Property or
any invasive tests. Purchaser shall conduct, and ensure that each of its agents,
employees, contractors or representatives conducts, each such entry in a manner
that does not unreasonably interfere with the guests or management of the Inns;
and Purchaser shall indemnify and hold Seller harmless from any and all claims,
damages, demands, penalties, causes of action, liabilities, losses, costs or
expenses (including, without limitation, reasonable attorneys' fees and other
charges) to the extent arising out of or in any way related to personal injury
(including death), property damage, disruptions of operations, nuisance or other
claims asserted by any person or entity relating to the acts or omissions of
Purchaser, or its agents, employees, contractors or representatives (other than
Manager) in the course of any such entry or inspection of the Inns. The
foregoing indemnity shall survive Closing or any termination of this Agreement.
Subject to the provisions of the Management Agreement, Purchaser shall have
reasonable access to all Plans, Records and other files, documentation,
agreements and other information in the possession or control of Seller or
Seller's agents related to the design, construction, ownership, operation,
management, use and occupancy of the Property and shall have the right to
inspect and/or make copies of same. If Purchaser elects to terminate this
Agreement pursuant to Section 6.6(b), upon payment to Purchaser of fifty percent
(50%) of the costs incurred by Purchaser in procuring any tests, studies or
investigations of the Property, Purchaser agrees to supply Seller with copies
thereof.
(b) If, at or before 6:00 p.m. Bethesda, Maryland time on May 21, 2001
(the "Feasibility Period"), Purchaser gives Seller written notification (the
"Termination Notice") that Purchaser elects, in its sole and absolute
discretion, not to consummate the purchase of the Property in accordance with
the terms of this Agreement (or if, for the reasons described in Section 6.2(b)
hereof, such notification is given at or before 6:00 p.m. Bethesda, Maryland
time on the date that is five (5) business days after Purchaser's receipt of the
notice of Seller's election not to take such actions as may be required by the
Title Company to remove the exceptions to title to which Purchaser has
reasonably objected), this Agreement shall terminate, whereupon the DEPOSITS
(less and except the Initial Deposit to the extent that the Initial Deposit has
become fully earned pursuant to Section 2.3 hereof) shall be returned to
Purchaser and neither party shall have any further liability to the other under
this Agreement except as otherwise specifically provided herein. In the event
that (i) the Termination Notice is not provided to Seller by the end of the
Feasibility Period, or (ii) Seller elects to take such actions as may be
required by the Title Company to remove the exceptions to title to which
Purchaser has reasonably objected, Purchaser shall have been deemed to have
elected to proceed hereunder and this Agreement shall remain in full force and
effect.
15
6.7 Access to Financial Information. Purchaser's representatives shall
-------------------------------
have access to all of Seller's financial and other information relating to the
Inns to the extent necessary to enable Purchaser's representatives to prepare
audited financial statements in conformity with Regulation S-X of the Securities
and Exchange Commission and to enable them to prepare a registration statement,
report or disclosure statement for filing with the SEC on behalf of Purchaser.
Seller shall also provide to Purchaser's representative a signed representation
letter in form and substance reasonably acceptable to Seller sufficient to
enable an independent public accountant to render an opinion on the financial
statements related to the Inns. Notwithstanding anything to the contrary
contained herein, Seller and Purchaser acknowledge and agree that Seller shall
consent, at Purchaser's election, to allowing Seller's accountants to assist
Purchaser with the preparation of such documents, provided that Purchaser shall
be responsible for any costs or expenses associated with such assistance.
ARTICLE VII
Conditions Precedent to Purchaser's Obligations at Closing
----------------------------------------------------------
It shall be an express precondition to Purchaser's obligation to purchase
the Property that each and every one of the following conditions shall have been
satisfied as of the Closing Date (or waived in writing by Purchaser).
7.1 Representations and Warranties. Each of Seller's representations and
------------------------------
warranties shall be true and accurate in all material respects as if made on and
as of the Closing Date. There shall be no Contracts, Equipment Leases or Space
Leases not disclosed on an Exhibit hereto that, singularly or in the aggregate,
would materially alter the financial performance of the Inns from that disclosed
in the financial statements referred to in Section 3.16 hereof.
7.2 Covenants of Seller. Seller shall have performed and complied in all
-------------------
material respects with all covenants and conditions required by this Agreement
to be performed or complied with at or prior to the Closing Date.
7.3 Title. The Title Company shall be unconditionally committed to issue
-----
to Purchaser an owner's (or, with respect to the Meriden Parcel, a leasehold
owner's) policy of title insurance for each Inn in conformance with the Title
Commitments, in the amount of the Purchase Price allocable to such Inn as set
forth on Exhibit B hereof, pursuant to the standard stipulations and conditions
---------
of the most current form of ALTA Policy (or local equivalent) then used in the
state in which such Inn is located (omitting those standard exceptions that are
ordinarily and customarily omitted in each state, so long as Seller provides the
appropriate affidavits or other documentation reasonably necessary for such
omission pursuant to Section 9.9 hereof), subject to the payment of the premiums
therefor and delivery of the documents specified in Section 9.9 below.
