EXHIBIT 10.82
Agreement of Purchase and Sale
of
The Hotel Del Coronado
Coronado, California
and
Joint Escrow Instructions
among
L-O Coronado Holding II, Inc., a Delaware corporation ("Holding")
and
L-O Coronado Hotel, Inc., a California corporation ("Operator")
and
L-O Coronado IP, Inc., a Delaware corporation ("IP")
(jointly, "Seller"),
and
CNL Hospitality Corp., a Florida corporation
("Buyer").
Effective Date: September 23, 2003
AGREEMENT OF PURCHASE AND SALE
OF
THE HOTEL DEL CORONADO
CORONADO, CALIFORNIA
AND
JOINT ESCROW INSTRUCTIONS
AMONG
L-O CORONADO HOLDING II, INC., A DELAWARE CORPORATION ("HOLDING")
AND
L-O CORONADO HOTEL, INC., A CALIFORNIA CORPORATION ("OPERATOR")
AND
L-O CORONADO IP, INC., A DELAWARE CORPORATION ("IP")
(JOINTLY, "SELLER"),
AND
CNL HOSPITALITY CORP., A FLORIDA CORPORATION
("BUYER").
EFFECTIVE DATE: SEPTEMBER 23, 2003
AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY
AND
JOINT ESCROW INSTRUCTIONS
THIS AGREEMENT OF PURCHASE AND SALE OF REAL PROPERTY AND JOINT ESCROW
INSTRUCTIONS ("this Agreement") is made as of September 23, 2003 (the "EFFECTIVE
DATE"), among
L-O CORONADO HOLDING II, INC., a Delaware corporation ("HOLDING"),
L-O CORONADO HOTEL, INC., a California corporation ("OPERATOR"), and
L-O CORONADO IP, INC., a Delaware corporation ("IP") (collectively,
"SELLER"),
and
CNL HOSPITALITY CORP., a Florida corporation ("BUYER").
IN CONSIDERATION OF the mutual covenants and conditions contained
herein, parties hereto (together, the "PARTIES" and each, sometimes, a "PARTY")
do hereby agree and covenant with each other as follows:
1. DEFINITIONS.
1.1 ACCOUNT. "Account" means any account receivable to be assigned
to Buyer or Buyer's nominee at Closing, pursuant to Section 8.3, and "the
Accounts" means all such accounts receivable.
1.2 AFFILIATE. "Affiliate" means, with respect to an indicated
person, any other person which controls, is controlled by or is under common
control with such indicated person.
1.3 APPROVAL DATE. "Approval Date" means October 15, 2003.
provided, however, that if, on the date on which the Approval Date would
otherwise fall or the preceding day, Seller on gives Buyer written notice of any
actual or possible breach of Seller's representations in Section 5.1 the
Approval Date shall be automatically extended by two Business Days.
1.4 APPROVED CAPITAL EXPENDITURES. "Approved Capital Expenditures"
means those items of capital improvements, repairs and replacements identified
in the Schedule of Approved Capital Expenditures attached hereto as Exhibit Q.
1.5 ASSUMED CONTRACTS. "Assumed Contracts" means the Contracts
identified on the Schedule of Contracts attached hereto as Exhibit J (except for
those Service Contracts excluded pursuant to Section 2) or on the Schedule of
Membership Agreements attached hereto as Exhibit V, and the Development
Agreement. For the avoidance of doubt, Assumed Contracts will not include the
Collective Bargaining Agreements.
1.6 XXXX OF SALE. "Xxxx of Sale" means one or more instruments, as
Buyer may determine, each substantively in the form attached hereto as Exhibit
C, together conveying the Leased Equipment and Inventory to Buyer or Buyer's
nominee(s).
1.7 BUSINESS DAY. The term "Business Day" means a day other than
Saturday, Sunday or other day when commercial banks in California are authorized
or required by Law to close.
1.8 BUYER'S KNOWLEDGE. "Buyer's Knowledge" means the actual
present (and not the constructive knowledge, except as specified below) of (A)
Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxxxx and Xxxx Xxxxxx of CNL Hospitality Corp. and
(B) either (i) Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxxxx, Xxxx Xxxxxxx and Xxxxx
XxXxxxxxx of KSL if KSL is either engaged by Buyer to manage the Hotel after
Closing or holds an equity interest in a Permitted Assignee that acquires the
Hotel, or any part thereof, pursuant to this Agreement, or (ii), if clause (i)
does not apply and Buyer engages a Person other than KSL to manage the Hotel
after Closing, the executive and managerial employees of such other Person who
conduct or review the inspection of the Hotel and the Hotel Records on behalf of
such other Person, as reasonably and in good faith designated by Buyer to Seller
prior to the Approval Date (and, if Buyer fails to make such designation, then
as reasonably and in good faith designated thereafter by Seller to Buyer); but,
in any case, "Buyer's Knowledge" shall also be deemed to include all information
contained in (A) any of the Due Diligence Materials or (B) in any notice
delivered to Buyer in accordance with Section 15 prior to the applicable date,
or in written materials accompanying such a notice; provided, however, that
Buyer's Knowledge shall not be deemed in any event to include any oral statement
made to any of the individuals identified or described above by an employee,
agent or other representative of Seller, unless (and the only to the extent)
such information is documented in a writing submitted to (or created by) one of
such individuals. Notwithstanding any provision of this Agreement, none of the
individuals named (or otherwise identified) above shall have any liability or
obligation whatsoever under this Agreement, for breach of any of Buyer's
representations or otherwise.
1.9 BUYER'S MANAGER. "Buyer's Manager" means (i) KSL, unless Buyer
does not engage KSL to manage the Hotel after Closing, or (ii) such other Person
as Buyer does engage to manage the Hotel after Closing and its Affiliates.
1.10 CAL WARN. "Cal WARN" means the provisions of California Labor
Code Sections 1400 et seq.
1.11 CASH BANK. "Cash Bank" means, with respect to the Hotel, cash
on hand in house banks and xxxxx cash as of Closing.
1.12 CLAIM. "Claim" means any claim, demand, liability, legal
action or proceeding, investigation, fine or other penalty, and loss, cost or
expense related thereto (including, without limitation, attorneys' fees and
disbursements actually and reasonably incurred).
1.13 CLOSING. "Closing" means the concurrent delivery, in
accordance with this Agreement, (i) by Seller to Buyer of the Transfer
Instruments and (ii) by Buyer to Seller of the Purchase Price.
1.14 CLOSING DATE. "Closing Date" means the date upon which Closing
occurs.
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1.15 CLOSING DOCUMENTS. "Closing Documents" means the Transfer
Instruments, the FIRPTA Certificate, and all the other documents to be delivered
hereunder at, or for purposes of effecting, Closing.
1.16 CLOSING EVE. "Closing Eve" has the meaning specified in
Section 8.3.1.
1.17 COLLECTIVE BARGAINING AGREEMENTS. "Collective Bargaining
Agreements" mean (A) that certain "Hotel Del Coronado Agreement 2000 - 2005,
effective as of September 1, 2000, between Hotel Manager and Hotel Employees and
Restaurant Employees Union of San Diego, Local 30 ("Union") and (B) that certain
Neutrality Agreement, dated as of September 26, 2001, between Hotel Manager and
Union.
1.18 COMMITTED CAPITAL EXPENDITURES. "Committed Capital
Expenditures" means those Approved Capital Expenditures not yet completed but on
which work had begun as of July 24, 2003, as identified in Exhibit Q.
1.19 CONTINUING EMPLOYEES. "Continuing Employees" means Hotel
Employees who are employed by Buyer or Buyer's Manager or operator from and
after the Closing Date.
1.20 CONTRACTS. "Contracts" means (A) all Service Contracts, (B)
all Equipment Leases, (C) the Development Agreement and (D) all Membership
Agreements, including all amendments and supplements thereto.
1.21 CONTRACT ASSIGNMENT. "Contract Assignment" means an assignment
and assumption of Assumed Contracts substantively in the form attached hereto as
Exhibit E.
1.22 COUNSEL. "Counsel" means each Party's respective legal counsel
for the transaction contemplated by this Agreement: with respect to Seller, the
law firm of Xxxxxx, Xxxxx & Xxxxxxx LLP; and with respect to Buyer, the law firm
of Xxxxx Xxxxxxx Xxxx Xxxxxx & Xxxxxxx LLP.
1.23 DAY. The term "day" means a calendar day.
1.24 DEED. "Deed" means a California grant deed in the form
attached hereto as Exhibit B, conveying the Hotel Premises to Buyer.
1.25 DEPOSIT. "Deposit" has the meaning specified in Section 3.3.
1.26 DEVELOPMENT AGREEMENT. "Development Agreement" means the
Development Agreement, dated as of February 27, 2003, between Holding and the
City of Coronado, California.
1.27 DEVELOPMENT AGREEMENT ASSIGNMENT. "Development Agreement
Assignment" means an assignment of the Development Agreement, by Seller to
Buyer, substantially in the form attached as Exhibit D to the Development
Agreement.
1.28 DEVELOPMENT AGREEMENT STATEMENT OF COMPLIANCE. "Development
Agreement Statement of Compliance" means the written certification of the City
of Coronado (the "City"), dated no earlier than the Effective Date, delivered in
accordance with Section 7.2 of the Development
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Agreement and confirming that (A) the Development Agreement is unmodified and in
full force and effect, (B) there are no uncured defaults under the Development
Agreement on the part of the City or, to the City's knowledge, on the part of
Holding, and (C) the payment required by Section 4.6.4(a) of the Development
Agreement has been made.
1.29 DISPUTED PAYABLE. "Disputed Payable" means any amount that a
third party claims to be due or accrued as of Closing with respect to the
operation of the Hotel, but that Seller or Hotel Manager disputes in good faith
(including the disputed portion of any xxxx, invoice or claim that Seller or
Hotel Manager otherwise acknowledges to be due and payable).
1.30 EFFECTIVE DATE. "Effective Date" has the meaning specified in
the initial paragraph of this Agreement.
1.31 EMPLOYEE LEAVE. "Employee Leave" means vacation, sick leave
and any other paid leave accrued or accruing with respect to Hotel Employees.
1.32 EMPLOYEE LIABILITIES. "Employee Liabilities" means all
obligations and liabilities, actual or contingent with respect to Hotel
Employees, whether accruing before or after Closing, including, without
limitation, any and all obligations or liabilities: (A) for wages, salaries,
Employee Leave, fringe benefits, and payroll taxes; (B) for contributions and
other payments to Hotel Employee Plans; (C) for worker's compensation claims
based on any real or alleged occurrence prior to Closing; (D) under the
Collective Bargaining Agreements; and (E) for claims or penalties under
applicable Laws governing employer/employee relations (including, without
limitation, the National Labor Relations Act and other labor relations laws,
fair employment standards Laws, fair employment practices and
anti-discrimination Laws, the Worker Adjustment and Retraining Notification Act
of 1988, ERISA, the Multi-Employer Pension Plan Amendments Act, and the
Consolidated Omnibus Budget Reconciliation Act of 1985). Notwithstanding the
foregoing, Employee Liabilities with respect to Continuing Employees and Buyer's
liability therefor shall in no event be deemed to include obligations or
liabilities (i) for Employee Leave, (ii) arising under clauses (B) and C) of the
preceding sentence or (iii) except to the extent that Buyer adopts the
Collective Bargaining Agreements or is otherwise obligated by applicable law to
comply with the terms thereof, arising under clause (D) of the preceding
sentence (however, Buyer is under no obligation to Seller or Hotel Manager to
adopt the Collective Bargaining Agreements).
1.33 ENVIRONMENTAL REPORT. "Environmental Report" means the "Phase
1" site assessment report(s) and any other reports regarding the environmental
condition of the Hotel Premises that are identified on Exhibit N.
1.34 EQUIPMENT LEASE. "Equipment Lease" means any of the personal
property leases covering any item(s) of FF&E that are identified as such in the
schedule attached hereto as Exhibit J.
1.35 ERISA. "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
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1.36 ESCROW. "Escrow" means the escrow established pursuant to this
Agreement for purposes of holding the Deposit and, pending Closing, the balance
of the Purchase Price and the Transfer Instruments to be recorded at Closing.
1.37 ESCROW AGENT. "Escrow Agent" means the Title Company, acting
through its office at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000, whenever
acting in the capacity of an escrow holder pursuant hereto.
1.38 ESTOPPEL CERTIFICATE. "Estoppel Certificate" has the meaning
specified in Section 9.1.6.1.
