1
EXHIBIT 10.6.
REDEMPTION AND REGISTRATION RIGHTS AGREEMENT
This REDEMPTION AND REGISTRATION RIGHTS AGREEMENT ("Agreement") is
entered into as of the 20th day of June, 1997 by and among INNKEEPERS USA
LIMITED PARTNERSHIP, a Virginia limited partnership (the "REIT Partnership"),
INNKEEPERS FINANCIAL CORPORATION, a Virginia corporation and sole general
partner of the REIT Partnership (the "General Partner"), INNKEEPERS USA TRUST, a
Maryland real estate investment trust (the "REIT"), the partnerships listed on
Exhibit A (the "Contributing Partnerships"), the partners of the Contributing
Partnerships listed on Exhibit A hereto (the "Summerfield Limited Partners") and
Xxxx X. Xxxxxx as representative of the Summerfield Limited Partners for the
limited purposes described herein (the "Summerfield Limited Partner
Representative"). Capitalized terms not otherwise defined when first used herein
shall have the meanings set forth in Article I.
RECITALS
WHEREAS, pursuant to separate Contribution Agreements among the REIT
Partnership and the Contributing Partnerships (the "Contribution Agreements"),
the Contributing Partnerships have contributed to the REIT Partnership certain
hotel properties in exchange for common units of limited partnership interest in
the REIT Partnership (the "Partnership Units") as set forth on Exhibit A hereto,
cash and assumption of certain debt, all as set forth in the Contribution
Agreements; and
WHEREAS, the Contributing Partnerships may in the future distribute
some or all of the Partnership Units received from the REIT Partnership pursuant
to the Contribution Agreements to the Summerfield Limited Partners in the
amounts set forth in Exhibit A; and
WHEREAS, the General Partner, the other limited partners of the REIT
Partnership and the Contributing Partnerships have executed, and upon receipt of
Partnership Units, the Summerfield Limited Partners will execute, the Second
Amended and Restated Agreement of Limited Partnership dated November 1, 1996 of
the REIT Partnership (the "REIT Partnership Agreement"); and
WHEREAS, the parties hereto desire to set forth certain rights of the
Contributing Partnerships and the Summerfield Limited Partners as holders of the
Partnership Units;
NOW, THEREFORE, for and in consideration of the mutual promises and
agreements contained in this Agreement, the parties hereto mutually agree as
follows:
2
AGREEMENT
ARTICLE I
DEFINITIONS
"AFFILIATE" means (i) any Person that, directly or indirectly, controls
or is controlled by or is under common control with such Person, (ii) any other
Person that beneficially owns, directly or indirectly, 5% or more of the
outstanding capital stock, shares or equity interests of such Person, or (iii)
any officer, director, employee, partner or trustee of such Person or any Person
controlling, controlled by or under common control with such Person (excluding
trustees and persons serving in similar capacities who are not otherwise
Affiliates of such Person). For the purposes of this definition, "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, through the ownership
of voting securities, partnership interests or other equity interests.
"AGREEMENT" means this Redemption and Registration Rights Agreement, as
the same shall be amended, modified, or supplemented from time to time.
"CASH AMOUNT" means an amount of cash per Partnership Unit equal to the
value of the REIT Shares Amount (a) with respect to a redemption of Partnership
Units pursuant to a Notice of Redemption, on the date of receipt by the General
Partner of a Notice of Redemption and (b) with respect to the REIT's purchase of
Redemption Shares pursuant to Section 4.4(h) or Section 5.3(f), on the date of
the REIT's receipt of notice from the Summerfield Limited Partner Representative
pursuant to Section 4.1 and Section 5.1(a), respectively. The value of the REIT
Shares Amount shall be based on the average of the daily "Market Price" of REIT
Shares for the ten consecutive trading days immediately preceding the date of
such valuation. The market price for each such trading day shall be: (i) if the
REIT Shares are listed or admitted to trading on any securities exchange or the
NASDAQ Stock Market, the last sale price, regular way, on such day, or if no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way, on such day, (ii) if the REIT Shares are not listed or
admitted to trading on any securities exchange or the NASDAQ Stock Market, the
last reported sale price on such day or, if no sale takes place on such day, the
average of the closing bid and asked prices on such day, as reported by a
reliable quotation source designated by the General Partner, or (iii) if the
REIT Shares are not listed or admitted to trading on any securities exchange or
the NASDAQ Stock Market and no such last reported sale price or closing bid and
asked prices are available, the average of the reported high bid and low asked
prices on such day, as reported by a reliable quotation source designated by the
General Partner, or if there shall be no bid and asked prices on such day, the
average of the high bid and low asked prices, as so reported, on the most recent
day (not more than 10 days prior to the date in question) for which prices have
been so reported; provided that if there are no bid and asked prices reported
during the ten days prior to the date in question, the value of the REIT Shares
shall be determined by the General Partner acting in good faith on the basis of
such quotations and other information as it considers, in its reasonable
judgment, appropriate. In the event the REIT Shares Amount includes rights that
a holder of REIT Shares would be entitled to receive, then the value of such
rights shall be determined by the General Partner acting in good faith on
2
3
the basis of such quotations and other information as it considers, in its
reasonable judgment, appropriate.
"CODE" means the Internal Revenue Code of 1986, as amended, and as
hereafter amended from time to time. Reference to any particular provision of
the Code shall mean that provision of the Code as of the date hereof and any
succeeding provision of the Code.
"COMMON PARTNERSHIP UNIT" means a fractional, undivided common share of
the ownership interests in the REIT Partnership issued under the REIT
Partnership Agreement.
"CONTRIBUTION AGREEMENTS" has the meaning provided in the preamble.
"CONTRIBUTING PARTNERSHIPS" has the meaning provided in the preamble.
"CONVERSION FACTOR" means one (1), provided that in the event that the
REIT (i) declares or pays a dividend on its outstanding REIT Shares in REIT
Shares or makes a distribution to all holders of its outstanding REIT Shares in
REIT Shares, (ii) subdivides its outstanding REIT Shares, or (iii) combines its
outstanding REIT Shares into a smaller number of REIT Shares, the Conversion
Factor shall be adjusted by multiplying the Conversion Factor by a fraction, the
numerator of which shall be the number of REIT Shares issued and outstanding on
the record date for such dividend, distribution, subdivision or combination
(assuming for such purposes that such dividend, distribution, subdivision or
combination has occurred as of such time), and the denominator of which shall be
the actual number of REIT Shares (determined without the above assumption)
issued and outstanding on such date. Any adjustment to the Conversion Factor
shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
"DECLARATION OF TRUST" means the Amended and Restated Declaration of
Trust of the REIT filed with the Secretary of State of Maryland, as amended or
restated from time to time.