16
7.4 Assumption of Existing Debt. Lender shall have entered into an agreement
---------------------------
with Purchaser and Seller, in form and substance reasonably satisfactory to
Purchaser, whereby (i) Purchaser assumes the Existing Debt, as contemplated in
Section 5.2 above, (ii) Purchaser is permitted to lease the Inns to its
designated lessee pursuant to a lease providing for operation of the Inns by
lessee and management of the Inns by Manager, and (iii) Lender confirms that (x)
the Loan Agreement is in full force and effect and has not been further amended,
(y) that there are no defaults or events that with notice or the passage of
time, or both, would constitute a default by Seller or Crestline under the Loan
Agreement, and (z) the Replacement Reserve Account, the Tax and Insurance
Reserve Account, the Debt Service Reserve Account and any Immediate Repair
Escrow Account (each such term as defined in the Loan Agreement) maintained by
the Lender are fully funded as required by the Loan Agreement, no Debt Service
Sweep Event has occurred and is continuing, and such other information as
Purchaser may reasonably request from Lender. Notwithstanding the foregoing
sentence, in the event that the Lender does not confirm the items listed in
clauses (x) and (y) above, Seller shall have the right, in lieu of such
confirmation by Lender, to provide Purchaser with an estoppel certificate
confirming such items.
7.5 Waiver of Right of First Refusal by Manager. Manager shall have waived
-------------------------------------------
its right of first refusal under Section 18.01 of the Management Agreement with
respect to the Inns.
7.6 Consent to Assignment of Management Agreement; Absence of Property
------------------------------------------------------------------
Improvement Plan Items. Manager shall have consented to the assignment of the
----------------------
Management Agreement to Purchaser or Manager shall have agreed to enter into a
new management agreement with Purchaser on substantially the same material terms
and conditions as are contained in the Management Agreement (mutatis mutandis).
Manager shall have delivered a letter certifying that there are no property
improvement plan items that must be undertaken in connection with the assignment
of the Management Agreement or in connection with entering into a new management
agreement with Purchaser on substantially the same material terms and conditions
as are contained in the Management Agreement (mutatis mutandis).
7.7 Consent of Meriden Landlord. The Meriden Landlord shall have consented
---------------------------
to the assignment of the Meriden Lease to Purchaser, and (if required) the
sublease of the Meriden Parcel by Purchaser to its designated Lessee, and Seller
shall have executed the Assignment of Meriden Lease.
7.8 Seller Deliveries. Seller shall have delivered all of the other
-----------------
documents required from it pursuant to Article IX hereof.
17
7.9 Failure of Condition. In the event of the failure of any condition
--------------------
precedent set forth in this Article 7, except a failure that results from the
actions or inactions of Purchaser in breach of this Agreement, or material
adverse change in the financial condition of Purchaser, Purchaser, at its sole
election, may (i) terminate this Agreement (and receive a return of the DEPOSITS
(less and except the Initial Deposit to the extent that the Initial Deposit has
become fully earned pursuant to Section 2.3 hereof)), (ii) waive the condition
and proceed to Closing or (iii) extend the Closing Date for such additional
period of time as may be reasonably required to allow Seller to remedy such
failure; provided, however, that in the event that any such condition is not
-------- -------
satisfied and the transactions contemplated hereby are not consummated solely as
a result of the actions or inactions of Purchaser in breach of this Agreement,
or material adverse change in the financial condition of Purchaser, then the
DEPOSITS shall be forfeited to Seller as full and complete liquidated damages,
as Seller's sole and exclusive remedy.
ARTICLE VIII
Conditions Precedent to Seller's Obligations at Closing
-------------------------------------------------------
It shall be an express precondition to Seller's obligation to sell the
Property that each and every one of the following conditions shall have been
satisfied as of the Closing Date (or waived in writing by Seller).
8.1 Representations and Warranties. Each of Purchaser's representations and
------------------------------
warranties shall be true and accurate in all material respects as if made on and
as of the Closing Date.
8.2 Existing Loan Assumption. Purchaser shall have entered into an
------------------------
agreement with Seller and the Lender, in form and substance reasonably
satisfactory to Seller, whereby Purchaser assumes all of Seller's obligations
and liabilities in connection with the Existing Debt, and the Lender releases
Seller from any liabilities with respect to the Existing Debt from and after the
Closing Date.
8.3 Lender Approval. Seller shall have received written approval from the
---------------
Lender, in form and substance reasonably satisfactory to Seller, for the
transfer of the Existing Debt, the Management Agreement and the Meriden Lease
from Seller to Purchaser. Purchaser shall have paid or provided for payment of
all costs associated with the transfer of such Existing Debt from Seller to
Purchaser that are required to be paid by Purchaser pursuant to Section 5.2
hereof.
8.4 Waiver of Right of First Refusal by Manager. Manager shall have waived
-------------------------------------------
its right of first refusal under Section 18.01 of the Management Agreement with
respect to the Inns.
8.5 Consent of Meriden Landlord. Meriden Landlord shall have
---------------------------
18
consented to the assignment of the Meriden Lease to Purchaser and agreed to
release Seller from any liability thereunder relating to the period from and
after the Closing Date, and Purchaser shall have executed the Assignment of
Meriden Lease.
8.6 Termination of Liability under Management Contract; Absence of Property
-----------------------------------------------------------------------
Improvements Plan Items. Manager shall have consented to the assignment of the
-----------------------
Management Agreement to Purchaser, or Manager shall have agreed to enter into a
new management agreement with Purchaser on substantially the same material terms
and conditions as are contained in the Management Agreement (mutatis mutandis),
and Manager shall have agreed to release Seller from any liability under the
Management Agreement or otherwise with respect to the Inns relating to the
period from and after the Closing Date. Manager shall have delivered a letter
certifying that there are no property improvement plan items that must be
completed in connection with the assignment of the Management Agreement or in
connection with entering into a new management agreement with Purchaser on
substantially the same material terms and conditions as are contained in the
Management Agreement (mutatis mutandis).
8.7 Purchaser Deliveries. Purchaser shall have delivered all of the other
--------------------
documents required from it pursuant to Article IX hereof.
