PURCHASE AND SALE AGREEMENT BETWEEN CLAREMONT DC HOTEL LLC CLAREMONT DC HOTEL II LLC (individually a “Claremont Entity” and collectively the “Claremont Entities”) APPLE HOTEL, LLC APPLE HOTEL HOLDINGS, LLC APPLE HOTEL INVESTMENTS, LLC (collectively...
Exhibit
10.1
BETWEEN
CLAREMONT
DC HOTEL LLC
CLAREMONT
DC HOTEL II LLC
(individually
a “Claremont Entity” and collectively the “Claremont
Entities”)
APPLE
HOTEL, LLC
APPLE
HOTEL HOLDINGS, LLC
APPLE
HOTEL INVESTMENTS, LLC
(collectively
the “Apple Entities”)
THE
CLAREMONT ENTITIES AND THE APPLE ENTITIES
ARE
COLLECTIVELY REFERRED TO AS
AS
SELLERS, AND INDIVIDUALLY AS SELLER
AND
AS
PURCHASER
August
11, 2005
THIS
PURCHASE AND SALE AGREEMENT (this “Agreement”)
is
executed this 11th
day of
August,
2005 by
CLAREMONT
DC HOTEL LLC, CLAREMONT DC HOTEL II LLC, APPLE HOTEL, LLC, APPLE HOTEL HOLDINGS,
LLC AND APPLE HOTEL INVESTMENTS, LLC,
(collectively the “Sellers”
and
individually a “Seller”),
and
HERSHA
HOSPITALITY TRUST
(“Purchaser”).
ARTICLE
I
Subject
to the terms and conditions set forth in this Agreement, Sellers agree to sell
and convey to Purchaser, and Purchaser agrees to buy and take from
Sellers:
1.1
Property.
All of
Sellers’ right, title and interest in and to that certain parcel of land more
particularly described in Exhibit
A
attached
hereto (collectively, the “Land”),
located at 000 00xx
Xxxxxx,
X.X., Xxxxxxxxxx, XX, including all right, title and interest of Sellers, if
any, in and to the land lying in the bed of any street or highway in front
of or
adjoining the Land to the center line thereof, all water and mineral rights,
development rights and all easements, rights and other interests appurtenant
thereto, and all buildings, structures, facilities and improvements located
on
the Land (the “Improvements”).
The
Land and the Improvements are sometimes referred to hereinafter together as
the
“Hotel.”
1.2
Personal
Property.
The
following personalty to the extent owned by Sellers (collectively the
“Personal
Property”)
and
used or located at the Hotel, including: (a) all furniture, furnishings,
fixtures, vehicles, rugs, mats, carpeting, appliances, devices, engines,
telephone and other communications equipment, televisions and other video
equipment, plumbing fixtures and other equipment located in the Hotel (the
“FF&E”),
(b)
all items included within the definition of “Property and Equipment” under the
Uniform System of Accounts for the Lodging Industry, Ninth Revised Edition,
as
published by the Hotel Association of New York City, Inc. (the “Uniform
System of Accounts”)
and
used in the operation of the Hotel, including, without limitation, linen, china,
glassware, tableware, uniforms and similar items, subject to such depletion
prior to the Closing Date as shall occur in the ordinary course of business
(the
“Fixed
Asset Supplies”);
(c)
all “Inventories” as defined in the Uniform System of Accounts and used in the
operation of the Hotel, such as provisions in storerooms, refrigerators,
pantries, and kitchens, other merchandise intended for sale or resale, fuel,
mechanical supplies, stationery, guest supplies, maintenance and housekeeping
supplies and other expensed supplies and similar items (the “Inventories”),
provided,
however,
that to
the extent that any applicable law prohibits the transfer of alcoholic beverages
from the Sellers to Purchaser, such beverages shall not be considered a part
of
Inventories and if same can be included in Inventories, Purchaser shall pay
to
Sellers at Closing an amount equal to Sellers’ cost of such alcoholic beverages;
(d) to the extent in Sellers’ possession or control, all surveys, architectural,
consulting and engineering blueprints, plans and specifications and reports,
if
any, related to the Hotel; (e) to the extent in Sellers’ possession or control,
all intangible personal property rights constituting the goodwill of Sellers
related to the Hotel; (f) all transferrable licenses and permits related to
the
operation of the Hotel; (g) all advance reservations and bookings and advance
deposits made in respect thereof; (h) all rights to the name “Hilton Garden Inn”
subject to the rights of the Franchisor, defined below, all other trade names,
trademarks, service marks, logos and other forms of identification of the Hotel;
and (i) to the extent in Sellers’ possession or control, all written guaranties
and warranties with respect to the Improvements and FF&E.
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1.3
Contracts
and Leases.
All
rights of Sellers under all written service, maintenance, licensing, concession,
and other contracts or agreements related to the maintenance, ownership,
use,
possession or operation of the Personal Property or the Hotel, other than
the
Management Agreement and Franchise Agreement (the “Contracts”),
all
written leases of personal property located at, or used in the operation
of, the
Hotel (the
“Equipment
Leases”)
to
which Sellers or Manager is a party and, if any, all leases, subleases and
other
occupancy agreements, which provide for the use or occupancy of space or
facilities on or relating to the Hotel (the “Space
Leases”)
(the
Hotel, Personal Property, Contracts, Equipment Leases and any such Space
Leases
are collectively, the “Property”).
ARTICLE
II
2.1
Purchase
Price.
The
purchase price for the Property is Eighty Five Million One Hundred
and
00/100 ($85,100,000.00)
Dollars
(the “Purchase
Price”),
subject to adjustments as described in this Agreement, plus
the
Earnout Price (defined below). The
Purchase
Price
shall be
paid on the Closing Date by Purchaser by delivery by Purchaser to the Escrow
Agent on the Closing Date of the Closing Date Payment by wire transfer of
immediately available funds, of which the Deposit shall be deemed a part, for
disbursement to Sellers upon delivery to Purchaser of the Deed and the Title
Company’s irrevocable commitment to issue to Purchaser a title policy in the
form attached hereto as Exhibit
B.
In the
event Closing is consummated, the Deposit shall be credited against the Purchase
Price.
2.2
Promissory
Note.
In
addition to the Purchase Price, the
Purchaser shall deliver to the
Sellers at Closing a promissory note (the “Note”)
made
by the Purchaser payable to the Sellers in the principal amount of Two Million
and 00/100 ($2,000,000.00) Dollars. Notwithstanding the principal balance of
the
Note, the amount due under the Note shall be the Earnout Price (defined below),
plus interest, which Earnout Price, exclusive of interest, shall not exceed
Two
Million and 00/100 ($2,000,000.00) Dollars. The “Earnout
Price”
shall
be that amount equal to the Hotel’s most recent actual Trailing Twelve Months
NOI (defined below), divided by a capitalization rate of eight (8%) percent,
less the Purchase Price. In no event will the Earnout Price be less than Zero
($0.00) Dollars. The Note shall be due on the date of demand by the Sellers
(“Demand”)
and
payment of the Note shall be made in full from the Sellers to the Buyer within
five (5) days of the determination of the Trailing Twelve Months NOI (the
“Due
Date”).
Demand shall be made by notice from a Claremont entity to Purchaser; provided,
however, if no Demand is made by Seller prior to the Second Anniversary of
the
Closing Date (The “Maturity
Date”),
Demand
shall be deemed to have been made on the Maturity Date. The “Trailing
Twelve Months NOI”
is
defined as the NOI for the last twelve (12) complete calendar months immediately
preceding Demand. For purposes of this Section 2.2, “NOI”
is
defined as all Revenue (defined below) collected from the Hotel less Expenses
(defined below). “Revenue”
shall
mean an amount equal to all amounts collected from the Hotel, including accounts
receivable from credit card companies. “Expenses”
shall
mean actual and customary operating expenses of the Hotel paid for in the
previous twelve (12) month period prior to Demand. For purposes of determining
Expenses, replacement reserves shall be the lesser of: (i) the replacement
reserves required by the first mortgage holder on the Hotel; (ii) the actual
replacement reserves for the trailing twelve months preceding Demand or (iii)
four (4.0%) percent, and management fees shall be the lesser of: (i) the actual
management fees charged; (ii) the management fees permitted to be charged by
the
first mortgage holder on the Hotel; or (iii) three (3.0%) percent. The Note
shall be non-interest bearing unless payment is not made on the Due Date, in
which event interest shall be due and payable on the Earnout Price at the annual
rate of twelve (12%) percent calculated from the Closing Date to the date of
payment. The
Note
shall contain the Purchaser’s obligation to deliver to the Sellers, on a monthly
basis, copies of the monthly reports for the Hotel provided to Hilton Inns,
Inc.
or any replacement franchisor.
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2.3
Allocation
of Purchase Price.
The
Purchase Price shall be allocated among the Hotel and various items of Personal
Property in accordance with the schedule of allocations attached hereto as
Exhibit
D,
and
each party agrees to file federal, state and local tax returns consistent with
such allocations.
2.4 Purchaser’s
Deposit.
On the
Contract Date, Purchaser shall deliver to Sellers One
Million
and 00/100 ($1,000,000.00)
Dollars
which shall be credited to the Purchase Price at Closing.
On or
before the last day of the Feasibiity Period, Purchaser shall (unless the
Agreement is terminated by Purchaser on or before that date), deliver to
First
American Title Insurance Company, as escrow agent (the “Escrow
Agent”)
Four
Million and 00/100 ($4,000,000.00) Dollars (which, along with any interest
earned thereon, is hereinafter referred to as the “Purchaser’s
Deposit”).
If
Purchaser does not deliver the Purchaser’s
Deposit to the Escrow Agent prior
to
the last
day of the Feasibility Period, Seller
shall
have the right to terminate this Agreement by giving written notice to
Purchaser, and neither party shall then have any further liability to the other
under this Agreement except as otherwise specifically provided herein. The
Escrow Agent shall hold the Purchaser’s Deposit in accordance with escrow
instructions executed by Sellers, Purchaser and the Escrow Agent (the
“Escrow
Instructions”)
substantially in the form attached hereto as Exhibit
E.
2.5 Seller’s
Deposit. On
the
Contract Date, Sellers shall deliver to the Escrow Agent Five Hundred Thousand
and 00/100 ($500,000.00) Dollars (“Seller’s
Deposit).”