"GENERAL PARTNER" has the meaning provided in the preamble.
"NOTICE OF REDEMPTION" means the Notice of Exercise of Redemption Right
substantially in the form attached as Exhibit B hereto.
"ONE YEAR LOCK-UP UNITS" means the number of Partnership Units issuable
to Summerfield Limited Partners listed in Exhibit A as "One Year Lock Up Units".
"PARTNERSHIP UNITS" means the Common Partnership Units of the REIT
Partnership issued to the Contributing Partnerships pursuant to the Contribution
Agreements.
"PERSON" means a natural person, a corporation, a partnership, a trust,
a joint venture, any regulatory authority, or any other entity or organization.
"REDEEMING PARTNER" has the meaning provided in Section 2.1(a) hereof.
"REDEMPTION AMOUNT" means either the Cash Amount or the REIT Shares
Amount, as selected by the General Partner in its sole discretion pursuant to
Section 2.1(c) hereof.
3
4
"REDEMPTION RIGHT" has the meaning provided in Section 2.1(a) hereof.
"REDEMPTION SHARES" means the REIT Shares which are to be issued to a
Summerfield Limited Partner upon exercise of the Redemption Right pursuant to
Section 2.1 hereof.
"REIT" has the meaning provided in the preamble.
"REIT PARTNERSHIP" has the meaning provided in the preamble.
"REIT PARTNERSHIP AGREEMENT" has the meaning provided in the preamble.
"REIT SHARE" means a common share of beneficial interest of the REIT,
par value $0.01 per share.
"REIT SHARES AMOUNT" means a number of REIT Shares equal to the product
of the number of Partnership Units tendered for redemption by a Redeeming
Partner, multiplied by the Conversion Factor; provided that in the event the
REIT issues to all holders of REIT Shares rights, options, warrants or
convertible or exchangeable securities entitling the shareholders to subscribe
for or purchase REIT Shares, or any other securities or property (collectively,
the "rights"), then the REIT Shares Amount shall also include such rights that a
holder of that number of REIT Shares would be entitled to receive.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHELF REGISTRATION" means the registration of the Redemption Shares by
the REIT effected pursuant to Section 3.1 hereof.
"SHELF REGISTRATION PERIOD" means the period of time the REIT is
required to make and maintain the Shelf Registration as defined in Section 3.1
hereof.
"SPECIFIED REDEMPTION DATE" means the first business day of the
calendar quarter that is at least 10 business days after the receipt by the
General Partner of the Notice of Redemption.
"SUMMERFIELD LIMITED PARTNER REPRESENTATIVE" has the meaning provided
in the preamble.
"SUMMERFIELD LIMITED PARTNERS" has the meaning provided in the
preamble.
"TWO YEAR LOCK-UP UNITS" means the number of Partnership Units
issuable to the Xxxx X. Xxxxxx Revocable Trust and the B. Xxxxxxx Xxxxx
Revocable Trust listed in Exhibit A as "Two Year Lock Up Units."
4
5
ARTICLE II
REDEMPTION RIGHT
2.1. Redemption Right.
(a) Subject to Section 2.1(c), (i) on or after the date that
is two (2) years after the date of this Agreement, each Contributing Partnership
and each Summerfield Limited Partner who holds "Two Year Lock-up Units" and (ii)
on or after the date that is one year after the date of this Agreement each
Summerfield Limited Partner who holds "One Year Lock-up Units" shall have the
right (the "Redemption Right") to tender to the REIT Partnership for redemption
on a Specified Redemption Date all or a portion of the Partnership Units held by
such Contributing Partnership or Summerfield Limited Partner at a redemption
price equal to and in the form of the Redemption Amount by submitting to the
REIT Partnership a Notice of Redemption; provided, however, that the number of
Partnership Units tendered for redemption by all Contributing Partnerships and
Summerfield Limited Partners on any Specified Redemption Date shall not exceed
three percent (3%) of the total number of Common Partnership Units and preferred
partnership units of the REIT Partnership outstanding on such Specified
Redemption Date. The Redemption Right shall be exercised pursuant to a Notice of
Redemption delivered to the General Partner by the Contributing Partnership or
Summerfield Limited Partner who is exercising the Redemption Right (the
"Redeeming Partner"); provided, however, that no Contributing Partnership or
Summerfield Limited Partner may deliver to the General Partner more than one (1)
Notice of Redemption during each calendar quarter. If more than one Contributing
Partnership or Summerfield Limited Partner exercises the Redemption Right (each,
a "Redeeming Partner") to the effect that the number of Partnership Units
tendered for redemption on a Specified Redemption Date exceeds the percentage of
Partnership Units specified in the preceding sentence, the number of Partnership
Units that may be tendered for redemption by each Redeeming Partner shall be
reduced proportionally based on the ratio the number of Partnership Units
tendered for redemption by each Redeeming Partner bears to the total number of
Partnership Units tendered for redemption on such Specified Redemption Date. A
Summerfield Limited Partner may not exercise the Redemption Right for less than
one thousand (1,000) Partnership Units or, if such Summerfield Limited Partner
holds less than one thousand (1,000) Partnership Units, all of the Partnership
Units held by such Summerfield Limited Partner. Notwithstanding the foregoing
limitations on the exercise of the Redemption Right, if a Summerfield Limited
Partner, as permitted by the Contribution Agreement or consented to by the
General Partner in accordance with the REIT Partnership Agreement, pledges his
Partnership Units to a third-party lender in accordance with the terms of the
Contribution Agreements and such lender forecloses on such Partnership Units,
such lender shall be entitled to exercise the Redemption Right with respect to
such Partnership Units, as secured party on behalf of the Summerfield Limited
Partner and without becoming a limited partner of the REIT Partnership, subject
to the General Partner's prior receipt of such documentation as the General
Partner shall reasonably request evidencing the pledge and the lender's rights
to exercise the Redemption Right with respect to the Partnership Units. Except
as may be otherwise provided in Section 5.2(a) of the REIT Partnership
Agreement, the Redeeming Partner shall not be entitled, with respect to any
Partnership Units so redeemed, to receive any distribution paid with respect to
Partnership Units pursuant to the REIT Partnership Agreement if the record date
for such distribution is on or after the Specified Redemption Date, unless the
redemption is made for the Cash Amount and the Cash Amount is not paid on the
Specified Redemption Date as permitted by Section 2.1(c). In that
5
6
event, the Redeeming Partner shall be entitled to such a distribution if the
record date for the distribution is on or before the date that the Cash Amount
is paid.