8.8 Failure of Condition. In the event of the failure of any condition
--------------------
precedent set forth in this Article 8, except a failure that results from the
actions or inactions of Seller in breach of this Agreement, or a material
adverse change in the financial condition of Seller, Seller, at its sole
election, may (i) terminate this Agreement and the DEPOSITS (less and except the
Initial Deposit to the extent that the Initial Deposit has become fully earned
pursuant to Section 2.3 hereof) shall be returned to Purchaser, (ii) waive the
condition and proceed to Closing or (iii) extend the Closing Date for such
additional period of time as may be reasonably required to allow such failure to
be remedied; provided, however, that in the event that any such condition is not
-------- -------
satisfied and the transactions contemplated hereby are not consummated solely as
a result of the actions or inactions of Purchaser in breach of this Agreement,
or a material adverse change in the financial condition of Purchaser, then the
DEPOSITS (less and except the Initial Deposit to the extent that the Initial
Deposit has become fully earned pursuant to Section 2.3 hereof) shall be
forfeited to Seller as full and complete liquidated damages, as Seller's sole
and exclusive remedy.
ARTICLE IX
Closing Deliveries
------------------
9.1 Deed. Seller shall deliver special warranty deeds (or local
----
equivalents) substantially in the form set forth on Exhibit J attached hereto
---------
(individually, a "Deed" and collectively the "Deeds"), dated as of the Closing
Date, conveying to
19
Purchaser fee simple interest in each of the Inns as required hereunder (except
the Meriden Parcel), together with such additional or alternative documentation
as shall be necessary to register the transfer of the portion of the Tewksbury
Parcel that consists of registered land.
9.2 Bills of Sale; Certificates of Title. Seller and Purchaser (or its
------------------------------------
designated Lessee) shall each deliver two (2) duly executed counterparts (one
for each party) of the bills of sale and assignment and assumption of documents
substantially in the forms set forth on Exhibit K attached hereto (the "Xxxx of
---------
Sale" or "Bills of Sale"), dated as of the Closing Date, conveying to Purchaser
or Purchaser's Lessee, as the case may be, the Personal Property and assigning
all of the applicable Permits, Contracts, Equipment Leases and Space Leases, to
the extent the foregoing are assignable, and also conveying to Purchaser
Seller's rights in the cash on deposit in the Improvement Reserve.
9.3 FIRPTA Certificate. Seller shall deliver an affidavit, dated as of the
------------------
Closing Date, to establish that Seller is not a foreign person for the purposes
of the Foreign Investors in Real Property Tax Act.
9.4 Assignment and Assumption of Meriden Lease. Seller and Purchaser shall
------------------------------------------
each deliver two (2) duly executed counterparts (one for each party) of an
assignment and assumption of the Meriden Lease to Purchaser substantially in the
form set forth on Exhibit L attached hereto (the "Assignment of Meriden Lease").
---------
9.5 Assignment of Management Agreement. In the event that Manager consents
----------------------------------
to the assignment of the Management Agreement, Seller and Purchaser shall each
deliver two (2) duly executed counterparts (one for each party) of an assignment
of the Management Agreement to Purchaser substantially in the form set forth on
Exhibit M attached hereto (the "Assignment of Management Agreement").
---------
9.6 Meriden Estoppel Certificate. Seller shall deliver an estoppel
----------------------------
certificate (the "Meriden Estoppel") from Meriden Land Development Limited
Partnership (the "Meriden Landlord"), as landlord under that certain Land Lease
dated as of April 15, 1988, between the Meriden Landlord, and Marriott
Corporation, pertaining to the Meriden Land, as amended by that certain First
Amendment and Modification to Land Lease dated September 15, 1988 by and between
Marriott Corporation and the Meriden Landlord, as further amended by that
certain Second Amendment to Land Lease dated October 24, 1988 by and between
Marriott Corporation and the Meriden Landlord, as further amended by that
certain Third Amendment and Modification to Land Lease dated November 21, 1991
by and between Marriott Corporation and the Meriden Landlord, as assigned by
that certain Assignment and Assumption of Ground Lease and Deed to Improvements
dated as of December 30, 1991 by and between Marriott Corporation
20
and Marriott Residence Inn USA Limited Partnership, as further assigned by that
certain Assignment and Assumption of Land Lease and Deed to Improvements dated
as of December 29, 1999 by and between Marriott Residence Inn USA Limited
Partnership to Seller, and as further affected by that certain Ground Lessor
Estoppel and Agreement dated as of December 29, 1999 by and between the Meriden
Landlord and the Lender (the "Meriden Lease"), confirming that as of a date not
more than thirty (30) days prior to the Closing Date, (i) the Meriden Lease is
as described above, and has not been further amended, (ii) all rental that has
or will become due prior to October 16, 2013 has been paid in full, and all
other amounts required to be paid to the Meriden Landlord prior to the date of
certification have been paid in full, (iii) the Meriden Landlord is not aware of
any default under the Meriden Lease or any event that with the passage of time
or the giving of notice or both would constitute a default thereunder and (iv)
the Meriden Lease is in full force and effect, and addressing such other matters
as may reasonably be requested by Purchaser.
9.7 Possession; Keys. Seller shall deliver possession of the Property to
----------------
Purchaser, together with all keys that are in the possession of Seller,
including, without limitation, keys or codes for all security systems, rooms and
offices.
9.8 Purchase Price. Purchaser shall deliver the Purchase Price payable in
--------------
the manner provided for in this Agreement.
