CONTRIBUTION AGREEMENT dated as of June 11, 2007 by and among HASU P. SHAH AND BHARAT C. MEHTA as Contributors, and HERSHA HOSPITALITY LIMITED PARTNERSHIP as Acquiror, IN CONNECTION WITH THE PURCHASE AND SALE OF MEMBERSHIP INTERESTS IN H NEVINS STREET...
dated
as
of June 11, 2007
by
and
among
XXXX
X. XXXX AND XXXXXX X. XXXXX
as
Contributors,
and
HERSHA
HOSPITALITY LIMITED PARTNERSHIP
as
Acquiror,
IN
CONNECTION WITH THE PURCHASE AND SALE OF
MEMBERSHIP
INTERESTS IN H XXXXXX STREET ASSOCIATES, LLC
THIS
CONTRIBUTION AGREEMENT, dated as of June 11, 2007 (the “Agreement”), by Xxxx X.
Xxxx and Xxxxxx X. Xxxxx (the “Contributors”), and Hersha Hospitality Limited
Partnership, a Virginia limited partnership (the “Acquiror”),
provides:
ARTICLE
I
DEFINITIONS;
RULES OF CONSTRUCTION
1.1 Definitions.
The
following terms shall have the indicated meanings:
“Act
of
Bankruptcy”
shall
mean if a party hereto or any general partner thereof shall (a) apply for
or consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidator of itself or of all or a substantial part
of
its property, (b) admit in writing its inability to pay its debts as they
become due, (c) make a general assignment for the benefit of its creditors,
(d) file a voluntary petition or commence a voluntary case or proceeding
under the Federal Bankruptcy Code (as now or hereafter in effect), (e) be
adjudicated a bankrupt or insolvent, (f) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency, reorganization,
winding-up or composition or adjustment of debts, (g) fail to controvert in
a timely and appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case or proceeding under the Federal Bankruptcy
Code (as now or hereafter in effect), or (h) take any corporate or limited
liability company action for the purpose of effecting any of the foregoing;
or
if a proceeding or case shall be commenced, without the application or consent
of a party hereto or any general partner thereof, in any court of competent
jurisdiction seeking (1) the liquidation, reorganization, dissolution or
winding-up, or the composition or readjustment of debts, of such party or
general partner, (2) the appointment of a receiver, custodian, trustee or
liquidator or such party or general partner or all or any substantial part
of
its assets, or (3) other similar relief under any law relating to
bankruptcy, insolvency, reorganization, winding-up or composition or adjustment
of debts, and such proceeding or case shall continue undismissed; or an order
(including an order for relief entered in an involuntary case under the Federal
Bankruptcy Code, as now or hereafter in effect) judgment or decree approving
or
ordering any of the foregoing shall be entered and continue unstayed and in
effect, for a period of 60 consecutive days.
“Articles
of Organization”
shall
mean the Articles of Organization of the LLC filed with the Secretary of State
of the State of New York, a true and correct copy of which is attached hereto
as
Exhibit F.
“Assignment
and Assumption Agreement”
shall
mean that certain Assignment and Assumption Agreement with respect to the
Interests (defined herein below), dated as of the Closing Date, by and between
Contributors and Acquiror.
“Authorizations”
shall
mean all licenses, permits and approvals required by any governmental or
quasi-governmental agency, body or officer for the ownership, operation and
use
of the Property or any part thereof.
“Closing”
shall
mean the Closing of the contribution and acquisition of the Interests pursuant
to this Agreement.
“Closing
Balance”
shall
have the meaning set forth in Section
2.3(c).
“Closing
Date”
shall
mean the date on which the Closing occurs.
“Consideration”
shall
mean Four Million Three Hundred Fifteen Thousand Dollars and No Cents
($4,315,000.00).
“Continuing
Liabilities”
shall
include liabilities arising under Operating Agreements, Leases, equipment
leases, loan agreements, or proration credits at Closing, but shall exclude
any
liabilities arising from any other arrangement, agreement or pending
litigation.
“Deposit”
shall
have the meaning set forth in Section
2.3.
“Employment
Agreements”
shall
mean any and all employment agreements, written or oral, between the Contributor
or its managing agent and the persons employed with respect to the Property.
A
schedule indicating all pertinent information with respect to each Employment
Agreement in effect as of the date hereof, name of employee, social security
number, wage or salary, accrued vacation benefits, other fringe benefits, etc.,
is attached hereto as Exhibit B.
“Escrow
Agent”
shall
mean Summit Associates, 000 Xxxxxxxxx Xxxxxx, 0xx
Xxxxx,
Xxx Xxxx, XX 00000.
“FIRPTA
Certificate”
shall
mean the affidavit of the Contributor under Section 1445 of the Internal
Revenue Code certifying that such Contributor is not a foreign corporation,
foreign partnership, foreign limited liability company, foreign trust, foreign
estate or foreign person (as those terms are defined in the Internal Revenue
Code and the Income Tax Regulations), in form and substance satisfactory to
the
Acquiror.
“Governmental
Body”
means
any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign.
“Improvements”
shall
mean all buildings, improvements, fixtures and other items of real estate
located on the Land.
“Insurance
Policies”
shall
mean those certain policies of insurance described on Exhibit C
attached
hereto.
“Intangible
Personal Property”
shall
mean all intangible personal property owned or possessed by the Contributor
or
the LLC and used in connection with the ownership, operation, leasing, occupancy
or maintenance of the Property.
“Interests”
shall
mean all right title and interest of Xxxx X. Xxxx and Xxxxxx X. Xxxxx in the
LLC, consisting of a 100% membership interest in the LLC.
“Joinder”
shall
have the meaning set forth in Section
2.3(d).
"Knowledge"
shall
mean the actual knowledge of the Contributor that he would have had after making
reasonable investigation.
“Land”
shall
mean that certain parcels of real estate, as more particularly described on
Exhibit A
attached
hereto, together with all easements, rights, privileges, remainders, reversions
and appurtenances thereunto belonging or in any way appertaining, and all of
the
estate, right, title, interest, claim or demand whatsoever of the Contributor
therein, in the streets and ways adjacent thereto and in the beds thereof,
either at law or in equity, in possession or expectancy, now or hereafter
acquired.
“Leases”
shall
mean those leases of real property listed on Exhibit
D
attached
hereto.
“LLC”
shall
mean H Xxxxxx Street Associates, LLC, a New York limited liability company
that
owns, as its only assets, the fee interest in the Land, and the Hotel and
Improvements located on the Land.
“LLC
Operating Agreement”
shall
mean the current operating agreement of the LLC, a true and correct copy of
which is attached hereto as Exhibit G.
“Operating
Agreements”
shall
mean the management agreements, service contracts, supply contracts, leases
(other than the Leases) and other agreements, if any, in effect with respect
to
the construction, ownership, operation, occupancy or maintenance of the
Property. All of the Operating Agreements in force and effect as of the date
hereof are listed on Exhibit E
attached
hereto.
