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EXHIBIT 2
CONTRIBUTION AGREEMENT
by and among
TRUST LEASING, INC.,
TRUST MANAGEMENT INC.,
XXXXXXX X. XxXXXXX, XX.,
CROSSROADS/MEMPHIS COMPANY, L.L.C.
and
CROSSROADS/MEMPHIS PARTNERSHIP, L.P.
Dated As Of
October 4, 1996
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TABLE OF CONTENTS
I. TRANSACTION............................................................ 2
1.1. Defined Terms................................................. 2
1.2. Admission to Partnership...................................... 2
1.3. Contributions to the Capital of the Partnership............... 3
1.4. Liabilities Assumed and Liabilities Excluded.................. 3
1.4.1. Liabilities Assumed.......................... 3
1.4.2. Excluded Liabilities......................... 4
1.5. Transfer Taxes and Fees....................................... 6
1.6. Expenses of Transaction....................................... 7
1.7. Closing....................................................... 8
1.8. Closing Prorations............................................ 8
II. REPRESENTATIONS AND WARRANTIES......................................... 13
2.1. Representations and Warranties of Companies and
XxXxxxx....................................................... 13
2.1.1. Organizational Matters....................... 13
2.1.2. Authorization and Effect of Agreement........ 14
2.1.3. No Restrictions Against Transfer of
Companies' Assets............................ 15
2.1.4. Compliance With Laws......................... 16
2.1.5. Litigation; Decrees.......................... 16
2.1.6. Contract Rights.............................. 16
2.1.7. No Brokerage or Finder's Fees................ 17
2.1.8. Environmental Matters........................ 17
2.1.9. Taxes........................................ 22
2.1.10. Real Property................................ 23
2.1.11. Intellectual Property........................ 25
2.1.12. Financial Statements......................... 26
2.1.13. Conduct of the Hotels........................ 26
2.1.14. Insurance.................................... 27
2.1.15. Employee Benefit Plans, Programs or
Arrangements................................. 27
2.1.16. Labor Relations.............................. 30
2.1.17. Accounts Receivable.......................... 31
2.2. Representations and Warranties of Crossroads.................. 31
2.2.1. Organizational Matters....................... 31
2.2.2. Authorization and Effect of Agreement........ 32
2.2.3. No Restrictions.............................. 32
III. COVENANTS PENDING CLOSING.............................................. 33
3.1. Investigation by Crossroads................................... 33
3.2. No Announcement/Confidentiality............................... 34
3.3. Regulatory Filings............................................ 35
3.4. Operation of the Hotels....................................... 35
3.5. Satisfaction of Conditions.................................... 37
3.6. No Solicitation............................................... 37
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IV. THE CLOSING............................................................ 38
4.1. Conditions Precedent to Obligations of Crossroads
and Companies................................................. 38
4.2. Additional Conditions Precedent to Obligations of
Crossroads and the Partnership................................ 39
4.2.1. No Material Misrepresentation or Breach...... 39
4.2.2. Transfer Documents........................... 40
4.2.3. Due Diligence................................ 41
4.2.4. Amendments to Leases......................... 42
4.2.5. Additional Matters........................... 42
4.3. Additional Conditions Precedent to Obligations of
Companies and XxXxxxx......................................... 43
4.3.1. No Material Misrepresentation or Breach...... 44
4.3.2. Closing Documents............................ 44
4.3.3. Crossroads Contribution...................... 45
4.4. Termination................................................... 45
V. SURVIVAL AND INDEMNIFICATION........................................... 46
5.1. Survival; Definitions......................................... 46
5.2. Indemnification............................................... 47
5.3. Defense of Claims............................................. 49
VI. MISCELLANEOUS PROVISIONS............................................... 52
6.1. Notices....................................................... 52
6.2. Successors and Assigns........................................ 53
6.3. Waiver........................................................ 53
6.4. Entire Agreement.............................................. 54
6.5. Amendments, Supplement........................................ 55
6.6. Rights of the Parties......................................... 55
6.7. Further Assurances............................................ 55
6.8. Transfers..................................................... 55
6.9. Applicable Law................................................ 56
6.10. Execution in Counterparts............................ 57
6.11. Titles and Headings.................................. 57
6.12. Certain Interpretive Matters and Definitions......... 57
6.13. Survival............................................. 58
6.14. Joint and Several.................................... 58
6.15. Invalid Provisions................................... 58
6.16. Time of the Essence.................................. 59
6.17. Risk of Loss/Insurance/Condemnation.................. 59
VII. DEFINITIONS............................................................ 61
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CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is made and entered into
this 4th day of October, 1996 by and among CROSSROADS/MEMPHIS COMPANY, L.L.C., a
Delaware limited liability company ("Crossroads") , CROSSROADS MEMPHIS
PARTNERSHIP, L.P. a Delaware limited partnership (the "Partnership"), TRUST
LEASING, INC., a Tennessee corporation and TRUST MANAGEMENT INC., a Tennessee
corporation (collectively, the "Companies") and XXXXXXX X. XXXXXXX, XX., an
individual resident of the State of Tennessee ("XxXxxxx").
WITNESSETH:
WHEREAS, the Companies and Crossroads engage in the business of leasing
and managing various hotel properties; and
WHEREAS, XxXxxxx owns a majority of the issued and outstanding shares
of capital stock of the Companies; and
WHEREAS, the Companies and Crossroads desire to conduct certain of
their hotel leasing and management business through the Partnership, as more
fully described herein; and
WHEREAS, the Companies and Crossroads desire to contribute certain
assets to the Partnership upon the terms and subject to the conditions set forth
herein,
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NOW, THEREFORE, the parties hereto, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged and
intending to be legally bound, hereby agree as follows:
I. TRANSACTION
1.1. Defined Terms. Certain capitalized terms used herein shall have
the meanings given to such terms in Article VII hereof.
1.2. Admission to Partnership. On the terms and subject to the
conditions hereof, at the Closing (as hereinafter defined) the Companies and
Crossroads will execute (or cause to be executed), an Amended and Restated
Agreement of Limited Partnership, substantially in the form attached hereto as
Exhibit A (the "Partnership Agreement"), pursuant to which the Companies will be
admitted as limited partners of the Partnership. In addition, at the Closing the
Partnership and the Companies will execute a Redemption and Stock Exchange
Agreement, substantially in the form attached to the Partnership Agreement as
Exhibit C thereto (the "Exchange Agreement").
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1.3. Contributions to the Capital of the Partnership.
(a) On the terms and subject to the conditions hereof, at the
Closing (as hereinafter defined), Crossroads will (or will cause Crossroads
Hospitality Company, L.L.C. to) transfer, assign, deliver and contribute to the
Partnership, free and clear of any and all Liens, 1,957,895 shares of Common
Stock of Interstate Hotels Company (the "Crossroads Contribution").
(b) On the terms and subject to the conditions hereof, at the
Closing, the Companies will transfer, assign, deliver and contribute to the
Partnership free and clear of any and all Liens, the management agreements,
hotel leases ("Hotel Leases"), service contracts, Franchise Agreements and other
agreements (collectively, "Contracts"), the inventory, utility bonds, cash (to
the extent contemplated in Section 1.8 hereof), accounts receivable and the
other assets listed on Schedule 1.3(b) attached hereto (such other assets
together with the Contracts being collectively referred to as, the "Companies'
Assets") related to those certain hotels listed on Schedule 1.3(b) ("Hotels").
1.4. Liabilities Assumed and Liabilities Excluded
1.4.1. Liabilities Assumed. On the terms and subject to the
conditions hereof, at the Closing the Companies
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will transfer to the Partnership and the Partnership will assume and agree to
satisfy or perform when due the Assumed Liabilities.
1.4.2. Excluded Liabilities. Notwithstanding anything
contained in this Agreement to the contrary, the Partnership will assume and
agree to satisfy or perform only the Assumed Liabilities, and shall not assume
or be obligated to satisfy or perform any other liability, obligation or
commitment of the Companies of whatever nature, whether absolute or contingent,
direct or indirect, or currently existing or arising hereafter. All such other
liabilities, obligations and commitments shall be retained by and remain
liabilities, obligations and commitments of the Companies (collectively,
"Excluded Liabilities"). Without limitation of the foregoing, Excluded
Liabilities shall include, without limitation, the following:
(a) Contingent and Other Claims and Liabilities. Any contingent or
unknown claim against or liability or obligation of Companies.
(b) Indebtedness. Any liability or obligation of Companies in favor of
any person, partnership, corporation or other business entity other than the
Assumed Liabilities.
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(c) Taxes. Any present or future liability or obligation of Companies
for taxes of any kind or nature whatsoever, whether federal, state or local,
including without limitation, taxes on capital gains or the income of the
Companies, any franchise or doing business type taxes, or any employment or
payroll withholding taxes, together with any interest, penalties and/or fines
associated therewith.
(d) Litigation. Any liability or obligation of Companies in connection
with any litigation (whether legal, administrative or otherwise) or alternative
dispute resolution mechanism pending or threatened including any liability,
obligation to arbitrate, claims, grievances or causes of action under any
collective bargaining agreement of Companies.
(e) Severance Obligations. Any liability or obligation of Companies to
its employees, whether arising by contract, by any plan or program or pursuant
to any Law, including, without limitation, the Worker Adjustment and Retraining
Notification Act ("WARN"), for severance or similar pay.