The
Seller’s Deposit shall be used to secure the obligation of the Sellers under
this Agreement to deliver the documents described in Article VII. The Escrow
Agent shall hold the Seller’s Deposit in accordance with the Escrow
Instructions.
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ARTICLE
III
In
order
to induce Purchaser to enter into this Agreement and to consummate the
transactions contemplated hereby, each Seller represents and warrants to, and
covenants with, Purchaser as follows:
3.1 Good
Standing.
Each
Seller is a limited liability company duly organized, validly existing and
in
good standing under the laws of the applicable jurisdiction referenced above,
is
authorized to conduct the business in which it is now engaged, and is duly
qualified and in good standing in all states where the ownership of its assets
or the conduct of its business makes such qualification necessary.
3.2 Title.
Each
Seller has good and marketable fee simple title to its respective fee interest
in the Hotel, subject only to Permitted Exceptions.
3.3 Due
Authorization.
The
execution, delivery and performance of this Agreement and the consummation
of
the transactions contemplated hereby have been duly and validly authorized
by
all requisite action of each Seller, none of which actions have been modified
or
rescinded, and all of which actions are in full force and effect. This Agreement
constitutes a valid and binding obligation of Sellers, enforceable against
Sellers in accordance with its terms.
3.4 No
Violations or Defaults.
The
execution, delivery and performance of this Agreement and the consummation
by
Sellers of the transactions contemplated hereby will not (a) violate any law
or
any order of any court or governmental authority with proper jurisdiction
binding against Sellers; (b) result in a breach or default under any contract
or
other binding commitment of Sellers or any provision of the organizational
documents of Sellers; or (c) except for approvals of governmental authorities,
require any consent or approval or vote that has not been taken or given, or
as
of the Closing Date shall not have been taken or given.
3.5 Litigation.
As
of the
date hereof, except as set forth on Exhibit
F,
there
are no actions, suits, arbitrations, governmental investigations or other
proceedings pending or to any Seller’s knowledge threatened against Sellers or
affecting the Property before any court or governmental authority.
3.6 Condemnation
Actions.
There
are
no pending condemnation actions or special assessments of any nature or to
Sellers’ knowledge threatened with respect to the Property or any part thereof.
3.7 Contracts.
All
Contracts, other than the Management Agreement, the Franchise Agreement, the
Equipment Leases and the Space Leases (if any), are listed on Exhibit
G
attached
hereto. The Sellers have made or will make available to Purchaser true and
complete copies of all such Contracts and all such Contracts are in full force
and effect. To Sellers’ knowledge, there are no material defaults by any party
to the Contracts.
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3.8 Equipment
Leases.
All
Equipment Leases to which Sellers or Manager is a party, and all amendments
thereto, are listed on Exhibit
H
attached
hereto. To Sellers’ knowledge, there are no material defaults by any party to
the Equipment Leases. The Sellers have made or will make available to Purchaser
true and complete copies of all such Equipment Leases and all such Equipment
Leases are in full force and effect.
3.9 Management
and Franchise Agreements.
There
are
no existing management contracts or franchise agreements relating to the
Property other than (i) that certain Management Agreement dated April 30, 2002
(the “Management
Agreement”)
with
Xxxx Hotels, L.P. (the “Manager”),
and
(ii) that certain Franchise Agreement dated September 16, 1998 (the
“Franchise
Agreement”)
with
Hilton Inns, Inc. (the “Franchisor”).
Sellers have made or will make available to Purchaser true and complete copies
of the Management Agreement and Franchise Agreement. The Management Agreement
and Franchise Agreement are in full force and effect and to Sellers’ knowledge
there are no material defaults by any of the respective parties to the Franchise
Agreement other than a technical default regarding signage at the Property
which
has been disclosed to Purchaser (the “Existing
Sign Default”).
3.10 Space
Leases.
There
are no Space Leases to which the Property is subject.
3.11 Permits.
To
Sellers’ best knowledge all licenses, certificates of occupancy, permits and
approvals required to be issued by any governmental authority or any third
party
and used in or necessary to the operation of the Hotel (the “Permits”)
have
been obtained and are in full force and effect. Each such Permit is listed
on
Exhibit
I
attached
hereto, and Sellers have made or will make available to Purchaser true and
complete copies of each such Permit. The Sellers have no knowledge of any
written notice regarding any violation of the Permits or of any law, regulation
or ordinance applicable to the Permits which has not been cured.
3.12 Environmental
Matters.
Except
as disclosed on Exhibit
J
or in
the environmental reports (and all modifications thereto) listed on Exhibit
J (the
“Environmental Reports”),
the
Sellers have not received any written notice from any governmental or regulatory
authority, and the Sellers otherwise have no knowledge of the presence or
release of any substance that is regulated under any Environmental Laws as
a
pollutant, contaminant or toxic, radioactive or otherwise hazardous substance,
including petroleum, its derivatives or by-products and other hydrocarbons
(collectively and individually, “Hazardous
Substances”)
that
would cause the Hotel to be in violation of any applicable Environmental Laws
and that remains uncured. For the purposes of this Section, “Environmental
Laws”
means
any and all federal, state, county and local statutes, laws, regulations and
rules in effect on the Contract Date relating to the protection of the
environment or to the use, transportation and disposal of Hazardous Substances.
3.13 Financial
Information.
Attached
as Exhibit
K
are
operating statements, including revenue and expenses and budgeted and actual
capital expenditures for the Hotel for the fiscal periods beginning January
1,
2002 and ending December 31, 2004, and the period beginning January 1, 2005
and
ending June 30, 2005 (the “Statements”).
The
Statements are true and correct in all material respects.
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3.14 Labor
and Employment Matters.
All
employees at the Hotel are employees of the Manager and not Sellers. There
are
no agreements to which the Sellers are a party to relating to any pension plan,
employee benefit plan, labor or collective bargaining agreement affecting the
Hotel. The Sellers have not received any written notice from any labor union
or
group of employees that such union or group represents or believes or claims
it
represents or intends to represent any of the employees of Sellers nor have
they
received any notice of any claim of unfair labor practices.
3.15 Insurance.
The
Sellers have and shall maintain through the Closing Date insurance policies
equivalent in all material respects to those currently maintained by
Sellers.
3.16 Purchase
Rights.
There
are no purchase contracts, options or other agreements of any kind, whereby
any
person or entity other than Purchaser has or will have acquired or has or will
have any right to acquire title to all or any portion of the Hotel.
3.17 Bankruptcy.
The
Sellers have not filed or taken any action to file a voluntary petition, case
or
proceeding under any section or chapter of the Title 11 of the United States
Code, as amended (the "Bankruptcy
Code"),
or
under any similar law or statute of the United States or any state thereof,
relating to bankruptcy, insolvency, reorganization, winding up or composition
or
adjustment of its debts; and no such petition, case or proceeding has been
filed
against it which has not been dismissed, vacated or stayed on appeal; and they
have not been adjudicated as a bankrupt or insolvent or consented to, nor filed
an answer admitting or failing reasonably to contest an allegation of bankruptcy
or insolvency.
3.18 Knowledge.
All
references herein to the knowledge of either Seller are qualified to the extent
of the actual knowledge of Xxxx Xxxx, the general manager of the Hotel, and
Xxxxxxx Xxxxxx, the Regional Manager for the Manager. The Sellers disclaim
any
obligation whatsoever to make any further inquiry and shall not be imputed
to
have knowledge of any other person other than Messrs. Xxxx and
Xxxxxx.
3.19 Effect.
The
representations and warranties with respect to the Claremont Entities relate
only to those entities
and
recourse for a breach of those warranties shall
be
to the Claremont Entities only. Likewise, the representations and warranties
with respect to the Apple Entities relate only to those entities and recourse
for a breach of those warranties shall be to the Apple Entities only.
Representations related to the Property shall be deemed made by all of the
Sellers.
ARTICLE
IV
In
order
to induce the Sellers to enter into this Agreement and to consummate the
transactions contemplated hereby, Purchaser represents and warrants to, and
covenants with, Seller as follows:
4.1 Good
Standing.
Purchaser is a business trust established under the laws of the State of
Maryland.
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4.2 Due
Authorization.
The
execution, delivery and performance of this Agreement and the consummation
of
the transactions contemplated hereby have been duly and validly authorized
by
all requisite actions of Purchaser (none of which actions have been modified
or
rescinded, and all of which actions are in full force and effect). This
Agreement constitutes a valid and binding obligation of Purchaser, enforceable
against Purchaser in accordance with its terms.
4.3 No
Violations or Defaults.
The
execution, delivery and performance of this Agreement and the consummation
by
Purchaser of the transactions contemplated hereby will not (a) violate any
law
or any order of any court or governmental authority with proper jurisdiction;
(b) result in a breach or default under any contract or other binding commitment
of Purchaser or any provision of the organizational documents of Purchaser;
or
(c) require any consent or approval or vote that has not been taken or given,
or
as of the Closing Date shall not have been taken or given.
4.4 Litigation. As
of the
date hereof, there are no actions, suits, arbitrations, governmental
investigations or other proceedings pending or, to the knowledge of Purchaser,
threatened in writing against Purchaser before any court or governmental
authority, an adverse determination of which might adversely affect (a) the
financial condition or operations of Purchaser or (b) Purchaser’s ability to
enter into or perform this Agreement.
ARTICLE
V
5.1 Closing.
The
consummation of the purchase and sale of the Property as contemplated by this
Agreement (the “Closing”)
shall
take place on the first to occur of (i) September 16, 2005 or (ii) one business
day after receipt of the Assignment of Franchise Agreement, but no earlier
than
September
2, 2005 (the “Closing
Date”),
at
the offices of Purchaser’s attorney or through the Escrow Agent, or at such
alternative location as may be mutually agreed upon by Sellers and Purchaser.
All of Sellers’ and Purchaser’s deliveries, the cash payment of the Closing Date
Payment and sufficient additional cash necessary for the parties to pay the
costs contemplated by Section 5.2 shall be delivered in escrow to the Escrow
Agent.
5.2 Costs.
The
Sellers shall: (i) pay fifty (50%) percent of all fees of the Escrow Agent
in
connection with the Escrow Instructions; (ii) one hundred (100%) percent of
the
premium for the owner’s and lender’s title insurance policies (without
endorsements other than any endorsements requested by Sellers); and (iii) fifty
(50%) percent of all costs
in
connection with updating the existing survey of the Hotel..