9.9 Other Documents. Seller and Purchaser shall deliver such other
---------------
documents and instruments as may be reasonably requested by Seller, Purchaser or
the Title Company to effectuate the transactions contemplated by this Agreement
and to induce the Title Company to insure title to the Inns as described herein,
including but not limited to affidavits in favor of the Title Company from
Seller (i) that it has not done or caused to be done any work on the Property
that has not been paid for and as to which mechanics' liens may be filed against
the Property following Closing, (ii) as to parties in possession of the Property
under any Space Leases, and (iii) as otherwise reasonably required by the Title
Company to insure the "gap" between Closing and the recordation of the Deeds.
ARTICLE X
Default
-------
10.1 Purchaser's Default. If Purchaser fails to consummate the purchase
-------------------
and sale contemplated herein after all conditions precedent to Purchaser's
obligation to do so have been satisfied or waived in writing by Purchaser,
Escrow Agent shall pay the Deposit to Seller in accordance with the Escrow
Instructions, as full and complete liquidated damages, and as the exclusive and
sole right and remedy of Seller, whereupon this Agreement shall terminate, and
neither party shall have any further obligations or liabilities to the other
party (except for such obligations and liabilities as expressly survive the
termination hereof).
21
10.2 Seller's Default. If Seller fails to consummate the transaction in
----------------
accordance with the terms of this Agreement and Purchaser is otherwise willing
and able to proceed as contemplated hereunder, Purchaser shall be entitled to
(i) have the Deposit returned to Purchaser by the Escrow Agent in accordance
with the Escrow Instructions, whereupon this Agreement shall terminate, and
neither party shall have any further obligations or liabilities to the other
party (except for such obligations and liabilities as expressly survive the
termination hereof), or (ii) pursue such remedies against Seller as shall be
permitted by applicable law.
ARTICLE XI
Survival; Indemnification Obligations
-------------------------------------
11.1 Generally. Except as otherwise expressly provided herein, and except
---------
with respect to covenants and agreements that this Agreement or the Closing
Documents provide are to be performed after Closing, the respective
representations, warranties, obligations, covenants and agreements of Seller and
Purchaser contained herein shall not survive the Closing, and no action may be
brought on any such representation, warranty, obligation, covenant or agreement.
11.2 Survival. The representations and warranties of Seller and Purchaser
--------
contained herein shall survive Closing for a period of twelve (12) months.
Notwithstanding any other provision of this Agreement to the contrary, if on the
Closing Date Purchaser has evidence (whether written or otherwise; with the
exception that any disclosures regarding the inaccuracy of any of such
representations or warranties that are made at Closing must be in writing) that
one or more of the representations and warranties made by Seller is inaccurate
as of the date made, and if Purchaser proceeds to Closing anyway, Purchaser
shall have no right or remedy after the Closing with respect to such inaccuracy.
11.3 Agreement to Indemnify. Notwithstanding any provisions of this
----------------------
Agreement to the contrary, (i) Seller shall hold harmless, indemnify and defend
Purchaser, its affiliates, successors and assigns, against any and all
obligations, claims, losses, damages, liabilities and expenses (including,
without limitation, reasonable attorneys' fees and other legal expenses and
other charges, but specifically excluding any claims, losses, damages,
liabilities and expenses related or connected to, in any way, the payment
obligations pursuant to Section 5.03 of the Management Agreement) connected with
the ownership or operation of the Inns and relating to the period during which
Seller (or its affiliates) owns the Inns, including, without limitation, actions
or claims relating to damage to property or injury to or death of any person
during such period of ownership of the Inns by Seller (or its affiliates), any
claims for any debts or obligations occurring on or about or in connection with
the Inns or any portion thereof or with respect to the Inns' operations at any
time during such period, or any claims for any damages relating
22
to defaults under any Contracts, Equipment Leases or Space Leases occurring
during such period (whether or not such Contracts, Equipment Leases or Space
Leases relating to the Inns are reflected on an Exhibit to this Agreement);, and
(ii) Purchaser shall hold harmless, indemnify and defend Seller, its affiliates,
successors and assigns, against any and all obligations, claims, losses,
damages, liabilities and expenses (including, without limitation, reasonable
attorneys' fees and other charges) connected with the ownership or operation of
the Inns and relating to the period during which Purchaser (or its affiliates)
owns the Inns from and after the Closing Date, including, without limitation,
actions or claims relating to damage to property or injury to or death of any
person during such period of ownership of the Inns by Purchaser (or its
affiliates), any claims for any debts or obligations occurring on or about the
Inns or any portion thereof or with respect to the Inns' operations at any time
during such period, or any claims for any damages relating to defaults under any
Contracts, Equipment Leases or Space Leases occurring during such period
(whether or not such Contracts, Equipment Leases or Space Leases relating to the
Inns are reflected on an Exhibit to this Agreement). The foregoing indemnities
shall survive the Closing.
11.4 Indemnification Regarding Assumed Obligations. Whenever it is provided
---------------------------------------------
in this Agreement that an obligation of one party will be assumed by the other
party on or after the Closing, the party so assuming such liability also shall
be deemed to have agreed to indemnify, defend and hold harmless the other party
and its affiliates, successors and assigns, from all claims, losses, damages,
liabilities, costs and expenses (including reasonable attorneys' fees and other
legal expenses and other charges) to the extent arising from any failure of the
assuming party to perform the obligation so assumed after the Closing and from
all third party claims brought against the other party to the extent relating to
the period from and after assumption of the liability on which the claim is
based.