(b) Notwithstanding the provisions of Section 2.1(a), the
General Partner may, in its sole and absolute discretion, assume directly and
satisfy a Redemption Right by paying to the Redeeming Partner the Redemption
Amount on the Specified Redemption Date, whereupon the General Partner shall
acquire the Partnership Units offered for redemption by the Redeeming Partner
and shall be treated for all purposes of the REIT Partnership Agreement as the
owner of such Partnership Units. In the event the General Partner shall exercise
its right to satisfy the Redemption Right in the manner described in the
preceding sentence, the REIT Partnership shall have no obligation to pay any
amount to the Redeeming Partner with respect to such Redeeming Partner's
exercise of the Redemption Right, and each of the Redeeming Partner, the REIT
Partnership, and the General Partner shall treat the transaction between the
General Partner and the Redeeming Partner as a sale of the Redeeming Partner's
Partnership Units to the General Partner for federal income tax purposes. Each
Redeeming Partner agrees to execute such documents as the REIT may reasonably
require in connection with the issuance of REIT Shares upon exercise of the
Redemption Right.
(c) The REIT Partnership or the General Partner, as the case
may be, shall pay the Cash Amount to a Redeeming Partner as the Redemption
Amount for such partner if (i) the acquisition of REIT Shares by such Redeeming
Partner on the Specified Redemption Date would (A) result in such partner or any
other person owning, directly or indirectly, REIT Shares in excess of the
"Ownership Limit," as defined in the Declaration of Trust and calculated in
accordance therewith, except as provided in the Declaration of Trust, (B) result
in REIT Shares being owned by fewer than 100 persons (determined without
reference to any rules of attribution), except as provided in the Declaration of
Trust, (C) result in the REIT being "closely held" within the meaning of Section
856(h) of the Code, (D) cause the REIT to own, actually or constructively, 10%
or more of the ownership interests in a tenant of the REIT's or the REIT
Partnership's real property, within the meaning of Section 856(d)(2)(B) of the
Code, or (E) cause the acquisition of REIT Shares by such Partner to be
"integrated" with any other distribution of REIT Shares for purposes of
complying with the registration provisions of the Securities Act or (ii) the
REIT Partnership or the General Partner, as the case may be, so elects in its
sole discretion. Any Cash Amount to be paid to a Redeeming Partner pursuant to
this Section 2.1 shall be paid within sixty (60) days after the initial date of
receipt by the General Partner of the Notice of Redemption relating to the
Partnership Units to be redeemed, which date may extend beyond the Specified
Redemption Date. Notwithstanding the foregoing, the General Partner and the REIT
Partnership agree to use their best efforts to cause the closing of the
redemption of Partnership Units hereunder to occur as quickly as reasonably
possible.
(d) Each certificate, if any, evidencing REIT Shares that may
be issued upon redemption of Partnership Units shall be issued as of the
Specified Redemption Date and under this Section 2.1 may bear a restrictive
legend in substantially the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or any state securities law. No transfer of the shares
represented by this certificate shall be valid or effective
unless (A) such transfer is made pursuant to an
6
7
effective registration statement under the Act or (B) the
holder of the securities proposed to be transferred shall have
delivered to the REIT either a no-action letter from the
Securities and Exchange Commission or an opinion of counsel
(who may be an employee of such holder) experienced in
securities matters to the effect that such proposed transfer
is exempt from the registration requirements of the Act which
opinion shall be reasonably satisfactory to the REIT."
(e) Notwithstanding that the Contributing Partnerships are,
and the Summerfield Limited Partners will become upon receipt of Partnership
Units from the Contributing Partners, limited partners of the REIT Partnership,
each Contributing Partnership and each Summerfield Limited Partner agrees with
the REIT Partnership, the General Partner and the REIT that the provision of
this Article II supersede and supplant the rights of such parties as limited
partners of the REIT Partnership pursuant to the provisions of Sections 8.05
through 8.08 of the REIT Partnership Agreement with respect to redemption of the
Partnership Units.
ARTICLE III
SHELF REGISTRATION
3.1. Shelf Registration. The REIT agrees to file with the SEC a
shelf registration statement pursuant to Rule 415 of the Securities Act, or
similar rule that may be adopted by the SEC (a "Shelf Registration"), at a time
and in a manner reasonably designed to cause the Shelf Registration to be
declared effective by the SEC on or about the first anniversary of the date of
this Agreement, with respect to the issuance by the REIT of at least the number
of Redemption Shares issuable upon redemption of the One Year Lock-up Units. The
REIT agrees to file with the SEC, no later than the second anniversary of the
date of this Agreement, a Shelf Registration with respect to at least the number
of Redemption Shares issuable upon redemption of the Two Year Lock-up Units. If
applicable at the time of filing, the Shelf Registration shall also cover
re-sales of Redemption Shares by a Contributing Partnership or Summerfield
Limited Partner who is an Affiliate of the REIT and who under applicable rules
and regulations of the SEC may be required to deliver a prospectus in connection
with the resale of Redemption Shares. The REIT will use its reasonable best
efforts to cause each Shelf Registration to be declared effective under the
Securities Act as soon as reasonably possible after filing. Prior to the filing
of the Shelf Registration, the Summerfield Limited Partner Representative shall
notify the REIT of the method or methods of disposition that may be utilized by
the holders in disposing of such Redemption Shares (which shall be limited to
customary methods of sale or distribution, including broker's transactions and
block trades) and such information shall be included in the prospectus included
in such Shelf Registration to the extent such methods are permitted by
applicable law. The REIT will use its best efforts to keep each Shelf
Registration continuously effective until the earlier of (a) the date when all
of the Redemption Shares covered thereby are issued or sold thereunder or (b)
the date on which all Contributing Partnerships and Summerfield Limited Partners
then holding Partnership Units agree to the withdrawal of the Registration
Statement (the "Shelf Registration Period"). The REIT further agrees to
supplement or make amendments to the Shelf Registrations, if required by the
rules, regulations, or instructions applicable to the registration form utilized
by the REIT or by the Securities Act or rules and regulations thereunder for the
Shelf
7
8
Registrations. No provision of this Agreement shall require the REIT to
file a registration statement on any form other than Form S-3 or a successor
form thereto.