“Owner's
Title Policy”
shall
mean an owner's policy of title insurance issued to the Acquiror by the Title
Company, dated as of the Closing Date, pursuant to which the Title Company
insures the Acquiror's ownership of title to the fee interest in the Real
Property (including the marketability thereof) subject only to Permitted Title
Exceptions. The Owner's Title Policy shall insure the Acquiror in the amount
of
the Consideration and shall be acceptable in form and substance to the Acquiror.
The description of the Land in the Owner's Title Policy shall be by courses
and
distances and shall be identical to the description shown on a survey provided
by the Contributor to the Acquiror.
“Permitted
Title Exceptions”
shall
mean those exceptions to title to the Real Property that are satisfactory to
the
Acquiror as determined pursuant to Section 2.2.
“Property”
shall
mean collectively the Land, Improvements, the Inventory, , the Tangible Personal
Property and the Intangible Personal Property.
“Real
Property”
shall
mean the Land and the Improvements.
“Securities
Act”
shall
mean the Securities Act of 1933, as amended.
“Study
Period”
shall
mean the period commencing at ______ on _______ [the date hereof], and
continuing through the time of Closing.
“Tangible
Personal Property”
shall
mean the items of tangible personal Property consisting of all furniture,
furnishings, equipment, machinery, and other personal property of every kind
located on or used in the operation of the Property and owned by the
Contributors or the LLC.
“Title
Commitment”
shall
mean the commitment by the Title Company to issue the Owner's Title
Policy.
“Title
Company”
shall
mean Summit Associates, 000
Xxxxxxxxx Xxxxxx, 0xx
Xxxxx,
Xxx
Xxxx, XX 00000, Telephone: 212/000-0000, Fax: 212/000-0000.
“Tray
Ledger”
shall
mean the final night's room revenue (revenue from rooms occupied as of 12:01
a.m. on the Closing Date, exclusive of food, beverage, telephone and similar
charges which shall be retained by the Contributor), including any sales taxes,
room taxes or other taxes thereon.
“Utilities”
shall
mean public sanitary and storm sewers, natural gas, telephone, public water
facilities, electrical facilities and all other utility facilities and services
necessary for the operation and occupancy of the Property as a
hotel.
1.2 Rules
of Construction.
The
following rules shall apply to the construction and interpretation of this
Agreement:
(a) Singular
words shall connote the plural number as well as the singular and vice versa,
and the masculine shall include the feminine and the neuter.
(b) All
references herein to particular articles, sections, subsections, clauses or
exhibits are references to articles, sections, subsections, clauses or exhibits
of this Agreement.
(c) Headings
contained herein are solely for convenience of reference and shall not
constitute a part of this Agreement nor shall they affect its meaning,
construction or effect.
(d) Each
party hereto and its counsel have reviewed and revised (or requested revisions
of) this Agreement, and therefore any usual rules of construction requiring
that
ambiguities are to be resolved against a particular party shall not be
applicable in the construction and interpretation of this Agreement or any
exhibits hereto.
ARTICLE
II
CONTRIBUTION
AND ACQUISITION; STUDY PERIOD;
PAYMENT
OF CONSIDERATION
2.1 Contribution
and Acquisition.
The
Contributor agrees to contribute, assign and transfer his Interests to the
Acquiror and the Acquiror agrees to accept the Interests in exchange for the
Consideration and in accordance with the other terms and conditions set forth
herein.
2.2 Study
Period.
(a) The
Acquiror shall have the right, until the end of the Study Period, to enter
upon
the Real Property and to perform, at the Acquiror's expense, such economic,
surveying, engineering, environmental, topographic and marketing tests, studies
and investigations as the Acquiror may deem appropriate. If such tests, studies
and investigations warrant, in the Acquiror's sole, absolute and unreviewable
discretion, the purchase of the Interests for the purposes contemplated by
the
Acquiror, then the Acquiror may elect to proceed to Closing and shall so notify
the Contributor prior to the expiration of the Study Period. If for any reason
the Acquiror does not so notify the Contributor of its determination to proceed
to Closing prior to the expiration of the Study Period, or if the Acquiror
notifies the Contributor, in writing, prior to the expiration of the Study
Period that it has determined not to proceed to Closing, this Agreement
automatically shall terminate, and the Acquiror shall be released from any
further liability or obligation under this Agreement.
(b) During
the Study Period, the Contributor shall make available to the Acquiror, its
agents, auditors, engineers, attorneys and other designees, for inspection
copies of all existing architectural and engineering studies, surveys, title
insurance policies, zoning and site plan materials, correspondence,
environmental audits and other related materials or information if any, relating
to the Property which are in, or come into, the Contributor’s possession or
control.
(c) The
Acquiror hereby indemnifies and defends the Contributor against any loss, damage
or claim arising from entry upon the Real Property by the Acquiror or any
agents, contractors or employees of the Acquiror. The Acquiror, at its own
expense, shall restore any damage to the Real Property caused by any of the
tests or studies made by the Acquiror.
(d) During
the Study Period, the Acquiror, at its expense, may cause an examination of
title to the Property to be made, and, prior to the expiration of the Study
Period, may notify the Contributor of any defects in title shown by such
examination that the Acquiror is unwilling to accept. The Contributor shall
notify the Acquiror whether the Contributor is willing to cure such defects
and
to proceed to Closing. Contributor may cure, but shall not be obligated to
cure
such defects. If such defects consist of deeds of trust, mechanics' liens,
tax
liens or other liens or charges in a fixed sum or capable of computation as
a
fixed sum, the Contributor, at his option, shall either pay and discharge (in
which event, the Escrow Agent is authorized to pay and discharge at Closing)
such defects at Closing. If the Contributor is unwilling or unable to cure
any
such defects by Closing, the Acquiror shall elect (1) to waive such defects
and proceed to Closing without any abatement in the Consideration or (2) to
terminate this Agreement. The Contributor shall not, after the date of this
Agreement, subject the Property to and shall take all reasonable best efforts
to
prevent the Property from being subjected to any liens, encumbrances, covenants,
conditions, restrictions, easements or other title matters or seek any zoning
changes or take any other action which may affect or modify the status of title
without the Acquiror's prior written consent, which consent shall not be
unreasonably withheld or delayed. All title matters revealed by the Acquiror's
title examination and not objected to by the Acquiror as provided above shall
be
deemed Permitted Title Exceptions. If Acquiror shall fail to examine title
and
notify the Contributor of any such title objections by the end of the Study
Period, all such title exceptions (other than those rendering title unmarketable
and those that are to be paid at Closing as provided above) shall be deemed
Permitted Title Exceptions.
2.3 Payment
of the Consideration.
The
Consideration shall be paid to the Contributors in its entirety at
Closing.
ARTICLE
III
CONTRIBUTOR’S
REPRESENTATIONS, WARRANTIES AND COVENANTS
To
induce
the Acquiror to enter into this Agreement and to purchase the Property,
Contributor hereby makes the following representations, warranties and
covenants, upon each of which Contributor acknowledges and agrees that the
Acquiror is entitled to rely and has relied:
3.1 Identity
and Power.