11.5 Notice and Cooperation on Indemnification. 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 the notifying
party and generally shall cooperate with said other party in the defense of any
such claim. Upon receipt of such notice of possible liability, the party
obligated to provide indemnity shall have the right to provide a written notice
to the party entitled to indemnity that the indemnifying party elects to assume
the defense of such matter, including, without limitation, the employment of
counsel reasonably satisfactory to the indemnified party; whereupon the
indemnifying party shall have the right to prosecute such defense and shall be
responsible for the payment of the fees and disbursements of such counsel;
provided, however, if in the reasonable judgment of the indemnified
-------- -------
23
party, (i) such litigation, action, suit, demand, claim or the resolution
thereof, would have a material adverse effect on the indemnified party or (ii)
the indemnifying party shall have a conflict of interest in defending such
action on the indemnified party's behalf, then at the indemnified party's
election, the indemnified party may defend itself, and in either of such
instances it shall be at the indemnifying party's expense; provided, however,
-------- -------
that the indemnifying party shall be responsible for the fees of no more than
one counsel in each jurisdiction in each proceeding. No indemnifying party shall
be responsible for any obligation, loss, cost, expense or other liability to the
extent that (a) the party entitled to indemnification failed to provide prompt
notice thereof to the indemnifying party and (b) such obligation, loss, cost,
expense or other liability could have been avoided if prompt notice had been
given.
ARTICLE XII
Casualty or Condemnation
------------------------
12.1 Notice to Purchaser. Seller agrees to give purchaser prompt notice of
-------------------
any fire or other casualty estimated by Seller to cost more than TWENTY-FIVE
THOUSAND DOLLARS ($25,000.00) to repair and occurring at the Inns between the
Contract Date and the Closing Date.
12.2 Condemnation, Casualty or Litigation. If, prior to Closing, (i)
------------------------------------
condemnation proceedings are commenced against all or any material portion of at
least four (4) of the Inns, or (ii) if any one Inn is damaged by fire or other
casualty to the extent that the cost of repairing such damage shall be ONE
MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS ($1,250,000.00) or more, then either
party shall have the right to terminate this Agreement by giving written notice
to the other party within fifteen (15) days after becoming aware of the
conditions that gave rise to the termination of this Agreement. Upon such
termination, the Deposit shall be returned immediately to Purchaser, and neither
party shall have any further liability to the other hereunder. If any Inn is
damaged but this Agreement is not terminated, the Purchase Price shall not be
reduced (except by an amount equal to Seller's deductible under the fire or
other casualty insurance), but Purchaser shall be entitled to an assignment of
all of Seller's share of the condemnation award or the proceeds of any fire or
other casualty insurance that has not been applied to the restoration or repair
of such damage and all rent insurance proceeds (if any) payable with respect to
such Inn relating to the period after Closing and Seller shall have no
obligation to repair or restore the Property.
12.3 Risk of Loss. Subject to the provisions of this Article XII, the risk
------------
of loss or damage to the Property shall remain with Seller until the
unconditional delivery of the Deeds.
ARTICLE XIII
Apportionments
--------------
24
13.1 Apportionments. The following prorations or apportionments shall be
--------------
made between the parties at the Closing as of 11:59 p.m. (local time for the
Inn) on the day immediately prior to the Closing Date (the "Apportionment
Date").
(a) real estate taxes, personal property taxes, special assessments, sewer
rents, and vault charges, if any, on the basis of the best available estimates
for the fiscal period for which assessed; provided, however, that in the event
-------- -------
that the actual taxes for the year in which the Closing occurs are more or less
than such estimated amounts, Seller or Purchaser shall promptly pay the amount
necessary to adjust for the correct proration as soon as the actual tax amounts
become available;
(b) fuel oil in the tank at the Inns, if any, (based upon invoice cost,
first in, first out), water and sewer service charges and charges for gas,
electricity, telephone and all other public utilities. If there are meters
measuring the consumption of water, gas or electric current, Seller, not more
than one day prior to the Apportionment Date, if possible, shall cause such
meters to be read, and shall pay all utility bills for which Seller is liable
upon receipt of statements therefor. Purchaser shall be responsible for causing
such utilities and services to be changed to its name and shall be liable for
and shall pay all utility bills for services rendered after the Apportionment
Date. All utility adjustments will be made by the parties outside of Closing;
(c) amounts which have been paid or are payable under the Contracts, Space
Leases, Equipment Leases and Permits assigned to and assumed by Purchaser at
Closing;
(d) prepaid advertising expenses;
(e) commissions of credit and referral organizations; and
(f) all other Inn operating expenses, charges and fees customarily prorated
and adjusted in similar transactions.
In addition to the foregoing apportionments, (i) Purchaser shall receive a
credit on the settlement statement for the amount of $750,000.00 as
consideration for Purchaser's assumption of the payment obligations pursuant to
Section 5.03 of the Management Agreement and (ii) Seller shall receive a credit
on the settlement statement at Closing for the amount of xxxxx cash at the Inns
on the Closing Date, the amount of working capital on hand at the Inns (or
maintained by the Manager with respect to the Inns) and the amounts on deposit
in all bank accounts and escrow accounts, including, without limitation, any
escrow or reserve accounts being maintained in connection with the Existing Debt
and/or the Management Agreement, by or for the benefit of Seller with respect to
the Inns; except for the reserve account maintained pursuant to Section 7.02 of
----------
the Management
25
Agreement and currently held by Bank of America, N.A. (the "Improvement
Reserve"), which Improvement Reserve shall become the property of Purchaser at
Closing without additional payment by Purchaser. Notwithstanding the foregoing,
Purchaser shall not pay an additional amount for the Immediate Repair Reserve
(as defined in the Loan Agreement), and such reserve shall become the property
of Purchaser at Closing; provided, however, that to the extent that Purchaser
-------- -------
becomes entitled to a return of any of the funds on deposit in such reserve,
Purchaser shall instruct the Lender to deliver such funds to Seller, and in the
event that Purchaser receives such funds instead, Purchaser shall deliver the
same to Seller within ten (10) days after the receipt of the same.