1.39 EXISTING LOAN. "Existing Loan" means the loan evidenced by
that certain Promissory Note, made as of December 2, 1997, by Holding to Lender
in the original principal amount of $166,000,000, secured by that certain Deed
of Trust, Security Agreement and Fixture Filing dated as of December 2, 1997,
and recorded December 4, 1997, as Instrument No. 1997-0613328, Official Records
of San Diego County, California.
1.40 EXPANSION ENTITLEMENTS. "Expansion Entitlements" means any and
all of the existing development rights, building, use or other permits,
approvals, authorizations, licenses and consents obtained from any Governmental
Authority in connection with the proposed construction of additional guest rooms
and other improvements upon the Hotel Parcel, including, but not limited to, (A)
the Development Agreement and (B) those entitlements described on the Schedule
of Expansion Entitlements attached hereto as Exhibit T.
1.41 EXISTING SURVEY. "Existing Survey" means the ALTA/ACSM Survey
of the Hotel Parcel identified on Exhibit N.
1.42 EXTENDED COVERAGE. "Extended Coverage" means the deletion from
the Title Policy of general exceptions for survey matters, unrecorded easements,
mechanics' liens, unrecorded liens for taxes and assessments and rights of
parties in possession.
1.43 FF&E. "FF&E" means machinery, equipment, appliances,
furniture, fittings, removable fixtures, tools and other articles of durable
personal property of every kind and nature, including spare parts and reserve
stock, which are, directly or indirectly, owned or leased by or for the account
of Seller and are used or useable in the operation of the Hotel, including,
without limitation and subject to depletion and replacement in the Ordinary
Course: (1) office furniture and equipment, (2) room furnishings, (3) art work
and other decorative items, (4) televisions, radios, VCRs and other consumer
electronic equipment, (5) telecommunications equipment, (6) computer equipment
and software, (7) blankets, pillows, linens, towels and other bed clothing, (8)
china, crystal, dishware, glassware, silverware, flatware and other "operating
inventory" as that term is used in the Uniform System of Accounts, (9) kitchen
appliances, cookware and other cooking utensils, (10) vehicles and (11) manuals,
schematics, plans and other written materials pertaining to the use, operation,
maintenance or repair of any item of FF&E and (12) all computers and software
related to the Hotel's accounting records, Reservations, Inventory control and
other operational matters; but excluding (a) personal property owned by any
Hotel guest, tenant, concessionaire, licensee or other third party except for
HDC LLC (unless such person owns such property for the account or benefit of
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Seller), and (b) manuals, records and other like materials owned by (and
proprietary to) the Hotel Manager, unless particularly and primarily concerning
the Hotel, and (c) computer software licensed to Seller or Hotel Manager, unless
(A) such license is by its terms transferable in connection with the sale of the
Hotel to Buyer and (B) Buyer pays any fee or other charge imposed by the
licensor in connection with such a transfer.
1.44 FINAL STATEMENT. "Final Statement" has the meaning specified
in Section 11.1.
1.45 FIRPTA CERTIFICATE. "FIRPTA Certificate" means a certificate
with respect to each of Seller, substantively in the form attached as Exhibit G,
confirming to Buyer that Seller is not a foreign person or entity for purposes
of Section 1445 of the Internal Revenue Code of 1986, as amended (together with
a completed California Franchise Tax Board Form 593-W).
1.46 GENERAL ASSIGNMENT. "General Assignment" means a general
assignment and assumption agreement substantively in the form attached hereto as
Exhibit F.
1.47 GOVERNMENTAL AUTHORITY. "Governmental Authority" means any of
the United States Government, the government of any of the United States or any
county or municipality therein, and any executive department, legislative body,
administrative or regulatory agency, court, officer (whether elected, appointed
or otherwise designated) or other authority thereof, whenever purporting to act
in an official capacity.
1.48 HAZARDOUS SUBSTANCE. "Hazardous Substance" means (A) any
substance defined as "waste", "hazardous waste", "hazardous substance",
"hazardous material", "toxic substance", "pollutant", "contaminant" in, or which
are otherwise specifically subject to regulation under, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. Section 9601
et seq.; the Toxic Substance Control Act, 15 U.S.C. Section 2601 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1802; the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., or any other
applicable Laws governing the use, storage, disposal, transportation or release
into the environment of hazardous or toxic substances, (B) friable
asbestos-containing materials (but excluding non-friable asbestos-containing
materials), (C) PCBs, (D) formaldehyde foam insulation, (E) petroleum or other
volatile hydrocarbons (but only to the extent not naturally occurring), (F)
toxic mold (in concentrations greater than those naturally present in the
environment and present a material risk to human health) and (G) radioactive
materials (but only to the extent not naturally occurring).
1.49 HDC LLC. "HDC LLC" means Hotel del Coronado, LLC, a Delaware
limited liability company.
1.50 HOTEL. "Hotel" means all of the Hotel Premises, the Leased
Equipment, the Inventory, the Hotel Records, the Leases, the Assumed Contracts,
the Accounts and the Intangibles comprising the "Hotel del Coronado" located in
Coronado, California.
1.51 HOTEL EMPLOYEE PLAN. "Hotel Employee Plan" means an employee
benefit plan (as defined in ERISA) covering any Hotel Employees.
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1.52 HOTEL EMPLOYEES. "Hotel Employees" means all persons employed
at the Hotel by Hotel Manager or Seller at any time prior to Closing.
1.53 HOTEL IMPROVEMENTS. "Hotel Improvements" means all of the
buildings, other immovable structures and improvements and fixtures on the Hotel
Parcel.
1.54 HOTEL MANAGER. "Hotel Manager" means Destination Coronado
Hotel, Inc., a California corporation.
1.55 HOTEL MANAGEMENT AGREEMENT. "Hotel Management Agreement" means
that certain management agreement between Operator and Hotel Manager.
1.56 HOTEL OPERATING REPORTS. "Hotel Operating Reports" mean the
monthly operating reports, prepared by the Hotel Manager in the Ordinary Course,
covering the period January 1, 1999, through the most recent month for which
such reports are available.
1.57 HOTEL PARCEL. "Hotel Parcel" means the parcels of land
described in Exhibit A hereto, and all rights and interests in land and
improvements appurtenant thereto, including, without limitation: (i) easements
and rights-of-way, (ii) licenses and other privileges, (iii) rights in and to
land underlying adjacent highways, streets and other public rights-of-way and
rights of access thereto, (iv) rights in and to strips and gores of land within
or adjoining any such parcel, (v) air rights, excess floor area rights and other
transferable development rights belonging to or useable with respect to any such
parcel, (vi) rights to utility connections and hook-ups, (vii) water rights,
(viii) riparian rights, and (ix) any other rights which any of Seller may have
in or with respect to land adjoining any such parcel (including land which is
separated from any such parcel only by public highway, street or other
right-of-way).
1.58 HOTEL PAYABLE. "Hotel Payable" means any account payable
outstanding as of Closing for the Hotel, other than: Disputed Payables, closing
costs incurred by Seller in connection with the Closing, amounts owed to any
Affiliate of the Seller or Hotel Manager other than with respect to commercial
services being provided in the Ordinary Course with respect to the operation of
the Hotel (but specifically excluding any management services), Employee
Liabilities and amounts owed under the Existing Loan.
1.59 HOTEL PREMISES. "Hotel Premises" means the Hotel Parcel and
the Hotel Improvements.
1.60 HOTEL RECORDS. "Hotel Records" means all of the books,
records, correspondence and other files, both paper and electronic (and
including any accounting, database or other record-keeping software used in
connection with such books and records which Seller owns or otherwise has the
right freely to transfer) which have been received or generated and maintained
in the course of operation of the Hotel and which are in Seller's or Hotel
Manager's possession or control, including, without limitation, all customer,
reservation, convention, sales, groups, catering, mailing or "frequent user"
lists, operating ledgers, third-party inspection reports, property management
reports, current operating and capital budgets and all backup files and records
relating to the operations of the Hotel (including historical operating
records), maintained at the Hotel or in Seller's
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or Hotel Manager's possession or control, including (A) any computer drives,
discs, tapes and other data bases which contain the names and addresses of past
or prospective customers, and (B) all marketing information used for the Hotel
(which shall not be deemed to include information relating to the marketing of
the Hotel for sale), including copies of all form letters which are used in
connection with any marketing programs as well as any other information relating
to marketing programs for the Hotel; but excluding personnel files, appraisals,
internal evaluations, privileged attorney-client communications, reports by the
investment advisor to the ultimate beneficial owner of the Hotel and any
materials whose disclosure by Seller or Hotel Manager would violate any
obligation of confidentiality imposed by applicable Law or agreement.
1.61 INDEMNIFY. "Indemnify" means to hold harmless and indemnify an
indemnified party from and against a Claim and, where applicable, to defend such
party by counsel reasonably satisfactory to it, all at the sole expense and
liability of the indemnifying party.
1.62 INITIAL DEPOSIT. "Initial Deposit" has the meaning specified
in Section 3.3.1.
1.63 INTANGIBLES. "Intangibles" means Seller's transferable rights,
title and interest, if any, in (i) the Marks, (ii) the Hotel Records, (iii)
plans and specifications for the Hotel Improvements, (iv) the Permits, (v)
Repair Warranties, (vi) the Expansion Entitlements and all related development
plans, (vii) all of the membership interests in HDC LLC, and (viii) studies,
analyses, reports and other written materials pertaining to the condition of the
Hotel Improvements and the Hotel Parcel, all to the extent assignable in
connection with a sale of the Hotel.
1.64 INVENTORY. "Inventory" means (i) the Retail Inventory and (ii)
the stock of supplies and other consumables used in the operation and
maintenance of the Hotel in the Ordinary Course, but excluding Liquor Inventory
and excluding "operating inventory" (as that term is used in the Uniform System
of Accounts) to the extent included in FF&E.
1.65 IP LICENSE AGREEMENT. "IP License Agreement" means the License
Agreement between IP, as Licensor, and Hotel, as Licensee, dated as of August
28, 1997.
1.66 KSL. "KSL" means KSL Recreation Corporation and its
Affiliates.
1.67 LAWS. "Laws" means any and all:
1.67.1 Constitutions, statutes, ordinances, rules,
regulations, orders, rulings or decrees of any Governmental Authority.
1.67.2 Agreements with or covenants or commitments to any
Government Authority which are binding upon Seller or any of the elements of the
Hotel (including, without limitation, any requirements or conditions for the use
or enjoyment of any license, permit, approval, authorization or consent legally
required for the operation of the Hotel).
1.68 LAST CLOSING DATE. "Last Closing Date" means December 15, 2003
(or, if later, 60 days after Seller gives the WARN Notices, in accordance with
the WARN Act and Cal WARN, pursuant to Section 12.2.3), subject to extension as
expressly provided in this Agreement.
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1.69 LEASE. "Lease" means any space lease, license, concession or
other such arrangement for use of space within the Hotel, other than transient
use of guest rooms, banquet rooms or conference rooms by Hotel guests in the
Ordinary Course, but excluding the Operating Lease.
1.70 LEASE ASSIGNMENT. "Lease Assignment" means an assignment and
assumption of Leases substantively in the form attached hereto as Exhibit D.
1.71 LEASED EQUIPMENT. "Leased Equipment" means any item of FF&E
that is leased by Seller or Operator under an Equipment Lease.
1.72 LENDER. "Lender" means Xxxxxx Financial Corporation as agent
for Xxxxxx Xxxxxxx Mortgage Capital, Inc., or its successor or assign as the
holder of the Existing Loan or, as the context may require, any servicer,
trustee or other agent for collection or loan administration acting on behalf of
the holder of the Existing Loan.
1.73 LICENSED PREMISES. "Licensed Premises" means the areas within
the Hotel described or otherwise identified in or with respect to the Liquor
Licenses as licensed for Liquor Operations.
1.74 LIEN. "Lien" means any mortgage, deed of trust or other
consensual lien, mechanic's or any materialman's lien, judgment lien, lien for
delinquent real property taxes or assessments, other tax and statutory lien
(other than the Existing Loan, liens for non-delinquent real estate taxes,
general and special assessments or any lien arising out of any activity of
Buyer) which affects any of the Hotel Premises and is prior to any of Seller's
interests therein.
1.75 LIQUOR INVENTORY. "Liquor Inventory" means all liquor, wine,
beer and other alcoholic beverages held for sale to Hotel guests and others in
the Ordinary Course or otherwise used in the operation of the Hotel.
1.76 LIQUOR LICENSE. "Liquor License" means any government license,
permit or other authorization held or issued for the Liquor Operations.