The
Contributor is an individual and has all requisite powers and all governmental
licenses, authorizations, consents and approvals necessary to carry on its
business as now conducted, to own, lease and operate his properties, to execute
and deliver this Agreement and any document or instrument required to be
executed and delivered on behalf of the Contributor hereunder, to perform his
obligations under this Agreement and any such other documents or instruments
and
to consummate the transactions contemplated hereby.
3.2 Authorization,
No Violations and Notices.
(a) The
execution, delivery and performance of this Agreement by the Contributor, and
the consummation of the transactions contemplated hereby have been duly
authorized, adopted and approved by the Contributor. No other proceedings are
necessary to authorize this Agreement and the transactions contemplated hereby.
This Agreement has been duly executed by the Contributor and is a valid and
binding obligation enforceable against him in accordance with its
terms.
(b) Neither
the execution, delivery, or performance by the Contributor of this Agreement,
nor the consummation of the transactions contemplated hereby, nor compliance
by
the Contributor with any of the provisions hereof, will
(i) violate,
conflict with, result in a breach of any provision of, constitute a default
(or
an event that, which, with or lapse of time or both, would constitute a default)
under, result in the termination of, accelerate the performance required by,
or
result in a right of termination or acceleration, or the creation of any lien,
security interest, charge, or encumbrance upon any of the Property or assets
of
the LLC, under any of the terms, conditions, or provisions of, the Articles
of
Organization, the LLC Operating Agreement, or any note, bond, mortgage,
indenture, deed of trust, license (including without limitation, the License),
lease, agreement, or other instrument, or obligation to which the LLC is a
party, or by which the LLC may be bound, or to which the LLC or the Property
or
assets may be subject; or
(ii) violate
any judgment, ruling, order, writ, injunction, decree, statute, rule, or
regulation applicable to the LLC or its Property or assets that would not be
violated by the execution, delivery or performance of this Agreement or the
transactions contemplated hereby by the Contributor or compliance by the
Contributor with any of the provisions hereof.
3.3 Litigation
with respect to Contributor.
There
is no action, suit, claim or proceeding pending or, to the Contributor’s
Knowledge, threatened against or affecting the Contributor or his assets in
any
court, before any arbitrator or before or by any governmental body or other
regulatory authority (i) that would materially adversely affect the Contributor
or the Interests, (ii) that seeks restraint, prohibition, damages or other
relief in connection with this Agreement or the transactions contemplated
hereby, or (iii) would delay the consummation of any of the transactions
contemplated hereby. The Contributor is not subject to any judgment, decree,
injunction, rule or order of any court relating to the Contributor’s
participation in the transactions contemplated by this Agreement.
3.4 Interests
and Property.
(a) The
Interests are, on the date hereof, and will be on the Closing Date, free and
clear of all liens and encumbrances and the Contributor has good, marketable
title thereto and the right to convey same in accordance with the terms of
this
Agreement. Upon delivery of the Contributor’s Assignment and Assumption
Agreement to the Acquiror at Closing, good valid and marketable title to the
Contributor’s Interests, free and clear of all liens and encumbrances, will pass
to the Acquiror. The Interests constitute the only outstanding securities and
membership interests of the LLC.
(b) Except
for the lien created in connection with the Existing Mortgage, the Property
is,
on the date hereof, and will be on the Closing Date, free and clear of all
liens
and encumbrances, and the LLC has good, marketable title thereto and the right
to convey same. The LLC is the fee simple owner of the Real Property and the
sole owner of the Property.
3.5 Bankruptcy
with Respect to Contributor.
No Act
of Bankruptcy has occurred with respect to the Contributor.
3.6 Brokerage
Commission.
The
Contributor has not engaged the services of, nor is it or will it or Acquiror
become liable to, any real estate agent, broker, finder or any other person
or
entity for any brokerage or finder’s fee, commission or other amount with
respect to the transactions described herein on account of any action by the
Contributor.
3.7 The
LLC.
(a) The
LLC
is a limited liability company duly formed, validly existing and in good
standing under the laws of the State of New York and has all requisite powers
necessary to carry on its business as now conducted, to own, lease and operate
its properties.
(b) Neither
the execution, delivery, or performance by the Contributor of this Agreement,
nor the consummation of the transactions contemplated hereby, nor compliance
by
the Contributor or the LLC with any of the provisions hereof, will:
(i) violate,
conflict with, result in a breach of any provision of, constitute a default
(or
an event that, with notice or lapse of time or both, would constitute a default)
under, result in the termination of, accelerate the performance required by,
or
result in a right of termination or acceleration, or the creation of any lien,
security interest, charge, or encumbrance upon any of the Property or other
assets of the LLC, under any of the terms, conditions, or provisions of, the
Articles of Organization or LLC Operating Agreement, or any note, bond,
mortgage, indenture, deed of trust, license, lease, agreement, or other
instrument or obligation to which the LLC is a party, or by which the LLC may
be
bound, or to which the LLC or its properties or assets may be subject;
or
(ii) violate
any judgment, ruling, order, writ, injunction, decree, statute, rule, or
regulation applicable to the LLC or any of the LLC’s properties or
assets.
(c) Except
for the Contributor, no party has any interest in the LLC or the Property or
any
portion thereof, or the right or option to acquire any interest in the LLC
or
the Property or any portion thereof. The LLC has no subsidiaries and does not
directly or indirectly own any securities of or interest in any other entity,
including, without limitation, any LLC or joint venture.
(d) The
LLC
has conducted no business other than the ownership and operation of the
Property.
3.8 Liabilities,
Debts and Obligations.
Except
for the Continuing Liabilities and the Existing Mortgage, the LLC has no
liabilities, debts or obligations.
3.9 Tax
Matters.
(a) Notwithstanding
anything to the contrary contained in this Agreement, including without
limitation the use of words and phrases such as “sell,” “sale,” purchase,” and
“pay,” the parties hereto acknowledge and agree that it is their intent that the
transaction contemplated hereby shall be treated for federal income tax purposes
pursuant to Section 721 of the Internal Revenue Code of 1986, as amended,
as the contribution of the Interests by the Contributor to the Acquiror in
exchange for the Consideration, and not as a transaction in which any
Contributor is acting other than in the capacity as a prospective partner in
the
Acquiror.
(b) The
Contributor represents and warrants that it has obtained from its own counsel
advice regarding the tax consequences of (i) the transfer of the Interests
to
the Acquirer and the receipt of the Consideration therefor, (ii) the
Contributor’s admission as a limited partner of the Acquiror, and (iii) any
other transaction contemplated by this Agreement. Each Contributor further
represents and warrants that it has not relied on the Acquiror or the Acquiror’s
representatives or counsel for such tax advice.
(c) The
Contributor has caused the LLC to file within the time and in the manner
prescribed by law all federal, state, and local tax returns and reports,
including but not limited to income, gross receipts, intangible, real property,
excise, withholding, franchise, sales, use, employment, personal property,
and
other tax returns and reports, required to be filed by the LLC under the laws
of
the United States and of each state or other jurisdiction in which the LLC
conducts business activities requiring the filing of tax returns or reports.