(f) Employee Benefits. Any liabilities or obligations relating to
employee benefits or compensation arrangements including, without limitation,
any liabilities or obligations for any retiree medical or other welfare
benefits, or liabilities or obligations under any of Companies' employee benefit
plans,
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programs or arrangements, including without limitation, those under health plan
continuation coverage arising under a federal law commonly known as "COBRA" or
any similar state law or arising under WARN.
(g) Contracts. Any liabilities, obligations or commitments of Companies
arising under any contracts (including, without limitation, any liability for
past practices or liabilities under any union agreement), agreements or
commitments, other than the Assumed Liabilities.
(h) Environmental. Any and all liabilities, damages, losses or expenses
(including, without limitation, reasonable counsel fees and expenses), resulting
from, arising out of or in any way connected with any Environmental Liability.
1.5. Transfer Taxes and Fees. All sales and use, stamp, transfer,
documentary or other ad valorem taxes imposed by any governmental taxing
authority or any other taxing authority (excluding, however, taxes on capital
gains or income) as a result of the transfer, assignment, delivery or
contribution of the Crossroads Contribution and the Companies' Assets hereunder
("Transfer Taxes") shall be allocated and shared fifty percent (50%) by
Crossroads and fifty percent (50%) by the Companies.
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1.6. Expenses of Transaction. Except as otherwise provided herein, each
party hereto shall bear its own costs and expenses incurred in connection with
entering into this Agreement and consummating the transactions contemplated
herein including without limitation, all fees of counsel, accountants and
consultants; provided, however, that (a) all costs charged by the holder of any
Lien on the Crossroads Contribution or the Companies' Assets shall be paid by
Crossroads or the Companies, respectively, as its sole cost and obligation, (b)
the Companies shall be solely responsible for all fees and costs owing to Xxxxx
Xxxxxx, Inc. in connection with the transactions contemplated hereby, (c)
Crossroads and the Companies will each pay fifty percent (50%) of any
out-of-pocket expenses incurred to obtain a transfer or assignment of any
franchises, licenses or permits necessitated by the transactions contemplated by
this Agreement, (d) Companies shall be solely responsible for any and all fees
to be paid under the HSR Act and (e) notwithstanding anything contained herein
to the contrary, neither Crossroads nor the Partnership shall have any
responsibility for any and all costs or expenses associated with any property
improvement program imposed and/or required as a result of the transactions
contemplated hereby and by the Master Agreement, which costs and expenses shall
be the sole responsibility of Equity Inns Partnership, L.P. or Equity Inns, Inc.
("XXXX").
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1.7. Closing. Subject to the fulfillment or waiver of the conditions
precedent specified in Sections 4.1, 4.2 and 4.3, the consummation of the
transactions contemplated hereby (the "Closing") will take place on November 1,
1996 or such other date as agreed to by the parties (the "Closing Date"). The
Closing will take place at 10:00 a.m., E.S.T. on the Closing Date at the offices
of Xxxxx, Day, Xxxxxx & Xxxxx at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx.
1.8. Closing Prorations. (a) The following matters and items pertaining
to the Hotels shall be apportioned between the Companies and the Partnership or,
where applicable, credited in total to or the sole responsibility of a
particular party, as of the Cutoff Time. To the extent known at Closing, net
credits in favor of Partnership shall be contributed to the Partnership by the
Companies in cash at Closing and net credits in favor of Companies shall be paid
in cash at the Closing. Unless otherwise indicated below, Partnership shall
receive a credit for any of the following items to the extent the same are
accrued but unpaid as of the Cutoff Time (whether or not due, owing or
delinquent as of the Cutoff Time), and Companies shall receive a credit to the
extent any of the following items shall have been paid prior to the Closing Date
to the extent the payment thereof relates to any period of time after the Cutoff
Time:
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(i) Guest Ledger Receivables; Food and Beverage
Receivables. Guest Ledger Receivables shall be prorated between Partnership and
Companies. Companies shall receive a credit for all Guest Ledger Receivables for
all room nights up to but not including the room night during which the Cutoff
Time occurs, and Partnership shall be entitled to the amounts of Guest Ledger
Receivables for the room nights after the Cutoff Time. Companies and Partnership
shall each receive a credit equal to one-half of the amount of Guest Ledger
Receivables for the full room night during which the Cutoff Time occurs. All
restaurant and bar facilities will be deemed closed as of the Cutoff Time and
Companies shall receive the income from the same until the Cutoff Time.
(ii) Contracts. Any amounts prepaid or payable under any
Contracts, including, without limitation, base rent under each Hotel Lease. All
amounts known to be due under Contracts with reference to periods prior to the
Closing Date shall be paid by Companies. Percentage rents shall be adjusted
based on the last full reporting period under the applicable Hotel Lease. Any
amounts not known at the Closing will be part of the post-closing adjustments
contemplated in Section 1.8(c).
(iii) Bookings. Partnership shall receive a credit for
advance payments, if any, under Bookings to the extent the Bookings relate to a
period after the Cutoff Time.
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(iv) Prepaid Expenses. Companies shall received a credit
for any and all expenses prepaid as of the Closing which will be assigned or
contributed to the Partnership and ensure to the benefit of the Partnership
after the Closing.
(v) Xxxxx Cash Funds and House Banks. Partnership shall
receive and Companies shall contribute to Partnership as part of the Companies'
Assets all xxxxx cash funds and cash in house banks at 100% of face value at the
Cutoff Time.
(vi) Security Deposits. Partnership shall be entitled to a
credit for all security and other deposits held by Companies as of the Cutoff
Time with respect to Contracts.
(b) Receivables. The receivables (including, without limitation,
commission vending machines) of the Companies shall be included in the
Companies' Assets and the Partnership shall collect them for its own account. In
the event that the amounts actually collected the Partnership on account of such
receivables is less than the amount paid by the Partnership on account of the
Accounts Payable, Companies shall make a cash contribution to the Partnership in
the amount of such shortfall in accordance with Section 1.8(c) hereof. In the
event the amounts actually collected by the Partnership on account of such
receivables exceeds the amounts paid by the Partnership on account of the
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Accounts Payable, the Partnership shall pay such excess to the Companies in
accordance with Section 1.8(c).
(c) Closing Statement.
(i) Partnership shall cause its accounting staff
("Partnership's Accountants") to make such inventories, examinations and audits
of the Hotels, and of the books and records of the Hotels, as Partnership's
Accountants may deem necessary to make the adjustments and prorations required
under this Section 1.8, or under any other provisions of this Agreement.
Companies or their designated representatives may be present at such
inventories, examinations and audits of the Hotels. Based upon such audits and
inventories, Partnership's Accountants will prepare and deliver to the parties
no later than five (5) days prior to the Closing Date an estimated closing
statement (the "Closing Statement"). The Closing Statement shall contain
Partnership's best estimate of the amounts of the items requiring the prorations
and adjustments in this Agreement. The Closing Statement shall be subject to
Companies' review and approval, not to be unreasonably withheld or denied. The
parties shall attempt in good faith to reconcile any differences before Closing.
The amounts set forth on the Closing Statement, as reviewed, approved and/or
adjusted, shall be the basis upon which the prorations and adjustments provided
for herein shall be made at the Closing.
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(ii) Within one hundred eighty (180) days following the
Closing Date, Partnership's Accountants shall deliver a final report to
Companies setting forth their final determination of all items to be included on
the Closing Statement. In the event that, at any time within said 180-day
period, either party discovers any items which should have been included in the
Closing Statement but were omitted therefrom or which were included on the
Closing Statement but which need further adjustment, such items shall be
adjusted in the same manner as if their existence had been known at the time of
the preparation of the Closing Statement. The foregoing limitation shall not
apply to any item which, by its nature, cannot be finally determined within the
period specified. However, no further adjustments shall be made beyond twelve
(12) months after the Closing Date.
(iii) The Closing Statement shall be binding and conclusive
on all parties hereto to the extent of the items covered by the Closing
Statement, unless within thirty (30) days after receipt by Companies of the
final Closing Statement Companies notifies Partnership that it disputes the
Closing Statement, and specifies in reasonable detail the items and reasons that
it so disputes. The parties shall attempt to resolve such dispute. If such
dispute is not resolved within forty-five (45) days after delivery of the
original notice by Buyer, then the parties shall submit such dispute to Coopers
& Xxxxxxx ("Outside Accountants") and the determination of the
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Outside Accountants, which shall be made within a period of fifteen (15 days
after such submittal by the parties, shall be conclusive. The fees and expenses
of the Outside Accountants shall be paid equally by Partnership and Companies.
II. REPRESENTATIONS AND WARRANTIES
2.1. Representations and Warranties of Companies and XxXxxxx. The
Companies and XxXxxxx hereby, jointly and severally, represent and warrant to
Crossroads as follows:
2.1.1. Organizational Matters. (a) Each of Companies is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Tennessee and has the requisite corporate power and authority to
own, lease or otherwise hold the assets owned, leased or otherwise held by it
and to carry on their respective business as presently conducted by it. Each of
the Companies is duly qualified to do business as a foreign corporation under
the laws of the jurisdictions listed on Schedule 2.1.1 (a), which are the only
jurisdictions where such qualification is necessary or required to operate its
assets and/or conduct its business.
(b) Companies own the Companies' Assets free and clear of any Liens.
Companies will transfer to the Partnership good and marketable title to the
Companies' Assets upon the delivery of
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the title documents contemplated in this Agreement. The Companies' Assets are
the only assets of the Companies.