Purchaser shall pay: (i) all costs associated with the transfer of the Franchise
Agreement, including any so called “property improvement plan” or increase or
change in franchise fees required by Hilton; (ii) all
state
and county
transfer
and recordation taxes, excise taxes or document stamps imposed on the Deed
of
conveyance or otherwise connected with the transfer of the Property
(collectively “Transfer
Fees”);
(iii)
all mortgage recordation taxes; (iv) fifty (50%) percent of all
fees
of the Escrow Agent in connection with the Escrow Instructions; (v) costs and
premiums of all endorsements to the owners and lenders title insurance policies;
(vi) fifty
(50%) percent of
all
costs in connection with updating the existing survey for the Hotel; and (vii)
all fees due the Manager as a result of the termination of the Management
Agreement. Each
party shall pay its own accountants and attorneys’ fees incurred in connection
with the preparation, negotiation and execution of this Agreement and the
consummation of the transactions contemplated hereby.
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ARTICLE
VI
Between
the Contract Date and the Closing Date, the Sellers shall continue to carry
on
the business of the Hotel as currently conducted; however, Sellers shall have
no
obligation to cure or correct the Existing Sign Default.
6.2 Title
Insurance.
(a)
Attached hereto as Exhibit
B are
a
title commitment and a pro forma (specimen) owner’s policy and lender’s policy
of title insurance (the “Title
Commitment”)
relating to the Hotel from First American Title Insurance Company (the
“Title
Company”),
committing to insure Purchaser's good and marketable fee simple title to the
Hotel at Closing in the amount of the Purchase Price. The policy issued at
Closing shall show no liens, mortgages, deeds of trust, security interests,
pledges, charges, options, encroachments, easements, covenants, leases,
reservations or restrictions of any kind (the “Encumbrances”)
other
than (i) applicable zoning regulations and ordinances, (ii) liens for taxes,
assessments and governmental charges not yet due and payable, (iii) liens for
water and sewer service not yet due and payable (iv) other Permitted Exceptions.
The Title Commitment and Survey, defined below, are hereafter referred to as
the
(“Title
Documents”).
In
addition to the Equipment Leases, matters reported in or shown by the Title
Documents (or any updates thereof) shall be deemed to be “Permitted Exceptions”.
Sellers agree to cause to be deleted all mortgages (except to the extent any
such mortgages will be assigned to Purchaser’s lender) and other monetary
encumbrances, including mechanics liens.
6.3 Survey.
Sellers
have delivered to Purchaser its existing ALTA as-built survey of the Hotel.
Sellers shall cause such survey to be certified to Purchaser, its lender and
the
Title Company (the "Survey").
Purchaser acknowledges and agrees that no new survey of the Hotel shall be
performed as a condition of this Agreement.
6.4 Inspection;
Feasibility Period.
For the
period prior to and including 6:00 p.m. EST of the close of business on August
20, 2005 (the "Feasibility
Period"):
(a) Purchaser
shall have the right, at its own risk, cost and expense to enter, or cause
its
agents or representatives to enter, upon the Hotel, accompanied by a Claremont
Entity representative, with forty-eight hours prior notice to a Claremont
Entity, for the purpose of making surveys or other tests, inspections,
investigations and/or studies of all or any part of the Property. In addition,
Purchaser may, at its own risk, cost and expense, conduct such architectural,
environmental, economic and other studies of the Property as Purchaser may,
in
its sole discretion, deem desirable. Purchaser shall not make any physical
alterations to the Property or any invasive tests. Purchaser shall conduct,
and
ensure that each of its agents, employees, contractors or representatives
conducts, each such entry in a manner that does not unreasonably interfere
with
the guests or employees of the Hotel; and Purchaser shall indemnify and
hold Sellers harmless from any and all claims, damages, demands, penalties,
causes of action, liabilities, losses, costs or expenses (including reasonable
attorneys’ fees and other charges) arising out of or in any way related to
personal injury (including death), property damage, material disruptions of
operations, nuisance or other claims asserted by any person or entity relating
to the acts or omissions of Purchaser, or its agents, employees, contractors
or
representatives in the course of any such entry or inspection of the Hotel.
The
foregoing indemnity shall survive Closing or any termination of this Agreement.
Purchaser shall have reasonable access to all documentation, agreements and
other information in the possession of Sellers or Sellers’ agents related to the
Property and shall have the right to make copies of same. If Purchaser elects
to
terminate this Agreement pursuant to Section 6.4(b), Purchaser agrees to supply
Sellers with all copies of the results of any tests, studies or inspections
of
the Property performed by third parties for Purchaser hereunder (without
representation or warranty by Purchaser) and to return to Sellers the copies
of
documentation, agreements, and other information which Sellers have given or
made available to Purchaser.
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(b) If,
at
any time during the Feasibility Period, Purchaser gives a Claremont Entity
written notification (the “Termination
Notice”)
that
Purchaser elects not to consummate the purchase of the Property in accordance
with the terms of this Agreement for any reason or no reason, this Agreement
shall terminate, Purchaser shall return the copies of all documentation,
agreements, and other information Sellers have given or made available to
Purchaser and copies of all third-party reports Purchaser has obtained,
whereupon the Deposit shall be returned to Purchaser and neither party shall
have any further liability to the other under this Agreement except as otherwise
specifically provided herein. In the event that the Termination Notice is not
received by a Claremont Entity by the end of the Feasibility Period, Purchaser
shall have been deemed to have elected to proceed hereunder, and this Agreement
shall remain in full force and effect.
(c) Purchaser
acknowledges and agrees that it has, prior to the date hereof, been afforded
the
opportunity to make such tests, inspections, investigations and/or studies
of
all or any part of the Property as Purchaser deemed necessary, including review
of title to and survey of the Property, as well as architectural, environmental,
and economic studies of the Property and is being given an additional period
in
accordance with subsection (a) above to conduct such additional inspections
as
it desires. Accordingly, the Sellers shall not be obligated to take any action
or expend any money in respect to the Property for any purposes whatsoever
whether before, during or after final closing. The Purchaser agrees to accept
the Property in its existing "as is” condition.
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ARTICLE
VII
It
shall
be a condition to Purchaser’s obligation to purchase the Property that each and
every one of the following conditions shall have been satisfied as of the
Closing Date (or waived by Purchaser).
7.1 Representations
and Warranties.
The
representations and warranties of each Seller shall be true and complete in
all
material respects.
7.2 Covenants
of Sellers.
Sellers
shall have performed and complied in all material respects with all material
covenants and material conditions required by this Agreement to be performed
or
complied with at or prior to the Closing Date.
7.3 Title.
Purchaser shall be able to obtain a policy of title insurance in conformance
with the Title Commitment, subject only to the Permitted Exceptions, upon
payment of the premiums therefor and delivery of the documents specified in
Article IX below.
7.4 Failure
of Condition.
In the
event of the failure of any condition precedent set forth in this Article 7,
except a failure that results from the actions, inactions or change in the
financial condition of the Purchaser or the failure of any of Purchaser's
representations and warranties set forth herein to be true and complete in
all
material respects, Purchaser, at its sole election, may (i) terminate this
Agreement (and receive a return of the Deposit), or (ii) waive the condition
and
proceed to Closing. In the event that any such condition is not satisfied and
the transactions contemplated hereby are not consummated primarily as a result
of the actions, inactions or change in the financial condition of the Purchaser
or the failure of any of Purchaser's representations and warranties set forth
herein to be true and complete in all material respects, then the Deposit shall
be forfeited to the Sellers as full and complete liquidated damages. Upon any
termination of this Agreement by Purchaser, Purchaser shall return the copies
of
all documentation, agreements, and other information Sellers have given or
made
available to Purchaser and copies of all third-party reports Purchaser has
obtained, whereupon the Deposit shall be returned to Purchaser and neither
party
shall have any further liability to the other under this Agreement except as
otherwise specifically provided herein.
7.5 Sellers’
Deliveries.
Sellers
shall have delivered all of the other documents required from it pursuant to
Article IX hereof.
ARTICLE
VIII
It
shall
be a condition to Sellers’ obligations to sell the Property that each and every
one of the following conditions shall have been satisfied as of the Closing
Date
(or waived by Sellers).
8.1 Representations
and Warranties.
Each of
Purchaser's representations and warranties shall be true and complete in all
material respects and there shall be no material litigation affecting Purchaser
that, if existing as of the date hereof, would have had to be disclosed under
Section 4.4.
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8.2 Purchaser
Deliveries.
Purchaser shall have delivered all of the other documents required from it
pursuant to Article IX hereof with the exception of delivery of the Assignment
of Franchise Agreement.
8.3 Failure
of Condition.
In the
event of the failure of any condition precedent set forth in this Article VIII,
Sellers, at their sole election, may (i) terminate this Agreement and receive
the Deposit hereunder or (ii) waive the condition and proceed to
Closing.
ARTICLE
IX
At
Closing, the parties shall make the following deliveries:
9.1 Deed.
Each of
the Sellers shall deliver warranty deeds substantially in the form set forth
on
Exhibit
L
attached
hereto (each a “Deed”
and
collectively, the “Deeds”)),
dated as of the Closing Date, conveying to Purchaser the respective fee simple
interest of each Seller in the Hotel.
9.2 Xxxx
of Sale.
Sellers
and Purchaser shall each deliver two (2) duly executed counterparts (one for
Sellers and for Purchaser) a bills of sale from each Seller and assignment
and
assumption of documents substantially in the form set forth on Exhibit
M
attached
hereto (collectively, the “Bills
of Sale”),
dated
as of the Closing Date, conveying to Purchaser (or an Affiliate of Purchaser)
the Personal Property and assigning all of the applicable Permits, Contracts
and
Equipment Leases.
9.3 FIRPTA
Certificate.
Sellers
shall deliver a certificate, dated as of the Closing Date, to establish that
no
Seller is a foreign person for the purposes of the Foreign Investment in Real
Property Tax Act.
9.4 Assignment
of Franchise Agreement.
Purchaser shall have received an assignment of the Franchise Agreement, or
a new
franchise agreement with Franchisor (the “Assignment
of Franchise Agreement”).