13.2 Deposits. All deposits (including any interest thereon due the party
--------
making such deposit) from guests or others made as security or in connection
with future services to be rendered shall be credited to Purchaser at the
Closing. Purchaser shall assume responsibility for all such deposits credited
to Purchaser and shall hold Seller harmless therefrom.
13.3 Room Revenue; Other Revenues. (a) All revenues received or to be
----------------------------
received from transient guests on account of room rents for the period prior to
and including the Apportionment Date shall belong to Seller, and for the period
beginning on the day immediately following the Apportionment Date such revenues
shall belong to Purchaser; provided, however, that revenues received or "posted"
-------- -------
in the normal course after the xxxx Xxxxxx normally closes its front desk
activity for the "night" audit for the Apportionment Date (the "Front Desk
Closing Hour") shall belong to Purchaser. The accounts receivable of registered
guests at the Property who have not checked out and were occupying rooms as of
12:01 a.m. on the Apportionment Date are collectively called the "Current
Ledger", and Purchaser shall pay over to Seller, promptly upon receipt, Seller's
share of the proceeds of the Current Ledger attributable to payments of each
guest's account for the period ending on and including the Apportionment Date.
In the event that an amount less than the total amount due from a guest is
collected and the guest continued in occupancy after the Apportionment Date,
such amount shall be applied first to any indebtedness owing by such person to
Seller and thereafter to such person's indebtedness to Purchaser. All rents
under Space Leases, revenues under booking agreements or other revenue contracts
for rooms, facilities and services of the Inns, any advanced deposits for
reservations or under revenue contracts, and all other charges and revenues for
sales made or services rendered and the operation of all departments of the Inns
not otherwise covered herein shall be prorated between Seller and Purchaser,
with all revenues for days prior to the Closing Date being retained by Seller
and all revenues for the Closing Date and days following the Closing Date
accruing for the benefit of Purchaser.
13.4 Accounts Receivable; Accounts Payable. (a) Purchaser shall purchase
-------------------------------------
all accounts receivable (other than the Current Ledger) originating not
26
more than sixty (60) days prior to and including the Apportionment Date. The
purchase price for such accounts receivable shall not be included in, and shall
be in addition to, the Purchase Price. A list of all such accounts receivable
(other than the Current Ledger) shall be presented to and be initialed by
Purchaser and Seller at Closing. The purchase price for such accounts receivable
shall be an amount equal to 98.5% of the outstanding amount of such account
receivables as of the Closing Date.
(b) Any indebtedness, accounts payable, liabilities or obligations of any
kind or nature related to Seller or the Property for the periods prior to and
including the Apportionment Date shall be paid out of amounts due to Seller at
Closing against any invoices in hand, or retained and promptly paid by Seller,
and Purchaser shall not be or become liable therefor, except as expressly
assumed by Purchaser pursuant to this Agreement.
13.5 Food and Beverage Revenue; Vending Machine Revenue. All monies
--------------------------------------------------
received in connection with bar and restaurant services, if any, at the Inns
(other than amounts due from any guest) during the Apportionment Date shall
belong to Seller. Vending machine proceeds shall be counted as close to the
Front Desk Closing Hour as is possible and the net amount thereof shall be
credited to Seller at Closing.
13.6 Guests' Property. All baggage or other property of patrons of the Inns
----------------
checked or left in care of Seller shall be listed in an inventory to be prepared
in duplicate and signed by Seller's and Purchaser's representatives on the
Closing Date. Purchaser shall be responsible from and after the Closing Date
and will indemnify and hold Seller harmless from and against all claims for all
baggage and property listed in such inventory.
13.7 Closing Estimates; Post-Closing Reconciliation. Except as otherwise
----------------------------------------------
expressly provided herein, all apportionments and adjustments shall be made in
accordance with the Uniform System of Accounts, and to the extent not
inconsistent therewith, generally accepted accounting principles. The
computation of the apportionments shall be jointly prepared by Seller and
Purchaser, and, upon the request of either Purchaser or Seller, shall be
reviewed by a mutually acceptable reputable accounting firm (the "Accountants")
and reviewed by representatives of both Purchaser and Seller. To the extent the
exact amount of any adjustment item provided for in this Article XIII cannot be
precisely determined on the Closing Date, the Accountants shall (i) estimate the
amount thereof, for purposes of computing the net amount due Seller or Purchaser
pursuant to this Article XIII, (ii) determine the exact amount thereof not later
than sixty (60) days after the Closing Date (except with respect to real estate
taxes and personal property taxes for which statements have not yet been
received at Closing, which shall be reconciled as soon as practicable
thereafter), and (iii) pay any amount owed to the other party within thirty (30)
