EXHIBIT 10.3
REAL ESTATE SALE AND NON-COMPETE AGREEMENT
REGARDING CERTAIN PROPERTIES
THIS REAL ESTATE SALE AND NON-COMPETE AGREEMENT REGARDING CERTAIN
PROPERTIES ("Agreement") is made and entered into this ___ day of __________,
2005, by and between Xxxx X. Xxxxxxx Hotels Two, L.P., a Delaware limited
partnership ("Seller"), the Revocable Trust of Xxxx X. Xxxxxxx, dated December
28, 1989, as amended and restated ("Buyer") and Xxxx X. Xxxxxxx, of Springfield,
Missouri ("Xxxxxxx").
WITNESSETH:
WHEREAS, Seller is the owner of fee simple title to certain parcels of
undeveloped real estate, as further referenced and described below; and
WHEREAS, subject to certain restrictions on the development of such
parcels by Buyer, Seller desires to sell to Buyer and Buyer desires to purchase
from Seller one of such parcels of real estate; and
WHEREAS, Buyer is interested in obtaining an option to purchase the other
parcel, and Seller is willing to grant to Buyer an option to purchase such
parcel, subject to the same restrictions and upon the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the promises and the mutual
undertakings and the agreements set forth herein, the parties agree as follows:
1. Sale of Property. Subject to the other provisions of this Agreement, Seller
agrees to sell and convey to Buyer by special warranty deed ("Deed") and Buyer
agrees to purchase from Seller in the manner provided herein, one (1)
undeveloped parcel of real property, as more particularly described on Exhibit A
attached hereto (the "Omaha Parcel").
2. Purchase Price. The purchase price for the Omaha Parcel shall be its fair
market value at the Closing hereof, as determined by a mutually acceptable
independent and recognized appraiser with experience appraising commercial
properties comparable to the Omaha Parcel (the "Omaha Price"); provided,
however, that if the Omaha Price is more than Two Million and 00/100 Dollars
($2,000,000), Buyer may terminate this Agreement solely as it applies to the
Omaha Parcel, without further liability of either party hereunder.
3. Method of Payment of Purchase Price. At the Closing, the Omaha Price shall be
paid by Buyer to Seller in cash or immediately available funds.
4. Title Matters. No later than thirty (30) days prior to Closing, Seller shall
cause to be provided to Buyer an acceptable title insurance commitment ("Title
Commitment") for the Omaha Parcel, issued by a title company to be chosen by
Buyer (the "Title Company"), in which the Title Company shall commit to issue an
ALTA form owner's policy of title insurance ("Owner's Policy"), showing Buyer as
the prospective named insured, showing the policy
amount as the Omaha Price, and showing the status of Seller's title. Buyer shall
have a period of ten (10) days ("Objection Period") following Buyer's receipt of
the Title Commitment in which to examine the Title Commitment and, prior to the
expiration of the Objection Period, shall advise Seller of any objections
("Title Objections") Buyer may have to Seller's title as shown in the Title
Commitment. Seller shall then have a period of five (5) days in which to notify
Buyer in writing of those Title Objections it elects to cure. In the event
Seller elects to cure less than all of the Title Objections, Buyer shall have
the right to terminate this Agreement with respect to the Omaha Parcel by giving
Seller written notice thereof within five (5) business days of its receipt of
Seller's notice, and thereafter neither party shall have any further obligation
hereunder with respect to the Omaha Parcel. In the event Buyer does not
terminate this Agreement with respect to the Omaha Parcel, Seller shall have
until three (3) days prior to the Closing ("Cure Period") in which to cure the
Title Objections it has elected to cure. In the event Seller is unable or
unwilling to cure all of the Title Objections during the Cure Period, and Buyer
has not agreed in writing to waive the uncured Title Objections, this Agreement
shall terminate as to the Omaha Parcel and thereafter neither party shall have
any further obligation hereunder with respect to the Omaha Parcel. Promptly
following the Closing, Seller will cause to be issued to Buyer an Owner's Policy
in an amount equal to the Omaha Price, insuring fee simple title to the Omaha
Parcel in Buyer, subject only to those title exceptions or requirements
contained in the Title Commitment to which Buyer does not object or those title
exceptions which Buyer has otherwise waived (collectively "Permitted
Exceptions").