3.2. Registration and Qualification Procedures. The REIT will:
(a) Use its reasonable best efforts to cause each Shelf
Registration to be declared effective by the SEC as soon after filing as
reasonably possible;
(b) Use its reasonable best efforts to keep each Shelf
Registration effective and the related prospectus current throughout the Shelf
Registration Period;
(c) Furnish to each Contributing Partnership or Summerfield
Limited Partner such numbers of copies of the relevant prospectuses, and
supplements or amendments thereto, and such other documents as such party
reasonably requests;
(d) Register or qualify the securities covered by each
Shelf Registration under applicable state securities or blue sky laws; provided,
however, that the REIT shall not be required to (i) qualify as a foreign
corporation or consent to a general and unlimited service of process in any
jurisdictions in which it would not otherwise be required to be qualified or so
consent or (ii) qualify as a dealer in securities.
3.3. Allocation of Expenses. The REIT Partnership or the REIT shall pay
all expenses in connection with each Shelf Registration, including, without
limitation (a) SEC registration fees, (b) printing expenses, (c) accounting and
legal fees and expenses for the REIT and the REIT Partnership, but not the fees
and expenses of an accountant or attorney engaged by any Contributing
Partnership or Summerfield Limited Partner, (d) expenses of complying with
applicable securities or blue sky laws in connection with the Shelf
Registration; provided, however, neither the REIT Partnership nor the REIT shall
be liable for (i) any underwriting discounts or commissions to any broker
attributable to any sale of Redemption Shares, or (ii) any fees or expenses
incurred by holders of Redemption Shares in connection with such registration
which, according to the written instructions of any regulatory authority, the
REIT Partnership or the REIT is not permitted to pay.
3.4. Indemnification. In connection with the Shelf Registrations, the
REIT, the General Partner, and the REIT Partnership agree to indemnify holders
of Partnership Units and Redemption Shares in accordance with the provisions of
Article VI hereof.
3.5. Listing on Securities Exchange. If the REIT shall list or maintain
the listing of any REIT Shares on any securities exchange or national market
system, it will at its expense and as necessary to permit the registration and
sale of the Redemption Shares registered pursuant to this Article III, list and
maintain the listing of the Redemption Shares registered pursuant to this
Article III thereon.
8
9
ARTICLE IV
REQUESTED REGISTRATION
4.1. Request for Registration. Subject to the provisions of this
Article IV, at any time after the first anniversary of the date of this
Agreement, upon the written request of the Summerfield Limited Partner
Representative, the REIT agrees to file with the SEC a registration statement on
Form S-3 under Rule 415 of the Securities Act, or any similar rule that may be
adopted by the SEC, with respect to not less than __% of the Redemption Shares.
The number of Redemption Shares requested to be registered pursuant to the
registration statement shall be set forth in the written request of the
Summerfield Limited Partner Representative. Prior to the filing of the
registration statement, the Summerfield Limited Partner Representative shall
provide the REIT with information regarding the intended disposition of such
Redemption Shares and other information required to enable the REIT to effect
the appropriate registration. In effecting any registration pursuant to this
Section 4.1, the REIT may include, in addition to any Redemption Shares
requested to be so registered, securities of other shareholders of the REIT as
well as additional securities of the REIT on the appropriate registration form.
4.2. Timing. Notwithstanding anything to the contrary contained in this
Article IV, (i) the REIT shall not be obligated to file or effect a registration
pursuant to this Article IV during the period starting with the date 45 days
prior to the REIT's estimated date of filing of, and ending on a date 90 days
following the effective date of, a registration statement pertaining to an
underwritten public offering of securities for the account of the REIT, provided
that the REIT is actively employing in good faith all reasonable efforts to
cause such registration statement to become effective and that the REIT's
estimate of the date of filing such registration statement is made in good
faith; and provided however, that if the registration relates to REIT Shares,
the REIT shall have given to the Summerfield Limited Partner Representative the
notice required by Section 5.1 with respect to such registration; and (ii) if
the REIT shall furnish to the Summerfield Limited Partner Representative a
certificate signed by the President of the REIT stating that in the good faith
judgment of the Board of Trustees it would be seriously detrimental to the REIT
or its shareholders for a registration statement to be filed in the near future,
then the REIT's obligation to use its best efforts to file a registration
statement shall be deferred for a period not to exceed six months.
4.3. One Time Registration. The REIT shall be obligated to effect only
one registration pursuant to this Article IV. Any request for registration under
this Article IV must be for a firmly underwritten public offering to be managed
by an underwriter or underwriters of recognized national standing approved by
the REIT, in its sole discretion.
4.4. Registration and Qualification Procedures. If and whenever the
REIT is required to effect the registration as provided in this Article IV, the
REIT will:
(a) as expeditiously as possible prepare and file with the SEC
the appropriate registration statement, as set forth in Section 4.1, including
any amendments or supplements to such registration statement that may be
required by the rules, regulations or instructions applicable to the
registration form utilized by the REIT or by the Securities Act or rules and
regulations thereunder for such registration statement; provided, however; that
no provision of this Agreement shall require the
9
10
REIT to file a registration statement on any form other than Form S-3 and in no
event will the REIT's obligations under this Article IV extend to any Redemption
Shares previously registered under a Shelf Registration pursuant to Article III
hereof that was declared effective by the SEC, and that remains effective;
(b) use its best efforts to cause such registration
statement to be declared effective by the SEC under the Securities Act as soon
as practicable;
(c) furnish to the Summerfield Limited Partners or their
managing underwriter such number of copies of each preliminary prospectus and
final prospectus and amendment or supplement thereto as the Summerfield Limited
Partners may reasonably request in order to effect the sale of the Redemption
Shares to be offered and sold by the Summerfield Limited Partners pursuant to
such registration statement;
(d) use its best efforts to qualify the offering under
applicable blue sky or other securities laws of such jurisdictions as may be
specified by the managing underwriters of the offering; provided, however, that
the REIT shall not be obligated to qualify as a foreign corporation to do
business under the laws of any jurisdiction in which it is not then qualified or
to file any general consent to service of process;
(e) use its reasonable efforts (including, without
limitation, preparation of necessary post-effective amendments and supplements)
to cause the registration statement to remain current for ninety (90) calendar
days following its effective date or such lesser period as the Summerfield
Limited Partners' managing underwriter may accept;
(f) afford the managing underwriters of the offering and
their counsel the opportunity to make such reasonable examination and inquiry
into the financial condition and business of the REIT and its Affiliates as the
managing underwriters of the offering and their counsel may deem necessary or
prudent in connection with the preparation of the registration statement or any
other materials to be used in connection with the offering.