(c) The persons listed on Schedule 2.1.1 (c) are the only shareholders
of the Companies and own the number of shares in the Companies listed opposite
their names on Schedule 2.1.1 (c). XxXxxxx has the requisite power and capacity
to execute and deliver this Agreement and to perform the transactions
contemplated hereby. The execution and delivery of this Agreement by XxXxxxx and
the performance by XxXxxxx of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of XxXxxxx. This Agreement
has been duly executed and delivered by XxXxxxx and constitutes a valid and
binding obligation of XxXxxxx enforceable in accordance with its terms.
2.1.2. Authorization and Effect of Agreement. Companies have
the requisite corporate power and authority to execute and deliver this
Agreement and to perform the transactions contemplated hereby to be performed by
Companies. The execution and delivery by Companies of this Agreement and the
performance by Companies of the transactions contemplated hereby to be performed
by Companies have been duly authorized by all necessary corporate action on the
part of Companies. This Agreement has been duly executed and delivered by
Companies and, assuming the due execution and delivery of this Agreement by
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Crossroads and the Partnership, constitutes a valid and binding obligation of
Companies enforceable in accordance with its terms.
2.1.3. No Restrictions Against Transfer of Companies' Assets.
The execution and delivery of this Agreement by Companies and XxXxxxx, and the
performance by Companies and/or XxXxxxx of the transactions contemplated hereby
to be performed by them or him will not violate any law, rule, regulation,
judgment, order or decree applicable to them or him or conflict with, or result
in any violation of, or constitute a default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any Obligation or to the loss of a material benefit under, any
provision of the organizational documents of Companies or any agreement,
contract, lease, or other instrument or obligation included in any of the
Companies' Assets or Permit listed or required to be listed on any Schedule,
other than any such conflicts, violations or defaults as are listed or described
on Schedule 2.1.3. consent, approval, order or authorization of, notice to, or
registration, declaration or filing with, any Governmental Authority or other
entity, domestic or foreign, or any other third party is required to be obtained
or made by or with respect to Companies or XxXxxxx in connection with the
execution and delivery of this Agreement by Companies or XxXxxxx or the
performance by Companies or XxXxxxx of the transactions contemplated hereby to
be performed by him or them, except for
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such of the foregoing as are listed or described on Schedule 2.1.3.
2.1.4. Compliance With Laws. Without limiting the
representations and warranties set forth in Section 2.1.9 or 2.1.12, and except
as listed or described on Schedule 2.1.4, Companies are not in material
violation of any Laws in the operation of the Hotels.
2.1.5. Litigation; Decrees. Without limiting the
representations and warranties set forth in Section 2.1.9 or 2.1.12, there are
no lawsuits, claims, administrative or other proceedings relating to the conduct
of the Companies' Assets or the Hotels pending or, to the knowledge of Companies
or XxXxxxx after due investigation, threatened in writing, against or affecting
Companies which, if determined adversely, would have a material adverse effect
on the Companies' Assets or the Hotels. Companies are not in default under any
judgment, order or decree of any Governmental Authority applicable to the
operation or conduct of the Hotels or the Companies' Assets.
2.1.6. Contract Rights. Each of the Contracts included in the
Companies' Assets is a valid and binding obligation of each of the parties
thereto and is in full force and effect. Each of the parties to the Contracts
included in the Companies' Assets has performed all obligations required to be
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performed by it through the Closing Date under such Contracts and is not (with
or without the lapse of time or the giving of notice, or both) in breach or
default in any respect thereunder. Companies have delivered to Crossroads true,
correct and complete copies of such Contracts.
2.1.7. No Brokerage or Finder's Fees. Neither Companies nor
XxXxxxx have incurred any liability to any broker, finder or agent for any
brokerage fees, finder's fees or commissions with respect to the transactions
contemplated by this Agreement, except any fees owing to Xxxxx Xxxxxx, Inc. for
which Companies will be solely responsible.
2.1.8. Environmental Matters. Without limiting the
representations or warranties contained elsewhere herein:
(a) To the best of Companies' and XxXxxxx'x knowledge
after due investigation, Schedule 2.1.8 sets forth a list of all proceedings and
alleged claims related to the ownership, leasing and/or operation of the Hotels
which Companies are or in the last five (5) years have been a party before any
Governmental Authority relating to pollution or protection of the environment
and human health and safety, the disposition of which may result in (i)
liability against Companies for any amount for penalties, fines, damages,
monitoring, maintenance of xxxxx, testing, investigation, sampling, response,
remedial or
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inspection costs or other monetary relief; (ii) the making of a capital
expenditure in any amount; or (iii) in the impairment of the utility of or the
diminution in any amount in value of the Companies' Assets or the Hotels for the
purposes for which such Companies' Assets or the Hotels are presently being used
and operated.
(b) Except as disclosed in Schedule 2.1.8, neither
the Companies nor XxXxxxx have received notice of, nor have reason to believe
there exists, any threatened proceedings, claims or allegations of the nature
described in Section 2.1.8(a) and neither the Companies nor XxXxxxx are aware of
facts that, with the passage of time or otherwise, could lead to proceedings of
the nature described in Section 2.1.8(a).
(c) Except as to matters described in Schedule 2.1.8,
and to the best of Companies' and XxXxxxx'x knowledge after due investigation,
Companies are and have always been in compliance in all respects with all
applicable Environmental Laws applicable to themselves and with respect to the
respective property, activities and/or operations of the Companies' Assets and
the Hotels.
(d) There are no asserted claims nor any bases for
any claims that Companies are in violation and/or breach of or have liability
under any Environmental Laws with respect to
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the ownership, management and/or operation of the Companies' Assets or the
Hotels.
(e) Except as set forth on Schedule 2.1.8, in
connection with the ownership, management and/or operation of the Companies'
Assets or the Hotels, to the best of XxXxxxx'x and the Companies' knowledge
after due investigation, Companies have obtained and complied with and kept in
effect all Permits (which are listed on Schedule 2.1.8(h)) and other approvals
necessary to operate the Hotels or to store, dispose of and otherwise handle any
Hazardous Substances and/or wastes and Companies has reported, to the extent
required by Environmental Laws, all past and present sites owned, operated or
used by Companies in connection with the ownership, leasing and/or operation of
the Companies' Assets or the Hotels where Hazardous Substances and/or wastes
have been treated, stored or disposed of. Companies and XxXxxxx represent that
the Companies have not spilled, discharged, released, stored, or disposed of any
Hazardous Substances or wastes in violation of any Environmental Laws.
(f) Except as set forth in Schedule 2.1.8, and in
connection with the ownership, leasing, management and/or operation of the
Companies' Assets or the Hotels, and to the best of the Companies' and XxXxxxx'x
knowledge after due investigation, there is no Contamination at any on-site or
off-site location to which Companies have transported Hazardous
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Substances, or arranged for the transportation of Hazardous Substances, or at
which any Hazardous Substances for which the Companies may reasonably be
expected to have liability have been deposited and/or disposed of. In addition,
except as disclosed on Schedule 2.1.8, no such on-site or off-site location is
the subject of any enforcement actions or other investigations by any
Governmental Authority or other third party that may lead to claims against
Companies or Partnership for clean-up costs, investigation, remedial work,
damages to natural resources or property, or for personal injury claims.
(g) Except as otherwise disclosed on Schedule 2.1.8:
(i) Neither Companies nor XxXxxxx have
received any request for information, notice, demand letter, administrative
inquiry, or formal or informal compliance notice or claim with respect to the
presence of Contamination or any Hazardous Substance, in, on, under or about any
property owned, leased, subleased or occupied by Companies or used in the Hotels
or the threat of migration of Contamination or any Hazardous Substances onto,
at, into or under any property owned or occupied by a third party which
contamination or Hazardous Substance originated at sites or facilities currently
or previously owned, operated, leased, subleased or used by Companies;
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(ii) Neither Companies nor XxXxxxx have
received any request nor, to the best of their knowledge, do they have reason to
believe there is a basis for any information, notice, demand letter or inquiry
from a Governmental Authority or other third-party concerning Contamination or
threatened Contamination at any off-site location or locations to which
Companies transported or arranged for the transportation of Hazardous Substances
during Companies operation and/or ownership or leasing of the Companies' Assets
or the Hotels.
(iii) Except as disclosed on Schedule
2.1.8 and to the best of Companies' or XxXxxxx'x knowledge after due
investigation, no Contamination exists at, in or under any of the Hotels or
structures at any site and/or facility currently or formerly owned, operated,
leased, subleased or used by Companies; and
(iv) Except as set forth on Schedule
2.1.8 and to the best of Companies' or XxXxxxx'x knowledge after due
investigation, there are no underground storage tanks, above-ground storage
tanks or subsurface structures, or any containment vessel, located on any of the
Hotels.
(h) To the best of Companies' and XxXxxxx'x knowledge
after due investigation, Companies have all Permits
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required by Environmental Laws including, without limitation, those related to
occupational health and safety in the ownership, leasing, management, subleasing
and/or operation of the Companies' Assets and the Hotels. Schedule 2.1.8(h)
contains a listing of all Permits held by Companies required by Environmental
Laws.