1.77 LIQUOR OPERATIONS. "Liquor Operations" means the sale and
service of liquor, wine, beer and other alcoholic beverages, as currently
conducted at the Hotel.
1.78 LOAN AGREEMENT. "Loan Agreement" means that certain Loan
Agreement between Holding and Lender, dated as of December 2, 1997.
1.79 MARKS. "Marks" means the trade names, trademarks, service
marks, logos, copyrighted identifying materials and other forms of
identification used to identify the Hotel or any of its facilities or
operations, including the names "Hotel del Coronado" and variants thereon and
the names used to designate the restaurant and bar facilities within the Hotel.
1.80 MATERIAL ADVERSE EFFECT. "Material Adverse Effect" means a
substantial impairment of Buyer's ability after Closing to operate the Hotel in
the Ordinary Course that cannot reasonably be avoided or remedied within a
reasonable period of time (which shall be deemed to be at least six months) by
corrective or other measures the cost of which does not exceed $2,500,000.
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1.81 MEMBER. "Member" means a party named as such in a Membership
Agreement.
1.82 MEMBERSHIP AGREEMENTS. "Membership Agreements" means those
certain membership agreements and related documents, brochures, by-laws and
other charter documents identified on the Schedule of Membership Agreements
attached hereto as Exhibit V.
1.83 NATURAL HAZARD REPORT. "Natural Hazard Report" has the meaning
specified in Section 4.8.
1.84 OBJECTIONABLE TITLE MATTERS. "Objectionable Title Matters" has
the meaning specified in Section 4.2.
1.85 OFFICIAL RECORDS. "Official Records" means the official land
records of San Diego County, California.
1.86 OPERATING LEASE. "Operating Lease" means the lease between
Holding and Operator, under which Operator leases the Hotel Premises.
1.87 ORDINARY COURSE. "Ordinary Course" means the course of
day-to-day operation of the Hotel, in accordance with its current operating
budget (a copy of which is attached hereto as Exhibit M) and in a manner which
does not materially vary from the policies, practices and procedures which have
characterized its operation during the 12 months preceding the Effective Date.
1.88 ORIGINAL. "Original" means any of (A) an original counterpart
of any Lease or Assumed Contract, (B) the Hotel Records or (C) other documents
which comprise or evidence the Intangibles, to the extent within Seller's
possession or control; and "the Originals" means all such items.
1.89 PAID VOUCHER. "Paid Voucher" means a Voucher, such as a gift
certificate, issued in return for money payment.
1.90 PERMIT. "Permit" means any permit, certificate, license or
other form of authorization or approval issued by a government agency or
authority and legally required for the proper, current operation and use of the
Hotel (including, without limitation, any certificates of occupancy with respect
to the Hotel Improvements, elevator permits, conditional use permits, zoning
variances and business licenses, but excluding Liquor Licenses).
1.91 PERMITTED ASSIGNEE. "Permitted Assignee" has the meaning
specified in Section 14.
1.92 PERMITTED EXCEPTIONS. "Permitted Exceptions" means (A) liens
for real property taxes and assessments not delinquent as of Closing, (B) liens
or encumbrances arising out of any activity of Buyer, (C) the Leases identified
on Exhibit I or hereafter made by Seller in accordance with Section 6, (D) the
Assumed Contracts, (E) the deed of trust, assignment of leases and other liens
and security interests securing the Existing Loan, and (F) any other matter
deemed to be a Permitted Exception pursuant to Section 4.4.
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1.93 PERSON. "Person" means natural or juridical person, or any
group of natural and or juridical persons acting as a single entity.
1.94 PIK VOUCHER. "PIK Voucher" means a Voucher issued in return
for goods or services provided to the Hotel.
1.95 PLACE OF CLOSING. "Place of Closing" has the meaning specified
in Section 10.1.
1.96 PRELIMINARY STATEMENT. "Preliminary Statement" has the meaning
specified in Section 7.2.3.
1.97 PURCHASE PRICE. "Purchase Price" means the gross purchase
price being paid by Buyer to Seller for the Hotel, as set forth in Section 3.1.
1.98 REPAIR WARRANTIES. "Repair Warranties" means written
guaranties, warranties and other obligations (if any) for the repair or
maintenance of the Hotel Improvements or FF&E from contractors, manufacturers
and vendors, to the extent assignable by or at the direction of Seller or Hotel
Manager.
1.99 RESERVATION. "Reservation" means any recorded reservation,
commitment or agreement for the use of guest rooms, conference rooms, dining
rooms or other facilities in and/or catering or other services at the Hotel, to
the extent pertaining to periods from and after Closing. A reservation,
commitment or agreement shall be deemed "recorded" if evidenced either in
writing or by an electronic data entry in the records Hotel Manager maintains
for recording such the same.
1.100 RESERVATION DEPOSIT. "Reservation Deposit" means any deposit
or advance payment received by Seller or Hotel Manager in connection with any
Reservation.
1.101 RETAIL INVENTORY. "Retail Inventory" means all goods held by
Operator for sale in shops, kiosks and other retail venues within the Hotel,
excluding food and beverages served on-site and excluding damaged or obsolete
items. The categories of Retail Inventory, and their book values as of June 30,
2003, are shown on the Schedule of Retail Inventory attached hereto as Exhibit
R.
1.102 ROSEMONT GUARANTY. "Rosemont Guaranty" has the meaning
specified in Section 5.5.
1.103 SELLER'S ADVISOR. "Seller's Advisor" means Banc of America
Securities LLC.
1.104 SELLER'S CLOSING CERTIFICATE. "Seller's Closing Certificate"
means a certificate duly executed by Seller, in the form attached hereto as
Exhibit S, stating that each of the warranties and representations of Seller
contained in Section 5.1, are (except as otherwise set forth in such
certificate) accurate in all material respects as of Closing.
1.105 SELLER'S CLOSING DOCUMENTS. "Seller's Closing Documents" has
the meaning specified in Section 10.2.1.
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1.106 SELLER'S LEASE CERTIFICATE. "Seller's Lease Certificate" has
the meaning specified in Section 9.1.6.2.
1.107 SELLER'S KNOWLEDGE. "Seller's Knowledge" means the actual
present (and not the constructive) knowledge of any of Xxxxxx X. Xxxxx, Xxxxxxx
Xxxxxxxx, Xxxx Xxxxxx, Xxxxx Xxxxxx (General Manager of the Hotel), Xxxxx
Xxxxxxxxx (Director of Finance for the Hotel), Xxxxx Xxxxxxx (Director of
Administration for the Hotel) and Xxx Xxxxx (Director of Facilities for the
Hotel), and does not imply that any of those individuals has or should have
conducted any inspection, examination or other inquiry to determine the accuracy
of any representation, warranty or other statement made "to Seller's Knowledge"
in this Agreement or in any other document delivered by Seller prior to or at
Closing. Notwithstanding any provision of this Agreement, none of the
individuals named above shall have any liability or obligation whatsoever under
this Agreement, for breach of any of Seller's representations or otherwise.
1.108 SERVICE CONTRACT. "Service Contract" means any of the
contracts or other arrangements, written or oral, for the continuing provision
of services relating to the improvement, maintenance, repair, protection or
operation of the Hotel, excluding the Hotel Management Agreement.
1.109 SURVEY. "Survey" means a current survey of the Hotel Parcel,
made in accordance with "Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Surveys," jointly established and adopted by American Land Title
Association and the American College of Surveyors and Measurers in 1999; and
including Items 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, and 13 of Table A of said
publication, whether an update of the Existing Survey or a newly made survey.
1.110 TAXES. "Taxes" has the meaning specified in Section 8.1
1.111 TITLE COMPANY. "Title Company" means First American Title
Insurance Company, together with any agent through which it may act in issuing
the Title Policy.
1.112 TITLE REPORT. "Title Report" means a preliminary title report
describing the condition of title to the Hotel Premises issued by the Title
Company and including copies of all recorded documents referenced therein as
exceptions to title.
1.113 TITLE POLICY. "Title Policy" means an ALTA (Form 1992 or its
local equivalent) owner's policy of title insurance for the amount of the
Purchase Price (or such lesser amount as Buyer may elect), insuring or
committing to insure fee title to the Hotel Premises in Buyer subject only to
Permitted Exceptions, with Extended Coverage.
1.114 TRANSACTOR. "Transactor" means, with respect to each Party,
the person(s) authorized by such Party to execute and deliver Transfer
Instruments and other Closing Documents on behalf of such Party.
1.115 TRANSFER INSTRUMENTS. "Transfer Instruments" means all the
instruments by which Seller will convey the Hotel to Buyer and/or Buyer's
nominees hereunder, including (without
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limitation) the Deed, the Xxxx of Sale, the Contract Assignment, the General
Assignment, the Lease Assignment and the Development Agreement Assignment.
1.116 TRUE AND COMPLETE COPY. "True and Complete Copy" means, (A)
with to the Leases, Assumed Contracts and Hotel Operating Reports, a true and
complete copy of the original of such document and (B), with respect to any
other document in Seller's or Hotel Manager's possession, (i) a true and
complete copy of such document as it exists in Seller's or Hotel Manager's files
and (ii) that, to Seller's Knowledge, except as otherwise disclosed to Buyer in
writing (or is evident from the copy itself), is a true and complete copy of the
original.
1.117 UNIFORM SYSTEM OF ACCOUNTS. "Uniform Systems of Accounts"
means the Uniform System of Accounts for Hotels, Eighth Revised Edition, 1986,
published by the Hotel Association of New York.
1.118 UNPAID VOUCHER. "Unpaid Voucher" means a Voucher issued on a
complimentary basis, including as a charitable donation.
1.119 VOUCHER. "Voucher" means any written undertaking (such as a
guest certificate, coupon, letter of donation or "trade-out") issued by Operator
or Hotel Manager to permit the bearer, or a Person named therein to use a Hotel
guest room, or other Hotel facility or service for which a charge is customarily
imposed, without payment. Vouchers do not include any such undertaking to
provide a complimentary room upgrade, or to apply a discounted rate (unless, and
then only to the extent, that such discount is for more 60% of applicable rack
rates for guest rooms or more than 30% with respect to purchase of food,
beverages or other goods).
1.120 WARN ACT. "WARN Act" means the Worker Adjustment and
Retraining Notification Act of 1988.
1.121 WARN NOTICES. "WARN Notices" means the notices, substantively
in the forms attached hereto as Exhibit W, relating to Hotel Manager's
termination of all the Hotel Employees as of the Closing Date.
1.122 OTHER DEFINITIONS. Terms defined in any other part of this
Agreement (including, without limitation, "Seller," "Buyer," "Party" and
"Parties," and "this Agreement," defined in the initial paragraph hereof) shall
have the defined meanings wherever capitalized herein. As used in this
Agreement, the terms "herein," "hereof" and "hereunder" refer to this Agreement
in its entirety and are not limited to any specific sections. Wherever
appropriate in this Agreement, the singular shall be deemed to refer to the
plural and the plural to the singular, and pronouns of certain genders shall be
deemed to comprehend either or both of the other genders.
2. COVENANT OF PURCHASE AND SALE. On and subject to the terms and
conditions set forth in this Agreement, Seller shall sell, convey, assign and
transfer to Buyer, and Buyer shall purchase and accept from Seller, all of the
real and personal property comprising the Hotel and shall assume (i) except to
the extent otherwise expressly provided in this Agreement, all of Seller's
obligations and liabilities accruing, payable or to be performed from and after
the Closing Date under and with respect to Reservations, Vouchers, the Leases,
the Assumed Contracts, the Permits (but only to the
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extent assigned to Buyer) and the other Permitted Exceptions (except for
unrecorded matters not created or caused by Buyer) and (ii) such other
obligations and liabilities with respect to the Hotel as are expressly provided
in this Agreement, or in any Transfer Instrument, to be assumed, paid or
performed by Buyer (subject in the case of both clauses (i) and (ii) to any
express limitations on such assumption, payment or performance contained herein
or therein). Notwithstanding the foregoing, Buyer shall have the right to
exclude from the Assumed Contracts any Contract that can be terminated by Seller
on no more than 90 days notice, provided that (A) Buyer gives Seller written
notice designating each such Contract to be excluded by no later than the
Approval Date and (B) the aggregate cost to Seller of terminating all such
designated Contracts does not exceed $25,000.