9.6 Possession;
Books and Records, Keys. Sellers
shall deliver possession of the Property to Purchaser, together with all books
and records in Sellers’ possession, in accordance with and subject to any
privacy laws or regulations, necessary or desirable for the operation of the
Hotel and all keys, including, without limitation, keys for all security
systems, rooms and offices.
9.7 Other
Documents.
Sellers
and Purchaser shall deliver such other documents and instruments as may be
reasonably requested by Sellers, Purchaser or the Title Company, including
normal and customary affidavits and tax clearance certificates, to effectuate
the transactions contemplated by this Agreement and to induce the Title Company
to insure title to the Hotel as described herein.
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ARTICLE
X
10.1 Default
by Purchaser.
IN THE
EVENT THAT THE ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT
OF
THE DEFAULT OF PURCHASER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS
AGREEMENT, PURCHASER AND SELLERS AGREE THAT SELLERS’ ACTUAL DAMAGES WOULD BE
IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE PARTIES THEREFORE AGREE THAT
IN
THE EVENT THAT THE ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT
OF THE DEFAULT OF PURCHASER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER,
SELLERS, AS SELLERS’ SOLE AND EXCLUSIVE REMEDY, ARE ENTITLED TO LIQUIDATED
DAMAGES IN THE AMOUNT OF THE PURCHASER’S DEPOSIT. IN THE EVENT THAT THE ESCROW
FAILS TO CLOSE AS A RESULT OF PURCHASER’S DEFAULT, THEN: (A) THIS AGREEMENT AND
THE RIGHTS AND OBLIGATIONS OF PURCHASER AND SELLERS HEREUNDER AND THE ESCROW
CREATED HEREBY SHALL TERMINATE; (B) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED
AND INSTRUCTED TO, RETURN PROMPTLY TO PURCHASER AND SELLERS ALL DOCUMENTS AND
INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME; (C) SELLERS SHALL RETAIN
THE
PURCHASER’S DEPOSIT (INCLUDING INTEREST AND DIVIDENDS EARNED THEREON), AND THE
SAME SHALL BE LIQUIDATED DAMAGES; AND (D) ALL TITLE AND ESCROW CANCELLATION
CHARGES, IF ANY, SHALL BE CHARGED TO PURCHASER.
10.2 Default
By Sellers.
IN THE
EVENT THAT THE ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT
OF
THE DEFAULT OF SELLERS IN THE PERFORMANCE OF THEIR OBLIGATIONS UNDER THIS
AGREEMENT. PURCHASER AND SELLERS AGREE THAT PURCHASER’S ACTUAL DAMAGES WOULD BE
IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX.. THE PARTIES THEREFORE AGREE THAT
IN THE EVENT THAT THE ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A
RESULT OF THE DEFAULT OF THE SELLERS IN THE PERFORMANCE OF THEIR OBLIGATIONS
HEREUNDER, PURCHASER, AS PURCHASER’S SOLE AND EXCLUSIVE REMEDY, IS ENTITLED TO
LIQUIDATED DAMAGES IN THE AMOUNT OF SELLERS’ DEPOSIT, IN THE EVENT THAT THE
ESCROW FAILS TO CLOSE AS A RESULT OF SELLERS’ DEFAULT, THEN: (A) ESCROW AGENT
SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO PURCHASER
AND SELLERS ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE
SAME;
(B) ESCROW AGENT SHALL RETURN THE DEPOSIT TO PURCHASER PURSUANT TO PURCHASER’S
INSTRUCTIONS UNLESS SAME HAS BEEN RELEASED TO SELLERS IN WHICH EVENT SELLERS
SHALL RETURN THE DEPOSIT TO PURCHASER; (C) ALL TITLE AND ESCROW CANCELLATION
CHARGES, IF ANY, SHALL BE CHARGED TO SELLERS; AND (D) THIS AGREEMENT SHALL
TERMINATE PURCHASER EXPRESSLY WAIVES THE RIGHT TO CLAIM RECOVERY OF ANY DAMAGES
SUFFERED BY PURCHASER AS A RESULT OF SELLERS’ DEFAULT (INCLUDING, BUT NOT
LIMITED TO, DAMAGES IN THE NATURE OF LOSS OF PROFITS DERIVED FROM ANTICIPATED
REVENUES GENERATED BY THE PROPERTY. ALL TITLE AND ESCROW CANCELLATION CHARGES,
IF ANY, SHALL BE CHARGED TO SELLERS.
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SELLERS
AND PURCHASER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS
OF
SECTION 10.1 AND SECTION 10.2, AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE
TO
BE BOUND BY THEIR TERMS.
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Sellers’
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Purchaser’s
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ARTICLE
XI
11.1 Generally.
Except
as otherwise expressly provided herein, the respective representations,
warranties, obligations, covenants and agreements of Sellers contained in
Section 3 shall survive the Closing for a period of three (3) months after
the
date hereof except that those contained in Section 3.13 shall survive the
Closing for a period of six (6) months after the date hereof, and those of
Purchaser shall survive the Closing for three (3) months after the date
hereof.
11.2 Survival.
Any
claims for breach of the representations, warranties and covenants of Sellers
or
Purchaser contained in Section 3 herein shall be made within three (3) months
following the Closing Date (the “Survival
Term”),
otherwise they shall irrevocably be deemed to have been waived.
11.3 Notice
and Cooperation on Indemnification.
Whenever
either party shall learn through the filing of a claim or the commencement
of a
proceeding or otherwise of the existence of any liability for which the other
party is or may be responsible under this Agreement, the party learning of
such
liability shall notify the other party promptly and furnish such copies of
documents (and make originals thereof available) and such other information
as
such party may have that may be used or useful in the defense of such claims
and
shall afford said other party full opportunity to defend the same in the name
of
the notifying party and generally shall cooperate with said other party in
the
defense of any such claim. Upon receipt of such notice of possible liability,
the party obligated to provide indemnity shall have the right to provide a
written notice to the party entitled to indemnity that the indemnifying party
elects to assume the defense of such matter, including, without limitation,
the
employment of counsel reasonably satisfactory to the indemnified party;
whereupon the indemnifying party shall have the right to prosecute such defense
and shall be responsible for the payment of the fees and disbursements of such
counsel; provided,
however,
if in
the reasonable judgment of the indemnified party, (i) such litigation, action,
suit, demand, claim or the resolution thereof, would have a material adverse
effect on the indemnified party or (ii) the indemnifying party shall have a
conflict of interest in defending such action on the indemnified party’s behalf,
then at the indemnified party’s election, the indemnified party may defend
itself, and in either of such instances it shall be at the indemnifying party’s
expense;
provided,
however,
that
the indemnifying party shall be responsible for the reasonable fees of no more
than one counsel in each jurisdiction in each proceeding. No indemnifying party
shall be responsible for any obligation, loss, cost, expense or other liability
to the extent that (a) the party entitled to indemnification failed to provide
prompt notice thereof to the indemnifying party and (b) such obligation, loss,
cost, expense or other liability could have been avoided if prompt notice had
been given.
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ARTICLE
XII
12.1 Condemnation.
If,
prior to the Closing, all or any “Material Portion” of the Property (as
hereinafter defined) is taken by condemnation or eminent domain (or is the
subject of a pending or contemplated taking which has not been consummated),
Sellers shall notify Purchaser of such fact. In such event, Purchaser shall
have
the option to terminate this Agreement upon written notice to Sellers given
not
later than thirty (30) days after Purchaser’s receipt of such notice from
Sellers. Upon such termination, Escrow Agent shall return the Deposit to
Purchaser, the parties shall equally share the cancellation charges, if any,
of
Escrow Agent and Title Company, and neither party shall have any further rights
or obligations hereunder, other than pursuant to any provision hereof which
expressly survives the termination of this Agreement. Purchaser shall have
no
right to terminate this Agreement as a result of any taking of any portion
of
the Property that is not a Material Portion. If Purchaser does not elect or
has
no right to terminate this Agreement, Sellers shall assign and turn over to
Purchaser, and Purchaser shall be entitled to receive and keep, all awards
for
the taking by condemnation and Purchaser shall be deemed to have accepted the
Property subject to the taking without reduction in the Purchase Price. As
used
herein, the term “Material Portion” shall mean any portion having a value in
excess of Three Million and 00/100 ($3,000,000.00) Dollars.
12.2 Casualty.
Prior
to the Closing and notwithstanding the pendency of this Agreement, the entire
risk of loss or damage by earthquake, hurricane, tornado, flood, landslide,
fire
or other casualty shall be borne and assumed by Sellers. If prior to the Closing
any Material Damage (as hereinafter defined) occurs to any portion of the
Property as a result of earthquake, hurricane, tornado, flood, landslide, fire
or other casualty, Sellers shall immediately notify Purchaser of such fact.
In
such event, Purchaser shall have the option to terminate this Agreement upon
written notice to Sellers given not later than thirty (30) days after
Purchaser’s receipt of such notice from Sellers. Upon such termination, Escrow
Agent shall return the Deposit to Purchaser, the parties shall equally share
the
cancellation charges, if any, of Escrow Agent and Title Company, and neither
party shall have any further rights or obligations hereunder, other than
pursuant to any provision hereof which expressly survives the termination of
this Agreement. Purchaser shall have no right to terminate this Agreement as
a
result of any damage or destruction of any portion of the Property that does
not
constitute Material Damage. If Purchaser does not elect or has no right to
terminate this Agreement, Sellers shall assign and turn over, and Purchaser
shall be entitled to receive and keep, all insurance proceeds payable with
respect to such damage or destruction (which shall then be repaired or not
at
Purchaser’s option and cost) and Purchaser shall receive, as a credit against
the Purchase Price, an amount equal to the deductible amount with respect to
the
insurance and the parties shall proceed to the Closing pursuant to the terms
hereof without modification of the terms of this Agreement. If Purchaser does
not elect or has no right to terminate this Agreement by reason of any casualty,
Purchaser shall have the right to participate in any adjustment of any insurance
claim. As used herein, the term “Material Damage” shall mean damage or
destruction, the cost of repair of which exceeds Three Million and 00/100
($3,000,000.00) Dollars.
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ARTICLE
XIII
13.1 Apportionments.
The
following apportionments shall be made between the parties at the Closing as
of
11:59 PM on the day immediately prior to the Closing Date (the “Apportionment
Date”).