5. Closing. Closing shall be conditioned upon and subject to, and shall take
place at the Title Company or other mutually agreed upon location concurrent
with the Closing as defined in and contemplated by that certain Amended and
Restated Transaction Agreement by and among JD Holdings, LLC, JQH Acquisition,
LLC, Xxxx X. Xxxxxxx, Buyer, and Xxxxxxx, Inc. dated June 2, 2005, (the
"Transaction Agreement"). Should Closing not occur as provided in the
Transaction Agreement, this Agreement shall terminate and be of no further force
and effect, and the parties shall have no further liability hereunder except as
otherwise may be specifically provided in accordance with the Transaction
Agreement. Closing by Buyer shall be further conditioned upon the Omaha Parcel
being in substantially the same condition as existing as of the date hereof,
with no materially adverse change in zoning or other development or land use
restrictions applicable to the Omaha Parcel, in each case not caused or
requested by Buyer as a controlling entity of Seller. At Closing, the following
shall occur:
A. Seller's Deliveries. At Closing, Seller shall cause to be delivered to
Buyer the following items (all documents will be duly executed and
acknowledged where required):
(1) The Deed conveying to Buyer insurable title to the Omaha Parcel
in an amount at least equal to the Omaha Price (subject only to the
Permitted Exceptions), and possession of the Omaha Parcel;
(2) An Owner's Affidavit reasonably satisfactory to Seller and the
Title Company;
(3) Such other documentation, approvals or certificates as may be
reasonably required by the Title Company to issue its Owner's Policy
in favor of Buyer in an amount at least equal to the Omaha Price.
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B. Buyer's Deliveries. Buyer shall pay the Omaha Price (as adjusted based
on the prorations hereunder) to Seller by wire transfer to Title Company
of immediately available funds as required by the Title Company, and such
other documents, approvals, and/or certificates as may be requested by the
Title Company.
C. Costs. Sellers and Buyer shall each pay one-half (1/2) of all closing
costs, including the Title Commitment, the Closing fee charged by the
Title Company, the appraisal fee, the premium of the standard Owner's
Policy, all premiums and costs associated with any special endorsements to
the standard Owner's Policy (if any), and the costs of recording the Deeds
conveying titles to the Omaha Parcel to Buyer; provided, however, that
each party shall pay their separate legal fees. Additionally, any other
expenses, charges and fees of the Closing not specifically allocated
herein shall be divided and paid equally between the parties.
6. Possession; Prorations. Possession of the Omaha Parcel will be delivered to
Buyer on the date of Closing. All ad valorem real estate taxes, annual
installments of special assessments, and other city, county, state and school
taxes and other assessments or impositions levied on or affecting the Omaha
Parcel, including, without limitation, any association assessments (collectively
"Real Estate Taxes") for the calendar year in which the Closing occurs shall be
prorated to the date of Closing; provided, if the Real Estate Taxes for such
calendar year are not known as of the date of Closing, the proration shall be
computed using the best evidence and information available.
7. Option to Purchase Cary Parcel. Seller hereby grants to Buyer the exclusive
option to purchase (the "Option") one (1) undeveloped parcel of real property as
more particularly described on Exhibit B attached hereto (the "Cary Parcel"), at
a purchase price equal to the fair market value, as determined as of the date of
exercise of the Option by a mutually acceptable independent and recognized
appraiser with experience appraising commercial properties comparable to the
Cary Parcel (the "Xxxx Xxxxx"). This option may be exercised by Buyer at any
time within one (1) year from and after the date of Closing with respect to the
Omaha Parcel (as defined above) upon giving Seller written notice of Buyer's
intent to exercise such option (the "Option Notice"). The terms and conditions
of purchase shall be customary and substantially the same as set forth herein
with respect to the Omaha Parcel, with closing to occur on a mutually agreed
date no earlier than thirty (30) days and no later than sixty (60) days from and
after the date of the giving of the Option Notice. Should Buyer fail to timely
give Seller an Option Notice prior to the expiration of the Option Term, then
this Option shall automatically expire and neither party shall have any further
liability to the other party with respect to the Cary Parcel. Buyer is hereby
authorized to prepare and record with the appropriate recording office in which
the Cary Parcel is located, a Memorandum of Option Agreement, in customary form
and substance, as reasonably approved by Seller, and referencing this Option and
the Option Term, and Seller agrees to reasonably cooperate with and execute a
counterpart of such Memorandum of Option Agreement.