days following receipt of notice of any such
27
reconciliation. Any determinations made by the Accountants shall be binding on
both Seller and Purchaser. The fees and expenses of the Accountants shall be
borne one half each by Seller and Purchaser. Notwithstanding anything to the
contrary contained herein, in the event that adjustments to the Incentive
Management Fee (as defined in the Management Agreement) are made pursuant to
Section 5.05(b) of the Management Agreement for the Fiscal Year (as defined in
the Management Agreement) in which the Closing occurs, and if such adjustments
indicate that the Incentive Management Fee relating to the period in such Fiscal
Year prior to the Closing Date were overpaid or underpaid by Seller, then, in
that event, (A) Purchaser agrees to pay Seller the amount of any such
overpayment within three (3) business days after the earlier of (i) Purchaser's
receipt of the adjustment pursuant to Section 5.05(b) of the Management
Agreement (or credit therefor) from the Manager and (ii) receipt of Seller's
notice of such overpayment, and (B) Seller agrees to pay Purchaser the amount of
any such underpayment within three (3) business days after Seller's receipt of
Purchaser's notice of such underpayment. Any dispute regarding such overpayment
or underpayment shall be resolved by the Accountants pursuant to this Section
13.7. Section 13.7 shall expressly survive the Closing.
13.8 Employee Compensation and Benefits. Seller and the Manager shall be
----------------------------------
responsible for any liability for payment of all wages, accrued vacation pay,
sick leave, bonuses, pension benefits, COBRA rights, and other benefits accrued
or earned by and due to employees at the Inns through 12:01 a.m. on the Closing
Date, together with F.I.C.A., unemployment and other taxes and benefits due with
respect to such employees for such period. Purchaser, or Purchaser's designated
lessee or the Manager shall be responsible for any liability for payment of all
wages, accrued vacation pay, sick leave, bonuses, pension benefits, COBRA
rights, and other benefits accrued or earned by and due to employees at the
Property after 12:01 a.m. on the Closing Date, together with F.I.C.A.,
unemployment and other taxes and benefits due with respect to such employees for
such period.
ARTICLE XIV
Miscellaneous
-------------
14.1 Assignment. (a) Neither party shall assign or transfer or permit the
----------
assignment or transfer of its rights or obligations under this Agreement without
the prior written consent of the other, and any such assignment or transfer
without such prior consent being hereby declared to be null and void; provided,
--------
however, that, as long as Purchaser remains liable for the performance of the
-------
obligations of Purchaser hereunder, Purchaser may assign this Agreement, in
whole or in part as to any one or more Inns, to any affiliate(s) of Purchaser,
including but not limited to any "special purpose entity" organized for purposes
of the assumption of the Existing Debt.
28
(b) In the event either party consents to an assignment of this Agreement
by the other for which consent is required, no further assignment shall be made
without another written consent from the consenting party, unless the assignment
may otherwise be made without consent under this Agreement. An assignment by
either Seller or Purchaser of its interest in this Agreement shall not relieve
Seller or Purchaser, as the case may be, from its obligations, but this
Agreement shall then inure to the benefit of, and be binding on, the assignee's
successors, heirs, legal representatives and assigns.
14.2 Consents. If, under this Agreement, the consent of a party is
--------
required, the consent shall be in writing, shall be executed by a duly
authorized officer or agent.
14.3 Applicable Law. This Agreement shall be governed by the laws of the
--------------
State of Maryland, without resort to the choice of law rules thereof.
14.4 Headings; Exhibits. The headings of articles and sections of this
------------------
Agreement are inserted only for convenience; they are not to be construed as a
limitation of the scope of the particular provision to which they refer. All
exhibits attached or to be attached to this Agreement are incorporated herein by
this reference.
14.5 Notices. Notices and other communications required by this Agreement
-------
shall be in writing and delivered by hand against receipt or sent by recognized
overnight delivery service or by certified or registered mail, postage prepaid,
with return receipt requested, or by confirmed facsimile transmission. All
notices shall be addressed as follows:
If to Purchaser:
Apple Hospitality Two Inc.
0 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Facsimile: 000-000-0000
with a copy to:
Jenkens & Xxxxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: 000-000-0000
If to Seller:
29
Residence Inn III LLC
c/o Crestline Capital Corporation
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile: 000-000-0000
With a copy to:
Residence Inn III LLC
c/o Crestline Capital Corporation
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Senior Vice President and Treasurer
Facsimile: 000-000-0000
or to such other address as may be designated by a proper notice. Notices shall
be deemed to be effective upon receipt or refusal of the addressee to accept
delivery.
14.6 Waiver. The failure of either party to insist on strict performance
------
of any of the provisions of this Agreement or to exercise any right granted to
it shall not be construed as a relinquishment or future waiver; rather, the
provision or right shall continue in full force. No waiver of any provision or
right shall be valid unless it is in writing and signed by the party giving it.
14.7 Conversion to Purchase of Equity Interests. In lieu of the purchase
------------------------------------------
and sale of the Property contemplated hereby, Purchaser may elect on or before
June 15, 2001, or such other date upon which Seller and Purchaser shall mutually
agree, to purchase one hundred percent (100%) of the equity and non-equity
member interests in Seller or one hundred percent (100%) of the general and
limited partnership interests in Marriott Residence Inn USA Limited Partnership
(the "Partnership"), the entity that owns all of the equity member interests in
Seller (such interests in Seller or the Partnership, as appropriate, being
referred to collectively as the "Equity Interest"), by giving written notice of
such election to Seller on or before such date. Within ten (10) days after
Seller's receipt of such notice, Seller and Purchaser shall amend this Agreement
(the "Amended Agreement") to provide for the sale of the Equity Interest free
and clear of any and all liens or rights of third parties, and Seller shall take
such actions as shall be necessary to cause the owners of the Equity Interest to
agree to such sale. The Amended Agreement shall contain representations and
warranties regarding the Property and Seller substantially similar to those
contained herein and shall also include the representations and warranties set
forth on Exhibit N attached hereto. It shall be a condition to such sale of the
---------
Equity Interest that Hospitality Properties Trust shall have waived any right of
first offer that it might have in connection with
30
a transfer or sale of any Equity Interest pursuant to the terms of that certain
side letter by and between Hospitality Properties Trust and Crestline Capital
Corporation dated as of August 19, 1999.
14.8 Partial Invalidity. If any part of this Agreement is declared invalid
------------------
by a court of competent jurisdiction, this Agreement shall be construed as if
such portion had never existed, unless this construction would operate as an
undue hardship on Seller or Purchaser or would constitute a substantial
deviation from the general intent of the parties as reflected in this Agreement.