2.1.9. Taxes. With respect to the Companies' Assets and the
Hotels, Companies have filed or caused to be filed (on a timely basis) any and
all returns, reports, statements, declarations, schedules, notices, certificates
or other documents ("Tax Returns") filed with or submitted to any Governmental
Authority in connection with the determination, assessment, collection or
payment of any tax, lien, assessment, impost, toll duty, deficiency, fee or
related amount imposed or assessed ("Taxes") by any Governmental Authority ("Tax
Authority") that are or were required to be filed by or with respect to any of
them, either separately or as a member of a group of corporations, pursuant to
the requirements of each Tax Authority with jurisdiction over them or their
assets. Companies have paid or made provision for the payment of, all Taxes,
which are, may be or become a lien on the Companies' Assets or the Hotels, as
reflected on such Tax Returns, or otherwise, or pursuant to any assessment
received by Companies, except such Taxes, if any, as are being contested in good
faith and as to which adequate reserves (determined in accordance with GAAP)
have been provided.
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There exists no proposed tax assessment against Companies related to the
ownership or operation of the Companies' Assets or the Hotels. All Taxes that
Companies are or were required by any requirements to withhold or collect have
been duly withheld or collected and, to the extent required, have been paid to
the proper governmental body.
2.1.10. Real Property. Companies and XxXxxxx have previously
furnished to Crossroads copies of all deeds and recorded instruments in the
possession of Companies and XxXxxxx related to the Hotels and copies of all
opinions, abstracts, environmental reports, structural or other engineering
reports, title policies and surveys in the possession of Companies and XxXxxxx
relating to the Hotels. The Hotels are the only real property owned or leased by
Companies and used in connection with the Companies' Assets. The Hotels are not
subject to any rights of way, easements, building use restrictions, exceptions,
variances, reservations or limitations of any nature whatsoever, except such as
are listed in Schedule 2.1.10(a) or those which would not materially interfere
with the current use and/or ownership and/or operation of the Hotels. All of the
Hotels are in safe condition and operating repair and comply in all material
respects with all applicable ordinances, codes, regulations and building and
other Laws applicable thereto. The present use of the Hotels is in compliance
with all zoning classifications except for noncompliance which would not have a
material adverse
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effect on the ownership and/or operation of the Hotels. The Hotels are each
currently serviced by a community sewage system. The Hotels are situated on
properly subdivided parcels of property. All buildings and other improvements
constituting the Hotels are within the record property lines. Except as set
forth in Schedule 2.1.10(b), no portion of the Hotels are located in a flood
plain or consists of any wetlands. To the extent any of the Hotels are located
in a flood plain, Companies have adequate flood insurance for such Hotels.
Neither XxXxxxx nor Companies have received any notice of any increase in real
estate assessments affecting the Hotels. Neither XxXxxxx nor Companies have
received notice of any assessment for public improvement and have no knowledge
of any pending assessment, including, without limitation, assessments for
business improvement districts, transportation districts or utility services
affecting the Hotels. There are no pending or, to the best of Companies' and
XxXxxxx'x knowledge, threatened condemnation or eminent domain proceedings which
affect or would affect the Hotels or any portion thereof. The Hotels (including,
without limitation, any buildings or improvements thereof) are in material
compliance with all Laws, including, without limitation, the Americans with
Disabilities Act, as the same may be amended and any and all regulations
promulgated thereunder ("ADA"). All easements, utilities and related services
necessary for the permanent and efficient use and operation of the Hotels for
their present purposes (including potable water, storm and sanitary sewer, gas,
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electric and telephone facilities) have been completed, paid for in full and are
presently available to the occupants thereof.
2.1.11. Intellectual Property. (a) Companies use no
trademarks, servicemarks, patents, know-how or other intellectual property
(collectively, "Intellectual Property") in connection with operation of the
Hotels, except as set forth on Schedule 2.1.11 attached hereto. The right to use
the Intellectual Property as currently used by Companies is included with the
Companies' Assets.
(b) Schedule 2.1.11 is an accurate and complete listing and
summary of all Intellectual Property. The Companies are the owners or lessees of
all right, title and interest in and to all of the Intellectual Property free
and clear of all Liens; the Intellectual Property has been registered and is
currently in compliance with formal legal requirements (including the payment of
filing, examination and maintenance fees and proofs of working or use), are
valid and enforceable and are not subject to any maintenance fees or taxes or
actions falling due within ninety (90) days after the Closing Date; no part of
the Intellectual Property has been or is now involved in any opposition,
invalidation or cancellation proceeding nor, to the best of Companies' and
XxXxxxx'x knowledge after due investigation, is any such action threatened with
respect to any of the Intellectual Property; neither Companies nor XxXxxxx are
aware of
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any potentially interfering intellectual property of any third party; and no
part of the Intellectual Property is infringed or has been challenged or
threatened in any way. None of the Intellectual Property used by Companies
infringe or are alleged to infringe any intellectual property of any third
party.
2.1.12. Financial Statements. (a) Attached as Schedule 2.1.12
is a list and description of the financial information delivered to IHC, New
Lessee and Partnership (collectively, the "Financial Statements"). The Financial
Statements have been prepared in accordance with GAAP consistently applied and
are true, accurate and complete in all material respects.
(b) There are no liabilities arising out of the conduct of the
Hotels which are not set forth or reflected in the Financial Statements, except
(i) liabilities which, in accordance with GAAP, were not required to be set
forth therein, or (ii) liabilities or obligations arising after the Financial
Statements in the ordinary course of business of the Hotels.
2.1.13. Conduct of the Hotels. Except as a result of matters
relating to this Agreement, since December 31, 1995 (or such date as such Hotel
has initially leased and/or managed by the Companies) the Hotels have been
operated in the ordinary course of business, the Companies have not taken any
action which
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would have constituted a violation of Section 3.4 if Section 3.4 had applied to
Companies since December 31, 1995, and there has not been any material adverse
change in any of the Hotels or the financial condition or results of operations
of any of the Hotels.
2.1.14. Insurance. Set forth on Schedule 2.1.14 is a list of
all material casualty, liability and other insurance maintained by Companies.
Except as set forth on Schedule 2.1.14, ALL such insurance is in full force and
effect on the date hereof. Companies have received no notice, nor do they or
XxXxxxx have knowledge after due investigation, of any condition which may cause
the cancellation, reduction or modification of such insurance or the increase in
the premiums therefor.
2.1.15. Employee Benefit Plans, Programs or Arrangements. (a)
Except as set forth on Schedule 2.1.15, Companies are not a party to or
obligated to contribute to any employee benefit plan or program, guaranteed
annual income plan, fund or arrangement, employee association or union, or any
incentive, bonus, profit-sharing, deferred compensation, stock option or
purchase plan or agreement or arrangement, or any non-competition agreement, or
any severance or termination pay plans or policies, any medical, health,
hospitalization, disability, life or other insurance plans, or any other
employee fringe benefit plans which covers any employee (collectively the
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"Employee Plans"). True and correct and complete copies of ALL of the written
plans, programs, agreements or arrangements, and true, correct and complete
written descriptions of all of the oral plans, programs, agreements or
arrangements, required to be described in Schedule 2.1.15 have heretofore been
delivered or otherwise made available to Crossroads.
(b) None of Companies, any Employee Plan of Companies or any
"party in interest," as defined in Section 3(14) of the Employee Retirement
Income Security Act of 1974, as amended and the rules and regulations
promulgated thereunder ("ERISA"), has engaged in a "prohibited transaction," as
defined in Section 406 of ERISA or Section 4975(c)(1) of the Code, which could
subject any of them or Crossroads or Partnership to liability under Section 409
or 502(i) of ERISA or Section 4975 of the Code. Companies, and each fiduciary
for each of the Employee Plans of Companies, is in material compliance with the
terms of such Employee Plans and with the requirements of any and all Laws,
including but not limited to ERISA, applicable to each such Plan. Companies have
not failed to make any contribution to, or to pay any amount due and owing, as
required by applicable Law or by the terms of any such Employee Plan as of the
last day of the most recent fiscal year of each of such Plans ended prior to the
Closing Date.
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(c) There is no pending or, to the best of Companies' or
XxXxxxx'x knowledge after due investigation, threatened legal action,
administrative or regulatory proceedings or investigations against Companies or
any Employee Plan of Companies with respect to any such Plan, other than routine
claims for benefits, which could result in liability to Companies or Crossroads
or Partnership and, to the best of Companies' or XxXxxxx'x knowledge after due
investigation, there is no basis for any such legal action, proceeding or
investigation.
(d) Except as set forth on Schedule 2.1.15, Companies do not
maintain or contribute to, and have not maintained or contributed to, (i) any
"multiemployer plan" (as defined in Section 3(37) of ERISA) that covers any
employee; (ii) any pension plan (as defined in Section 3(2) of ERISA) that is
subject to Title IV of ERISA that covers any employee; or (iii) any plan or
program that provides post-employment medical, health or life insurance benefits
(other than any such benefits required to be provided pursuant to Section 4980B
of the Code). During the five (5) year period preceding the Closing Date, the
Companies have not terminated any employee benefit plan subject to Title IV of
ERISA for which a Notice of Sufficiency has not been issued by the Pension
Benefit Guaranty Corporation. No amount is due or owing from the Companies to
the Pension Benefit Guaranty Corporation under Title IV of ERISA for any reason,
or to any "multiemployer plan" (as defined in Section 3(37) of
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ERISA) on account of any complete or partial withdrawal therefrom.
(e) With respect to each "group health plan" (within the
meaning of Section 4980B of the Code) maintained by Companies, Companies are in
compliance with, and will satisfy all liabilities and obligations relating to,
the continuation coverage requirements of the federal law commonly referred to
as "COBRA" or any similar state law. Companies are in compliance with, and will
satisfy all liabilities and obligations relating to, the notice and all other
requirements arising under WARN.