3. PURCHASE PRICE AND DEPOSIT.
3.1 AMOUNT OF PURCHASE PRICE. The Purchase Price shall be Three
Hundred Eighty-Three Million Dollars ($383,000,000.00), but the net amount
thereof payable to Seller shall be subject to credits, prorations and other
adjustments as provided in Sections 7.2.3 and 11.
3.2 ALLOCATION OF PRICE. Except to the extent that the Parties
(each acting in its sole and absolute discretion) agree on allocations of the
Purchase Price, each Party shall be free to make its own such allocations and
neither shall be bound by the other's allocations; provided, however, that
Seller shall determine the value to be assigned to the Hotel Premises for
purposes of the declaration required under applicable Law for the recordation of
the Deed (except that, if Seller determines such gross value to be greater than
$330,000, it shall obtain Buyer's consent to such declaration, which consent
Buyer shall not unreasonably withhold.
3.3 DEPOSIT.
3.3.1 AMOUNT AND DELIVERY. Within two Business Days after
the Effective Date, Buyer shall deliver into Escrow cash in the amount of
$7,500,000.00 (the "Initial Deposit"), as a good faith deposit. Within five days
after the Approval Date, if Buyer elects to proceed with the purchase of the
Hotel, Buyer shall deliver into Escrow an additional cash deposit of
$10,000,000.00 (the "Additional Deposit," bringing the total deposited to
$17,500,000). The Initial Deposit, together with the Additional Deposit when and
if made, is and all interest earned on the deposited funds while in Escrow,
shall comprise the "Deposit."
3.3.2 INVESTMENT. The Deposit, while held in Escrow, shall
be held by the Escrow Agent in an interest-bearing account with a federally
insured national banking association.
3.3.3 DISPOSITION. If Closing fails to occur on or before
the Last Closing Date due to a material breach of Buyer's obligations hereunder,
Seller upon termination of this Agreement shall be entitled to receive and
retain the Deposit as liquidated damages, in accordance with Section 20. In all
other circumstances, the Deposit shall remain the property of Buyer and,
together with interest earned thereon, shall either (A) at Closing, be applied
against the Purchase Price or (B) upon termination of this Agreement, be
returned to Buyer.
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3.4 EINs. For Escrow Agent's information, Buyer's Employer
Identification Number is 00-0000000 and Seller's Employer Identification Numbers
are 00-0000000 (Holding), 00-0000000 (Operator) and 00-0000000 (IP).
4. TITLE AND DUE DILIGENCE CONDITIONS.
4.1 TITLE REPORT AND SURVEY. Seller and Buyer each hereby
acknowledges having received from the Title Company a copy of the Title Report.
As soon as practicable, Buyer, at its expense, shall obtain the Survey and cause
a copy thereof to be delivered to Seller.
4.2 OBJECTIONABLE TITLE MATTERS AND PERMITTED EXCEPTIONS. Except
for any exceptions to or defects in Seller's title which are not Permitted
Exceptions and with respect to which Buyer gives Seller and Escrow Agent written
notice of objection on or before the Approval Date (or, with respect to any
defect or exception which is disclosed in writing to Buyer later than the tenth
day before the Approval Date, by the earlier of the Closing Date or ten days
after such matter is disclosed to Buyer) ("Objectionable Title Matters"), Buyer
shall be deemed to have approved the state of Seller's title to the Hotel
Premises subject to all matters of record existing as of the Effective Date and
to all non-record matters existing as of the Effective Date that would be
disclosed by the Survey and an inspection of the Hotel Premises. All such
matters as to which Buyer makes no objection in accordance with the provisions
of this Section 4, and all such exceptions and other defects to which Buyer
objects but later waives such objection as provided in this Section 4, shall
also be deemed Permitted Exceptions.
4.3 CURE OF OBJECTIONABLE TITLE MATTERS. Seller shall use
commercially reasonable efforts to cure any Objectionable Title Matter that does
not appear to be a valid exception to Seller's title ("Inapplicable Exceptions,"
including, without limitation, references to leases or tenancies which no longer
exist, to instruments or documents which on their face or by law are no longer
effective and to matters which have no apparent applicability to the Hotel
Premises) or which is otherwise susceptible to cure, but Seller shall not be
obligated either (i) to expend more than $25,000 in the aggregate to effect
cures of Objectionable Title Matters or (ii) to extend the Closing Date in order
to effect a cure. Except as provided in this Section 4.3, Seller shall have no
obligation to cure Objectionable Title Matters. Notwithstanding the foregoing,
though, Seller shall at or before Closing, remove as exceptions to Seller's
title to the Hotel Premises (A) all Liens and (B) all other Objectionable Title
Matters as to which Seller has given Buyer an unconditional undertaking to cure
under Section 4.4.
4.4 TERMINATION FOR OBJECTIONABLE TITLE MATTER. If, after giving
Seller timely written notice under this Section 4 of any Objectionable Title
Matter, Buyer does not receive by the earlier of (A) the Closing Date or (B) ten
Business Days after the later of the Approval Date or the date Seller receives
such notice either:
4.4.1 Where such Objectionable Title Matter would otherwise
be within the scope of coverage of the Title Policy, written confirmation from
the Title Company that such Objectionable Title Matter will not be scheduled as
an exception in the Title Policy, or
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4.4.2 Written confirmation from the Title Company that it
will affirmatively insure Buyer against loss resulting from such Objectionable
Title Matter, by an endorsement to the Title Policy in a form reasonably
satisfactory to Buyer, and, if applicable, and
4.4.3 Seller's unconditional written undertaking to take,
at or before Closing, such steps as the Title Company may require to accomplish
either 4.4.1 or 4.4.2 above,
Buyer shall have the right to terminate the Escrow and this Agreement by written
notice of termination given to Seller and Escrow Agent no later than the Closing
Date, whereupon Escrow Agent shall cancel Escrow, disburse the Deposit to Buyer
and return every other item in Escrow to the Party which deposited the same; but
if Buyer does not so elect to terminate this Agreement, Buyer shall be deemed to
have waived its objection to the Objectionable Title Matter(s) in question. If,
after receiving from Buyer timely written notice of an Objectionable Title
Matter, Seller at any time gives Buyer written notice that such Objectionable
Title Matter will not be remedied by one of the means specified above and Buyer
does not within five Business Days after receiving such notice from Seller give
Seller written notice waiving Buyer's objection to such Objectionable Title
Matter, Seller shall have the right to terminate this Agreement by written
notice of termination given to Seller and Escrow Agent within ten Business Days
after Seller has given such notice of non-cure. Any Objectionable Title Matter
to which Buyer waives, or is deemed to waive, its objection, as provided above,
shall be deemed to be a Permitted Exception.
4.5 EXTENSION OF CLOSING DATE FOR NOTICE AND CURE. If Buyer gives
Seller notice of objection to any title exception later than the 15th day
preceding the Closing Date, the Closing Date may be extended by Seller, to a
date no more than 15 days after the date otherwise specified herein as the
Closing Date. Such extension shall be effected by a Seller's giving written
notice of such extension to Buyer on or before the date otherwise specified
herein as the Closing Date.
4.6 ACCESS TO PROPERTY AND RECORDS. During the period from the
Effective Date to Closing, Seller shall provide to Buyer, its agents,
consultants, counsel, lender and Buyer's Manager, upon reasonable advance notice
but not less that one Business Day's prior notice, access at all reasonable
times (and in reasonable numbers) to:
4.6.1 The Hotel Records (including, except as to guest
history, forward bookings and marketing records, copies in electronic data
format); and
4.6.2 The Hotel Parcel and the Hotel Improvements, for
purposes of conducting (at Buyer's sole expense and liability) any inspections,
observations, examinations, surveys and tests that Buyer may reasonably require
(but Buyer shall not conduct any borings, drilling or other invasive or
destructive testing without Seller's prior written consent and without first
evidencing to Seller liability insurance coverage for such activity satisfactory
in scope and amount to Seller).
Such right of access, however, shall be subject to the rights of guests, tenants
and licensees of the Hotel, and Buyer in its activities under this Section 4.6
shall conduct its inspections so as not to interfere with such rights or the
operation of the Hotel in any respect. In no event shall Buyer communicate with
any of the Employees other than (A) the Hotel's general manager, executive
committee members and department heads, and (B) such other managerial Employees,
if any, as
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Seller designates in writing from time-to-time, nor shall Buyer disclose or
permit to be disclosed to any Employees the nature or reason for Buyer's
presence on or about the Hotel Premises, without Seller's prior written approval
(not to be unreasonably withheld). In this connection, the Parties acknowledge
and agree that after the Approval Date and the posting of the Additional Deposit
they shall cooperate in good faith to provide Buyer's Manager with the
opportunity to conduct on-site interviews of Hotel Employees for the purposes of
discussing potential future employment at the Hotel.
4.7 INDEMNIFICATION. Buyer shall Indemnify Seller and Hotel
Manager from and against any and all Claims arising or asserted to arise out of,
any activity of Buyer or Buyer's representatives, conducted at or about the
Hotel Premises, including, without limitation, Claims for damage to the Hotel or
third-party Claims against Seller or Hotel Manager resulting from any such
activity; provided, however, that in no event shall Buyer be liable for any
claims, damages, costs or other loss, including without limitation any perceived
loss of economic value in the Hotel, solely as a result of Purchaser's discovery
of any pre-existing conditions affecting the Hotel. Buyer shall, with reasonable
promptness, repair in a good and workmanlike manner any damage to the Hotel
caused by any such activity.
4.8 DUE DILIGENCE MATERIALS. No later than five Business Days
after the Effective Date (except as otherwise specified below), Seller shall
deliver to Buyer all of the following materials (the "DUE DILIGENCE MATERIALS"):
4.8.1 a report detailing the natural hazards affecting the
property ("NATURAL HAZARDS REPORt"), prepared by an independent third party
pursuant to California Civil Code Section 1102.4, which Seller shall provide to
Buyer no later than five Business Days prior to the Approval Date.
4.8.2 True and Complete Copies of the Leases and the
Contracts.
4.8.3 A schedule listing pending litigation against any of
Seller or Hotel Manager with respect to the Hotel (excluding, however, worker's
compensation claims and proceedings and employee actions other than court
litigation).
4.8.4 A summary report regarding worker's compensation
claims by Hotel Employees, which shall report on such claims only in the
aggregate.
4.8.5 Within ten Business Days after the Effective Date, a
schedule of Members.
4.8.6 True and Complete Copies of insurance certificates
with respect to the Hotel's existing insurance coverage.
4.8.7 A schedule of Permits, together with a True and
Complete Copy of each Permit listed on such schedule.
4.8.8 A True and Complete Copy of the Environmental Report.
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4.8.9 True and Complete Copies of every other
environmental, engineering or other third-party consultant report of a material
nature, obtained by Seller or Hotel Manager and regarding the structural
integrity of the Hotel Premises, the compliance of the Hotel Premises with
applicable Laws or the presence of Hazardous Substances, underground storage
tanks and other environmentally hazardous conditions within the Hotel Premises.
4.8.10 True and Complete Copies of the Hotel Operating
Reports and of Seller's annual financial statements for the years 1999 - 2002.
4.8.11 A True and Complete Copy of each Collective
Bargaining Agreement.
4.8.12 A True and Complete Copy of each plan document for
the Hotel Employee Plans (other than multi-employer plans).
4.8.13 At least five Business Days prior to the Approval
Date, a schedule of Vouchers.
4.8.14 By the Approval Date or as soon thereafter as
practicable, an Estoppel Certificate with respect to each Lease (but Seller's
obligation to deliver Estoppel Certificates shall be limited to using
commercially reasonable efforts, without payment or other consideration, to
obtain the same).
4.8.15 True and Complete Copies of all Reservations
consisting of group booking contracts involving ten or more guest rooms.
4.8.16 A schedule listing, as of the date such schedule is
prepared, all Hotel Employees by name, position, wage or salary, and full-time
or part-time status.
Seller shall not be deemed to have warranted the accuracy or completeness of the
Due Diligence Materials, other than (A) as expressly provided elsewhere in this
Agreement, (B) to the extent denoted by the use of the term "True and Complete
Copy" and (C) that, to Seller's Knowledge, except as expressly noted above, no
material item includable on any of the schedules attached as exhibits hereto or
otherwise included in the Due Diligence Materials has been intentionally omitted
therefrom.
4.9 BUYER'S RIGHT OF TERMINATION. In addition to the right of
termination provided in Section 4.4, Buyer shall have the right, in its sole
discretion and for any reason whatsoever, to terminate this Agreement. Buyer
shall be conclusively deemed to have elected to terminate this Agreement unless,
by 5:00 p.m., Pacific Time, on the Approval Date, Buyer has given Seller and
Escrow Agent written notice of its election to proceed with the purchase of the
Hotel under this Agreement; but, if Buyer gives such notice by such time, then
Buyer's right of termination under this Section 4.9 shall be forever waived.