14.9 Entire Agreement. This Agreement and that certain confidentiality
----------------
agreement dated as of March 27, 2001 by and between an affiliate of Purchaser
and Seller (the "Confidentiality Agreement"), together with the other writings
signed by the parties and incorporated herein or therein by reference and
together with any instruments to be executed and delivered under this Agreement,
constitute the entire agreement between the parties with respect to the purchase
and sale of the Property and supersedes all prior oral and written
understandings. Any amendments to this Agreement or the Confidentiality
Agreement shall not be effective unless in writing and signed by the parties
hereto.
14.10 Time is of the Essence. Time is of the essence with respect to
----------------------
performance of all obligations under this Agreement.
14.11 WAIVER OF JURY TRIAL. SELLER AND PURCHASER HEREBY WAIVE ANY RIGHT TO
--------------------
JURY TRIAL IN THE EVENT ANY PARTY FILES AN ACTION RELATING TO THIS AGREEMENT OR
TO THE TRANSACTIONS OR OBLIGATIONS CONTEMPLATED HEREUNDER.
14.12 Counterparts. This Agreement may be executed in separate
------------
counterparts, the signatures on which may be by facsimile, none of which need
contain the signatures of all parties, each of which shall be deemed to be an
original, and all of which taken together constitute one and the same
instrument. It shall not be necessary in making proof of this Agreement to
produce or account for more than the number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
14.13 Brokerage. Purchaser and Seller each represents and warrants to the
---------
other that no broker or agent is entitled to the payment of a commission for
services rendered in connection with the transactions contemplated herein;
except that Seller has engaged as its broker the firm of CB Xxxxxxx Xxxxx and
has, pursuant to a separate agreement, agreed to pay the commission due to CB
Xxxxxxx Xxxxx. Seller agrees to indemnify and hold Purchaser harmless from any
claims asserted by CB Xxxxxxx Xxxxx in connection with the transactions
contemplated hereby. Each of the parties hereto agrees to indemnify and hold
the other harmless from claims made by any other broker, attorney or finder
claiming through such party for a
31
commission, fee or compensation in connection with this Agreement or the sale of
the Property hereunder. The provisions of this Section 14.12 shall survive
Closing.
14.14 Revenue Contracts and Reservations. Purchaser hereby agrees that from
----------------------------------
and after the Closing Date, Purchaser shall honor, at the quoted rates, all
revenue contracts and reservations relating to the Inns which were entered into
or accepted by Seller or Manager prior to the Closing Date in the ordinary
course of business at customary rates and are assigned to Purchaser at Closing.
14.15 Attorneys' Fees. If either party hereto fails to perform any of its
---------------
material obligations under this Agreement or if any dispute arises between the
parties hereto concerning the meaning or interpretation of any provision of this
Agreement, then the defaulting party or the party not prevailing in such
dispute, as the case may be, shall pay any and all costs and expenses incurred
by the other party on account of such default and/or in enforcing or
establishing its rights hereunder, including, without limitation, court costs
and reasonable attorneys' fees and disbursements. Any such attorneys' fees and
other expenses incurred by either party in enforcing a judgment in its favor
under this Agreement shall be recoverable separately from and in addition to any
other amount included in such judgment, and such attorneys' fees obligation is
intended to be severable from the other provisions of this Agreement and to
survive and not be merged into any such judgment.
14.16 Limited Liability. The obligations of Seller are intended to be
-----------------
binding only on the property of Seller and shall not be personally binding upon,
nor shall any resort be had to, the private properties of any of its trustees,
officers, members, managers, directors or shareholders thereof, or any employees
or agents of Seller.
14.17 Public Announcements. Except as otherwise required by applicable law
--------------------
(and then only with at least five (5) days advance notice to the other party, to
the extent applicable law allows), or except as otherwise agreed to by Seller
and Purchaser, neither Seller nor Purchaser shall make any public statement or
issue any press release prior to the Closing with respect to this Agreement or
the transactions contemplated hereby without the prior written consent of the
other party. Except as otherwise agreed to by Seller and Purchaser, neither
Seller nor Purchaser shall make any public statement or issue any press release
on or after the Closing that discloses the Purchase Price, except as required by
law.
14.18 Time for Performance. If the date for the performance of any
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obligation, or the giving of any notice, by Seller or Purchaser hereunder falls
upon a Saturday, Sunday or legal holiday recognized by the United States
government, then the time for such performance or notice shall be extended until
the next business day.
32
14.19 Further Assurances. Each party agrees to execute and deliver, after
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the Closing, such forms of corrective Deeds, Bills of Sale or other
documentation as the other party may reasonably request to carry out the intent
of this Agreement.
33
IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be
executed as of the Contract Date indicated above.
SELLER
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RESIDENCE INN III LLC
ATTEST/WITNESS:
____________________ By:________________________________________
Xxxxx X. Xxxxxx, Vice President
PURCHASER
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ATTEST/WITNESS APPLE HOSPITALITY TWO INC.
____________________ By:________________________________________
Name:______________________________________
Its:_______________________________________
EXHIBITS
A Legal Description of Land
B Purchase Price Allocation
C Form of Escrow Instructions
D List of Material Contracts
E List of Material Equipment Leases
F List of Material Space Leases
G List of Permits
H List of Environmental Reports
I List of Permitted Exceptions
J Form of Deed
K Form of Xxxx of Sale
L Form of Assignment of Meriden Lease
M Form of Assignment of Management Agreement
N Additional Equity Representations, Warranties and Covenants