All
tax returns and reports filed by the LLC are true and correct in all material
respects. The LLC has paid in full all taxes of whatever kind or nature for
the
periods covered by such returns. The LLC has not been delinquent in the payment
of any tax, assessment, or governmental charge or deposit and has no tax
deficiency or claim outstanding, assessed, threatened, or proposed against
it.
The charges, accruals, and reserves for unpaid taxes on the books and records
of
the LLC as of the Closing Date are sufficient in all respects for the payment
of
all unpaid federal, state, and local taxes of the LLC accrued for or applicable
to all periods ended on or before the Closing Date. There are no tax liens,
whether imposed by the United States, any state, local, or other taxing
authority, outstanding against the LLC or any of its assets. The federal, state,
and local tax returns of the LLC have not been audited, nor have the LLC or
the
Contributor received any notice of any federal, state, or local audit.
The
LLC
has not obtained or received any extension of time (beyond the Closing Date)
for
the assessment of deficiencies for any years or waived or extended the statute
of limitations for the determination or collection of any tax. To the
Contributor’s Knowledge, no unassessed tax deficiency is proposed or threatened
against the LLC.
(d) All
taxes, including real property taxes and rental taxes or the equivalent, and
all
interest and penalties due thereon, required to be paid or collected by the
LLC
in connection with the operation of the Property as of the Closing Date will
have been collected and/or paid to the appropriate governmental authorities,
as
required or such amounts shall be pro-rated as of the Closing Date. The
Contributor shall cause the LLC to file, all necessary returns and petitions
required to be filed through the Closing Date. The Contributor shall cause
the
LLC to prepare and file all federal and state income tax returns for the tax
period ending on the Closing Date, which shall reflect the termination for
tax
purposes of the LLC.
3.10 Contracts
and Agreements.
There
is no loan agreement, guarantee, note, bond, indenture and other debt
instrument, lease and other contract to which the LLC is a party or by which
its
assets are bound other than Existing Mortgage, Permitted Title Exceptions,
the
Leases, and the Operating Agreements.
3.11 No
Special Taxes.
The
Contributor has no Knowledge of, nor has he received any written notice of,
any
special taxes or assessments relating to the LLC or Property or any part thereof
or any planned public improvements that may result in a special tax or
assessment against the Property.
3.12 Compliance
with Existing Laws.
The LLC
possesses all Authorizations, each of which is valid and in full force and
effect, and, to Contributor’s Knowledge, no provision, condition or limitation
of any of the Authorizations has been breached or violated. The LLC has not
misrepresented or failed to disclose any relevant fact in obtaining all
Authorizations, and the Contributor has no Knowledge of any change in the
circumstances under which those Authorizations were obtained that result in
their termination, suspension, modification or limitation. The Contributor
has
no Knowledge, nor has he received written notice within the past three years,
of
any existing violation of any provision of any applicable building, zoning,
subdivision, environmental or other governmental ordinance, resolution, statute,
rule, order or regulation, including but not limited to those of environmental
agencies or insurance boards of underwriters, with respect to the ownership,
operation, use, maintenance or condition of the Property or any part thereof,
or
requiring any repairs or alterations other than those that have been made prior
to the date hereof.
3.13 Operating
Agreements.
The LLC
has performed all of its obligations under each of the Operating Agreements
and
no fact or circumstance has occurred which, by itself or with the passage of
time or the giving of notice or both, would constitute a material default under
any of the Operating Agreements. Without the prior written consent of the
Acquiror, which consent will not be unreasonably withheld or delayed, the
Contributor shall cause the LLC not to enter into any new management agreement,
maintenance or repair contract, supply contract, lease in which it is lessee
or
other agreements with respect to the Property, nor shall the Contributor cause
the LLC to enter into any agreements modifying the Operating
Agreements.
3.14 Warranties
and Guaranties.
The
Contributor shall cause the LLC not to release or modify any warranties or
guarantees, if any, of manufacturers, suppliers and installers relating to
the
Improvements and the Tangible Personal Property or any part thereof, except
with
the prior written consent of the Acquiror, which consent shall not be
unreasonably withheld or delayed. A complete list of all such warranties and
guaranties in effect as of the date of this Agreement is attached hereto as
Exhibit H.
3.15 Insurance.
All of
the LLC’s Insurance Policies are valid and in full force and effect, all
premiums for such policies were paid when due and the Contributor shall cause
the LLC to pay all future premiums for such policies (and any replacements
thereof) on or before the due date therefor. The Contributor shall cause the
LLC
to pay all premiums on, and shall cause the LLC not to cancel or allow to
expire, any of the LLC’s Insurance Policies prior to the Closing Date unless
such policy is replaced, without any lapse of coverage, by another policy or
policies providing coverage at least as extensive as the policy or policies
being replaced. The Contributor shall cause the LLC to name the Acquiror as
an
additional insured on each of the LLC’s Insurance Policies.
3.16 Condemnation
Proceedings; Roadways.
The LLC
has received no written notice of any condemnation or eminent domain proceeding
pending or threatened against the Property or any part thereof. The Contributor
has no Knowledge of any change or proposed change in the route, grade or width
of, or otherwise affecting, any street or road adjacent to or serving the Real
Property.
3.17 Litigation
with Respect to LLC.
Except
as set forth on Exhibit
I
there is
no action, suit or proceeding pending or known to be threatened against or
affecting the LLC or any part of or interest in the Property in any court,
before any arbitrator or before or by any governmental agency which (a) in
any
manner raises any question affecting the validity or enforceability of this
Agreement or any other material agreement or instrument to which the LLC is
a
party or by which it is bound and that is or is to be used in connection with,
or is contemplated by, this Agreement, (b) could materially and adversely affect
the business, financial position or results of operations of the LLC, (c) could
materially and adversely affect the ability of the LLC to perform its
obligations hereunder, or under any document to be delivered pursuant hereto,
(d) could create a material lien on the Property, any part thereof or any
interest therein, or (e) could otherwise materially and adversely affect the
Property, any part thereof or any interest therein or the use, operation,
condition or occupancy thereof.
3.18 Labor
Disputes and Agreements.
There
are not currently any labor disputes pending or, threatened as to the operation
or maintenance of the Property or any part thereof. The LLC is not a party
to
any union or other collective bargaining agreement with employees employed
in
connection with the ownership, operation or maintenance of the Property. The
Acquiror will not be obligated to give or pay any amount to any employee of
the
LLC, and the Acquiror shall not have any liability under any pension or profit
sharing plan that the LLC may have established with respect to the Property
or
their or its employees.
3.19 Financial
Information.