(g) subject to paragraph (h) below, the General Partner
will elect to satisfy with REIT Shares the Redemption Rights related to
Partnership Units properly tendered for redemption by the Contributing
Partnership and the Summerfield Limited Partners in order to receive Redemption
Shares to include in such offering; provided however, that the REIT has
determined that the issuance of Redemption Shares will not jeopardize the REIT's
status as a real estate investment trust for federal income tax purposes.
(h) not be required to register Redemption Shares pursuant
to Section 4.1 if, within ten (10) calendar days following receipt of the
request for registration, the REIT shall commit itself to purchase within ten
(10) business days for the Cash Amount all of the Redemption Shares requested to
be registered by the Summerfield Limited Partner Representative pursuant to
Section 4.1.
4.5. Expenses of Registration. All underwriting discounts and
commissions and other out-of-pocket fees and expenses of the REIT or the REIT
Partnership attributable to Redemption Shares being sold by the Contributing
Partnerships or Summerfield Limited Partners pursuant to a registration
10
11
statement filed pursuant to this Article IV shall be borne by the Summerfield
Limited Partners, provided, however, that if the REIT or other shareholders of
the REIT shall include any other securities in any registration pursuant to this
Article IV, such fees and expenses shall be apportioned among the Contributing
Partnerships or Summerfield Limited Partners and the other offerors in
accordance with the amount of securities being offered.
4.6. Representation. The Summerfield Limited Representative shall serve
as representative of the Contributing Partnerships and the Summerfield Limited
Partners pursuant to any registration under Section 4.1 and the REIT, the REIT
Partnership and their Affiliates shall be entitled to rely upon the instructions
of the Summerfield Limited Partner Representative with respect to all matters
relating to any registration pursuant to Section 4.1, without independent
investigation or verification.
4.7. Listing on Securities Exchange. If the REIT shall list or maintain
the listing of any REIT Shares on any securities exchange or national market
system, it will at its expense and as necessary to permit the registration and
sale of the Redemption Shares registered pursuant to this Article IV, list and
maintain the listing of the Redemption Shares registered pursuant to this
Article IV thereon.
ARTICLE V
OTHER REGISTRATIONS
5.1. Participation in Other Registrations.
(a) If at any time on or after the date that is (i) one (1) year
after the date of this Agreement, with respect to Redemption Shares issuable
upon redemption of One Year Lock-up Units, and (ii) two (2) years after the date
of this Agreement, with respect to Redemption Shares issuable upon redemption of
Two Year Lock-up Units, the REIT shall propose the registration under the
Securities Act of a public offering of REIT Shares (other than as set forth
below), the REIT shall give written notice of such proposed registration as
promptly as practicable to the Summerfield Limited Partner Representative and
if, within fifteen (15) days after the giving of such notice, the Summerfield
Limited Partner Representative requests the REIT in writing to include in such
registration any Redemption Shares that have not previously registered under a
Shelf Registration declared effective by the SEC, the REIT shall include in the
registration such amount of such Redemption Shares as the Summerfield Limited
Partner Representative shall request; provided, however, that the REIT shall not
be required to give notice or include such Redemption Shares in any such
registration if the proposed registration relates solely to (i) debt or equity
securities to be issued by the REIT, the REIT Partnership or any Affiliate,
pursuant to Rule 415 under the Securities Act or any similar rule that may be
adopted by the SEC, (ii) securities to be offered to employees pursuant to a
stock option, stock savings, or other employee benefit plan, (iii) securities
proposed to be issued in exchange for securities or assets of, or in connection
with a merger or consolidation with, another entity, (iv) securities to be
offered by the REIT generally to any class or series of any then existing
security holders of the REIT, the REIT Partnership, the General Partner or any
Affiliate, (v) securities issuable upon the conversion of securities which are
the subject of an underwritten redemption, or (vi) securities to be offered or
issued pursuant to a combination of transactions referred to in clauses (i)
through (v). The REIT may, at its sole discretion and without the consent of the
Summerfield Limited Partners or the Summerfield
11
12
Limited Partner Representative, withdraw such registration statement and abandon
the proposed offering.
(b) If the proposed public offering includes securities of the
same class as the Redemption Shares and is to be made pursuant to a firm
commitment underwriting, if approved by the proposed managing underwriter, the
Redemption Shares requested to be included by the Summerfield Limited Partners
shall be included in such underwriting, on the same terms and conditions as to
underwriting discounts and commissions.
(c) If the proposed public offering does not include securities
of the same class as the Redemption Shares or if, in the opinion of the proposed
managing underwriter, it is not feasible to effect such public offering in
conjunction with the offering of the Redemption Shares, the REIT may proceed
with the registration of such public offering without including the Redemption
Shares.
(d) The REIT may, at its option, require that the amount of
Redemption Shares offered for sale by the Summerfield Limited Partners be
decreased (proportionately with any other shares being offered by REIT
shareholders) if, in the opinion of the proposed managing underwriter, such
reduction is desirable in order to permit the orderly sale at a reasonable price
of the securities to be included in the proposed registered offering. If the
REIT shall require such a reduction, the Summerfield Limited Partners shall have
the right to withdraw some or all of their Redemption Shares from the proposed
offering.
5.2. Obligations of the REIT. The REIT shall undertake the following
obligations to each Summerfield Limited Partner in connection with the
registration of Redemption Shares pursuant to Section 5.1 hereof:
(a) The REIT shall use its best efforts to qualify the offering
under applicable blue sky or other securities laws of such jurisdictions as may
be specified by the managing underwriter of the offering; provided, however,
that the REIT shall not be obligated to qualify as a foreign corporation to do
business under the laws of any jurisdiction in which it is not then qualified or
to file any general consent to service of process.