(f) Companies and XxXxxxx have delivered to Crossroads true,
correct and complete information regarding the current levels of salaries and/or
wages for the employees of the Hotels and the Companies.
2.1.16. Labor Relations. Except as disclosed on
Schedule 2.1.16, (a) no employee of the Hotels or the Companies is represented
by any union or other labor organization and no effort exists to organize any of
Companies' employees or the employees of the Hotel; (b) there is no unfair labor
practice complaint against the Hotels or the Companies pending or, to the
knowledge of either XxXxxxx or the Companies after due investigation, threatened
before the National Labor Relations Board; (c) there is no labor strike,
dispute, picketing or other
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labor disputes, slow-down or stoppage actually pending or, to the knowledge of
either XxXxxxx or the Companies, threatened against or involving the Hotels or
the Companies; (d) there is no grievance pending against the Companies; (e)
there is no private agreement or understanding to which the Companies are a
party restricting the Hotels or the Companies from relocating, closing or
terminating any of its operations or facilities; and (f) neither the Companies
nor the Hotels have, in the past three years, experienced any work stoppage or
other labor difficulty or committed any unfair labor practice.
2.1.17. Accounts Receivable. All of the accounts receivable
included in the Companies' Assets represent actual sales made in the ordinary
course of business and to the best knowledge of Companies and XxXxxxx after due
investigation, are not subject to any setoffs or counterclaims as to the
performances of any obligation or contract arising prior to the Closing Date.
2.2. Representations and Warranties of Crossroads. Crossroads hereby
represents and warranties to Companies and XxXxxxx as follows:
2.2.1. Organizational Matters. (a) Crossroads is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has the requisite
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corporate power to own, lease or otherwise hold its properties and assets and to
carry on its business as presently conducted.
(b) The Partnership is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the requisite partnership power to own, lease or otherwise hold its
properties and assets and to carry on its business as presently conducted.
2.2.2. Authorization and Effect of Agreement. Crossroads has
the requisite corporate power and the Partnership has the requisite partnership
power to execute and deliver this Agreement and to consummate the transactions
contemplated hereby to be consummated by them. The execution and delivery by
Crossroads and Partnership of this Agreement and the consummation by them of the
transactions contemplated hereby to be consummated by them have been duly
authorized by all necessary action on the part of Crossroads and Partnership.
This Agreement has been duly executed and delivered by Crossroads and
Partnership and, assuming the due execution and delivery of this Agreement by
Companies and XxXxxxx, constitutes a valid and binding obligation of Crossroads
and Partnership.
2.2.3. No Restrictions. Except as set forth on Schedule 2.2.3,
the execution and delivery of this Agreement by Crossroads and Partnership does
not, and the performance by
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Crossroads and Partnership of the transactions contemplated hereby to be
performed by them will not violate any law, rule, regulation, judgment, order or
decree applicable to them or conflict with, or result in any violation of, or
constitute a default (with or without notice or lapse of time, or both) under,
or give rise to a right of termination, cancellation or acceleration of any
obligation or to loss of a material benefit under, any provision of the
Certificate of Incorporation or bylaws of Crossroads or the Certificate of
Limited Partnership or partnership agreement of Partnership, or any agreement,
contract, lease or other instrument or obligation to which Crossroads or
Partnership is a party or by which their assets are bound. No material consent,
approval, order or authorization of, or registration, declaration or filing
with, any Governmental Authority or other entity is required to be obtained or
made by or with respect to Crossroads or Partnership in connection with the
execution and delivery of this Agreement by them or the consummation by them of
the transactions contemplated hereby to be consummated by them, except as listed
or described on Schedule 2.2.3.
III. COVENANTS PENDING CLOSING
3.1. Investigation by Crossroads. (a) Prior to the Closing, upon
reasonable notice from Crossroads to Companies given in accordance with this
Agreement, Companies will afford to the
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officers, attorneys, accountants or other authorized representatives of
Crossroads access during normal business hours to the facilities and the books
and records of the Companies relating to the Companies' Assets or Hotels so as
to afford Crossroads full opportunity to make such review, examination and
investigation of the Companies' Assets or Hotels as Crossroads may-desire to
make (including, without limitation, environmental audits of the Hotels.)
Crossroads will be permitted to make extracts from or to make copies of such
books and records as may be reasonably necessary. Prior to the Closing,
Companies will furnish or cause to be furnished such financial and operating
data and other information pertaining to the Companies' Assets or Hotels as
Crossroads may request.
(b) Prior to the Closing, Companies and XxXxxxx will provide Crossroads
with access to meet and interview current employees of Companies; provided,
however, that Companies and XxXxxxx acknowledge that, neither Partnership nor
Crossroads is under any obligation to offer employment to and/or to hire any
such employees.
3.2. No Announcement/Confidentiality. Upon execution of this Agreement,
Companies, XxXxxxx and Crossroads agree to make a press release in a form to be
mutually agreed upon by all of the parties. Prior to the Closing Date, no party
shall publish or permit any of its Affiliates to publish any other press release
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or similar public announcement with respect to the transactions contemplated by
this Agreement without prior written consent of all of the other parties other
than as the person making such disclosure may determine in good faith to be
required by law, rule, regulation, judicial or administrative process (in which
case the disclosing party shall use reasonable efforts to give notice to all of
the other parties prior to making such disclosure and, if reasonably practicable
in the circumstances, give such other parties the opportunity to review and
comment on the proposed disclosure).
3.3. Regulatory Filings. Each of the parties will use its reasonable
best efforts to obtain, and to cooperate with the other in obtaining, all
authorizations, consents, orders and approvals of Governmental Authorities that
may be or become necessary in connection with the consummation of the
transactions contemplated by this Agreement including, without limitation,
filings required under the HSR Act and liquor licensing authorities, and to take
all reasonable actions to avoid the entry of any order or decree by any
Governmental Authority prohibiting the consummation of the transactions
contemplated hereby.
3.4. Operation of the Hotels. Except as consented to by Crossroads in
writing, prior to the Closing, Companies will, in
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respect of their operation of the Hotels and the Companies' Assets:
(a) Use reasonable best efforts to not take or permit to be
taken or do or suffer to be done anything other than in the ordinary course of
operation of the Hotels as presently conducted, and use reasonable best efforts
to maintain the goodwill associated with the Hotels;
(b) Continue its existing practices relating to maintenance of
the Hotels and operations under the Companies' Assets;
(c) Except as provided in Section 1.2 of the Master Agreement
with respect to the Hotel Leases, not terminate, amend or modify any Contract
included in the Companies' Assets;
(d) Except in the ordinary course of business and consistent
with past practices, not enter into any new service contracts related to the
Hotels;
(e) Maintain and keep in full force and effect its current
insurance and shall pay any deductibles related to any claims made under such
insurance; and
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(f) Not terminate or make material amendments to any benefit
plan or employee practice or policy or increase the general rates of
compensation for employees of the Hotels and/or the Companies.
3.5. Satisfaction of Conditions. Without limiting the generality or
effect of any provision of Article IV, prior to the Closing, each of the parties
hereto will use reasonable efforts with due diligence and in good faith to
satisfy promptly all conditions required hereby to be satisfied by such party in
order to expedite the consummation of the transactions contemplated hereby.
3.6. No Solicitation. Prior to the Closing, neither Companies nor
XxXxxxx nor their respective employees, officers, agents or representatives,
including without limitation, Xxxxx Xxxxxx, Inc., shall directly or indirectly
(a) solicit, initiate or encourage any inquiries, proposals or offers from any
person relating to any lease, acquisition or purchase of any of the Companies'
Assets, or any securities of, or any merger, consolidation or business
combination with, Companies, or (b) with respect to any effort or attempt by any
other person to do or seek any of the foregoing (i) participate in any
discussions or negotiations, (ii) furnish to any other person any confidential
information with respect to the Companies' Assets,
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or (iii) otherwise cooperate in any way with, or assist or participate in, or
facilitate or encourage any such effort.
IV. THE CLOSING
4.1. Conditions Precedent to Obligations of Crossroads and Companies.
The obligations of each of Crossroads, the Partnership, the Companies and
XxXxxxx under this Agreement to consummate the transactions contemplated hereby
will be subject to the satisfaction, at or prior to Closing, of the conditions
that (a) each governmental approval, liquor license, and other approvals,
consents or waivers identified on Schedule 2.1.3 or Schedule 2.2.3 as being a
condition of the Closing shall have been obtained, including, without
limitation, approval under the HSR Act, the consent of the other parties to the
Companies' Assets and the transfer of all Permits (or in the case of liquor
licenses, consummation of an arrangement deemed acceptable by Crossroads in its
sole discretion under the applicable liquor laws allowing the continuation of
liquor service pending approval of the license transfer application), (b) there
shall not have been entered a preliminary or permanent injunction, temporary
restraining order or other judicial or administrative order or decree in any
domestic jurisdiction, the effect of which prohibits the Closing, (c) execution
of a Master Agreement by and among the Partnership, Interstate Hotels
Corporation, XXXX and Equity Inns Partnership, L.P., in form and substance
satisfactory
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to the parties thereto ("Master Agreement") and all conditions to closing under
the Master Agreement shall have been satisfied other than the obligations
hereunder, (d) the approval of XXXX' line of credit lender shall have been
obtained, (e) the approval of the franchisors of the Hotels shall have been
obtained, (f) the approval of Credit Lyonnais shall have been obtained, and (g)
the consent of Xxxxxxx Xxxxx & Co. shall have been obtained. Any of the
foregoing conditions may be waived, (x) insofar as it is a condition to the
obligations of Crossroads or the Partnership, by Crossroads at its option and
(y) insofar as it is a condition to the obligations of Companies and XxXxxxx, by
Companies at their option.