To the
Contributor’s Knowledge, except as otherwise disclosed in writing to the
Acquiror prior to the end of the Study Period, for each of the LLC’s accounting
years, when a given year is taken as a whole, all of the LLC’s financial
information previously delivered or to be delivered to the Acquiror is and
shall
be correct and complete in all material respects and presents accurately the
financial condition of the LLC and results of the operations of the Property
for
the periods indicated, except that such statements do not have footnotes or
schedules that may otherwise be required by GAAP. If requested by the Acquiror,
the Contributor shall cause the LLC to deliver promptly all four-week period
ending financial information available to the LLC. The LLC’s financial
information is prepared based on books and records maintained by the LLC in
accordance with the LLC’s accounting system. The LLC’s financial information has
been provided to the Acquiror without any changes or alteration thereto. To
the
best of Contributor's Knowledge, since the date of the last financial statement
included in the LLC's financial information, there has been no material adverse
change in the financial condition or in the operations of the
Property.
3.20 Organizational
Documents.
The
LLC’s Organizational Documents are in full force and effect and have not been
modified or supplemented, and no fact or circumstance has occurred that, by
itself or with the giving of notice or the passage of time or both, would
constitute a default thereunder.
3.21 Operation
of Property.
The
Contributor covenants that between the date hereof and the Closing Date,
Contributor shall cause the LLC to (a) operate the Property only in the usual,
regular and ordinary manner consistent with the LLC’s prior practice, (b)
maintain the books of account and records in the usual, regular and ordinary
manner, in accordance with sound accounting principles applied on a basis
consistent with the basis used in keeping its books in prior years, and (c)
use
all reasonable efforts to preserve intact the present business organization,
keep available the services of the present officers and employees and preserve
their relationships with suppliers and others having business dealings with
them. The Contributor shall cause the LLC to continue to make good faith efforts
to take guest room reservations and to book functions and meetings and otherwise
to promote the business of the Property in generally the same manner as the
LLC
did prior to the execution of this Agreement. Except as otherwise permitted
hereby, from the date hereof until Closing, the Contributor shall use its good
faith efforts to ensure that the LLC shall not take any action or fail to take
action the result of which (i) would have a material adverse effect on the
Property or the Acquiror’s ability to continue the operation thereof after the
Closing Date in substantially the same manner as presently conducted, (ii)
reduce or cause to be reduced any room rents or any other charges over which
Contributor has operational control, or (iii) would cause any of the
representations and warranties contained in this Article
III
to be
untrue as of Closing.
3.22 Bankruptcy
with respect to LLC.
No Act
of Bankruptcy has occurred with respect to the LLC.
3.23 Hazardous
Substances.
Except
for matters in LLC’s or Acquiror's audits, Contributor has no Knowledge:
(a) of the presence of any “Hazardous Substances” (as defined below) on the
Property, or any portion thereof, or, (b) of any spills, releases,
discharges, or disposal of Hazardous Substances that have occurred or are
presently occurring on or onto the Property, or any portion thereof, or (c)
of
the presence of any PCB transformers serving, or stored on, the Property, or
any
portion thereof, and Contributor has no Knowledge of any failure to comply
with
any applicable local, state and federal environmental laws, regulations,
ordinances and administrative and judicial orders relating to the generation,
recycling, reuse, sale, storage, handling, transport and disposal of any
Hazardous Substances (as used herein, “Hazardous Substances” shall mean any
substance or material whose presence, nature, quantity or intensity of
existence, use, manufacture, disposal, transportation, spill, release or effect,
either by itself or in combination with other materials is either:
(1) potentially injurious to the public health, safety or welfare, the
environment or the Property, (2) regulated, monitored or defined as a
hazardous or toxic substance or waste by any Governmental Body, or (3) a
basis for liability of the owner of the Property to any Governmental Body or
third party, and Hazardous Substances shall include, but not be limited to,
hydrocarbons, petroleum, gasoline, crude oil, or any products, by-products
or
components thereof, and asbestos). Notwithstanding anything to the contrary
contained herein Contributor shall have no liability to Acquiror for any
Hazardous Substances of which Contributor has no Knowledge.
3.24 Room
Furnishings.
All
public spaces, lobbies, meeting rooms, and each room in the Hotel available
for
guest rental is furnished in accordance with Licensor's standards for the Hotel
and room type.
3.25 Intentionally
Omitted.
3.26 Independent
Audit.
Contributor shall provide access by Acquiror's representatives, to all financial
and other information relating to the Property and the LLC.
3.27 Bulk
Sale Compliance.
Contributor shall indemnify Acquiror against any claim, loss or liability
arising under the bulk sales law in connection with the transaction contemplated
herein.
3.28 Sufficiency
of Certain Items.
The
Property contains not less than:
(a) a
sufficient amount of furniture, furnishings, color television sets, carpets,
drapes, rugs, floor coverings, mattresses, pillows, bedspreads and the like,
to
furnish each guest room, so that each such guest room is, in fact, fully
furnished; and
(b) a
sufficient amount of towels, washcloths and bed linens, so that there are three
sets of towels, washcloths and linens for each guest room (one on the beds,
one
on the shelves, and one in the laundry), together with a sufficient supply
of
paper goods, soaps, cleaning supplies and other such supplies and materials,
as
are reasonably adequate for the current operation of the Hotel.
3.29 Intentionally
Omitted.
3.30 Leases.
True,
complete copies of the Leases, are attached as Exhibit
D
hereto.
The Leases are, and will at Closing be, in full force and effect and neither
Contributor nor the LLC, is in default and the Contributor shall make good
faith
efforts for himself and the LLC not to be in default with respect thereto (with
or without the giving of any notice and/or lapse of time). The Leases are,
or
will be at Closing, freely assignable by Contributor and Contributor will have
obtained all consents of any third party necessary to assign the Leases to
Acquiror.
3.31 Noncontravention.
The
execution and delivery of, and the performance by the Contributor of his
obligations under this Agreement do not and will not contravene, or constitute
a
default under, any provision of applicable law or regulation, or any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Contributor, or result in the creation of any lien or other encumbrance on
any
asset of the Contributor. There are no outstanding agreements (written or oral)
pursuant to which the Contributor (or any predecessor to or representative
of
the Contributor) has agreed to contribute or has granted an option or right
of
first refusal to acquire the Interests or the Property or any part
thereof.
3.32 Intentionally
Omitted.
3.33 Patriot
Act Representations.