(a) real
estate taxes, personal property taxes, special assessments and vault charges,
if
any, on the basis of the fiscal period for which assessed;
(b) water
and
sewer service charges and charges for gas, electricity, telephone and all other
public utilities. If there are meters measuring the consumption of water, gas
or
electric current, Sellers shall, prior to the Apportionment Date, if possible,
cause such meters to be read, and shall pay all utility bills for which Sellers
are liable upon receipt of statements therefor. Purchaser shall be responsible
for causing such utilities and services to be changed to its name and shall
be
liable for and shall pay all utility bills for services rendered after the
Apportionment Date. If Purchaser elects to transfer utility deposits into its
name, then the Sellers shall receive an adjustment in the full amount of those
deposits;
(c) amounts
which have been paid or are payable under the Contracts, Equipment Leases and
Permits assigned to and assumed by Purchaser at Closing;
(d) prepaid
advertising expenses;
(e) commissions
of credit and referral organizations, including travel agreements;
(f) all
other
charges and fees customarily prorated and adjusted in similar
transactions.
13.2 Room
Revenue; Receivables and Payables.
All
revenues received or to be received for the period prior to and including the
Apportionment Date shall belong to Sellers (with Purchaser to remit such
revenues to Sellers to the extent any such revenues are paid to Purchaser
following Closing), and for the period beginning on the day immediately
following the Apportionment Date such revenues shall belong to Purchaser. The
accounts receivable of registered guests at the Property who have not checked
out and were occupying rooms as of 11:59 p.m. on the Apportionment Date are
collectively called the “Guest
Ledger”,
and
Purchaser shall pay over to Sellers, at Closing, the Guest Ledger, it being
the
intent of the parties that all room revenues for the night preceding Closing
will belong to Sellers.
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13.3 Food
and Beverage Revenue; Vending Machine Revenue.
All
monies received in connection with bar and restaurant services at the Hotel
during the Apportionment Date shall be divided evenly between Purchaser and
Sellers. Vending machine proceeds shall be counted as close to 11:59 p.m. on
the
Apportionment Date as is possible and the net amount thereof shall be credited
to Sellers at Closing.
13.4 Guests’
Property.
All
baggage or other property of patrons of the Hotel checked or left in care of
Sellers shall be listed in an inventory to be prepared in duplicate and signed
by Sellers’ and Purchaser’s representatives on the Closing Date. Purchaser shall
be responsible from and after the Closing Date and will indemnify and hold
Sellers harmless from and against all claims for all baggage and property listed
in such inventory.
13.5 Gift
Shop Operations.
Gift
shop operations shall be adjusted as of 11:59 p.m. on the Apportionment Date.
Income before such time shall be for the account of Sellers, and income after
such time shall be for the account of Purchaser, with Sellers being credited
for
the amount of the House Bank on the morning of the Closing Date.
13.6 Accounting.
Except
as otherwise expressly provided in this Agreement, all apportionments and
adjustments shall be made in accordance with the Uniform System of Accounts,
and
to the extent not inconsistent therewith, generally accepted accounting
principles. The computation of the adjustments shall be jointly prepared by
Sellers and Purchaser, and, upon the request of either Purchaser or Sellers,
shall be reviewed by a mutually acceptable reputable accounting firm (the
“Accountants”)
and
reviewed by representatives of both Purchaser and Seller. To the extent the
exact amount of any adjustment item provided for in this Article XIII cannot
be
precisely determined on the Closing Date, the Accountants shall estimate the
amount thereof, for purposes of computing the net amount due Sellers or
Purchaser pursuant to this Article XIII and shall determine the exact amount
thereof not later than sixty (60) days after the Closing Date. All
determinations made by the Accountants shall be binding on both Sellers and
Purchaser. The fees and expenses of the Accountants shall be borne one-half
each
by Sellers and Purchaser.
ARTICLE
XIV
14.1 Assignment.
(a)
Neither party shall assign or transfer or permit the assignment or transfer
of
its rights or obligations under this Agreement without the prior written consent
of the other, any such assignment or transfer without such prior consent being
hereby declared to be null and void; provided,
however,
that
Purchaser shall have the right to either nominate one or more Affiliates (as
defined below) to take title to the Property or assign this Agreement to an
Affiliate in its entirety without Sellers’ consent, upon written notice to
Sellers no later than five (5) days prior to the Closing Date, but Purchaser
shall remain liable following any such assignment for all obligations of
“Purchaser” hereunder. “Affiliate” shall mean an entity in which Purchaser or
its affiliate is the general partner or managing member.
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(b) In
the
event either party consents to an assignment of this Agreement by the other
for
which consent is required, no further assignment shall be made without another
written consent from the consenting party, unless the assignment may otherwise
be made without consent under this Agreement. An assignment by either Sellers
or
Purchaser of its interest in this Agreement shall not relieve Sellers or
Purchaser, as the case may be, from its obligations, but this Agreement shall
then inure to the benefit of, and be binding on, the assignee’s successors,
heirs, legal representatives and assigns.
(c) The
Purchaser agrees to cooperate with any Seller if any Seller attempts to effect
a
Section 1031 exchange in connection with any Seller’s sale of the Property,
provided the following conditions are satisfied: (i) the exchange shall cause
no
delay in Closing; (ii) the Seller shall pay all costs and expenses (including
reasonable attorneys’ fees and related expenses) incurred by the Seller solely
because of the Seller’s attempts to effect a Section 1031 exchange; (iii) the
exchange shall not affect the Purchase Price or any other amount payable
hereunder by the Purchaser, nor shall it change the manner or timing of payment
of such sums; and (iv) Purchaser’s obligations hereunder to close the
acquisition of the Property shall not be conditioned or contingent upon Seller
successfully effecting a 1031 exchange. Anything contained herein to the
contrary notwithstanding, any Seller may assign its rights under this Agreement
to a qualified intermediary for the purpose of effecting a Section 1031
exchange. This Section 14.1(c) shall survive Closing and delivery of the Deed
hereunder.
14.2 Consents.
If,
under this Agreement, the consent of a party is required, the consent shall
be
in writing and shall be executed by a duly authorized officer or
agent.
14.3 Applicable
Law.
This
Agreement shall be governed by the laws of the District of Columbia, without
resort to the choice of law rules thereof.
14.4 Headings;
Exhibits.
The
headings of articles and sections of this Agreement are inserted only for
convenience; they are not to be construed as a limitation of the scope of the
particular provision to which they refer. All exhibits attached or to be
attached to this Agreement are incorporated herein by this
reference.
14.5 Notices.
Notices
and other communications required by this Agreement shall be in writing and
delivered by hand against receipt or sent by recognized overnight delivery
service or by certified or registered mail, postage prepaid, with return receipt
requested. All notices shall be addressed as follows:
If
to
Sellers:
Claremont
DC Hotel LLC
Xxx
Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Xxxxxxx Xxxxxx
Facsimile:
000 000-0000
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Claremont
DC Hotel II LLC
Xxx
Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Xxxxxxx Xxxxxx
Facsimile:
000 000-0000
with
a
copy to:
Xxxxxx
X.
Xxxxxxx, Esquire
Bernkopf
Xxxxxxx LLP
000
Xxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxx,
XX 00000
Telephone:
000-000-0000
Facsimile:
617-790-3300
If
to
Sellers:
Apple
Hotel, LLC
000
Xxxxxx Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx, XX 00000
Attention:
Xxxxxxx
X. Xxxxxxxxx
Apple
Hotel Holdings, LLC
000
Xxxxxx Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx, XX 00000
Attention:
Xxxxxxx
X. Xxxxxxxxx
Apple
Hotel Investments, LLC
000
Xxxxxx Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx, XX 00000
Attention:
Xxxxxxx
X. Xxxxxxxxx
with
a
copy to:
Xxxxxxx
Xxxxxxxxxx, Esquire
Xxxxxx
& Xxxxxx
000
Xxxxxxx Xxxxxx, XX
Xxxxx
000
Xxxxxxxxxx,
XX 00000
(000)
000-0000
(000)
000-0000
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If
to
Purchaser:
Penn
Mutual Towers
000
Xxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxx X. Xxxx, Executive Vice President
Telephone:
000-000-0000
Facsimile:
000-000-0000
with
a
copy to:
Xxxxx
X.
Xxx, Esquire
Wolf,
Block, Xxxxxx & Xxxxx-Xxxxx LLP
0000
Xxxx
Xxxxxx
Xxxxxxxxxxxx,
XX 00000
Telephone:
000-000-0000
Facsimile:
000-000-0000
or
to
such other address as may be designated by a proper notice. Notices shall be
deemed to be effective upon receipt or refusal of the addressee to accept
delivery.
14.6
Waiver.
The
failure of either party to insist on strict performance of any of the provisions
of this Agreement or to exercise any right granted to it shall not be construed
as a relinquishment or future waiver; rather, the provision or right shall
continue in full force. No waiver of any provision or right shall be valid
unless it is in writing and signed by the party giving it.
14.7 Partial
Invalidity.
If any
part of this Agreement is declared invalid by a court of competent jurisdiction,
this Agreement shall be construed as if such portion had never existed, unless
this construction would operate as an undue hardship on Sellers or Purchaser
or
would constitute a substantial deviation from the general intent of the parties
as reflected in this Agreement.
14.8 Entire
Agreement.
This
Agreement, together with the other writings signed by the parties and
incorporated herein by reference and together with any instruments to be
executed and delivered under this Agreement, constitutes the entire agreement
between the parties with respect to the purchase and sale of the Property and
supersedes all prior oral and written understandings. Any amendments to this
Agreement shall not be effective unless in writing and signed by the parties
hereto.
14.9 Time
is of the Essence.
Time is
of the essence with respect to performance of all obligations under this
Agreement.
14.10 Waiver
of Jury Trial.
Sellers
and Purchaser each hereby waives any right to jury trial in the event any party
files an action relating to this Agreement or to the transactions or obligations
contemplated hereunder.
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14.11 Counterparts.
This
Agreement may be executed in separate counterparts, none of which need contain
the signatures of all parties, each of which shall be deemed to be an original,
and all of which taken together constitute one and the same instrument. It
shall
not be necessary in making proof of this Agreement to produce or account for
more than the number of counterparts containing the respective signatures of,
or
on behalf of, all of the parties hereto.