4.2. Additional Conditions Precedent to Obligations of Crossroads and
the Partnership. The obligations of Crossroads and the Partnership under this
Agreement to consummate the transactions contemplated hereby will be subject to
the satisfaction, at or prior to the Closing, of all of the following
conditions, any one or more of which may be waived at the option of Crossroads:
4.2.1. No Material Misrepresentation or Breach. There shall
have been no material breach by Companies or XxXxxxx in the performance of any
of the covenants herein to be performed by them in whole or in part prior to the
Closing, and the representations and warranties of Companies and XxXxxxx
contained
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in this Agreement shall be true and correct in all respects as of the Closing
Date, except for representations or warranties made as of a specified date,
which shall be true and correct in all respects as of the specified date, and
Companies and XxXxxxx shall have delivered to Crossroads a certificate
certifying each of the foregoing, dated the Closing Date and signed by XxXxxxx
and by the president and chief financial officer on behalf of each of the
Companies; and
4.2.2. Transfer Documents. There shall have been delivered to
Crossroads and the Partnership by Companies and XxXxxxx the following documents
as executed by Companies and the other parties thereto:
(a) Assignment and Assumption Agreement and Xxxx of
Sale for the Companies' Assets;
(b) Incumbency and Specimen Signature Certificate of
Companies;
(c) Resolutions of the Board of Directors [and
Shareholders] of Companies authorizing the execution and delivery of this
Agreement and the consummation of the transactions contemplated by them, all as
certified by the Secretary of Companies;
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(d) Certificates of the Secretary of State of the
State of Tennessee to the effect that Companies are validly existing and in good
standing and dated as of a date not more than ten (10) days prior to Closing;
(e) True and correct copies of the organizational
documents of Companies certified by the Secretary of Companies;
(f) The opinion of Bogatin Law Firm, counsel for
Companies and XxXxxxx, to cover the matters set forth in Exhibit B, attached
hereto;
(g) Partnership Agreement;
(h) Exchange Agreement;
(i) Evidence that all consents necessary to
consummate the transactions contemplated by this Agreement have been obtained;
and
(j) Estoppel certificates and nondisturbance
agreements from the parties listed on Schedule 4.2.2(j).
4.2.3. Due Diligence. Crossroads and its representatives shall
be satisfied in their sole and absolute
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discretion with the results of all aspects of the due diligence review of the
Companies' Assets and the Hotels.
4.2.4. Amendments to Leases. All of the Hotel Leases included
within the Companies' Assets shall be amended and restated by all of the parties
thereto (simultaneously with the Closing) to be in substantially the form of
Exhibit A to the Master Agreement.
4.2.5. Additional Matters. (a) All of the Hotels shall have
linen, china, glass and silver as of the Closing Date at the levels required by
the applicable franchisor.
(b) All of the utility security deposits (or bonds in
lieu thereof) existing as of the Closing Date for the Hotels shall have been
assigned to the Partnership.
(c) Crossroads and the Partnership shall have
received consents and estoppel certificates from Promus Hotels Corp. and all
third party owners regarding any and all agreements between Promus Hotels Corp.
and the Companies and between the Companies and other third parties, in form and
substance reasonably acceptable to Crossroads.
(d) The Partnership and Crossroads shall have
received consents and estoppel certificates from all of the
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franchisors under the Franchise Agreements and from the third parties to the
management agreements included in the Companies' Assets, in form and substance
reasonably acceptable to Crossroads.
(e) Partnership shall have obtained from a title
company reasonably satisfactory to Partnership (the "Title Company") a standard
ALTA Owner's Policy of Title Insurance (or an irrevocable commitment therefor),
in the amount of $46,500,000, (i) without any of the standard exceptions; (ii)
without the standard exclusion relating to creditors' rights; and (iii) subject
only to such exceptions which are approved by Crossroads, insuring that
Partnership is the owner of the leasehold of the Hotels (the "Title Policy").
Notwithstanding the foregoing, the Title Policy may contain the standard
exception relating to coal and mining rights, but only if the Title Company
insures against future surface operations.
(f) Originals and all copies of the books, records
and other items related to or comprising the Companies' Assets shall have been
delivered to the Partnership.
4.3. Additional Conditions Precedent to Obligations of Companies and
XxXxxxx. The obligations of Companies and XxXxxxx under this Agreement to
consummate the transactions contemplated hereby will be subject to the
satisfaction, at or prior to the
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Closing, of all the following conditions, any one or more of which may be waived
at the option of Companies:
4.3.1. No Material Misrepresentation or Breach. There shall
have been no material breach by Crossroads or the Partnership in the performance
of any of the covenants herein to be performed by them in whole or in part prior
to the Closing, and the representations and warranties of Crossroads contained
or referred to in this Agreement shall be true and correct in all respects as of
the Closing Date, except for representations or warranties made as of a
specified date, which shall be true and correct in all respects as of the
specified date, and Crossroads shall have delivered to Companies a certificate
certifying each of the foregoing, dated the Closing Date and signed by its
president and chief financial officer on its behalf;
4.3.2. Closing Documents. There shall have been delivered to
Companies by Crossroads and the Partnership the following documents as executed
by Crossroads and the Partnership as applicable:
(a) Assignment and Assumption Agreement for the
Companies' Assets pursuant to which the Partnership will assume the Assumed
Liabilities;
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(b) Incumbency and Specimen Signature Certificate of
Crossroads;
(c) Certificates of the Secretary of State of the
State of Delaware to the effect that Crossroads and the Partnership are validly
existing and in good standing and dated as of a date not more than ten (10) days
prior to Closing;
(d) The opinion of Xxxxx, Day, Xxxxxx & Xxxxx,
counsel for Crossroads and the Partnership, to cover the matters set forth in
Exhibit C attached hereto;
(e) Partnership Agreement; and
(f) Exchange Agreement.
4.3.3. Crossroads Contribution. Crossroads shall have
delivered to the Partnership certificates representing the Crossroads
Contribution duly endorsed or with duly executed stock powers.
4.4. Termination. Notwithstanding anything contained in this Agreement
to the contrary, this Agreement may be terminated at any time prior to the
Closing:
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(a) By the mutual written consent of Crossroads, the
Partnership, Companies and XxXxxxx;
(b) By either Crossroads and the Partnership or the Companies
and XxXxxxx if the Closing shall not have occurred on or before December 1, 1996
provided the party (or any of its Affiliates) so terminating this Agreement is
not in default of its obligations hereunder; or
(c) By either Crossroads and the Partnership or the Companies
and XxXxxxx if there shall have been entered a final, nonappealable order or
injunction of any Governmental Authority restraining or prohibiting the
consummation of the transactions contemplated hereby or any material part
thereof.
In the event of termination of this Agreement under this Section 4.4, each party
hereto will pay all of its own fees and expenses. There will be no further
liability hereunder on the part of any party hereto if this Agreement is so
terminated, except by reason of a material breach of any covenant contained in
this Agreement.
V. SURVIVAL AND INDEMNIFICATION
5.1. Survival; Definitions. (a) Each of the representations and
warranties contained in Article II, will survive the Closing and remain in full
force and effect for the term of any or all of
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the Contracts, as amended and restated as contemplated by this Agreement. Any
claim for indemnification with respect to any of such matters which is not
asserted by notice given as herein provided within such specified period of
survival may not be pursued. Any claim for an Indemnifiable Loss asserted within
such period of survival as herein provided will be timely made for purposes
hereof.
(b) Unless a specified period is set forth in this Agreement (in which
event such specified period will control), the covenants contained herein will
survive the Closing and remain in effect indefinitely.
(c) In addition to any and all other remedies of the Partnership and
Crossroads, the Partnership may offset, set-off or deduct any Indemnifiable
Losses it may have against any and all amounts of stock to be transferred,
delivered or assigned to the companies under or pursuant to the Exchange
Agreement.
5.2. Indemnification. (a) Subject to Section 5.1, Companies and XxXxxxx
will indemnify, defend and hold harmless Crossroads, the Partnership and their
Affiliates and their respective directors, officers, partners, employees, agents
and representatives from and against any and all Indemnifiable Losses relating
to, resulting from or arising out of:
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(i) Any breach by Companies or XxXxxxx of any of the
representations or warranties of Companies or XxXxxxx contained in this
Agreement;
(ii) Any breach by Companies or XxXxxxx of any covenant
of Companies or XxXxxxx contained in this Agreement;
(iii) Any Third Party Claim related to or arising out of
any matter described in Section 5.2(a) (i) or (ii) hereof or any
Excluded Liability;
(iv) Any and all Environmental Liabilities related to,
arising out of or resulting from the Hotels or the operations thereof,
any franchise agreement, any building code or life/safety code
violations, or any requirement or award relating to course of
employment, working conditions, wages and/or compensation or benefits
of employees or former employees at the Hotels; and/or
(v) Any and all violations of the ADA or WARN.