(b) Subject to the provisions of Section 2.1(c) hereof, the
General Partner will elect to satisfy with REIT Shares the Redemption Rights
related to Partnership Units properly tendered for redemption by the Summerfield
Limited Partners in order to receive Redemption Shares to include in such
offering; provided however, that the REIT has determined that the issuance of
Redemption Shares will not jeopardize the REIT's status as a real estate
investment trust for federal income tax purposes.
5.3. Conditions to Obligations of the REIT. The obligations of the
REIT under Section 5.1 are subject to the following conditions:
(a) In no event will the REIT's obligations or duties under this
Article V apply or extend to any Redemption Shares previously registered under a
Shelf Registration pursuant to Article III hereof that was declared by the SEC
to be, and that remains, effective.
12
13
(b) Any request by the Summerfield Limited Partners for
registration shall specify the amount of Redemption Shares intended to be sold,
contain the undertaking of such Summerfield Limited Partners to provide all such
information as may be reasonably required in order to permit the REIT to comply
with all applicable requirements of the SEC and to obtain acceleration of the
effective date of the registration statement, and specify the proposed method of
offering and sale.
(c) The REIT may require, as a condition to fulfilling its
obligations hereunder, the indemnification agreements described in Section 5.6
from the Summerfield Limited Partners.
(d) The REIT shall not be required to register Redemption Shares
pursuant to Section 5.1 if, in the opinion of counsel for the REIT concurred in
by counsel for the Summerfield Limited Partners, registration thereof is not
necessary to permit the sale or disposition of all such Redemption Shares within
a period of not more than three (3) months pursuant to Rule 144 and Rule 145 of
the General Rules and Regulations under the Securities Act or other exemptive
rule or regulation affording a comparable exemption from registration. The
Summerfield Limited Partners shall furnish such counsel with such information as
may reasonably be requested as a basis for determining whether to furnish such
opinion.
(e) The REIT shall not be required under this Article V to
include any holder's Redemption Shares in such offering unless the holder
thereof accepts the terms of the underwriting agreement with respect to such
offering as agreed upon between the REIT and the underwriters, and then only in
such quantity as will not, in the written opinion of the underwriters,
jeopardize the success of the offering by the REIT.
(f) The REIT shall not be required to register Redemption Shares
pursuant to Section 5.1 if, within ten (10) calendar days following receipt of
the request for registration, the REIT shall commit itself to purchase within
ten (10) business days for the Cash Amount all of the Redemption Shares
requested to be registered by the Summerfield Limited Partner Representative
pursuant to Section 5.1.
(g) The Summerfield Limited Partner Representative shall serve
as representative of the Contributing Partnerships and the Summerfield Limited
Partners pursuant to any registration under Section 5.1 and the REIT, the REIT
Partnership and their Affiliates shall be entitled to rely upon the instructions
of the Summerfield Limited Partner Representative with respect to all matters
relating to any registration pursuant to Section 5.1, without independent
investigation or verification.
5.4. Expenses of Registration. All underwriting discounts and
commissions attributable to Redemption Shares being sold by the Summerfield
Limited Partners shall be borne by the Summerfield Limited Partners. As to the
other expenses of registration:
(a) In connection with any registration pursuant to Section 5.1,
the Summerfield Limited Partners shall pay or reimburse the REIT or the REIT
Partnership for the SEC registration fee, printing expenses, and the reasonable
expenses of qualifying the offering under applicable blue sky or other
securities laws; provided, however, that such fees and expenses shall be borne
by the REIT with respect to the first two (2) registrations requested by the
Summerfield Limited Partner Representative pursuant to Section 5.1 and provided,
further that if the REIT shall include any other securities of its
13
14
issue in any registration pursuant to Section 5.1, such fees and expenses shall
be apportioned among the Summerfield Limited Partners and the other offerors in
accordance with the amount of securities being offered.
(b) Any other fees or expenses incurred by one of the parties to
a registration, including, without limitation, fees and expenses of attorneys
and accountants, shall be borne by such party.
ARTICLE VI
INDEMNIFICATION
6.1. Indemnification by the REIT, the General Partner, and the REIT
Partnership. In the case of each registration pursuant to Article III, IV or V
hereof, the REIT, the General Partner, and the REIT Partnership agree to
indemnify and hold harmless the Summerfield Limited Partners, the directors and
officers of any corporate Summerfield Limited Partner, and each Person (if any)
who controls a corporate Summerfield Limited Partner within the meaning of
Section 15 of the Securities Act, against any and all losses, claims, damages,
or liabilities to which they or any of them may become subject under the
Securities Act or any other statute or common law, including any amount paid in
settlement of any litigation, commenced or threatened, if such settlement is
effected with the written consent of the REIT, and to reimburse them for any
legal or other expenses incurred by them in connection with investigating any
claims and defending any actions, insofar as any such losses, claims, damages,
liabilities, or actions arise out of or are based upon (a) any untrue statement
or alleged untrue statement of a material fact contained in a registration
statement filed to register the sale of such Redemption Shares by the
Summerfield Limited Partners or any post-effective amendment thereto or in any
filing made in connection with the qualification of the offering under blue sky
or other securities laws of jurisdictions in which the Redemption Shares are
offered (a "Blue Sky Filing"), or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading, or (b) any untrue statement or alleged untrue statement of
a material fact contained in any preliminary prospectus, if used prior to the
effective date of such registration statement, or contained in the final
prospectus (as amended or supplemented if the REIT shall have filed with the SEC
any amendment thereof or supplement thereto) if used within the period during
which the REIT is required to keep the registration statement to which such
prospectus relates current, or the omission or alleged omission to state therein
(if so used) a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided, however, that the indemnification agreement contained in this Section
6.1 shall not (i) apply to such losses, claims, damages, liabilities, or actions
arising out of, or based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to the REIT by the Summerfield Limited Partners or by an underwriter
specifically for use in connection with preparation of the registration
statement, any preliminary prospectus or final prospectus contained in the
registration statement, any such amendment or supplement thereto or any Blue Sky
Filing.