14.12 Brokerage.
Except
for Xxxxxxxx Xxxxx, whose commission shall be paid by Seller,
Purchaser and Sellers each represents and warrants to the other that no broker
or agent is entitled to the payment of a commission for services rendered in
connection with the transactions contemplated herein. Each of the parties hereto
agrees to indemnify and hold the other harmless from claims made by any broker,
attorney or finder claiming through such party for a commission, fee or
compensation in connection with this Agreement or the sale of the Property
hereunder.
Sellers
agree to indemnify and hold the Purchaser harmless from claims made by Eastdil
Realty for commissions in connection with this Agreement.
The
provisions of this Section 14.12 shall survive Closing.
14.13 Revenue
Contracts and Reservations.
Purchaser hereby agrees that from and after the Closing Date, Purchaser shall
honor all revenue contracts and transient reservations relating to the Hotel
which were entered into or accepted by Sellers or Manager in the ordinary course
of business prior to the Closing Date, at the quoted rates, so long as disclosed
to Purchaser prior to the Closing Date.
14.14 Attorneys’
Fees.
If
either party hereto fails to materially perform any of its obligations under
this Agreement or if any dispute arises between the parties hereto concerning
the meaning or interpretation of any provision of this Agreement, then the
defaulting party or the party not prevailing in such dispute, as the case may
be, shall pay any and all reasonable costs and expenses incurred by the other
party on account of such default and/or in enforcing or establishing its rights
hereunder, including, without limitation, court costs and reasonable attorneys’
fees and disbursements. Any such attorneys’ fees and other expenses incurred by
either party in enforcing a judgment in its favor under this Agreement shall
be
recoverable separately from and in addition to any other amount included in
such
judgment, and such attorneys’ fees obligation is intended to be severable from
the other provisions of this Agreement and to survive and not be merged into
any
such judgment.
14.15 Public
Announcements.
Neither
Sellers nor Purchaser shall make any public statement or issue any press release
prior to the Closing with respect to this Agreement or the transactions
contemplated hereby without the prior written consent of the other party.
14.16 Time
for Performance.
If the
date for the performance of any obligation, or the giving of any notice, by
Sellers or Purchaser hereunder falls upon a Saturday, Sunday or legal holiday
recognized by the United States government, then the time for such performance
or notice shall be extended until the next business day.
14.17 Further
Assurances.
Each
party agrees to execute and deliver, after the Closing, such forms of corrective
deeds, bills of sale or other documentation as the other party may reasonably
request to carry out the intent of this Agreement.
-
21
-
14.18 Contract
Date.
The
“Contract Date” shall be the date upon which each Seller shall have executed at
least three copies of this Agreement and shall have delivered one copy to
Purchaser and one copy to Escrow Agent, provided however that such date may
not
occur later than 6:00 p.m. on August
10,
2005. In the event the Contract Date has not occurred by August
10,
2005, the offer created by this Agreement shall become null and void and of
no
further force or effect whatsoever.
-
22
-
|
ATTEST/WITNESS:
|
PURCHASER
|
|||
|
a
|
|
Trust
|
|
|
|
By:
|
|
|||
|
Name:
|
|
|||
|
Its:
|
||||
|
SELLERS
|
||||||
|
CLAREMONT
DC HOTEL LLC
|
||||||
|
a
Delaware limited liability company
|
||||||
|
By:
|
Claremont
Summer, Inc.,
its
Manager
|
|||||
|
|
By:
|
|
||||
|
Name:
|
Xxxxxxx Xxxxxx | |||||
| Its: | Vice President and Secretary | |||||
|
CLAREMONT
DC HOTEL LLC
|
||||||
|
a
Delaware limited liability company
|
||||||
|
By:
|
Claremont
Summer, Inc.,
its
Manager
|
|||||
|
|
By:
|
|
||||
|
Name:
|
Xxxxxxx Xxxxxx | |||||
| Its: | Vice President and Secretary | |||||
|
APPLE
HOTEL, LLC
|
|||
|
By:
|
|||
|
Name:
|
Xxxxxxx
X. Xxxxxxxxx
|
||
|
Title:
|
Manager
|
||
|
APPLE
HOTEL HOLDINGS, LLC
|
|||
|
By:
|
|
||
|
Name:
|
Xxxxxxx
X. Xxxxxxxxx
|
||
|
Title:
|
Manager
|
||
|
[signatures
are continued on the next
page]
|
-
23
-
|
APPLE
HOTEL INVESTMENTS, LLC
|
|||
|
By:
|
|
||
|
Name:
|
Xxxxxxx
X. Xxxxxxxxx
|
||
|
Title:
|
Manager
|
||
-
24
-
EXHIBITS
|
A
|
Legal
Description of Land
|
|
B
|
Form
of Title Commitment
|
|
C
|
Intentionally
Deleted
|
|
D
|
Purchase
Price Allocation
|
|
E
|
Form
of Escrow Instructions
|
|
F
|
List
of Proceedings
|
|
G
|
List
of Contracts
|
|
H
|
List
of Equipment Leases
|
|
I
|
List
of Permits
|
|
J
|
List
of Environmental Reports
|
|
K
|
Statements
of Revenue
|
|
L
|
Form
of Deed
|
|
M
|
Form
of Xxxx of Sale
|
EXHIBIT
A
Legal
Description of Land
The
Land
is more fully described as follows:
All
of
those lots or parcels of land located in the District of Colombia and more
particularly described as follows:
Part
of
Lot 52 in Square 250 in a subdivision made by 000 Xxxxxxxxxx Xxxxxx Associates
Limited Partnership, and others per plat recorded in Liber No. 183 at folio
117
among the Records of the Office of the Surveyor of the District of Colombia,
and
being more particularly described as follows:
BEGINNING
for the same at a point on the East right of way line of 14th
Street,
N.W., (110 feet wide), said point lying distant due North, 181.50 feet from
the
intersection with the North right of way line of H Street, N.W., (90 feet wide),
said point being also the common front corner of former Xxx 00 xxx 000 xx xxxx
Xxxxxx; thence, departing 14th
Street,
N.W., and running through, over and across Lot 52 so as to include a portion
thereof, the following courses and distances:
|
1.
|
Due
East, 110.50 feet to a point;
thence
|
|
2.
|
Due
South, 7.50 feet to a point, thence
|
|
3.
|
Due
East, 14.50 feet to the Northwest corner of a 30-foot wide public
alley in
said Square, as shown on plat recorded in subdivision book 183 at
page
117, aforesaid; and thence, running with the East end of said public
alley
for the first 30 feet of length; thence
|
|
4.
|
Due
South, 94.5 feet to a point; thence
|
|
5.
|
Xxx
Xxxx, 29.00 feet to a point; thence
|
|
6.
|
Due
South 18.00 feet to a point; thence
|
|
7.
|
Xxx
Xxxx, 21.00 feet to a point; thence
|
|
8.
|
Due
South 15.50 feet to a point; thence
|
|
9.
|
Xxx
Xxxx, 75.00 feet to a point on the aforementioned East right of way
line
of 00xx
Xxxxxx, X.X.; and thence running with said
line
|
|
10.
|
Due
North, 13.50 feet to the place of
beginning.
|
NOTE:
At
the date hereof the above described land is designated on the Records of the
Assessor of the District of Colombia for assessment and taxation purposes as
Lot
858 in Square 250.
Part
of
Record Xxx 00 xx Xxxxxx 000, Xxxxxxxx xx Xxxxxxxx, as per Plat of Subdivision
made by 000 Xxxxxxxxxx Xxxxxx Associates Limited Partnership, recorded July
31,
1990, in Subdivision Book 183 at page 117 among the Records of the Office of
the
Surveyor of the District of Colombia; said part of Record Lot 52 being also
shown, for purposes of assessment and taxation purposes as Lot 858 in Square
250
as shown on Assessment and Taxation Plat 3779-G dated October 3, 1995 on file
among said Records; said part of Record Lot 52 taxed as Lot 858, being more
particularly described as follows:
BEGINNING
for the same at a “P.K.” nail set on the East line of 14th
Street,
N.W., (110 feet wide) said point lying DISTANT South 00 degrees 00’ 00” West,
136.50 (per record) from South line of I Street, N.W., (90 feet wide) said
point
being also the common West corner of Lots 857 and 858 in Square 250 as shown
among the aforesaid Records; and thence departing 14th
Street,
N.W., and running with the common dividing lines between said Lots 857 and
858
1. North
90
degrees 00’ 00” East, 110.50 feet (per record); thence
2. South
00
degrees 00’ 00” West, 7.50 feet (per record); thence
3. North
90
degrees 00’ 00” East 14.50 feet (per survey) to the Northwest corner of a 30
feet wide Public Alley in said Square; thence departing Lot 857 and running
with
the West end of said Public Alley for the first 30 feet of distance and
thereafter with the common dividing lines between Lots 858 and 46 in said
Square.
4. South
00
degrees 00’ 00” West, 95.125 feet (per Assessor’s Plat), 94.93 feet (per
survey); thence
5. South
90
degrees 00’ 00” West, 29.00 feet (per record), South 89 degrees 35’ 52” West,
29.16 feet (per survey); thence
6. South
00
degrees 00’ 00” West, 18.00 feet (per record), South 00 degrees 08’ 00’ West,
18.00 feet (per survey); thence
7. North
90
degrees 00’ 00” West, 21.00 feet (per record), North 89 degrees 52’ 00” West,
21.02 feet (per survey); thence
8. South
00
degrees 00’ 00” West, 15.50 feet (per record), South 00 degrees 08’ 00” West,
15.22 feet (per survey); thence
9. South
90
degrees 00’ 00” West, 75.00 feet (per record), 75.11 feet (per D.C. measurement
to “P.K.” nail set on the aforementioned East line of 14th
Street,
N.W., at the common West corner of Lots 858 and 46 in said Square; thence
departing Lot 46 and running with said Xxxx xxxx xx 00xx
Xxxxxx,
X.X.
10. North
00
degrees 00’ 00” East, 136.12 feet (per Assessor’s Plat), 135.82 feet (per
survey) to the place of the beginning.
EXHIBIT
B
Form
of Title Commitment
See
attached.