(b) Subject to Sections 5.1, Crossroads and the Partnership
will indemnify, defend and hold harmless Companies and XxXxxxx and their
respective Affiliates, directors, officers, partners, employees, agents and
representatives from and against
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any and all Indemnifiable Losses relating to, resulting from or arising out of
any of the following:
(i) Any breach by Crossroads and the Partnership of any
of their representations or warranties contained in this Agreement;
(ii) Any breach by Crossroads and the Partnership of any
covenant of Crossroads and the Partnership contained in this Agreement;
and/or
(iii) Any Third Party Claim related to or arising out of
any matter described in Section 5.2(b) (i) or (ii).
5.3. Defense of Claims. (a) If any Indemnitee receives notice of the
assertion or commencement of any Third Party Claim against such Indemnitee with
respect to which an Indemnifying Party is obligated to provide indemnification
under this Agreement, the Indemnitee will give such Indemnifying Party
reasonably prompt written notice thereof, but in any event not later than 15
calendar days after receipt of such notice of such Third Party Claim. Such
notice will describe the Third Party Claim in reasonable detail, will include
copies of all material written evidence thereof and will indicate the estimated
amount, if reasonably practicable, of the Indemnifiable Loss that has been or
may be sustained by the Indemnitee. The Indemnifying
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Party will have the right to participate in, or, by giving written notice to the
Indemnitee, to assume, the defense of any Third Party Claim at such Indemnifying
Party's own expense and by such Indemnifying Party's own counsel (reasonably
satisfactory to the Indemnitee), and the Indemnitee will cooperate in good faith
in such defense.
(b) If, within 10 calendar days after giving notice of a Third
Party Claim to an Indemnifying Party pursuant to Section 5.3(a), an Indemnitee
receives written notice from the Indemnifying Party that the Indemnifying Party
has elected to assume the defense of such Third Party Claim as provided in the
last sentence of Section 5.3(a), the Indemnifying Party will not be liable for
any legal expenses subsequently incurred by the Indemnitee in connection with
the defense thereof; provided, however, that if the Indemnifying Party fails to
take reasonable steps necessary to defend diligently such Third Party Claim
within 10 calendar days after receiving written notice from the Indemnitee that
the Indemnitee believes the Indemnifying Party has failed to take such steps or
if the Indemnifying Party has not undertaken fully to indemnify the Indemnitee
in respect of all Indemnifiable Losses relating to the matter, the Indemnitee
may assume its own defense, and the Indemnifying Party will be liable for all
reasonable costs or expenses paid or incurred in connection therewith. Without
the prior written consent of the Indemnitee, the Indemnifying Party will not
enter into any
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settlement of any Third Party Claim which would lead to liability or create any
financial or other obligation on the part of the Indemnitee for which the
Indemnitee is not entitled to indemnification hereunder. If a firm offer is made
to settle a Third Party Claim without leading to liability or the creation of a
financial or other obligation on the part of the Indemnitee for which the
Indemnitee is not entitled to indemnification hereunder and the Indemnifying
Party desires to accept and agree to such offer, the Indemnifying Party will
give written notice to the Indemnitee to that effect. If the Indemnitee fails to
consent to such firm offer within 10 calendar days after its receipt of such
notice, the Indemnitee may continue to contest or defend such Third Party Claim
and, in such event, the maximum liability of the Indemnifying Party as to such
Third Party Claim will not exceed the amount of such settlement offer, plus
costs and expenses paid or incurred by the Indemnitee through the end of such 10
calendar day period.
(c) Any claim by an Indemnitee on account of an Indemnifiable
Loss which does not result from a Third Party Claim (a "Direct Claim") will be
asserted by giving the Indemnifying Party reasonably prompt written notice
thereof, but in any event not later than 15 calendar days after the Indemnitee
becomes aware of such Direct Claim, and the Indemnifying Party will have a
period of 15 calendar days within which to respond in writing to such Direct
Claim. If the Indemnifying Party does not so
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respond within such 15 calendar day period, the Indemnifying Party will be
deemed to have rejected such claim, in which event the Indemnitee will be free
to pursue such remedies as may be available to the Indemnitee on the terms and
subject to the provisions of this Article V.
(d) A failure to give timely notice or to include any specified
information in any notice as provided in Sections 5.2(a) or 5.2(b) will not
affect the rights or obligations of any party hereunder except and only to the
extent that such failure is actually prejudicial to the rights or obligations of
the Indemnifying Party.
VI. MISCELLANEOUS PROVISIONS
6.1. Notices. All notices and other communications required or
permitted hereunder will be in writing and, unless otherwise provided in this
Agreement, will be deemed to have been duly given when delivered in person or
when dispatched by telegram or electronic facsimile transfer (confirmed in
writing by mail simultaneously dispatched) or one business day after having been
dispatched by a nationally recognized overnight courier service to the
appropriate party at the address specified below:
(a) If to Crossroads and the Partnership, to:
Interstate Hotels Corporation
Xxxxxx Plaza Ten, 000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
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Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxxxxx
With a copy to:
Interstate Hotels Corporation
Xxxxxx Plaza Ten, 000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxx, Esquire, Vice
President and General Counsel
(b) If to Companies or XxXxxxx, to:
0000 Xxxxxxxxxx #000
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xx. Xxxxxxx X. XxXxxxx, Xx.
With a copy to:
Bogatin Law Firm
000 Xxxxx Xxxx Xxxx., Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
or to such other address or addresses as any such party may from time to time
designate as to itself by like notice.
6.2. Successors and Assigns. This Agreement will be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns, but will not be assignable or delegable by any party without
the prior written consent of the other party.
6.3. Waiver. Crossroads and the Partnership on the one hand, and
XxXxxxx and Companies on the other hand, by written notice to the other may (a)
extend the time for performance of
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any of the obligations or other actions of the other under this Agreement, (b)
waive any inaccuracies in the representations or warranties of the other
contained in this Agreement, (c) waive compliance with any of the conditions or
covenants of the other contained in this Agreement, or (d) waive or modify
performance of any of the obligations of the other under this Agreement;
provided, however, that no such party may, without the prior written consent of
such other party, make or grant such extension of time, waiver of inaccuracies
or compliance or waiver or modification of performance with respect to its (or
any of its Affiliates') representations, warranties, conditions or covenants
hereunder. Except as provided in the immediately preceding sentence, no action
taken pursuant to this Agreement will be deemed to constitute a waiver of
compliance with any representations, warranties or covenants contained in this
Agreement and will not operate or be construed as a waiver of any subsequent
breach, whether of a similar or dissimilar nature.
6.4. Entire Agreement. This Agreement (including the Schedules and
Exhibits hereto) and the Master Agreement (including the Schedules and Exhibits
thereto) supersede any other agreement, whether written or oral, that may have
been made or entered into by any party (or by any director, officer or
representative thereof) including that certain letter agreement dated September
18, 1996 relating to the matters contemplated hereby. This Agreement (together
with the Schedules and Exhibits
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hereto) and the Master Agreement (including the Schedules and Exhibits thereto)
constitute the entire agreement by and among the parties hereto and thereto and
there are no agreements or commitments by or among such parties or their
Affiliates except as expressly set forth herein and therein.
6.5. Amendments, Supplement. This Agreement may be amended or
supplemented at any time by additional written agreements signed by all of the
parties hereto.
6.6. Rights of the Parties. Except as provided in Article V, nothing
expressed or implied in this Agreement is intended or will be construed to
confer upon or give any person or entity other than the parties hereto and their
respective Affiliates any rights or remedies under or by reason of this
Agreement or any transaction contemplated hereby.
6.7. Further Assurances. From time to time, as and when requested by
any party hereto, the other parties will execute and deliver, or cause to be
executed and delivered, all such documents and instruments as may be reasonably
necessary to consummate the transactions contemplated by this Agreement.
6.8. Transfers. Crossroads, XxXxxxx and Companies will cooperate and
take such action as may be reasonably requested by the other in order to effect
an orderly contribution of the
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Companies' Assets with a minimum of disruption to the operations and employees
of the Hotels.
6.9. Applicable Law. This Agreement and the legal relations among the
parties hereto will be governed by and construed in accordance with the
substantive Laws of the Commonwealth of Pennsylvania, without giving effect to
the principles of conflict of laws thereof. Any action arising out of this
Agreement may be brought in the state or federal courts of Pennsylvania. The
parties hereby irrevocably submit to the exclusive jurisdiction of the
appropriate state or federal court in Pennsylvania for the purpose of any suit,
action, proceeding or judgement relating to or arising out of this Agreement.
Each of Crossroads, the Partnership, XxXxxxx and Companies further agrees that
service of any process, summons, notice or document by U.S. registered mail to
such party's respective address set forth above shall be effective service of
process for any action, suit or proceeding in Pennsylvania with respect to any
matters to which it has submitted to jurisdiction as set forth above in the
immediately preceding sentence. Each of Crossroads, the Partnership, XxXxxxx and
Companies irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in (a) the Supreme Court of the Commonwealth of
Pennsylvania, or (b) the United States District Court for the Western District
of Pennsylvania, and hereby further irrevocably
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and unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum. In addition, the parties hereby
unconditionally waive trial by jury in any action or proceeding arising out of
this Agreement or the transactions contemplated hereby.
6.10. Execution in Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
6.11. Titles and Headings. Titles and headings to Sections herein are
inserted for convenience of reference only, and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
6.12. Certain Interpretive Matters and Definitions. (a) Unless the
context otherwise requires, (i) all references to Sections, Articles, Schedules
or Exhibits are to Sections, Articles, Schedules or Exhibits of or to this
Agreement, (ii) each term defined in this Agreement has the meaning assigned to
it, (iii) each accounting term not otherwise defined in this Agreement has the
meaning assigned to it in accordance with GAAP, (iv) "or" is disjunctive but not
necessarily exclusive and (v) words in the singular include the plural and vice
versa. All
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references to "$" or dollar amounts will be to lawful currency of the United
States of America.