The
Contributor and, to the actual knowledge of such Contributor, any direct or
indirect owner of the LLC or such Contributor, (i) are not included on any
Government List (as defined below), (ii) are not persons who have been
determined by competent authority to be subject to the prohibitions contained
in
the Presidential Executive Order No. 13224 or any other similar prohibitions
contained in the rules and regulations of the OFAC or in any enabling
legislation or other Presidential Executive Orders in respect thereof, (iii)
have not been indicted or convicted of any Patriot Act Offenses, or (iv) are
not
currently under investigation by any governmental authority for alleged criminal
activity. For purposes of this Agreement, (i) “Government List” means (A) the
Specially Designated Nationals and Blocked Persons List maintained by OFAC,
(B)
any other list of terrorists, terrorist organizations or narcotics traffickers
maintained pursuant to any of the Rules and Regulations of OFAC, or (C) any
similar list maintained by the United States Department of State, the United
States Department of Commerce or any other governmental authority or pursuant
to
any Executive Order of the President of the United States of America; (ii)
“OFAC” means the Office of Foreign Asset Control, U.S. Department of the
Treasury, (iii) “Patriot Act” means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT ACT) Act of 2001, as the same may be amended from time to time, and
corresponding provisions of future laws, and (iv) “Patriot Act Offense” means
any violation of the criminal laws of the United States of America or of any
of
the several states, or that would be a criminal violation if committed within
the jurisdiction of the United States of America or any of the several states,
relating to terrorism or the laundering of monetary instruments, including
any
offense under (A) the criminal laws against terrorism, (B) the criminal laws
against money laundering, (C) the Bank Secrecy Act, as amended, (D) the Money
Laundering Control Act of 1986, as amended, or (E) the Patriot Act and also
includes the crimes of conspiracy to commit, or aiding and abetting another
to
commit, any of the foregoing.
Each
of
the representations, warranties and covenants contained in this Article
III
and its
various subparagraphs are intended for the benefit of the Acquiror and may
be
waived in whole or in part, by the Acquiror, but only by an instrument in
writing signed by the Acquiror. Each of said representations, warranties and
covenants shall survive the closing of the transaction contemplated hereby
for
twenty-four (24) months, and no investigation, audit, inspection, review or
the
like conducted by or on behalf of the Acquiror shall be deemed to terminate
the
effect of any such representations, warranties and covenants, it being
understood that the Acquiror has the right to rely thereon and that each such
representation, warranty and covenant constitutes a material inducement to
the
Acquiror to execute this Agreement and to close the transaction contemplated
hereby and to pay the Consideration to the Contributor. Acquiror
acknowledges and agrees that, except for the representations and warranties
expressly set forth herein, Acquiror is acquiring the LLC and Property “AS-IS,
WHERE-IS” with no representations or warranties by or from Contributor, express
or implied, or any nature whatsoever.
ARTICLE
IV
ACQUIROR'S
REPRESENTATIONS, WARRANTIES AND COVENANTS
To
induce
the Contributor to enter into this Agreement and to sell the Interests, the
Acquiror hereby makes the following representations, warranties and covenants
upon each of which the Acquiror acknowledges and agrees that the Contributor
is
entitled to rely and has relied:
4.1 Organization
and Power.
The
Acquiror is a limited partnership duly organized, validly existing and in good
standing under the laws of the Commonwealth of Virginia, and has all partnership
powers and all governmental licenses, authorizations, consents and approvals
to
carry on its business as now conducted and to enter into and perform its
obligations under this Agreement and any document or instrument required to
be
executed and delivered on behalf of the Acquiror hereunder.
4.2 Noncontravention.
The
execution and delivery of this Agreement and the performance by the Acquiror
of
its obligations hereunder do not and will not contravene, or constitute a
default under, any provisions of applicable law or regulation, the Acquiror's
partnership agreement or any agreement, judgment, injunction, order, decree
or
other instrument binding upon the Acquiror or result in the creation of any
lien
or other encumbrance on any asset of the Acquiror.
4.3 Litigation.
There
is no action, suit or proceeding, pending or known to be threatened, against
or
affecting the Acquiror in any court or before any arbitrator or before any
Governmental Body which (a) in any manner raises any question affecting the
validity or enforceability of this Agreement or any other agreement or
instrument to which the Acquiror is a party or by which it is bound and that
is
to be used in connection with, or is contemplated by, this Agreement,
(b) could materially and adversely affect the ability of the Acquiror to
perform its obligations hereunder, or under any document to be delivered
pursuant hereto.
4.4 Bankruptcy.
No Act
of Bankruptcy has occurred with respect to the Acquiror.
4.5 No
Brokers.
The
Acquiror has not engaged the services of, nor is it or will it become liable
to,
any real estate agent, broker, finder or any other person or entity for any
brokerage or finder's fee, commission or other amount with respect to the
transaction described herein.
ARTICLE
V
CONDITIONS
AND ADDITIONAL COVENANTS
The
Acquiror's obligations hereunder are subject to the satisfaction of the
following conditions precedent and the compliance by the Contributor with the
following covenants:
5.1 Contributor’s
Deliveries.
The
Contributor shall have delivered to the Escrow Agent or the Acquiror, as the
case may be, on or before the date of Closing, all of the documents and other
information required of Contributor pursuant to Section 6.2.
5.2 Representations,
Warranties and Covenants; Obligations of Contributor;
Certificate.
All of
the Contributor’s representations and warranties made in this Agreement shall be
true and correct as of the date hereof and as of the Closing Date as if then
made, there shall have occurred no material adverse change in the financial
condition of the Property or the LLC since the date hereof, the Contributor
shall have performed all of its material covenants and other obligations under
this Agreement and the Contributor shall have executed and delivered to the
Acquiror at Closing a certificate to the foregoing effect.
5.3 Title
Insurance.
Good
and indefeasible title to the fee interest in the Real Property shall be
insurable as such by the Title Company at or below its regularly scheduled
rates
subject only to Permitted Title Exceptions as determined in accordance with
Section 2.2.
5.4 Condition
of Improvements.
The
Improvements and the Tangible Personal Property (including but not limited
to
the mechanical systems, plumbing, electrical, wiring, appliances, fixtures,
heating, air conditioning and ventilating equipment, elevators, boilers,
equipment, roofs, structural members and furnaces) shall be in the same
condition at Closing as they are as of the date hereof, reasonable wear and
tear
excepted. Prior to Closing, the Contributor shall not have diminished the
quality or quantity of maintenance and upkeep services heretofore provided
to
the Real Property and the Tangible Personal Property and the Contributor shall
not have diminished the Inventory. The Contributor shall not have removed or
caused or permitted to be removed any part or portion of the Real Property
or
the Tangible Personal Property unless the same is replaced, prior to Closing,
with similar items of at least equal quality and acceptable to the
Acquiror.
5.5 Utilities.
All of
the Utilities shall be installed in and operating at the Property, and service
shall be available for the removal of garbage and other waste from the
Property.
5.6 Intentionally
Omitted.
5.7 Interests.
From
the date hereof to and including the Closing Date, Contributor shall not sell,
assign, pledge, hypothecate or otherwise transfer the Interests, except as
contemplated by this Agreement, nor shall the Contributor cause or permit the
LLC to issue any securities or membership interests to any person or to sell,
pledge, transfer or otherwise dispose of the Property or any interest
therein.
5.8 Intentionally
Omitted.
5.9 Intentionally
Omitted.
ARTICLE
VI
CLOSING
6.1 Closing.
Closing
shall be held at a location that is mutually acceptable to the parties, on
or
before June 11th,
2007.
6.2 Contributor’
Deliveries.
At
Closing, the Contributor shall deliver to Acquiror all of the following
instruments, each of which shall have been duly executed and, where applicable,
acknowledged on behalf of the Contributor and shall be dated as of the date
of
Closing:
(a) Certificates
representing the Interests.