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5. REPRESENTATIONS
5.1 BY SELLER.
5.1.1 REGARDING THE HOTEL. Seller hereby represents to
Buyer that, as of the Effective Date and except as disclosed in Exhibit H or in
any other Exhibit to this Agreement, the Environmental Report, the Natural
Hazard Report, the Title Report or the Survey or any of the other Due Diligence
Materials:
5.1.1.1 To Seller's Knowledge, neither of Seller and
Hotel Manager has received written notice from any Governmental Authority or is
otherwise aware (A) that the current condition, occupancy or use of the Hotel
violates or will require correction under any applicable Law (including, without
limitation, building and safety codes, Title III of the Americans with
Disabilities Act, OSHA regulations or Laws regulating Hazardous Substances), (B)
that the Hotel is or will be the subject of an investigation as the existence of
any such violation or requirement (excluding routine periodic inspections) or
(C) or any proceeding or threatened action to revoke, cancel or deny renewal of
any Permit or Liquor License.
5.1.1.2 To Seller's Knowledge, neither or Seller or
Hotel Manager has received written notice from the carrier of any insurance
covering the Hotel, or is otherwise aware, of any condition that, if not
corrected, would result in termination of such insurance or a material increase
in the premium therefor.
5.1.1.3 To Seller's Knowledge, neither Seller nor
Hotel Manager has received written notice from any Governmental Authority of a
proceeding to create any new assessment district that would include the Hotel
Premises or any part thereof.
5.1.1.4 Neither Seller nor Hotel Manager has filed
any notice of protest or appeal against, or commenced proceedings to recover,
real property tax assessments against the Hotel Parcel or the Hotel Improvements
(excluding those, if any, that have already been resolved).
5.1.1.5 To Seller's Knowledge, Seller has not failed
to provide, construct or complete any on-site or off-site parking or public
improvements required, pursuant to any Permit or written agreement binding upon
Seller or the Hotel Premises, for the current use and operation of the Hotel.
5.1.1.6 To Seller's Knowledge, neither Seller nor
Hotel Manager has received written notice from the applicable taxing
Governmental Authority of any deficiency or delinquency in payment of sales,
use, occupancy or personal property taxes (excluding those, if any, that have
already been resolved).
5.1.1.7 There are no lawsuits, administrative
proceedings, arbitration proceedings or other such legal proceedings that have
been filed and served upon Seller (or with respect to which Seller has otherwise
received proper notice) or, to Seller's Knowledge, otherwise pending or
threatened, whose outcome could adversely affect title to or the use, occupancy
or operation of the Hotel or Seller's ability to convey the Hotel under this
Agreement (including, without limitation, actions for condemnation). To Seller's
Knowledge, the schedule of litigation
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provided to Buyer pursuant to Section 14.8.3 will include each pending action
against Seller or Hotel Manager concerning the Hotel that involves a claim or
claims for either (A) monetary damages exceeding $25,000 or (B) injunctive or
other equitable that could materially and adversely affect the operation of the
Hotel, excluding (i) actions for monetary damages only that have been tendered
to, and accepted without reservation of rights by, the liability insurance
carrier with respect to the Hotel, (ii) workers compensation claims and (iii)
any proceedings by employees other each court action where the amount claimed in
such action exceeds $25,000. To Seller's Knowledge, court actions by employees
that, individually, involve monetary claims of $25,000 or less do not, in the
aggregate, involve monetary claims for more than $200,000.
5.1.1.8 There are no lawsuits or other actions filed
and served upon Seller, or to Seller's Knowledge, otherwise pending or
threatened, and Seller is not otherwise party to any current proceeding, to
revoke, invalidate or modify the Expansion Entitlements. To Seller's Knowledge,
the Expansion Entitlements do not require the ownership, possession or right of
use of any real property (other than public streets and rights of way) that is
not included in the Hotel Premises, except as specifically provided in the
Expansion Entitlements, in any ordinances approving the Expansion Entitlements
or in any other Laws referenced in the Expansion Entitlements.
5.1.1.9 Neither Seller nor Hotel Manager has
received written notice from any Governmental Authority (i) of any pending or
threatened proceeding or investigation concerning any alleged or suspected
violation of applicable Laws regarding the use, storage, transportation, release
or disposal of Hazardous Substances ("Environmental Laws") or (ii) of any
alleged violation of Environmental Laws at the Hotel that remains uncured.
Neither Seller nor Hotel Manager has used, stored, disposed or released any
Hazardous Substances at or about the Hotel in violation of any Environmental
Laws nor, to Seller's Knowledge, has any use, storage, disposal or release of
Hazardous Substances occurred at or about the Hotel in violation of any
Environmental Laws during the period of Seller's ownership. Seller has not
installed, nor are there currently in use at the Hotel, any underground storage
tanks.
5.1.1.10 Except as identified on the Schedule of
Membership Agreements attached hereto as Exhibit V, there are no agreements
under which any Person has membership rights with respect to the use of any
facilities at the Hotel and, except for any express or implied rights created by
applicable Laws, Members' rights to the use of such facilities are solely as set
forth in the Membership Agreements.
5.1.1.11 Exhibit U identifies each registered Xxxx
(if any). Seller has not entered into or assumed, and to Seller's Knowledge
there does not exist, (A) any license or other agreement under Seller holds or
uses, or authorizes any other Person to use, any of the Marks or (B) any lien,
security interest or other encumbrance with respect to any of the Marks, other
than Permitted Exceptions. To Seller's Knowledge, neither Seller nor Hotel
Manager has received any written notice that Seller's use of the Marks infringes
or misappropriates the rights of any other Person.
5.1.1.12 The Schedule of Leases attached hereto as
Exhibit I accurately identifies (A) all of the existing Leases and the tenants
thereunder, (B) the date on which the current term of such Lease expires, (C)
the outstanding amount of the tenant's security deposit under such
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Lease, (D) any existing rent delinquencies and (E) any remaining obligation of
the landlord to install or pay for space improvements or provide "free" rent.
Seller has heretofore delivered to Buyer True and Complete Copies of the Leases.
Except as disclosed on Exhibit I, neither Seller nor, to Seller's Knowledge, the
tenant is currently in monetary or other material default under any of the
Leases.
5.1.1.13 The Schedule of Contracts attached hereto as
Exhibit J identifies all of the existing Equipment Leases and Service Contracts
and, to Seller's Knowledge, all other contracts material to the operation of the
Hotel in the Ordinary Course. Neither Seller nor, to Seller's Knowledge, any
other party to any Contract identified on Exhibit J is currently in default
thereunder. Seller has delivered, or within five Business after the Effective
Date will deliver, True and Complete Copies of the Assumed Contracts to Buyer.
5.1.1.14 No document (if any) removed from the Hotel
Records pursuant to the exclusions specified in Section 1.60 discloses any
material and adverse condition of or event concerning the Hotel that is not
otherwise disclosed in the Hotel Records, the Due Diligence Documents or this
Agreement.
5.1.1.15 The Schedule of Employee Benefit Plans
attached hereto as Exhibit K identifies each Hotel Employee Plans. To Seller's
Knowledge, no Hotel Employee Plan is the subject of any investigation, audit or
other such adverse action by the Internal Revenue Service, the United States
Department of Labor or the Pension Benefit Guaranty Corporation, nor is there
any basis for any such adverse action.
5.1.1.16 Except for and as disclosed in the
Collective Bargaining Agreements and below in this paragraph, none of the Hotel
Employees are covered by a collective bargaining agreement or within any
bargaining unit certified under the National Labor Relations Act or any similar
state Law. To Seller's Knowledge, (A) no work stoppage on the part of any Hotel
Employees is being threatened, (B) neither Seller nor Hotel Manager has received
written notice of any pending charge of unfair labor practices. Except for
negotiations with the recently certified bargaining agent for the Hotel doormen,
valet parking attendants and valet parking cashiers, neither Seller nor Hotel
Manager is currently conducting any contract negotiations with any collective
bargaining representative of any of the Hotel Employees.
5.1.1.17 Except as disclosed by Exhibit K or in the
Collective Bargaining Agreements, neither Seller nor Hotel Manager are obligated
to, or otherwise, make contributions on behalf of any Hotel Employee to a
multi-employer employee benefit plan.
5.1.1.18 Operator has good and marketable title to
the Leased Equipment, Liquor Inventory, and the Inventory, subject only to
Permitted Exceptions (including, without limitation, the lien of the Existing
Loan and the Equipment Leases) and to any vendor liens arising in the Ordinary
Course and reflected in the Hotel accounts payable records.
5.1.1.19 HDC LLC has good and marketable title to the
FF&E (excluding the Leased Equipment), subject only to Permitted Exceptions
(including, without limitation, the lien of the Existing Loan) and to any vendor
liens arising in the Ordinary Course and reflected in the Hotel accounts payable
records.
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5.1.1.20 The Hotel Operating Reports are True And
Complete Copies of the statements that Hotel Manager prepared in the Ordinary
Course and delivered pursuant to the Hotel Management Agreement and, to Seller's
Knowledge, are correct and complete in all material respects.
5.1.1.21 The schedule of Permits to be delivered by
Seller pursuant to Section 4.8.7 will, to Seller's Knowledge, include all of the
Permits held by Seller or Hotel Manager and, within five Business Days following
the Effective Date, Seller will provide Buyer with True and Complete copies of
the Permits listed on such schedule.
5.1.2 REGARDING THE EXISTING LOAN. Seller hereby represents
to Buyer that, as of the Effective Date:
5.1.2.1 Seller has not received written notice from
Lender charging that there currently exists with respect to the Existing Loan an
event of default, or event or condition that with notice and/or passage of time
will mature into an event of default, or right of immediate acceleration on the
part of Lender. No monetary or material non-monetary default exists with respect
to the Existing Loan. (For purposes of this Section 5.1.2.1, a material
non-monetary default is one which, under applicable Law, would permit Lender to
accelerate the Existing Loan and foreclose its deed of trust on the Hotel
Premises.)
5.1.2.2 To Seller's Knowledge, the outstanding
principal balance on the Existing Loan does not exceed $148,740,000 and, other
than accrued and unpaid interest and periodic payments into reserve and impound
accounts (as specified in the Loan Agreement), no other amounts are currently
due on the Existing Loan.
5.1.2.3 Seller has provided (or will within five
Business Days after the Effective Date provide) Buyer with true and complete
copies of all material documents evidencing, securing or governing the Existing
Loan, including the Loan Agreement, promissory, deed of trust and collateral
assignments.
5.1.2.4 Seller has fully complied with Section
4.1.21 of the Loan Agreement.
5.1.3 REGARDING SELLER. Seller hereby represents to Buyer
that:
5.1.3.1 Each of Seller is duly organized, validly
existing and in good standing under the laws of its State of incorporation;
excepting IP is qualified to do business in California; has full power to enter
into this Agreement and to fulfill its obligations hereunder; has authorized its
execution, delivery and performance of this Agreement by all necessary corporate
action; and the Persons executing and delivering this Agreement on behalf of
Seller have full power and authority to do so.
5.1.3.2 No attachments, execution proceedings,
assignments for the benefit of creditors, insolvency, bankruptcy, dissolution or
other similar legal proceedings are pending or, to Seller's Knowledge,
threatened against any of Seller and/or any direct or indirect shareholder in
Seller, nor are any such proceedings contemplated by any of them; and none of
Seller or any of such
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shareholders has ever been a debtor under any case commenced under the United
States Bankruptcy Code.
5.1.3.3 Seller has full right and power to convey
and deliver possession of the Hotel Premises and to transfer all of the other
property comprising the Hotel in accordance with this Agreement.
5.1.3.4 Operator holds legal and beneficial title to
all of the membership interests in HDC LLC, free and clear of all Liens and
other encumbrances (other than Permitted Encumbrances), and has full right and
power to sell and assign all such interests to Buyer. HDC LLC has no assets
other than the FF&E (excluding the Leased Equipment), has engaged in no business
other than holding such FF&E, and has no liabilities (except that HDC LLC holds
the FF&E subject to Liens securing the Existing Loan). Within ten Business Days
following the Effective Date, Seller will provide to Buyer True and Complete
copies of the organizational documents of HDC LLC.