EXHIBIT
C
Intentionally
Deleted
EXHIBIT
D
Purchase
Price Allocation
|
Land:
|
$6,450,000.00
|
|
|
Improvements:
|
$74,500,000.00
|
|
|
FF&E:
|
$1,150,000.00
|
|
|
Good
Will:
|
$3,000,000.00
|
EXHIBIT
E
Form
of Escrow Instructions
FORM
OF ESCROW INSTRUCTIONS FOR DEPOSIT
August
__,
2005
|
|
|
|
|
|
|
|
|
Re:
|
Deposit
under Purchase and Sale Agreement (the “Agreement”) dated August
__, 2005, by and between Claremont DC Hotel LLC, Claremont DC Hotel
II
LLC, Apple Hotel, LLC, Apple Hotel Holdings, LLC and Apple Hotel
Investments, LLC (collectively “Sellers”) and Hersha Hospitality Trust
(“Purchaser”)
|
Gentlemen
and Ladies:
Purchaser
and Sellers have entered into the Agreement pursuant to which Purchaser agrees
to purchase the Hotel described in the Agreement. In accordance with the
Agreement, Purchaser shall
(unless the Agreement is terminated by Purchaser on or before that date),
deliver to you cash in the additional amount of Four Million and 00/100
($4,000,00.00) Dollars (which, along with any interest earned thereon, is
hereinafter referred to as the “Purchaser’s Deposit”).
You are
to place the Purchaser’s Deposit in an interest bearing account (for this
purpose, Purchaser's Federal Employer I.D. number is __________________) and
hold the Purchaser’s Deposit in escrow and deliver it to Sellers or Purchaser in
accordance with these instructions.
In
addition, Sellers shall (unless the Agreement is terminated by Sellers on or
before that date), deliver to you cash in the amount of Five Hundred Thousand
and 00/100 Dollars (which, along with any interest earned thereon, is
hereinafter referred to as the “Sellers’ Deposit.” You are to place the Sellers’
Deposit in an interest bearing account (for this purpose the I.D. number of
a
Claremont Entity is ______________) and hold the Sellers’ Deposit in escrow and
in accordance with these instructions.
In
the
event that,
prior
to ten (10) days after the date you receive the Purchaser’s Deposit (or any
later date through which Sellers and Purchaser agree to extend the Feasiblity
Period under the Agreement), you receive written notice from Purchaser
(“Purchaser’s Notice”) stating that it is terminating the Agreement, you shall,
not later than the first (1st)
business day following receipt of such notice, return the Purchaser’s Deposit
held by you to Purchaser, notwithstanding any contrary instructions you may
receive from Sellers or any other party. In the event that, at any time after
such date,
you
receive notice from Sellers (“Sellers’ Notice”) stating that (i) Purchaser is in
default under the Agreement, and (ii) a copy of Sellers’ Notice has been
delivered to Purchaser, you shall, on the fifth (5th) business day after receipt
of Sellers’ Notice, deliver the Sellers’ Deposit (by delivering cash, certified
check or some other form of immediately available funds, to Sellers,
_______________________________________________________________, or such other
address as Sellers may request) to Sellers, except that if you receive written
notice from Purchaser or Purchaser’s counsel within three (3) business days
after receipt of Sellers’ Notice that Purchaser disputes Sellers’ right to
receive the Sellers’ Deposit and directs you not to make the foregoing delivery,
you shall not deliver the Deposit to Sellers but shall instead retain it or,
if
appropriate, interplead the Deposit in a court of competent
jurisdiction.
You
are
not to disclose to any person (other than the parties hereto, their employees,
agents or independent contractors) any information about the Agreement or its
existence or this letter of instructions (except if requested by either party
or
as may be required by court in any litigation or by law).
You
are
to maintain each Deposit in a federally-insured interest-bearing account in
a
national banking association or such other institution as Purchaser and Sellers
may approve, and all interest accruing thereon shall be paid to the party
entitled to the Deposit under the terms of the Agreement. We understand that
you
assume no responsibility for, nor will we hold you liable for, any loss accruing
due to bank failure and/or takeover by a federal regulatory agency, or which
arises solely from the fact that the escrow amount exceeds One Hundred Thousand
Dollars ($100,000) and that the excess amount is not insured by the Federal
Deposit Insurance Corporation. Nor shall you be required to institute legal
proceedings of any kind pursuant to these instructions, nor be required to
defend any legal proceedings which may be instituted against you with respect
to
the subject matter of these instructions unless you are requested to do so
by
Purchaser or Sellers and arrangements reasonably satisfactory to you have been
made to indemnify you against the cost and expense of such defense by the party
making such request. If any dispute shall arise with respect to these
instructions, whether such dispute arises between the parties hereto or between
the parties hereto and other persons, you may interplead such disputants. You
shall be responsible only for the performance of such duties as are strictly
set
forth herein and in no event shall you be liable for any act or failure to
act
under the provisions of this letter except where such action or inaction is
the
result of your willful misconduct or gross negligence.
Sellers
and Purchaser each hereby agrees to indemnify you and hold you harmless against
any loss, liability or damage (including the cost of litigation and reasonable
counsel fees) incurred in connection with the performance of your duties
hereunder except as a result of your willful misconduct or gross
negligence.
Please
indicate your agreement to comply with the foregoing instructions by executing
at least three copies of this letter and returning one to Xxxxx
X
Xxx, Esquire, Wolf, Block, Xxxxxx & Xxxxx-Xxxxx, 0000 Xxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, telephone (000) 000-0000,
counsel
for Purchaser, and one to Xxxxxx X. Xxxxxxx, Esquire, Bernkopf Xxxxxxx LLP,
000
Xxxxxx Xxxxxx, 00xx
Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx
00000,
counsel
for the Claremont Entities.
|
CLAREMONT
DC HOTEL LLC
|
||||||
|
|
||||||
|
By:
|
Claremont
Summer, Inc., its
Manager
|
|||||
|
|
By:
|
|
||||
|
|
Xxxxxxx Xxxxxx, President and Secretary | |||||
|
CLAREMONT
DC HOTEL LLC
|
||||||
|
|
||||||
|
By:
|
Claremont
Summer, Inc., its
Manager
|
|||||
|
|
By:
|
|
||||
|
|
Xxxxxxx Xxxxxx, President and Secretary | |||||
|
APPLE
HOTEL, LLC
|
|||
|
By:
|
|||
|
Name:
|
Xxxxxxx
X. Xxxxxxxxx
|
||
|
Title:
|
Manager
|
||
|
APPLE
HOTEL HOLDINGS, LLC
|
|||
|
By:
|
|
||
|
Name:
|
Xxxxxxx
X. Xxxxxxxxx
|
||
|
Title:
|
Manager
|
||
|
PURCHASER
|
|||
| Hersha Hospitality Trust | |||
|
By:
|
|
||
|
Name:
|
Xxxx
X. Xxxx
|
||
|
Its:
|
Executive
Vice President
|
||
|
ACKNOWLEDGED
AND AGREED:
|
||
|
By:
|
||
|
Name:
|
||
|
Its:
|
||
|
Date:
|
||
EXHIBIT
F
List
of Proceedings
None.
EXHIBIT
G
List
of Contracts
|
Compcierge
|
|
Tyco/
Simplex Xxxxxxxx Contract
|
|
Reliant
Energy Agreement
|
|
BFI
Service Agreement
|
|
Micros
Contract
|
|
Galileo
Contract
|
|
KABA
Ilco Agreement
|
|
Xxxxxx
Service Contract
|
|
Commdec
Maintenance Agreement
|
|
Xxxx
Elevator Maintenance Agreement
|
|
Steritech
Agreement
|
|
Data
Valet Agreement
|
|
Townepark
|
|
Central
Parking Agreement
|
EXHIBIT
H
List
of Equipment Leases
|
Xxxxxx
Copier Lease
|
|
Xxxxx
Water Systems Equipment Lease
|
|
Pitney
Xxxxx Equipment Lease
|
|
OnCommand
Video Service Agreement
|
|
Sky
Television Inc.
|
EXHIBIT
I
List
of Permits
|
Special
Tax Stamp # 2004196-005-010
|
|
Certificate
of Occupancy # 15639
|
|
Certificate
of Occupancy # 84590
|
|
Basic
Business License - Swimming Pool # 38364xxxx-50006515
|
|
Basic
Business License - Food Establishment #
38364xxxx-50006519
|
|
Basic
Business License - Food Products # 38364xxxx-50006519
|
|
Basic
Business License - Hotel # 38364xxxx-50005467
|
|
Commercial
Elevator License # 40000255
|
|
Commercial
Elevator License # 40000262
|
|
Commercial
Elevator License # 40000264
|
|
Commercial
Elevator License # 40000265
|
|
In
House Agency Retailer License - Alcohol
#60463
|
EXHIBIT
J
List
of Environmental Reports
Phase
I
Environmental Site Assessment Update
-
Prepared by Xxxxxxxx Engineering North, LLC Dated July 6,2004
EXHIBIT
K
Statements
of Revenue
|
OPERATING
STATEMENT FOR THE YEAR ENDING DECEMBER 31, 2002
|
|
OPERATING
STATEMENT FOR THE YEAR ENDING DECEMBER 31, 2003
|
|
OPERATING
STATEMENT FOR THE YEAR ENDING DECEMBER 31, 2004
|
|
YTD
OPERATING STATEMENT FOR THE PERIOD ENDING JUNE 30,
2005
|
EXHIBIT
L
Form
of Deed
WARRANTY
DEED
This
Warranty Deed, made this ___ day of September, in the year 2005, by
(hereinafter,
collectively, “Sellers”),
Witnesseth,
that for and in consideration of the sum of Eighty-Five Million One Hundred
Thousand and 00/100 ($85,100,000.00) Dollars and other good and valuable
consideration paid to it, Sellers, as tenants in common, hereby grant to Hersha
Hospitality Trust, a business trust organized in the State of Maryland, a fee
simple interest in that piece or parcel of land, together with the improvements,
rights, privileges and appurtenances to the same belonging, situate in the
District of Columbia, known as Lot 858 in Square 20, being more fully described
as follows, to wit:
Part
of
Record Lot 52 in Square 250 in a subdivision made by 000 Xxxxxxxxxx Xxxxxx
Associates Limited Partnership, and others per plat recorded in Liber No. 183
at
folio 117 among the Records of the Office of the Surveyor of the District of
Colombia, and being more particularly described as follows:
BEGINNING
for the same at a point on the East right of way line of 14th
Street,
N.W., (110 feet wide), said point lying distant due North, 181.50 feet from
the
intersection with the North right of way line of H Street, N.W., (90 feet wide),
said point being also the common front corner of former Xxx 00 xxx 000 xx xxxx
Xxxxxx; thence, departing 14th
Street,
N.W., and running through, over and across Lot 52 so as to include a portion
thereof, the following courses and distances:
|
11.
|
Due
East, 110.50 feet to a point;
thence
|
|
12.
|
Due
South, 7.50 feet to a point, thence
|
|
13.
|
Due
East, 14.50 feet to the Northwest corner of a 30-foot wide public
alley in
said Square, as shown on plat recorded in subdivision book 183 at
page
117, aforesaid; and thence, running with the East end of said public
alley
for the first 30 feet of length; thence
|
|
14.
|
Due
South, 94.5 feet to a point; thence
|
|
15.
|
Xxx
Xxxx, 29.00 feet to a point; thence
|
|
16.
|
Due
South 18.00 feet to a point; thence
|
|
17.
|
Xxx
Xxxx, 21.00 feet to a point; thence
|
|
18.
|
Due
South 15.50 feet to a point; thence
|
|
19.
|
Xxx
Xxxx, 75.00 feet to a point on the aforementioned East right of
way line
of 00xx
Xxxxxx, X.X.; and thence running with said
line
|
|
20.
|
Due
North, 13.50 feet to the place of
beginning.
|
NOTE:
At
the date hereof the above described land is designated on the Records of the
Assessor of the District of Colombia for assessment and taxation purposes as
Lot
858 in Square 250.