6.2. Indemnification by Summerfield Limited Partners. In the case of
each registration pursuant hereto, the Summerfield Limited Partners agree in the
same manner and to the same extent as
14
15
set forth in Section 6.1 hereof to indemnify and hold harmless the Partnership,
the General Partner, the REIT, each Person (if any) who controls the REIT, the
General Partner and the REIT Partnership within the meaning of Section 15 of the
Securities Act, the directors of the REIT and the General Partner, and those
officers of the REIT who shall have signed any such registration statement, and,
if required by any underwriter, each indemnitor and each Person (if any) who
controls each underwriter within the meaning of Section 15 of the Securities
Act, with respect to any untrue statement or alleged untrue statement in, or
omission or alleged omission from, such registration statement or any
post-effective amendment thereto or any preliminary prospectus or final
prospectus (as amended or supplemented if amended or supplemented as aforesaid)
contained in such registration statement or any Blue Sky Filing, if such
statement or omission was made in reliance upon and in conformity with written
information furnished to the REIT by such indemnifying party specifically for
use in accordance with the preparation of the registration statement, any
preliminary prospectus or final prospectus contained in the registration
statement, any such amendment or supplement thereto, or any Blue Sky Filing.
6.3. Indemnification Procedures..
(a) Each indemnified party shall, with reasonable promptness
after its receipt of written notice of the commencement of any action against
such indemnified party in respect of which indemnity may be sought from an
indemnifying party on account of an indemnity agreement contained herein, notify
the indemnifying party in writing of the commencement thereof.
(b) The omission to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party unless
the failure to give notice materially adversely affects the ability of the
indemnifying party to defend a claim which is the subject of indemnification
hereunder (in which case the indemnifying party shall be relieved of its
obligation only to the extent of offsetting any loss, damage, or liability it
suffers as a consequence of the failure against its monetary obligation to the
indemnified party).
(c) In case any such action shall be brought against any
indemnified party and the indemnified party shall so notify an indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate therein and to the extent it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party hereunder for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation, except as provided below.
(d) The indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel (other than reasonable costs of
investigation) shall be paid by the indemnified party unless (i) the
indemnifying party agrees to pay the same, (ii) the indemnifying party fails to
assume the defense of such action with counsel reasonably satisfactory to the
indemnified party, or (iii) the named parties to any such action (including any
impleaded parties) have been advised by such counsel that representation of such
15
16
indemnified party and the indemnifying party by the same counsel would be
inappropriate under applicable standards of professional conduct (in which case
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party). No indemnifying party shall be
liable for any settlement entered into without its consent.
(e) The indemnity agreements contained herein shall be in
addition to any liabilities which the indemnifying party may have pursuant to
law.
6.4. Contribution.
(a) If for any reason the indemnification provisions
contemplated herein are either unavailable or insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages, or liabilities
referred to therein, then the party that otherwise would be required to provide
indemnification or the indemnifying party (in either case, for purposes of this
section, the "Indemnifying Party") in respect of such losses, claims, damages,
or liabilities, shall contribute to the amount paid or payable by the party that
would otherwise be entitled to indemnification or the indemnified party (in
either case, for purposes of this section, the "Indemnified Party") as a result
of such losses, claims, damages, liabilities, or expense, in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party and the
Indemnified Party, as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact related to information supplied by the Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities, and expenses referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party. In no
event shall any holder of Redemption Shares covered by the registration be
required to contribute an amount greater than the dollar amount of the proceeds
received by such holder from the sale of Redemption Shares pursuant to the
registration giving rise to the liability.
(b) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this section were determined by pro rata
allocation (even if the holders or any underwriters or all of them were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. No person or entity determined to have committed a
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation.
ARTICLE VII
GENERAL
7.1. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered by hand, transmitted by
facsimile transmission, or sent prepaid by international courier, to the
Contributing Partnerships and the Summerfield Limited Partners
16
17
c/o Summerfield Hotel Corporation, 0000 Xxxx 00xx Xxxxxx, Xxxxxxxx 000, Xxxxxxx,
Xxxxxx 00000 or by facsimile at (000) 000-0000. Notices to the REIT, the REIT
Partnership and the General Partner shall be delivered at or mailed to 000 Xxxxx
Xxxxxxxxx Xxx, Xxxx Xxxxx, Xxxxxxx 00000, fax (000) 000-0000. The REIT, the REIT
Partnership and the General Partner may specify a different address by written
notice to the Summerfield Limited Partner Representative. The Summerfield
Limited Partner Representative may specify a different address by written notice
to the REIT. 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 delivered by hand or confirmed by facsimile transmission, or, in the case
of delivery by courier, when actually delivered to the address of the intended
recipient.
7.2. Entire Agreement. This Agreement and exhibits attached hereto
constitute the entire agreement of the parties and supersede all prior written
agreements and prior and contemporaneous oral agreements, understandings and
negotiations with respect to the subject matter hereof.
7.3. Pronouns and Plurals. When the context in which words are used in
this Agreement indicates that such is the intent, words in the singular number
shall include the plural and the masculine gender shall include the neuter or
female gender as the context may require.
7.4. Headings. The article headings or sections in this Agreement are
for convenience only and shall not be used in construing the scope of this
Agreement or any particular article.
7.5. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original copy and all of
which together shall constitute one and the same instrument binding on all
parties hereto, notwithstanding that all parties shall not have signed the same
counterpart.
7.6. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Virginia.
7.7. Confirmation. It shall be a condition to any Person succeeding to
the rights of a Summerfield Limited Partner as permitted herein that such
Person, if requested by the REIT, execute a counterpart to this Agreement and
become a party hereto.
7.8. Summerfield Representative. In the event of the death or
disability of Xxxx X. Xxxxxx, the successor Summerfield Limited Partner
Representative hereunder shall be designated in writing by the Contributing
Partnerships or Summerfield Limited Partners owning a majority of the
Partnership Units (or Redemption Shares issued in respect thereof) then
outstanding. If no successor Summerfield Limited Partner Representative is so
designated within five (5) business days following the date of such death or
incapacity, the Contributing Partnership or Summerfield Limited Partner then
owning the largest number of Partnership Units (or Redemption Shares issued in
respect thereof) as then reflected on the books and records of the REIT
Partnership or the transfer agent for the REIT shares, as the case may be, shall
be the successor Summerfield Limited Partner Representative. The REIT, the REIT
Partnership, the General Partner and their Affiliates shall be entitled to rely
upon any written instructions or information received from the Summerfield
Limited Partner Representative on behalf of the Contributing Partnerships or the
Summerfield Limited Partners with respect to all matters contemplated by this
Agreement, without independent investigation or verification.