5.1.3.5 (A) Except for the consent of Lender, no
Governmental Authority, internal or other third-party approval or consent which
has not already been obtained is required for Seller's execution and delivery
of, or performance of obligations under, this Agreement and (B), subject to
obtaining Lender's consent to the transfer of the Hotel to and assumption of the
Existing Loan by Buyer, Seller's execution, delivery and performance of this
Agreement do not and will not violate, and are not restricted by, any other
contractual obligation or any Law to which Seller is a party or by which Seller
or any of the property comprising the Hotel is bound.
5.1.3.6 As of the Effective Date, there are no
lawsuits filed and served against Seller whose outcome could adversely affect
Seller's ability to perform its obligations under this Agreement.
5.1.3.7 Except for Seller's Advisor, Seller has not
engaged or dealt with any broker, finder or similar agent in connection with the
transactions contemplated by this Agreement.
5.1.3.8 Seller is not a "foreign person" within the
meaning of Section 1445 of the Internal Revenue Code of 1986.
5.1.3.9 Each of the Persons named in the definition
of "Seller's Knowledge" have carefully reviewed the representations of Seller
herein that are limited to Seller's Knowledge.
5.2 BY BUYER. Buyer hereby represents to Seller that:
5.2.1 Buyer is a corporation, duly incorporated, validly
existing and in good standing under the laws of the state of its formation, is
in good standing and qualified to do business in every other jurisdiction in
which such qualification is legally required; has full power and authority to
enter into this Agreement and to fulfill its obligations hereunder; has
authorized the execution, delivery and performance of this Agreement by all
necessary company action; and the
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Person(s) executing and delivering this Agreement on behalf of Buyer have full
power and authority to do so.
5.2.1.1 No attachments, execution proceedings,
assignments for the benefit of creditors, insolvency, bankruptcy, dissolution or
other similar legal proceedings are pending or, to Buyer's actual knowledge,
threatened against Buyer and/or any direct or indirect shareholder in Buyer, nor
are any such proceedings contemplated by any of them; and none of Buyer or any
of such shareholders has ever been a debtor under any case commenced under the
United States Bankruptcy Code.
5.2.2 Except for approval of Buyer's board of directors, no
Governmental Authority, internal or other third-party approval or consent which
has not already been obtained are required for Buyer's execution and delivery
of, or performance of obligations under, this Agreement, and Buyer's execution
and performance of this Agreement do not and will not violate, and are not
restricted by, any other contractual obligation or applicable Law to which Buyer
is a party or by which Buyer is otherwise bound. Buyer's election not to
terminate this Agreement under Section 4.9 shall constitute Buyer's
representation and warranty that Buyer's board of directors have authorized
Buyer's purchase of the Hotel under to this Agreement.
5.2.3 As of the Effective Date, there are no lawsuits filed
and served against Buyer or, to Buyer's Knowledge, otherwise pending or
threatened whose outcome could adversely affect Buyer's ability to purchase the
Hotel and otherwise perform its obligations under this Agreement.
5.2.4 Except for Seller's Advisor, Buyer has not engaged or
dealt with any broker, finder or similar agent in connection with the
transaction contemplated by this Agreement.
5.2.5 Buyer is experienced in the acquisition, ownership
and operation of hotels similar to the Hotel and is well-equipped to assess and
evaluate the Hotel.
5.2.6 PRIOR TO THE APPROVAL DATE, BUYER WILL HAVE CONDUCTED
ITS OWN INVESTIGATION OF THE HOTEL AND MADE ALL INQUIRIES, INSPECTIONS, TESTS,
AUDITS, STUDIES AND ANALYSES ("INQUIRIES") IN CONNECTION WITH PURCHASING THE
HOTEL THAT BUYER DEEMS NECESSARY OR ADVISABLE AND BUYER WILL RELY ON SUCH
INSPECTIONS AND TESTS IN DETERMINING IF THE HOTEL IS SUITABLE FOR BUYER'S
PURPOSES. IF FOR ANY REASON BUYER IS UNABLE ON OR BEFORE THE APPROVAL DATE TO
MAKE ANY INQUIRY THAT IT DESIRED TO MAKE, OR THAT IS CUSTOMARILY MADE IN
TRANSACTIONS OF THIS SORT, OR OTHERWISE FAILS TO OBTAIN INFORMATION SUFFICIENT
TO ANSWER ANY QUESTION REGARDING THE CONDITION AND SUITABILITY OF THE HOTEL, AND
YET NONETHELESS PROCEEDS WITH THE PURCHASE OF THE HOTEL, BUYER SHALL ASSUME ALL
RISKS THAT, HAD IT PERFORMED SUCH INQUIRY OR OBTAINED SUCH INFORMATION, IT WOULD
HAVE ELECTED NOT TO PROCEED WITH THE PURCHASE OF THE HOTEL ON THE TERMS
CONTAINED HEREIN.
5.2.7 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR
ANY TRANSFER INSTRUMENT, BUYER IS BUYING THE HOTEL "AS IS, WHERE-IS AND WITH
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ALL FAULTS" AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, OF ANY KIND WHATSOEVER, WHETHER BY SELLER OR BY ANY ONE ACTING ON
SELLER'S BEHALF (INCLUDING, WITHOUT LIMITATION, AGENTS, BROKERS, CONSULTANTS,
COUNSEL, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, TRUSTEES OR
BENEFICIARIES).
5.3 WAIVER AND RELEASE. AS A MATERIAL PART OF THE CONSIDERATION TO
SELLER FOR THE SALE OF THE HOTEL HEREUNDER, EXCEPT FOR A CLAIM MADE UNDER THIS
SECTION 5 FOR MONETARY DAMAGES DUE TO A BREACH OF A REPRESENTATION OR OTHER
OBLIGATION OF SELLER EXPRESSLY SET FORTH IN THIS AGREEMENT OR FOR SELLER'S OWN
WILLFUL FRAUD, BUYER HEREBY WAIVES AND RELINQUISHES, AND RELEASES SELLER AND ALL
OF SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS
(COLLECTIVELY, "SELLER RELEASEES") FROM, ANY AND ALL CLAIMS AND REMEDIES
(INCLUDING, WITHOUT LIMITATION, ANY RIGHT OF RESCISSION) AGAINST SELLER
RELEASEES OR ANY OF THEM BASED DIRECTLY OR INDIRECTLY ON (A) ANY PAST, PRESENT
OR FUTURE CONDITION OF THE HOTEL, INCLUDING, WITHOUT LIMITATION, THE RELEASE OR
PRESENCE OF ANY HAZARDOUS SUBSTANCES OR (B) ANY MISREPRESENTATION, OR FAILURE TO
DISCLOSE TO BUYER ANY INFORMATION, REGARDING THE HOTEL (INCLUDING, WITHOUT
LIMITATION, ANY DEFECTIVE, HAZARDOUS OR UNLAWFUL CONDITION WHICH SELLER SHOULD
BE AWARE, WHETHER OR NOT SUCH CONDITION REASONABLY COULD HAVE BEEN DISCOVERED BY
BUYER THROUGH AN INSPECTION OF THE HOTEL OR THE PROPERTY RECORDS). BUYER
UNDERSTANDS THAT SUCH WAIVER AND RELEASE INCLUDES STATUTORY AS WELL AS "COMMON
LAW" AND EQUITABLE RIGHTS AND REMEDIES AND THAT IT COVERS POTENTIAL CLAIMS OF
WHICH BUYER MAY BE CURRENTLY UNAWARE OR UNABLE TO DISCOVER. BUYER ACKNOWLEDGES
THAT THE FOREGOING WAIVER AND RELEASE IS OF MATERIAL CONSIDERATION TO SELLER IN
ENTERING INTO THIS AGREEMENT, THAT BUYER'S COUNSEL HAS ADVISED BUYER OF THE
POSSIBLE LEGAL CONSEQUENCES OF MAKING SUCH WAIVER AND RELEASE AND THAT BUYER HAS
TAKEN INTO ACCOUNT, IN AGREEING TO PURCHASE THE HOTEL AT THE PURCHASE PRICE
SPECIFIED HEREIN, SELLER'S DISCLAIMER OF ANY WARRANTIES AND REPRESENTATIONS
REGARDING THE HOTEL OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN.
BUYER FURTHER AGREES AND ACKNOWLEDGES THAT, IN GIVING THE FOREGOING WAIVER AND
RELEASE, IT HAS WITH ITS LEGAL COUNSEL, CONSIDERED ANY STATUTE OR OTHER LAW THAT
MIGHT APPLY TO AND LIMIT THE EFFECT OF BUYER'S WAIVER AND RELEASE HEREIN AND
HEREBY KNOWINGLY WAIVES THE BENEFITS OF ANY SUCH LAW AND INTENDS THAT IT NOT BE
APPLICABLE HERE.
5.4 SURVIVAL AND LIMITATIONS. The Parties' representations set
forth in this Section 5 (and their respective liability for any breach thereof)
shall survive Closing and shall not be deemed to merge into any of the Transfer
Instruments; provided, however, that after Closing Seller shall have no
liability to Buyer for any breach of such representations unless:
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5.4.1 The material facts constituting such breach have not
come to Buyer's Knowledge prior to the Approval Date;
5.4.2 Buyer has given Seller written notice claiming such
breach, and stating in reasonable detail the factual basis for such claim, prior
to the first anniversary of the Closing Date; and
5.4.3 Buyer's actual out-of-pocket loss from such breach
exceeds $25,000 and from all breaches of Seller's representations herein exceeds
$1,000,000;
and provided further, that in no event shall Seller's aggregate liability to
Buyer for all such breaches exceed three percent of the Purchase Price.
5.5 GUARANTY. At Closing, Seller shall cause L-O Rosemont Hotel
Acquisition, Inc. ("Rosemont") to deliver to Buyer its guaranty, substantively
in the form attached hereto as Exhibit L, of payment of any amounts that Seller
may owe under this Agreement (i) for breach of Seller's representations and
warranties hereunder and (ii) under any indemnification provision herein,
substantively in the (the "ROSEMONT GUARANTY"). Within five Business Days after
the Effective Date, Seller shall furnish Buyer with True and Complete Copies of
Rosemont's financial statements for the year ended December 31, 2002, and the
quarter ended June 30, 2003. The Rosemont Guaranty shall further provide that,
for a period of one year after Closing (and thereafter, so long as any timely
made claim by Buyer, for breach of Seller's representations and warranties or
under any such indemnification, has not been finally resolved), Rosemont shall
(x) hold, in a segregated and restricted account, the sum of $1,000,000 (or,
after the first anniversary of Closing, if less, the aggregate amount of such
unresolved claims) and (y) maintain, on a consolidated GAAP basis, current
assets of at least $2,000,000 and a net worth of at least $20,000,000.
5.6 NOTICE OF SUBSEQUENT EVENT OR DISCOVERY. Prior to Closing,
each Party shall give the other prompt notice of its discovery of any event or
condition which has the effect of making any representations contained in
Section 5 materially inaccurate, either when made or as of Closing. If it is
reasonably likely that such event or condition can be remedied prior to the Last
Closing date, so as to remove such material inaccuracy and correct any material
adverse effect that the other Party would otherwise suffer, and if the
representing Party undertakes in writing to the other Party, within ten Days
after giving or receiving such notice, to use all commercially reasonable
efforts to effect such remedy, then so long as it is making such efforts the
representing Party shall have until the Last Closing Date to complete such
remedy (as well as the right to extend the Last Closing Date by up to 30 Days
for the purpose of completing such remedy) and the other Party shall not be
entitled, prior to the Last Closing Date or (if earlier) the cessation of such
efforts, to terminate this Agreement by reason of such inaccuracy; provided,
however, that this sentence shall not apply to Buyer's failure to obtain by the
Approval Date the approval of its board of directors to its purchase of the
Hotel. Where such event or condition constitutes a breach of a Party's
representations contained herein, though, nothing in this Section 5.6 shall be
deemed to limit the other Party's right after Closing to recover monetary
damages for such breach, to the extent such breach is not cured prior to
Closing.
6. OPERATION OF THE HOTEL PENDING CLOSING. From the Effective Date until
Closing, except for emergencies, Seller shall use commercially reasonable
efforts to operate the Hotel in the Ordinary Course and shall not cause, approve
or voluntarily permit any material change in the operations of
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the Hotel without Buyer's prior written approval (which shall not be
unreasonably withheld, conditioned or delayed), including:
6.1 Material alterations or other material changes in the Hotel
Improvements except as may be currently required by Law and except for Approved
Capital Expenditures.
6.2 Cancellation, material modification or surrender of any
existing Permit for the Hotel.