8. Default; Remedy. In the event that either party fails to perform such party's
obligations hereunder (except as excused by the other's default), the party
claiming default shall make written demand for performance upon the defaulting
party. If the defaulting party fails to comply with such written demand within
five (5) days after receipt of such notice to perform, the
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non-defaulting party shall have the option to: (a) waive such default; (b)
terminate this Agreement or (c) seek specific performance hereunder. The rights
and remedies specified in this paragraph shall be the exclusive rights and
remedies available to the parties hereunder.
9. Non-Compete Agreement. For valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Buyer and Xxxxxxx hereby covenant
and agree that during the Non-Compete Term (as defined below) as applicable to
each of the Cary Parcel and the Omaha Parcel, respectively, neither Buyer nor
Xxxxxxx, directly or indirectly through any Affiliates (as defined below), shall
develop on either of such properties any hotel, motel, guest rental time-share
project, "condo" hotels, or similar nightly rental hospitality project, unless
otherwise permitted in accordance with that certain Development Restriction
Agreement by and among Buyer, Xxxx X. Xxxxxxx and their Affiliates, on the one
hand, and Xxxx X. Xxxxxxx Hotels, L.P. ("JQH, LP:), Seller, and their
Affiliates, on the other hand, dated as of the date hereof. An "Affiliate" of
Buyer or Xxxxxxx for purposes of this Agreement shall have the same meaning
ascribed to such term in the Development Restriction Agreement. The term of this
non-compete agreement (the "Non-Compete Term") shall commence upon Closing and
shall survive thereafter and continue and remain in effect for each of the Omaha
Parcel and the Cary Parcel, as applicable, until, but shall then expire with
respect to each applicable parcel, upon the earliest to occur of one or more of
the following events:
A. As to both the Omaha Parcel and the Cary Parcel, in the event that the
Preferred Redemption Price (as defined below) has not been paid in full to
the holders of Xxxxxxx Preferred Units, other than the Required Holders
(each as defined below), or the proceeds from any liquidation of JQH, LP
(or any successor thereto) are not fully distributed, in each case by the
Liquidation Completion Deadline, in accordance with the terms and
conditions of Section 13.2 of that certain Fourth Amended and Restated
Agreement of Limited Partnership of [Xxxx X. Xxxxxxx Hotels], L.P., dated
as of the date hereof, as amended, supplemented or otherwise modified from
time to time in accordance with its terms (the "Partnership Agreement").
"Preferred Redemption Price," "Xxxxxxx Preferred Units," "Required
Holders" and "Liquidation Completion Deadline" shall have the meanings
accorded to such terms in the Partnership Agreement.
B. As to the applicable parcel noted below, upon the sale, assignment,
transfer or other disposition, in a single transaction or a series of
transactions of the following properties or of any direct or indirect
ownership interest in the entity that holds title to such properties, as
applicable, so that as a result of which sale, assignment, transfer or
other disposition, such property is no longer owned by the Seller or JQH,
LP, or a subsidiary of Seller or JQH, LP that is directly or indirectly
owned 50% or more (in terms of voting securities or other voting ownership
or partnership interest) by Seller or JQH, LP:
(1) With respect to the Omaha Parcel, the Embassy Suites Omaha (Old
Market), 000 X. 00xx Xxxxxx, Xxxxx, Xxxxxxxx 00000; or
(2) With respect to the Cary Parcel, the Embassy Suites Hotel
Raleigh-Durham/Research Triangle East, 000 Xxxxxxxx Xxxx Xxxxxxxxx,
Xxxx, Xxxxx Xxxxxxxx 00000.