(b) No provision of this Agreement will be interpreted in
favor of, or against, any of the parties hereto by reason of the extent to which
any such party or its counsel participated in the drafting thereof or by reason
of the extent to which any such provision is inconsistent with any prior draft
hereof or thereof.
6.13. Survival. To the extent that any obligations of Crossroads, the
Partnership, Companies or XxXxxxx under this Agreement requires action or
involves liability or obligation after the Closing, such obligation shall
survive the Closing.
6.14. Joint and Several. The obligations of XxXxxxx and the Companies
hereunder shall be joint and several in all respects.
6.15. Invalid Provisions. If any provision hereof is held to be
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable; this Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision has never comprised a part
hereof; and the remaining provisions hereof shall remain in full force and
effect and shall not be affected by the illegal,
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invalid or unenforceable provision or by its severance herefrom. In lieu of such
illegal, invalid or unenforceable provision there shall be added automatically
as a part hereof a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
6.16. Time of the Essence. Time is of the essence with respect to each
provision of this Agreement.
6.17. Risk of Loss/Insurance/Condemnation. (a) Risk of loss of the
Companies' Assets will remain upon Companies until Closing. Companies shall
maintain in effect until the date of Closing insurance policies with respect to
the Companies' Assets in an amount and type consistent with Companies' past
practice. Companies shall notify Crossroads in writing promptly (and in no event
later than five (5) days after the occurrence) of any casualty to the Companies'
Assets, or any portion thereof. Crossroads will then, at Crossroads' sole option
and discretion, either: (i) terminate this Agreement by giving notice to
Companies within thirty (30) days after Companies' notifying Crossroads in
writing of such casualty; or (ii) proceed with this Agreement, in which case any
and all insurance proceeds not previously applied shall be assigned to the
Partnership and any uninsured damage or deductible shall be paid by the
Companies to the Partnership at Closing and the Companies shall fully enforce
their rights under the Leases with respect to such casualty which
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rights will be assigned to Partnership at Closing; or (iii) proceed with this
Agreement, but exclude from the Companies' Assets the Hotel or Hotels which
suffered the casualty and reduce the value associated with the Companies' Assets
by the mutually agreed upon allocated value of such excluded Hotel or Hotels.
(b) In the event that, during the period between the date
hereof and the Closing, any part of the Hotels is taken in condemnation
proceedings or by exercise of any right of eminent domain or by agreement,
Crossroads and Partnership shall have the right, at their option, either (i) to
terminate this Agreement by notice to Companies without any further obligation
or liability to Companies hereunder; or (ii) to proceed with the transactions
set forth herein with respect to those Hotels (or portions thereof) remaining
following such taking and the Companies shall fully enforce their rights under
the Leases with respect to such condemnation which rights will be assigned to
Partnership at Closing; or (iii) proceed with this Agreement, but exclude from
the Companies' Assets the Hotel or Hotels which were condemned and reduce the
value associated with the Companies' Assets by the mutually agreed upon
allocated value of such excluded Hotel or Hotels. If Crossroads and Partnership
shall proceed with the transactions in accordance with this Section 6.17(b)
following such taking, any and all condemnation awards shall be assigned to
Partnership.
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VII. DEFINITIONS
Unless otherwise expressly defined herein, the following terms shall
have the following meanings:
"Accounts Payable" shall mean the trade accounts payable of the
Companies related to the operations of the Hotels which existed as of the Cutoff
Time and which were incurred in the ordinary course of business and in arm's
length commercial transactions.
"Affiliate" shall have the meaning given to such term in Rule 1-02 of
Regulation S-X under the Securities Act of 1933.
"Assumed Liabilities" shall mean only the liabilities and obligations
of the Companies arising after the Closing Date under the Contracts (other than
liabilities or obligations to the extent related to or attributable to any act,
omission or failure by Companies or the prior lessee or manager to comply with
the terms thereof) and the liability to satisfy the Accounts Payable.
"Booking" shall mean a contract or reservation for the use of guest
rooms, banquet facilities or meeting rooms in a Hotel.
"Contamination" shall mean the intentional or unintentional emission,
discharge, release or threatened emission, discharge or release of any Hazardous
Substance to, on, onto or into the
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environment in any concentration that now or in the future could pose a hazard
or threat to human health or the environment, and the past, current and future
effects of such intentional or unintentional emission, discharge, release or
threatened emission, discharge or release of Hazardous Substances to, on, onto
or into the environment.
"Contracts" shall have the meaning ascribed to such term in Section 1.3
(b).
"Cutoff Time" shall mean 12:01 a.m. on the Closing Date.
"Environmental Laws" shall mean all Laws (including, without
limitation, Permits, directives, guidelines, standards or the equivalent issued
by any Governmental Authority and relating to or addressing Contamination,
protection of the environment and/or occupation or human health and safety.
"Environmental Liability" shall mean any and all liabilities, losses,
claims, penalties, damages, expenses or costs (including, without limitation,
reasonable attorneys, consultants and engineers fees and expenses) arising from
or relating to compliance with any Environmental Law or arising under any theory
of Law or in equity relating to or arising from any Contamination or the use,
treatment, storage, disposal, transport, generation or handling of any Hazardous
Substances.
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"Franchise Agreements" shall mean those certain franchise agreements
designated as such on Schedule 1.3(b) hereof.
"GAAP" Shall mean United States generally accepted accounting
principles.
"Governmental Authority" shall mean any nation, or any political
subdivision thereof, or any agency, court or body of any such government
exercising executive, legislative, judicial, regulatory or administrative
functions
"Guest Ledger Receivables" shall mean amounts, including, without
limitation, room charges, accrued to the accounts of guests occupying rooms in
the Hotels as of the Cutoff Time.
"Hazardous Substances" shall mean any substance or material that,
whether by its nature or use, could be considered toxic or hazardous or the
exposure to which could pose a hazard or threat to human health or the
environment, or which is or contains petroleum, gasoline, diesel fuel or another
petroleum hydrocarbon product or friable asbestos or asbestos containing
materials or PCBs.
"Hotel Leases" shall have the meaning ascribed hereto in Section
1.3(b).
00
00
"XXX Xxx" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as the same may be amended from time to time.
"Indemnifiable Losses" shall mean any and all claims, demands or suits
(by any person or entity, including without limitation any Governmental
Authority), losses (including, direct, indirect, consequential or actual),
liabilities, damages, costs and expenses, including without limitation the costs
and expenses of any and all actions, suits, proceedings, demands, assessments,
judgments, settlements and compromises relating thereto and reasonable
attorneys', accountants', expert witness' or consultants' fees and expenses in
connection therewith.
"Indemnifying Party" shall mean any person or entity required to
provide indemnification under this Agreement.
"Indemnitee" shall mean any person or entity entitled to
indemnification under this Agreement.
"Indemnity Payment" shall mean any amount of Indemnifiable Losses
required to be paid pursuant to this Agreement.
"Laws" shall mean any law, decree, rule, order, regulation or other
governmental requirement of any governmental department, commission, board,
agency or instrumentality, domestic or
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foreign, having jurisdiction over it or its assets or business or operations.
"Liens" shall mean any mortgages, liens, security interests, leases,
pledges, encumbrances, equities, claims, charges, options, restrictions, rights
of first refusal, title retention agreements or other exceptions to title.
"Master Agreement" shall have the meaning ascribed to such term in
Section 4.1.
"Permits" shall mean any and all Licenses, franchises, approvals,
permits and other governmental authorizations.
"Subsidiary" shall have the meaning ascribed to such term in Rule 1-02
of Regulation S-X under the Securities Act of 1933.
"Third Party Claim" shall mean any claim, action or proceeding made or
brought by any person or entity who or which is not a party to this Agreement or
an Affiliate of a party to this Agreement.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year first above written.
CROSSROADS/MEMPHIS COMPANY, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Title: President and Chief
-------------------------------------
Operating Officer
-------------------------------------
CROSSROADS/MEMPHIS PARTNERSHIP, L.P.
By: CROSSROADS/MEMPHIS COMPANY,
L.L.C., its general partner
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Title: President and Chief
-------------------------------------
Operating Officer
-------------------------------------
TRUST LEASING, INC.
By:
----------------------------------------
Title:
-------------------------------------
TRUST MANAGEMENT INC.
By:
----------------------------------------
Title:
-------------------------------------
--------------------------------------------
Xxxxxxx X. XxXxxxx, Xx.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year first above written.
CROSSROADS/MEMPHIS COMPANY, L.L.C.
By:
----------------------------------------
Title:
-------------------------------------
CROSSROADS/MEMPHIS PARTNERSHIP, L.P.
By:
----------------------------------------
Title:
-------------------------------------
By: CROSSROADS/MEMPHIS COMPANY,
L.L.C., its general partner
By:
----------------------------------------
Title:
-------------------------------------
TRUST LEASING, INC.
By: /s/ Xxxxxxx X. XxXxxxx, Xx.
----------------------------------------
Title: President
-------------------------------------
TRUST MANAGEMENT INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Title: President and Chief
-------------------------------------
Operating Officer
-------------------------------------
/s/ Xxxxxxx X. XxXxxxx, Xx.
--------------------------------------------
Xxxxxxx X. XxXxxxx, Xx.
67