(b) The
certificate required by Section 5.2.
(c) The
Assignment and Assumption Agreement.
(d) Any
and
all service contracts, space leases, and agreements.
(e) Such
agreements, affidavits or other documents as may be required by the Title
Company to issue the Owner's Title Policy with affirmative coverage over
mechanics' and materialmen's liens.
(f) The
FIRPTA Certificate.
(g) True,
correct and complete copies of all warranties, if any, of manufacturers,
suppliers and installers possessed by the Contributor and relating to the
Improvements and the Personal Property, or any part thereof.
(h) Copies
of
the LLC’s Organizational Documents.
(i) Appropriate
consent of the LLC, authorizing (A) the execution of any documents to be
executed and delivered by the LLC prior to, at or otherwise in connection with
Closing and in connection with the transactions contemplated by this Agreement,
and (B) the performance by the LLC of its obligations hereunder and under
such documents.
(j) Valid,
final and unconditional certificate(s) of occupancy for the Real Property and
Improvements, issued by the appropriate Governmental Body.
(k) Such
proof as the Acquiror may reasonably require with respect to Contributor’s
compliance with the bulk sales laws or similar statutes.
(l) A
written
instrument executed by the Contributor, conveying and transferring to the
Acquiror all of the Contributor’s right, title and interest in any telephone
numbers and facsimile numbers relating to the Property, and, if the Contributor
maintains a post office box, conveying to the Acquiror all of its interest
in
and to such post office box and the number associated therewith, so as to assure
a continuity in operation and communication.
(m) All
current real estate and personal property tax bills in the Contributor’s
possession or under its control.
(n) Possession
of the Property and all keys for the Property.
(o) All
books, records, operating reports, appraisal reports, files and other materials
in the Contributor’s possession or control which are necessary in the Acquiror’s
discretion to maintain continuity of operation of the Property.
(p) An
assignment of all warranties and guarantees from all contractors and
subcontractors, manufacturers, and suppliers in effect with respect to the
Improvements.
(q) Complete
set of “as-built” drawings for the Improvements as available in Contributor’s
possession.
(r) Such
proof, reasonably acceptable to the Acquiror evidencing the payment by
Contributor of all transfer taxes incurred in connection with the transactions
contemplated by this Agreement.
(s) Any
other
document or instrument reasonably requested by the Acquiror or required
hereby.
6.3 Acquiror's
Deliveries.
At
Closing, the Acquiror shall pay or deliver to the Contributor the
following:
(a) The
Consideration described in Section 2.3.
(b) The
Assignment and Assumption Agreement.
(c) The
Joinder.
(d) Any
other
document or instrument reasonably requested by the Contributor or required
hereby.
6.4 Closing
Costs.
Each
party shall pay its own legal fees and expenses. All filing fees, and recording
or other similar taxes, and all charges for title insurance premiums shall
be
paid by Acquiror.
6.5 Income
and Expense Allocations.
All
income, except any Intangible Personal Property, and expenses with respect
to
the Property, determined in accordance with United States generally accepted
accounting principles consistently applied, shall be allocated between the
Contributor and the Acquiror. The Contributor shall be entitled to all income
(including all cash box receipts and cash credits for unused expendables),
and
responsible for all expenses for the period of time up to but not including
12:01 a.m. on the Closing Date, and the Acquiror shall be entitled to all income
and responsible for all expenses for the period of time from, after and
including 12:01 a.m. on the Closing Date. Only
adjustments for ground rent, if applicable, and real estate taxes shall be
shown
on the settlement statements (with such supporting documentation as the parties
hereto may require being attached as exhibits to the settlement statements)
and
shall increase or decrease (as the case may be) the amount payable by the
Acquiror.
All
other such adjustments shall be made by separate agreement between the parties
and shall be payable by check or wire directly between the parties. Without
limiting the generality of the foregoing, the following items of income and
expense shall be allocated as of the Closing Date:
(a) Current
and prepaid rents, including, without limitation, prepaid room receipts,
function receipts and other reservation receipts.
(b) Real
estate and personal property taxes.
(c) Amounts
under the Operating Agreements.
(d) Utility
charges (including but not limited to charges for water, sewer and
electricity).
(e) Value
of
fuel stored on the Property at the price paid for such fuel by the Contributor,
including any taxes.
Acquiror
shall not be obligated to collect any accounts receivable or revenues accrued
prior to the Closing Date for Contributor, but if Acquiror collects same, such
amounts will be promptly remitted to Contributor in the form
received.
If
accurate allocations cannot be made at Closing because current bills are not
obtainable (as, for example, in the case of utility bills or tax bills), the
parties shall allocate such income or expenses at Closing on the best available
information, subject to adjustment upon receipt of the final xxxx or other
evidence of the applicable income or expense. Any income received or expense
incurred by the Contributor or the Acquiror with respect to the Property after
the date of Closing shall be promptly allocated in the manner described herein
and the parties shall promptly pay or reimburse any amount due. The Contributor
shall pay at Closing all special assessments and taxes applicable to the
Property.
The
certificates evidencing the Contributor’s ownership of the Interests will be
dated as of the Closing Date.
ARTICLE
VII
CONDEMNATION;
RISK OF LOSS
7.1 Condemnation.
In the
event of any actual or threatened taking, pursuant to the power of eminent
domain, of all or any portion of the Real Property, or any proposed sale in
lieu
thereof, the Contributor shall give written notice thereof to the Acquiror
promptly after the Contributor learns or receives notice thereof. If all or
any
part of the Real Property is, or is to be, so condemned or sold, the Acquiror
shall have the right to terminate this Agreement pursuant to Section 8.3.
If the
Acquiror elects not to terminate this Agreement, all proceeds, awards and other
payments arising out of such condemnation or sale (actual or threatened) shall
be paid or assigned, as applicable, to the Acquiror at Closing.
7.2 Risk
of Loss.
The
risk of any loss or damage to the Property prior to the recordation of the
Deed
shall remain upon Contributor. If any such loss or damage to more than ten
percent (10%) of the value of the Improvements occurs prior to Closing or any
such loss or damage is uninsured or underinsured, the Acquiror shall have the
right to terminate this Agreement pursuant to Section 8.3.
If the
Acquiror elects not to terminate this Agreement, all insurance proceeds and
rights to proceeds arising out of such loss or damage shall be paid or assigned,
as applicable, to the Acquiror at Closing.
ARTICLE
VIII
LIABILITY
OF ACQUIROR; INDEMNIFICATION BY CONTRIBUTOR;
TERMINATION
RIGHTS
8.1 Liability
of Acquiror.
Except
for any obligation expressly assumed or agreed to be assumed by the Acquiror
hereunder and in the Assignment and Assumption Agreement, the Acquiror does
not
assume any obligation of the Contributor or any liability for claims arising
out
of any occurrence prior to Closing.
8.2 Indemnification
by Contributor.