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10. Representations and Warranties.
A. Representations of Seller.
(1) Seller is a Delaware Limited Partnership, duly and validly
organized and is validly existing in good standing as a limited
partnership under the laws of that state, with full power and
authority to enter into and perform its obligations hereunder;
(2) Seller has full right, title, authority and capacity to execute
and perform this Agreement and to consummate all of the transactions
contemplated herein;
B. Representations of Buyer. Buyer hereby represents and warrants as of
the date hereof that Buyer has full right, authority and capacity to
execute and perform this Agreement and to consummate all of the
transactions contemplated herein, and the individual of Buyer who executes
and delivers this Agreement and all documents to be delivered to Seller
hereunder is and will be duly authorized to do so.
11. Confidential Information. Each party to this Agreement agrees to keep the
terms of this Agreement and all information furnished to such party or obtained
by such party (other than matters of public record in information generally
available to the public) confidential, and not to reveal them to third parties
(other than each party's legal counsel, accountants, inspectors and other
consultants, or as may be required or advisable to comply with laws, rules, or
regulations of applicable governing authorities or pursuant to any agreements
existing to which either party is bound), prior to the date of Closing.
12. Condition of Omaha Parcel. Seller makes no representation or warranty of any
kind, express or implied, with respect to the Omaha Parcel, the same, except as
specifically provided herein, being sold "AS IS, WHERE IS, WITH ALL FAULTS." By
execution hereof, Buyer represents and warrants to Seller that Buyer is an
experienced, sophisticated Buyer of real estate, with knowledge and experience
sufficient to enable it to evaluate the merits and risks of the sale, and that
it is represented by knowledgeable and experienced legal counsel of its own
choosing, and agrees that, except as specifically provided in this Agreement,
neither Seller, nor its agents or representatives, has made, and that Buyer has
not relied upon, any representation or warranty of any kind which is not
expressly set forth or provided for herein in connection with the sale of the
Omaha Parcel or Buyer's actual purchase thereof pursuant hereto, Buyer having
elected to rely instead entirely upon its prior knowledge and inspection of the
Omaha Parcel pursuant to the terms of this Agreement.
13. Miscellaneous.
A. Brokerage. Buyer and Seller each represent and warrant to each other
that they have not engaged the services of any broker, sales agent or real
estate consultants in connection with this Agreement or the transaction
contemplated hereby and that no other person or entity can properly claim
a right to a real estate commission, real estate finder's fee, real estate
acquisition fee, or other real estate brokerage type compensation
(collectively "Real Estate Compensation") based upon the acts of that
party with respect to the transaction contemplated by this Agreement. Each
party hereto agrees to
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indemnify and defend the other against and to hold the other harmless from
any and all costs, loss, liability or expense (including attorneys' fees)
resulting from any claim for Real Estate Compensation by any person or
entity based upon such party's acts. The indemnity contained in this
provision shall survive the closing of the transaction contemplated by
this Agreement.
B. Notices. Any notice pursuant hereto shall be given in writing by (i)
personal delivery, or (ii) expedited delivery service with proof of
delivery, or (iii) United States Mail, postage prepaid, registered or
certified mail, return receipt requested, or (iv) telefacsimile
transmission (provided that such telefacsimile transmission is confirmed
by expedited delivery service or by mail in the manner previously
described), sent to the intended addressee at the address set forth below,
and shall be deemed to have been given either at the time of personal
delivery or, in the case of expedited delivery service or mail, as of the
date of first attempted delivery at the address or, in the case of
telefacsimile transmission, upon receipt. Any such notices may be under
the signature of the Seller's or Buyer's (as the case may be) agent,
attorney, or representative.