6.3 Creation, termination or material modification of any Lease.
6.4 Creation or modification of any mortgage, deed of trust or
other encumbrance on Seller's title to the Hotel.
6.5 Entering into or materially modifying any Contract, unless the
same is terminable upon Closing, or terminating any Assumed Contract.
6.6 Material reductions in levels of service, sales and marketing
efforts, maintenance or staff.
6.7 Reductions of supplies, Inventory or Liquor Inventory levels
below customary, seasonally adjusted levels.
6.8 The sale, conveyance, removal, assignment, encumbrance or
other transfer of the Hotel or any portion thereof, or the grant of any rights
to use or occupy the same for periods after Closing, of the sale, conveyance or
other transfer by HDC LLC of any of the FF&E, except for (A) Reservations made
in the Ordinary Course (subject to Section 6.11), (B) compliance with
obligations of Seller under existing Reservations, Contracts and Leases or under
applicable Laws, (C) disposal of obsolete or damaged FF&E or Inventory items
(provided any such disposed item has been, or prior to Closing will be, replaced
by one of at least comparable value and quality, unless surplus to the Hotel's
requirements and of no material value) and (D) any such action expressly
permitted or required under any other provision of this Agreement.
6.9 The imposition of any liens or encumbrances with respect to
the Hotel or any portion thereof which would survive the Closing, except for the
lien of the Existing Loan. and for vendor liens incurred in the Ordinary Course.
6.10 Any material reduction in Hotel Employees (other than
termination of seasonal employees in the Ordinary Course) or any material change
in salary, wages or other benefits payable to Hotel employees other than in the
Ordinary Course or as may be required pursuant to applicable law.
6.11 After Buyer has waived its right to terminate this Agreement
under Section 4.9 and made the Additional Deposit: any group booking
Reservations for periods after the Closing Date unless made in the Ordinary
Course and on rates consistent with Hotel Manager's current pricing for group
business (taking into account seasonal and other customary variations in
pricing); provided, however, that, for any group booking Reservation requiring
Buyer's consent hereunder, Buyer's failure to notify Seller in writing of its
disapproval (and the reasons therefor) within three days after
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Seller's written request for approval shall be conclusively deemed to be Buyer's
approval of such group booking. For purposes hereof, a "group booking" is one
for ten or more guest rooms.
6.12 Amending or modifying any Collective Bargaining Agreement or
entering into or otherwise negotiating any new collective bargaining agreement
with any existing or prospective collective bargaining unit, except as required
by applicable Law.
6.13 The granting of any license or sublicense with respect to any
of the Marks.
6.14 The assignment, transfer, pledge or other encumbrance of the
membership interests in HDC LLC or the creation of any new membership interests
therein; the dissolution of HDC LLC or its merger, conversion or consolidation
with or into any other entity; the incurrence by HDC LLC of any liabilities
(other than acquiring FF&E subject to Liens securing the Existing Loan); the
acquisition by HDC LLC of any assets other than FF&E; or the engagement by HDC
LLC in any business other than holding the FF&E.
Seller shall also:
6.15 Cause Hotel Manager, to the extent within Hotel Manager's
reasonable control, to keep Hotel management personnel fully involved in the
operation of the Hotel until Closing.
6.16 Prior to Closing, complete each of the Committed Capital
Expenditures (but Seller shall not be obligated to expend more than the amount
shown for such item in the "Committed Unpaid" column of Exhibit Q and shall not
be obligated to complete any Approved Capital Expenditure to the extent that the
cost thereof is included in the "Balance" column of Exhibit Q).
6.17 After the Approval Date, cause the Hotel Manager not to issue
any more PIK Vouchers or Unpaid Vouchers.
7. OTHER AGREEMENTS.
7.1 OPERATING LEASE; PROPERTY MANAGEMENT AGREEMENT; IP LICENSE
AGREEMENT. Buyer shall not assume any obligations under the Operating Lease, the
Hotel Management Agreement or the IP License Agreement. Seller shall cause each
of the Operating Lease, the Hotel Management Agreement and the IP License
Agreement (and each other agreement, if any, between or among any of Seller,
Hotel Manager or their Affiliates that would otherwise purport to encumber the
Hotel after Closing) to be terminated as of Closing and shall deliver possession
of the Hotel to Buyer free and clear of any possessory rights of the Hotel
Manager or Operator or Claims under the IP License Agreement. Seller shall
remain responsible for all amounts due under the Operating Lease, the Hotel
Management Agreement and the IP License Agreement and shall Indemnify Buyer from
and against any Claims therefor. Seller's obligations under this Section 7.1
shall survive Closing.
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7.2 LIQUOR LICENSE(S) AND INVENTORY.
7.2.1 APPLICATION FOR NEW LICENSES. Buyer shall be
responsible, at its expense, for preparing, filing and prosecuting all
applications before Governmental Authorities for the re-issuance of the Liquor
License at the Hotel to Buyer or its nominee following Closing. Seller shall
cooperate with Buyer in such applications as Buyer may reasonably request (but
without any obligation on the part of Seller to incur more than $25,000 in
out-of-pocket expense or liability in doing so).
7.2.2 TRANSFER OF LIQUOR INVENTORY. In accordance with the
applicable California alcoholic beverage control Laws, Buyer and Operator shall
enter into the following arrangements for the sale and transfer of the Liquor
Inventory:
7.2.2.1 Within ten Days after the Approval Date,
Operator and Buyer shall open an escrow (the "Liquor Escrow") with Xxxxx Fargo
Bank, San Francisco, California ("Liquor Escrow Agent"), for the sale and
purchase of the Liquor Inventory. Operator and Buyer shall pay the fees and
expenses for the Liquor Escrow in equal shares.
7.2.2.2 At Closing, Seller shall direct Escrow Agent
to deduct from the proceeds of the Purchase Price, and deposit in the Liquor
Escrow, the amount of $260,000 (the "Liquor Escrow Deposit").
7.2.2.3 The Liquor Escrow shall close at the later
of (A) Closing or (B) the issuance of Buyer's Liquor License, except that the
Liquor Escrow Deposit shall remain in the Liquor Escrow until the later of (i)
the statutory period under applicable alcoholic beverage control Laws for trade
creditor claims against Operator (as seller of the Liquor Inventory) has expired
and all such claims (if any) have been resolved or (ii) the earlier of the
issuance of Buyer's Liquor License or the 180th day after the Closing Date, at
which time the Liquor Escrow Deposit (less any amounts applied to such claims)
shall be released to Seller regardless of whether Buyer has obtained its Liquor
License. Any trade payables due and unpaid as of Closing with respect to the
Liquor Operations shall be included in Hotel Payables and credited to, and
assumed by, Buyer in accordance with Sections 8.4 and 11 and, to the extent of
any credit received by Buyer for such payables, Buyer shall, immediately upon
Seller's demand, reimburse to Seller any amount deducted from the Liquor Escrow
Deposit to pay the same.
7.2.2.4 Except as specified in Section 7.2.2.2, no
deduction from or other adjustment to the Purchase Price shall be made by reason
of the separate sale of the Liquor Inventory.
7.2.3 TRANSITIONAL ARRANGEMENTS. If Buyer has not by
Closing obtained the a new Liquor License, then provided that Buyer has by
Closing filed all necessary applications for its Liquor License, at Buyer's
request Operator shall enter into a lease, concession agreement or other
arrangement, for a term of 180 days (or less, as Buyer may elect) and on other
commercially reasonable terms (but not including any rent, license fee or other
similar fee payable by Buyer whether or not the same is commercially
reasonable), under which the Liquor Operations, together with the areas within
the Hotel described or otherwise identified in or with respect to the Liquor
License as licensed for Liquor Operations (the "Licensed Premises"), would
continue to be operated
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under the now-existing Liquor License until the time such approvals had been
granted and Buyer (or its designee) is able lawfully to take over the Licensed
Premises and Liquor Operations or expiration of the term whichever first occurs.
To the maximum extent permitted by applicable Laws, any such arrangement shall
be structured so as to preserve to Buyer the economic or other benefits of the
transactions contemplated by this Agreement and, in any event, so as to hold
Operator harmless from any loss, liability or expense related to the licensed
activities after Closing.
7.3 PROPERTY OF GUESTS. All baggage or other items checked or left
in the care of Seller, and any items in the "Lost and Found Bin" will be listed
in an inventory, prepared in duplicate and signed by representatives of Seller
and Buyer on the Closing Date. Buyer will be responsible from and after the
Closing for all property so listed and shall hold harmless, indemnify and defend
Seller, from and against any and all Claims arising out of the subsequent loss
of or damage to such listed property. Seller shall indemnify Buyer from and
against any and all Claims arising out of any loss of or damage to property of
guests at the Hotel prior to the Closing or not so listed in such inventory.
Seller and Buyer shall use reasonable efforts to have Hotel guests who have left
items in any of the Hotel's safe deposit boxes (not including in-room safes)
confirm on the Closing Date that no such items are missing, but Seller shall not
be deemed liable for any guest Claim made after the Closing Date with respect to
items allegedly left in a Hotel safe deposit box before Closing merely because
such items could not be listed on the above-described inventory.
7.4 ASSUMPTION OF EXISTING LOAN. Buyer shall diligently use all
commercially reasonable efforts to satisfy Lender's usual and customary
requirements for assumption of the Existing Loan (which shall be deemed to
include also the usual and customary requirements of the Rating Agencies for
their confirmations that the sale of the Hotel to Buyer will not result in an
downgrade of the rating of the Existing Loan), including, without limitation:
7.4.1 Providing to Lender and the Rating Agencies (as
defined in the Loan Agreement) as promptly as practicable, substantially all
information concerning Buyer and its Affiliates that is customarily or
reasonably required in connection with Lender's consideration of such
assumption. Within in five Business Days after the Effective Date, Buyer shall
provide to Lender all such information that has been identified and is then in
Buyer's possession or ready control.
7.4.2 At or prior to Closing, either satisfying, or
assigning its rights under this Agreement to an entity that satisfies, the
definition of a "Permitted Transferee" in the Loan Agreement.
7.4.3 Providing to Lender timely evidence that all
approvals required for Buyer's purchase of the Hotel have been obtained.
7.4.4 At Closing delivering to Lender (A) an assumption
agreement with respect to the Existing Loan, in such form as Lender may
reasonably require, (B) usual and customary legal opinions regarding Buyer's
assumption of the Existing Loan, including, without limitation, opinions as to
enforceability of the loan documents against Buyer and as to non-consolidation
in bankruptcy and (C) such other documents as Lender may reasonably require,
including evidence of good standing and authority.
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7.4.5 At Closing paying to Lender the transfer fee (equal
to 0.25% of the outstanding principal balance on the Existing Loan as of
Closing), plus all costs and expenses incurred by Lender and the Rating Agencies
in connection with Buyer's assumption of the Existing Loan.
7.4.6 Satisfying in timely fashion the other applicable,
express conditions for assumption of the Existing Loan set forth in the Loan
Agreement, to the extent within the reasonable control of Buyer or Buyer's
Manager.
Seller shall reasonably cooperate with Buyer's efforts to obtain Lender's
consent to assumption of the Existing Loan, including, without limitation, (i)
promptly notifying Lender of the pending sale of the Hotel and Buyer's intention
to assume the Existing Loan, (ii) providing Lender and the Rating Agencies with
all information customarily or reasonably required of the selling borrower in
connection with such an assumption and (iii) delivering to Lender all
documentation reasonably required of Seller in connection with such assumption;
provided, however, that Seller shall not be obligated to incur any out-of-pocket
expense in excess of $20,000 or liability in connection with Buyer's assumption
of the Existing Loan or Buyer's efforts to obtain Lender's consent to such
assumption. Buyer's election not to terminate this Agreement under Section 4.9
shall constitute Buyer's representation and warranty to Seller that Buyer has
familiarized itself with the requirements specified in the Loan Agreement for
assumption of the Existing Loan and, to Buyer's Knowledge, has no reason to
believe that Buyer will not be able to satisfy any of such requirements. Either
Seller or Buyer shall have the right to extend the Closing Date (and, if
necessary, the Last Closing Date) if, in such Party's good faith judgment, such
extension is required in order to permit Buyer's assumption of the Existing Loan
at Closing, but such extension may not be to a date later than December 31,
2003.