The
Contributor hereby indemnifies and holds the Acquiror harmless from and against
any and all suits, actions, claims, costs, penalties, damages, losses,
liabilities and expenses, subject to Section
9.11
that may
at any time be incurred by the Acquiror, whether before or after Closing, (i)
as
a result of any breach by the Contributor of any of his representations,
warranties, covenants or obligations set forth herein or in any other document
delivered by the Contributor pursuant hereto, (ii) relating to any suits,
litigation or actions brought against any Contributor or the LLC prior to the
Closing Date, (iii) in connection with any and all liabilities and obligations
of the LLC occurring, accruing or arising prior to the Closing Date, and/or
(iv)
as a result of or in connection with the use or operation of the Property prior
to the Closing Date.
8.3 Termination
by Acquiror.
If any
condition set forth herein cannot or will not be satisfied prior to Closing,
or
upon the occurrence of any other event that would entitle the Acquiror to
terminate this Agreement and its obligations hereunder, and the Contributor
fails to cure any such matter within five days after notice thereof from the
Acquiror, the Acquiror, at its option and as its sole remedy, shall elect either
(a) to terminate this Agreement and receive a refund of the entire Deposit,
with interest, and all other rights and obligations of the Contributor and
the
Acquiror hereunder shall terminate immediately, or (b) to waive its right
to terminate and, instead, to proceed to Closing.
8.4 Termination
by Contributor.
If,
prior to Closing, the Acquiror defaults in performing any of its obligations
under this Agreement, and the Acquiror fails to cure any such default within
five (5) business days after notice thereof from the Contributor, then the
Contributor’s sole remedy for such default shall be to terminate this Agreement.
ARTICLE
IX
MISCELLANEOUS
PROVISIONS
9.1 Completeness;
Modification.
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the transactions contemplated hereby and supersedes all prior
discussions, understandings, agreements and negotiations between the parties
hereto. This Agreement may be modified only by a written instrument duly
executed by the parties hereto.
9.2 Assignments.
The
Acquiror may assign its rights hereunder to any affiliate of Acquiror without
the consent of the Contributor. No such assignment shall relieve the Acquiror
of
any of its obligations and liabilities hereunder.
9.3 Successors
and Assigns.
The
benefits and burdens of this Agreement shall inure to the benefit of and bind
the Acquiror and the Contributor and their respective party hereto.
9.4 Days.
If any
action is required to be performed, or if any notice, consent or other
communication is given, on a day that is a Saturday or Sunday or a legal holiday
in the jurisdiction in which the action is required to be performed or in which
is located the intended recipient of such notice, consent or other
communication, such performance shall be deemed to be required, and such notice,
consent or other communication shall be deemed to be given, on the first
business day following such Saturday, Sunday or legal holiday. Unless otherwise
specified herein, all references herein to a “day” or “days” shall refer to
calendar days and not business days.
9.5 Governing
Law.
This
Agreement and all documents referred to herein shall be governed by and
construed and interpreted in accordance with the laws of the State of New
York.
9.6 Counterparts.
To
facilitate execution, this Agreement may be executed in as many counterparts
as
may be required. It shall not be necessary that the signature on behalf of
both
parties hereto appear on each counterpart hereof. All counterparts hereof shall
collectively constitute a single agreement.
9.7 Severability.
If any
term, covenant or condition of this Agreement, or the application thereof to
any
person or circumstance, shall to any extent be invalid or unenforceable, the
remainder of this Agreement, or the application of such term, covenant or
condition to other persons or circumstances, shall not be affected thereby,
and
each term, covenant or condition of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
9.8 Costs.
Regardless of whether Closing occurs hereunder, and except as otherwise
expressly provided herein, each party hereto shall be responsible for its own
costs in connection with this Agreement and the transactions contemplated
hereby, including without limitation fees of attorneys, engineers and
accountants.
9.9 Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing and shall be delivered by hand, transmitted by facsimile transmission,
sent prepaid by Federal Express (or a comparable overnight delivery service)
or
sent by the United States mail, certified, postage prepaid, return receipt
requested, at the addresses and with such copies as designated below. Any
notice, request, demand or other communication delivered or sent in the manner
aforesaid shall be deemed given or made (as the case may be) when actually
delivered to the intended recipient.
|
If
to the Contributors:
|
Xxxx
X.
Xxxx
|
00
Xxxxxx
Xxxxx
Xxxxxxxxxx,
XX 00000
Phone:
(000) 000-0000
Fax:
(000)
000-0000
Xxxxxx
X.
Xxxxx
00
Xxxxxx
Xxxxx
Xxxxxxxxxx,
XX 00000
|
With
a copy to:
|
Xxxxx
Xxxxx, Esq.
|
c/o
Hersha Group
00
Xxxxxx
Xxxxx
Xxxxxxxxxx,
XX 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
|
If
to the Acquiror:
|
Hersha
Hospitality Limited Partnership
|
00
Xxxxxx
Xxxxx
Xxxxxxxxxx,
XX 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
Attn:
Xxxxxx X. Xxxxxx
|
With
a copy to:
|
Lok
Mohapatra, Esquire
|
Franklin
Firm, LLP
Penn
Mutual Towers
000
Xxxxxx Xxxxxx, 0xx
xxxxx
Xxxxxxxxxxxx,
XX 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
Or
to
such other address as the intended recipient may have specified in a notice
to
the other party. Any party hereto may change its address or designate different
or other persons or entities to receive copies by notifying the other party
and
the Escrow Agent in a manner described in this Section.
9.10 Incorporation
by Reference.
All of
the exhibits attached hereto are by this reference incorporated herein and
made
a part hereof.
9.12 Further
Assurances.
The
Contributor and the Acquiror each covenant and agree to sign, execute and
deliver, or cause to be signed, executed and delivered, and to do or make,
or
cause to be done or made, upon the written request of the other party, any
and
all agreements, instruments, papers, deeds, acts or things, supplemental,
confirmatory or otherwise, as may be reasonably required by either party hereto
for the purpose of or in connection with consummating the transactions described
herein.
9.13 No
Partnership.
This
Agreement does not and shall not be construed to create a partnership, joint
venture or any other relationship between the parties hereto except the
relationship of Contributor and Acquiror specifically established
hereby.
9.14 Time
of Essence.
Time is
of the essence with respect to every provision hereof.
9.15 Confidentiality.
Contributor and its representatives, including any professionals representing
Contributor, shall keep the existence and terms of this Agreement strictly
confidential, except to the extent disclosure is compelled by law, and then
only
to the extent of such compulsion.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the Contributor and the Acquiror have caused this Agreement
to
be executed in their names by their respective duly-authorized
representatives.
|
CONTRIBUTORS:
|
||||
|
Xxxx
X. Xxxx
|
||||
|
Xxxx
X. Xxxx, individually
|
||||
|
Xxxxxx
X. Xxxxx
|
||||
|
Xxxxxx
X. Xxxxx, individually
|
||||
|
ACQUIROR:
|
||||
|
Hersha
Hospitality Limited Partnership,
a
Virginia limited partnership
|
||||
|
By:
|
Hersha
Hospitality Trust, a Maryland business trust, its sole general
partner
|
|||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