SELLER'S ADDRESS FOR NOTICE: BUYER'S ADDRESS FOR NOTICE:
Xxxx X. Xxxxxxx Hotels, LP Xxxx X. Xxxxxxx
Attn: ______________ 300 Xxxx X. Xxxxxxx Parkway
300 Xxxx X. Xxxxxxx Xxxxxxx Xxxxxxxxxxx, Xxxxxxxx 00000
Suite 900 Telephone: (417) - 000-0000
Xxxxxxxxxxx, XX 00000 Facsimile: (000)-000-0000
With a copy to: With a copy to:
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx,
___________________________ LLP
Attn: Xxxx Xxxxxx
___________________________ Xxxxx X. Xxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
___________________________ Xxxxxx Xxxx, Xxxxxxxx 00000
Telephone: (000)-000-0000
Facsimile: (000)-000-0000
C. Entire Agreement. This Agreement constitutes the entire understanding
between Buyer and Seller with respect to the properties described herein,
except for those separate agreements referenced herein, to the extent of
their applicable provisions. This Agreement cannot be amended except in
writing executed by Buyer and Seller.
D. Binding Effect. This Agreement will inure to the benefit of and bind
the respective successors, heirs, legal representatives, legatees and
assigns of the parties hereto.
E. Execution. This Agreement has been executed by the parties on the dates
set forth below their respective signatures.
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F. Governing Law. This Agreement is to be governed by the laws of the
state of Delaware, except to the extent the laws of the jurisdiction in
which the Omaha Parcel and Cary Parcel, respectively, shall otherwise
apply to issues involving real estate.
G. Assignment. Neither party may assign its rights and obligations under
this Agreement, except with consent of the other party.
H. Severability. If any term or provision of this Agreement shall, to any
extent, be invalid or unenforceable, the remainder of this Agreement shall
not be affected thereby and each such term and provision hereof shall be
valid and enforceable to the fullest extent permitted by law.
I. Counterparts; Facsimile. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but together they
shall constitute one and the same Agreement. This Agreement may be
executed and delivered by facsimile.
J. Jurisdiction; Service of Process. Any action or proceeding seeking
to enforce any provision of, or based on any right arising out of, this
Agreement shall be brought against any of the parties only in the Courts
of the State of Delaware or, if it has or can acquire jurisdiction, in the
United States District Court for the District of Delaware, and each of the
parties consents to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts) in any such action or proceeding and waives
any objection to venue laid therein. Process in any action or proceeding
referred to in the preceding sentence may be served on any party anywhere
in the world.
L. WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT
ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR ANY OF THE
TRANSACTION AGREEMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE
AGREEMENTS DELIVERED IN CONNECTION HEREWITH (INCLUDING, WITHOUT
LIMITATION, THE TRANSACTION AGREEMENTS) OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (1)
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE SUCH WAIVERS, (2) IT UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (3) IT MAKES SUCH WAIVERS
VOLUNTARILY AND (4) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
13.K.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the date first set forth above.
SELLER BUYER
By: ______________________________ By: ______________________________
Name: ____________________________ Name: ____________________________
Title: ___________________________ Title: ___________________________
Date: ____________________________ Date: ____________________________
XXXXXXX
By: ______________________________
Name: ____________________________
Title: ___________________________
Date: ____________________________
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EXHIBIT A
OMAHA PARCEL LEGAL DESCRIPTION
Lots 5 through 8, inclusive, Block 134, Original City of Omaha, as surveyed,
platted and recorded in Omaha, Xxxxxxx County, Nebraska, together with (i) all
improvements constructed or located on the land, (ii) all easements, reciprocal
operating and easement agreements and other rights benefiting or appurtenant to
the land and any right, title, or interest of Seller in and to adjacent or
contiguous strips, gores, streets, alleys, or rights-of-way, any reversionary
rights attributable to the land, and (iii) any right, title and interest in and
to that certain Redevelopment Agreement that was approved by the City of Omaha
by Ordinance No. 35581, to the extent the same is assignable.
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EXHIBIT B
CARY PARCEL LEGAL DESCRIPTION
All of Tract No. 6, consisting of 9.0282 acres, more or less, as shown on a plat
by Bass, Xxxxx & Xxxxxxx, Inc., G. Xxxxx Xxxxxx, Registered Land Surveyor,
entitled "SUBDIVISION PLAT PROPERTY OF SAS INSTITUTE INC.," dated October 19,
1995, and recorded in Wake County, North Carolina Registry in book of Maps 1996,
Page 476, reference being made to said plat for a more complete description.
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