Part
of
Record Xxx 00 xx Xxxxxx 000, Xxxxxxxx xx Xxxxxxxx, as per Plat of Subdivision
made by 000 Xxxxxxxxxx Xxxxxx Associates Limited Partnership, recorded July
31,
1990, in Subdivision Book 183 at page 117 among the Records of the Office of
the
Surveyor of the District of Colombia; said part of Record Lot 52 being also
shown, for purposes of assessment and taxation purposes as Lot 858 in Square
250
as shown on Assessment and Taxation Plat 3779-G dated October 3, 1995 on file
among said Records; said part of Record Lot 52 taxed as Lot 858, being more
particularly described as follows:
BEGINNING
for the same at a “P.K.” nail set on the East line of 14th
Street,
N.W., (110 feet wide) said point lying DISTANT South 00 degrees 00’ 00” West,
136.50 (per record) from South line of I Street, N.W., (90 feet wide) said
point
being also the common West corner of Lots 857 and 858 in Square 250 as shown
among the aforesaid Records; and thence departing 14th
Street,
N.W., and running with the common dividing lines between said Lots 857 and
858
11. North
90
degrees 00’ 00” East, 110.50 feet (per record); thence
12. South
00
degrees 00’ 00” West, 7.50 feet (per record); thence
13. North
90
degrees 00’ 00” East 14.50 feet (per survey) to the Northwest corner of a 30
feet wide Public Alley in said Square; thence departing Lot 857 and running
with
the West end of said Public Alley for the first 30 feet of distance and
thereafter with the common dividing lines between Lots 858 and 46 in said
Square.
14. South
00
degrees 00’ 00” West, 95.125 feet (per Assessor’s Plat), 94.93 feet (per
survey); thence
15. South
90
degrees 00’ 00” West, 29.00 feet (per record), South 89 degrees 35’ 52” West,
29.16 feet (per survey); thence
16. South
00
degrees 00’ 00” West, 18.00 feet (per record), South 00 degrees 08’ 00’ West,
18.00 feet (per survey); thence
17. North
90
degrees 00’ 00” West, 21.00 feet (per record), North 89 degrees 52’ 00” West,
21.02 feet (per survey); thence
18. South
00
degrees 00’ 00” West, 15.50 feet (per record), South 00 degrees 08’ 00” West,
15.22 feet (per survey); thence
19. South
90
degrees 00’ 00” West, 75.00 feet (per record), 75.11 feet (per D.C. measurement
to “P.K.” nail set on the aforementioned East line of 14th
Street,
N.W., at the common West corner of Lots 858 and 46 in said Square; thence
departing Lot 46 and running with said Xxxx xxxx xx 00xx
Xxxxxx,
X.X.
20. North
00
degrees 00’ 00” East, 136.12 feet (per Assessor’s Plat), 135.82 feet (per
survey) to the place of the beginning.
[signatures
are continued on the next page]
|
Executed
as a sealed instrument this ____ day of _______,
2005.
|
|
|
|||
|
|
By:
|
|
|
|
Witness
|
Name:
|
|
|
|
Title:
|
|
||
COMMONWEALTH
OF MASSACHUSETTS
______________,
ss.
On
this
_____ day of September, 2005, before me, the undersigned notary public,
personally appeared ____________________, proved to me through satisfactory
evidence of identification, which was ____________________________________,
to
be the person whose name is signed on the preceding or attached document, and
acknowledged to me that he/she signed it voluntarily for its stated purpose
as
___________________
of _____________________________________, Trustee
of ______________________________ Trust.
|
|
NOTARY PUBLIC | |||||
|
[Affix
Notarial Seal]
|
||||||
|
|
Printed Name: | |||||
|
|
My Commission Expires: | |||||
EXHIBIT
M
Form
of Xxxx of Sale
XXXX
OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS
XXXX
OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Xxxx of Sale”) is entered
into as of ________ __, 2005 by and between Claremont DC Hotel LLC, Claremont
DC
Hotel II LLC, Apple Hotel, LLC, Apple Hotel Holdings, LLC and Apple Hotel
Investments, LLC (collectively “Assignor”), and
____________________________________, a _________________________ with its
principal offices at ________________________________________________
(“Assignee”).
FOR
GOOD
AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. All
capitalized terms used herein without definition shall have the meanings given
them in that certain Purchase and Sale Agreement between Assignor and Assignee
dated as of August
___,
2005 (the “Purchase Agreement”) for the sale by the Assignor to the Assignee of
the ____________________________________________________________in
______________ County, _____________ (the “Hotel”).
2. Assignor
hereby unconditionally gives, grants, bargains, sells, assigns, contributes,
transfers, conveys, and delivers to Assignee, and Assignee accepts and assumes,
all of Assignor’s right, title, and interest, whether now existing or hereafter
acquired in, to, and under the following:
(a) all
personal property owned, leased, or used by Assignor in connection with the
operation or maintenance of, located on or about, or otherwise related to the
Hotel, including all FF&E, all Fixed Asset Supplies and all
Inventories;
(b) all
Contracts;
(c) all
Equipment Leases;
(d) all
Space
Leases (collectively, items (a) through (d), the “Property”);
(e) all
Permits;
(f) the
balances on deposit on the date hereof of all FF&E and other similar
reserves required under the Management Agreement
(g) all
records, files, documents, plans, specifications, permits, certificates of
title, guest lists and other instruments and records of whatsoever kind or
nature related to any of the foregoing and in Assignor’s possession or control;
and
(h) all
rights, claims, choses in action or other interests of Assignor in, related
to,
or arising out of any of the foregoing with respect to the period on or after
the date hereof.
PROVIDED,
HOWEVER, that any alcoholic beverages that under the law of the state in which
the Hotel are located may not legally be transferred from Assignor to Assignee
are excepted and excluded from the conveyance by Assignor to Assignee and from
this Xxxx of Sale;
Assignee,
by its execution hereof, does hereby (i) assume and agree to perform and
discharge all obligations of the Assignor under the Contracts and Equipment
Leases from and after the date hereof and (ii) agree to hold Assignor harmless
and indemnify and defend Assignor from all liabilities, obligations, duties,
claims, causes of action, losses, damages, suits, judgments and expenses
(including, without limitation, attorneys’ fees and costs of litigation) arising
or accruing under the Contracts, Equipment Leases on or after the date hereof;
provided,
however,
that by
the execution and delivery of this instrument, Assignor agrees to hold Assignee
harmless and indemnify and defend Assignee from all liabilities, obligations,
duties, claims, causes of action, losses, damages, suits, judgments and expenses
(including, without limitation, attorneys’ fees and costs of litigation) arising
or accruing under the Contracts and Equipment Leases prior to the date hereof
and with respect to any contracts that were not assumed by Purchaser, regardless
of when such claim arose.
This
Xxxx
of Sale is subject in its entirety to the terms and conditions of the Purchase
Agreement. To the extent the terms and conditions hereof and thereof are
inconsistent, the terms and conditions of the Purchase Agreement shall
control.
This
Xxxx
of Sale shall be governed by the laws of the District of Columbia (except for
the choice of law provisions thereof).
This
Xxxx
of Sale may be executed in separate counterparts, none of which need contain
the
signatures of all parties, each of which shall be deemed to be an original,
and
all of which taken together constitute one and the same instrument. It shall
not
be necessary in making proof of this Xxxx of Sale to produce or account for
more
than the number of counterparts containing the respective signatures of, or
on
behalf of, all of the parties hereto.
If
any
part of this Xxxx of Sale is declared invalid by a court of competent
jurisdiction, this Xxxx of Sale shall be construed as if such part did not
exist, and the balance thereof shall be given full effect.
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ASSIGNOR:
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WITNESS/ATTEST:
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CLAREMONT
DC HOTEL LLC
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By:
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By:
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Name:
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Claremont
Summer, Inc., its Manager
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By:
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Xxxxxxx
Xxxxxx, President and Secretary
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WITNESS/ATTEST:
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CLAREMONT
DC HOTEL II LLC
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By:
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By:
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Name:
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Claremont
Summer, Inc., its Manager
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By:
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Xxxxxxx
Xxxxxx, President and Secretary
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WITNESS/ATTEST:
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APPLE
HOTEL, LLC
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By:
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By:
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Name:
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Xxxxxxx
X. Xxxxxxxxx, Manager
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WITNESS/ATTEST:
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APPLE
HOTEL HOLDINGS, LLC
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By:
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Name:
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By:
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Xxxxxxx
X. Xxxxxxxxx, Manager
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WITNESS/ATTEST:
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APPLE
HOTEL INVESTMENTS, LLC
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By:
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Name:
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By:
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Xxxxxxx
X. Xxxxxxxxx,
Manager
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[SIGNATURES
ARE CONTINUED ON THE NEXT PAGE]
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ASSIGNEE:
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WITNESS/ATTEST:
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By:
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By:
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Name:
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Name:
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Its:
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[SEAL]
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