17
18
7.9. Amendment. This Agreement may be amended by written agreement
executed by the REIT, the General Partner, the REIT Partnership and the
Summerfield Limited Partner Representative.
7.10 Authority; Binding Effect. Each party hereto represents and
warrants to the other parties that it has the full legal right, power and
authority to execute this Agreement, that this Agreement has been duly
authorized, executed and delivered on behalf of such party and constitutes a
valid and binding agreement of such party enforceable in accordance with its
terms.
7.11. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but such counterparts
shall together constitute but one and the same Agreement.
7.12. Other Units. This Agreement shall apply only to the Partnership
Units issued pursuant to the Contribution Agreements and the Redemption Shares
issuable in respect thereof and shall not apply to any Redemption Shares or
partnership interests in the REIT Partnership which any Contributing Partnership
or Summerfield Limited Partner may now own or acquire in the future.
18
19
IN WITNESS WHEREOF, each party has duly executed this
Agreement as of the day and year first above written.
INNKEEPERS USA TRUST, a
Maryland real estate investment trust
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
--------------------------------
Title: Secretary
-------------------------------
INNKEEPERS USA LIMITED
PARTNERSHIP
By: INNKEEPERS FINANCIAL
CORPORATION, its general
partner
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
--------------------------------
Title: Vice President
-------------------------------
19
20
CONTRIBUTING PARTNERSHIPS:
XXXXXXX XXXXXXXXXXX ASSOCIATES, L.P.
By: Summerfield Suites Investment Corporation,
general partner
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
------------------------------------
Title: CFO
-----------------------------------
ATLANTA CUMBERLAND SIERRA ASSOCIATES,
L.P.
By: Sierra Suites Hotel Corporation,
general partner
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
------------------------------------
Title: CFO
-----------------------------------
BELMONT SUMMERFIELD ASSOCIATES, L.P.
By: Summerfield Suites Holding Corporation,
general partner
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
------------------------------------
Title: CFO
-----------------------------------
EL XXXXXXX XXXXXXXXXXX ASSOCIATES, L.P.
By: Summerfield Suites Holding Corporation,
general partner
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
------------------------------------
Title: CFO
-----------------------------------
LAS COLINAS SUMMERFIELD ASSOCIATES, L.P.
By: Summerfield Suites Holding Corporation,
general partner
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
------------------------------------
Title: CFO
-----------------------------------
20
00
XXXXX XXXXXX XXXXXXXXXXX ASSOCIATES,
L.P.
By: Summerfield Suites Realty Corporation,
general partner
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
------------------------------------
Title: CFO
----------------------------------
PHOENIX CAMELBACK SIERRA ASSOCIATES,
L.P.
By: Sierra Suites Hotel Corporation, general partner
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
------------------------------------
Title: CFO
----------------------------------
TINTON FALLS HOTEL ASSOCIATES. L.P.
By: Summerfield Suites Holding Corporation,
general partner
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
------------------------------------
Title: CFO
----------------------------------
WEST HOLLYWOOD SUMMERFIELD ASSOCIATES, L.P.
By: Summerfield Suites Holding Corporation,
general partner
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
------------------------------------
Title: CFO
----------------------------------
SUMMERFIELD SUITES LEASE COMPANY, L.P.
By: Summerfield Lease Corporation,
general partner
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
------------------------------------
Title: CFO
----------------------------------
21
22
BANC ONE CAPITAL PARTNERS III, LTD.
By: BOCP Holdings Corporation, its Manager
By: /s/ Xxxxxx Callenone
-------------------------------------
Name: Xxxxxx X. Callenone
------------------------------------
Title: Authorized Signer
-----------------------------------
22
23
BENEFICIAL HOLDERS:
Consolidated Equities Trust
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
------------
Title:Trustee
-------
Aquarina Developments, Inc.
By: /s/ Xxxxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxxx
------------------
Title:President
---------
/s/ Xxxx Xxxxxxxxx
---------------------------------------
Xxxx Xxxxxxxxx
---------------------------------------
Xxxxx-Xxxxxxx Contzen
---------------------------------------
Xxxx Xxxxxx
B. Xxxxxxx Xxxxx Revocable Trust
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: B. Xxxxxxx Xxxxx
----------------------------------
Title: Trustee
--------------------------------
/s/ Xxx Xxxxxx
----------------------------------------
Xxx X. Xxxxxx
/s/ Xxxx Xxxxx
----------------------------------------
Xxxx X. Xxxxx
/s/ Xxxxxx Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx
23
24
Xxxx X. Xxxxxx Revocable Trust
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
--------------
Title:Trustee
-------
SF HOTEL COMPANY, L.P.
By: Summerfield Hotel Corporation
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
----------------------------------
Title: CFO
--------------------------------
SIERRA SUITES HOTEL CORPORATION
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
----------------------------------
Title: CFO
--------------------------------
/s/ Xxxxxx Xxxxx
------------------------------------------
Xxxxxx Xxxxx
SUMMERFIELD SUITES HOLDING CORPORATION
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
----------------------------------
Title: CFO
--------------------------------
SUMMERFIELD SUITES INVESTMENT CORPORATION
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
----------------------------------
Title: CFO
--------------------------------
SUMMERFIELD SUITES MANAGEMENT CORPORATION
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
----------------------------------
Title: CFO
--------------------------------
24
25
SUMMERFIELD SUITES REALTY CORPORATION
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
----------------------------------
Title: CFO
--------------------------------
25
26
SUMMERFIELD LIMITED PARTNER
REPRESENTATIVE:
/s/ Xxxx Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx, as Summerfield Limited
Partner Representative
Each of the undersigned beneficiaries of the above signed trusts hereby
agrees that any Partnership Units or Redemption Shares distributed by the trusts
to the undersigned shall be subject to all of the terms and provisions of this
Agreement.
/s/ Xxxx Xxxxxx
-------------------------------------------
Xxxx X. Xxxxxx, beneficiary of the Xxxx X.
Xxxxxx Revocable Trust
/s/ Xxxxxxx Xxxxx
-------------------------------------------
B. Xxxxxxx Xxxxx, beneficiary of B. Xxxxxxx
Xxxxx Revocable Trust
/s/ Xxx X. Xxxxx
-------------------------------------------
Xxx X. Xxxxx, beneficiary of
Consolidated Equities Trust
Xxxxx Revocable Trust
26