Notwithstanding any other provision hereof, rather than assume the Existing Loan
Buyer shall have the right to elect to prepay or defease the Existing Loan in
accordance with the terms of the Loan Agreement, subject to the conditions that:
(i) Buyer pay all of the costs of defeasance or prepayment and (ii) Buyer makes
such election (by giving Seller and Lender written notice thereof) sufficiently
in advance of the Last Closing Date to permit such defeasance to be effected by
the Last Closing Date. Upon electing to defease or prepay the Existing Loan,
Buyer (A) shall not longer be obligated to pursue Lender's consent to assumption
of the Existing Loan, but (B) shall also be deemed to have waived irrevocably
the condition to Closing specified in Section 9.1.5. Buyer shall Indemnify
Seller from and against any Claim by Lender resulting from Buyer's electing to
defease or prepay the Loan and then failing to close the purchase of the Hotel
and such defeasance or prepayment, unless such failure is due to Seller's breach
or default.
7.5 DEVELOPMENT AGREEMENT STATEMENT OF COMPLIANCE. Seller shall
request, within ten Business Days after the Effective Date, and thereafter use
commercially reasonable efforts to obtain the Development Agreement Statement of
Compliance, but Seller shall have no obligation to pay or give other
consideration for such statement, or bring any action to compel its delivery.
Promptly after obtaining the Development Agreement Statement of Compliance,
Seller shall deliver a true and complete copy thereof to Seller and, at Closing,
shall deliver to Seller the original.
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7.6 TAX CLEARANCE CERTIFICATE. Operator shall apply (or, as
applicable, shall cause Hotel Manager to apply) to the California State Board of
Equalization for a tax clearance certificate with respect to Seller's operations
at the Hotel, to be issued by Closing through the Closing Date or as close to
the Closing Date as is practicable (but, in any event, through September 30,
2003). If Seller is unable to obtain and deliver such clearance certificate to
Buyer at or prior to Closing, there shall then be held back in Escrow from the
proceeds of the Purchase Price otherwise due Seller at Closing an amount (the
"Sales Tax Reserve") equal to (A) 125% of the amount, if any, of sales and use
taxes claimed by the Board of Equalization to be then due from Operator (or
Hotel Manager) and not paid by Closing or (B), if no such amount is then claimed
by the Board of Equalization, $85,000. Escrow Agent shall (i) disburse the Sales
Tax Reserve to Seller, upon Seller's delivery to Escrow Agent and Buyer of such
clearance certificate, or (ii) if such certificate is not delivered within 180
days after Closing, remit the Sales Tax Reserve to the Board of Equalization for
credit to Operator's (or Hotel Manager's) account.
7.7 SHADOW MANAGEMENT. As soon as practicable after Buyer has
elected to proceed with its purchase of the Property under Section 4.9 and has
made the Additional Deposit, Seller shall permit Buyer to establish and maintain
a shadow management operation with respect to the Hotel, provided that the
number of individuals engaged in such operation shall not exceed ten. Personnel
from Buyer's shadow management operation shall have reasonable access during
normal business hours to all current Hotel Records and shall have the right (at
Buyer's expense) to establish duplicate books and records in order to effect a
smooth transition in the ownership and management of the Hotel; provided,
however, that Buyer and its shadow management operation and employees shall not
unreasonably or materially interfere with the normal management and operation of
the Hotel, shall hold all information acquired from such books and records
confidential in accordance with Section 16.1, shall repair any damage to the
physical condition of the Hotel caused by Buyer or its agents in any such shadow
management operation, and shall not be permitted to have assume (or deemed by
virtue of such shadow management to have assumed) management responsibilities or
functions prior to Closing. Buyer shall Indemnify Seller and Hotel Manager from
and against any and all Claims arising out of such shadow management activities.
7.8 RESIDUAL PAYMENTS WITH RESPECT TO WORKS OF ART IN FF&E. Seller
shall assume the obligation for and make, in accordance with Section 986 of the
California Civil Code, all payments (if any) due under such statutory provision,
with respect to any and all works of fine art included within the FF&E, by
reason of (i) the sale of the membership interests in HDC LLC to Buyer hereunder
or (ii) any prior transfer of such art works, to the extent that Buyer or HDC
LLC would otherwise be liable for such payments. Seller shall base each such
payment on Seller's reasonable estimation of the value of work of art in
question and shall Indemnify Buyer from and against any and all Claims arising
out of Seller's failure to comply with this Section 7.8.
8. PRORATIONS, CREDITS AND OTHER ADJUSTMENTS. At Closing, the Parties
shall make the prorations and other adjustments provided below, and the net
amount consequently owing to Seller or Buyer shall be added to or subtracted
from the proceeds of the Purchase Price payable to Seller at Closing. Beginning
as close to the anticipated Closing Date as practicable, Seller shall, in
consultation with Buyer and with Buyer's reasonable cooperation, cause to be
prepared a prorations and credit statement (the "Preliminary Statement") which
shall reflect all of the prorations, credits and other adjustments in payment at
Closing required under this Section 8 or under any other
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provision of this Agreement. As soon as the Parties have agreed upon the
Preliminary Statement, they shall jointly deliver a mutually signed copy thereof
to Escrow Agent. To the extent the Parties are unable to agree by Closing on any
item on the Preliminary Statement, Seller's estimation of such item shall be
used and such item shall be finally resolved on the Final Statement pursuant to
Section 11.
8.1 PRORATION OF TAXES. All real estate ad valorem taxes, general
assessments and special assessments and all personal property ad valorem taxes
assessed against the Hotel (generically, "Taxes") and payable during the tax
year in which Closing occurs shall be prorated between Buyer and Seller as of
the Closing Date.
8.2 PRORATION OF EXPENSES.
8.2.1 The following items of expense with respect to any
portion or aspect of the Hotel shall be prorated between Seller and Buyer as of
the Closing Date:
8.2.1.1 Periodic charges under Assumed Contracts
(such as monthly rents or fixed periodic charges), but not charges made on a
per-order or per-call basis.
8.2.1.2 Utility charges (but excluding any utility
deposits). To the extent reasonably practicable, though, in lieu of prorating
the charges for any metered utility service, the Parties shall endeavor to have
the utility read the meter as early as possible on the Closing Date, render a
final xxxx to Seller based on such reading and xxxx all subsequent service to
Buyer.
8.2.1.3 Accrued interest on the Existing Loan.
8.2.1.4 All other Hotel operating expenses of a
strictly periodic nature (and not based upon specific orders for goods or
services), other than Employee Liabilities.
8.2.2 Notwithstanding any other provisions in this
Agreement to the contrary, no prorations shall be made or credit given for the
following:
8.2.2.1 Capital expenditures, including, without
limitation, Approved Capital Expenditures.
8.2.2.2 Purchase orders for any Inventory, FF&E or
Liquor Inventory not yet received as of Closing.
8.2.2.3 Costs and expenses associated with any
contracts that are not Assumed Contracts, including the costs and expenses
associated with terminating the same (which shall be at Seller's sole cost and
expense).
8.2.2.4 Except as expressly provided for elsewhere
in this Article VIII, Hotel operating expenses of a non-periodic nature.
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8.3 PRORATION OF HOTEL REVENUES.
8.3.1 GUEST LEDGER. The open account ("GUEST LEDGER
ACCOUNT") for each Person who is a guest at the Hotel on the night immediately
preceding Closing ("CLOSING EVE") shall be prorated between Seller and Buyer as
follows:
8.3.1.1 Room and service charges (including, without
limitation, room service charges, in-house movie fees, health or fitness club
charges and honor bar charges) for all times preceding Closing Eve shall be
credited to Seller.
8.3.1.2 Room and service charges for all times after
Closing Eve shall belong to Buyer.
8.3.1.3 Room and service charges for Closing Eve
shall be divided equally between Seller and Buyer.
8.3.1.4 Other charges shall be allocated between
Seller and Buyer as of the Closing Date, based on the time such charges were
actually incurred.
8.3.1.5 Any other charges for the 24-hour period
including Closing Eve, which cannot be fixed as to the actual time of
incurrence, shall be apportioned equally between Seller and Buyer.
8.3.1.6 From the amounts apportioned to Seller under
the foregoing clauses shall be deducted the allocable share of all applicable
taxes, travel and tour agent commissions, license, reservation and franchise
fees, and similar expenses with respect to such revenues, which Buyer shall then
be responsible for paying along with the share thereof allocable to the amount
apportioned to it. Any proration of revenues from Liquor Operations shall be
subject to such limitations and conditions as may be imposed by applicable
alcoholic beverage control Laws.
All Guest Ledger Accounts shall be assigned to Buyer at Closing, and Seller
shall receive a proration credit equal to its net aggregate prorated amount
under this Section 8.3.1.
8.3.2 BAR AND RESTAURANT REVENUES. Revenues from each of
the bars, lounges and restaurants within the Hotel shall be prorated as of the
actual time that such facility closes on Closing Eve.
8.3.3 RENTS AND OTHER OPERATING REVENUES. Monthly rents and
other fixed periodic payments under the Leases, monthly or other periodic dues
or membership fee payments under the Membership Agreements, and any other
operating revenues not otherwise provided for in this Section 7.2.3, shall be
prorated between Buyer and Seller as of Closing; but no proration shall be made
of any rents or other payments which are overdue as of the Closing Date until
such payments are actually received (with amounts received by Buyer after
Closing under any Lease subject to such a delinquency being credited first
against amounts currently due and payable and thereafter against overdue
payments).
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8.3.4 OTHER HOTEL RECEIVABLES. Except as otherwise provided
with respect to Guest Ledger Accounts and payments under Leases, Seller shall
assign to Buyer all Hotel receivables aged 90 days or less as of Closing, other
than the following ("Excluded Receivables"): (i) receivables that have been
disputed in writing by the account debtor or as to which the account debtor has
otherwise declared in writing an intention not to pay, (ii) receivables from any
Person who is the subject of a bankruptcy case or other insolvency proceeding or
who has declared in writing an inability to pay or (iii) any other receivable to
which Buyer reasonably objects as unlikely to be paid. Seller shall receive a
proration credit equal to 100% of the face amount of all receivables assigned to
Buyer pursuant to this Section 8.3.4 and shall retain all Excluded Receivables.
8.4 HOTEL PAYABLES. At Closing, Buyer shall receive a proration
credit equal to the excess of (A) the aggregate estimated amount of all Hotel
Payables in the Preliminary Statement over (B) Buyer's prorated share of such
Hotel Payables under Section 8.2, and Buyer shall assume the obligation to
satisfy Hotel Payables (1) included in such estimate (as evidenced by a schedule
which Seller shall prepare and submit to Buyer as part of the Preliminary
Statement) and (2) which otherwise are identified within the 90-day period
following Closing. After Closing, before paying any amount invoiced or otherwise
claimed by a third party due with respect to the Hotel operations prior to
Closing which is not included on such schedule (or is claimed in an amount
larger than that shown on such schedule), Buyer shall first submit such invoice
or claim to Seller. Unless Seller, within 15 days after receiving such
submission, objects to such invoice or claim (thereby making it a Disputed
Payable), Buyer may pay the same and take a credit for such payment on the Final
Statement. Seller shall remain responsible for all Disputed Payables.
8.5 OTHER CREDITS TO BUYER.
8.5.1 CREDITS FOR RESERVATION DEPOSITS AND SECURITY
DEPOSITS. Buyer shall receive a proration credit equal to (A) the aggregate
amount of all outstanding Reservation Deposits and (B) the aggregate amount of
the unapplied balance of all cash (or cash equivalent) security, damage or other
deposits paid by any tenants to secure their obligations under Leases. With
respect to any security deposits that are not in the form of cash, Seller shall
at its sole cost and expense cause the same to be endorsed or transferred to or
re-issued in the name of, Buyer, at or as soon as practicable after Closing.
8.5.2 CREDIT FOR EXISTING LOAN BALANCES. Buyer shall
receive a proration credit for the outstanding principal balance on the Existing
Loan (including all amounts then due to Lender from Holding other than interest,
impound payments and fees, expenses and other payments due with respect to
Buyer's assumption of the Loan). Seller shall receive a credit for outstanding
balances in any tax, insurance, lockbox or other impound accounts held by Lender
on account of the Existing Loan and Seller shall assign all of its rights in and
to such impound accounts to Buyer, but in each case only to the extent that
Lender acknowledges in writing that such balances will from Closing be held,
subject to the terms of the Existing Loan documents, for Buyer's account as
borrower.
8.5.3 CREDIT FOR VOUCHERS. Buyer shall receive a proration
credit equal to the aggregate of (A) 100% of the face amount of all Paid
Vouchers, (B) 50% of all PIK Vouchers, and (C) 50% of all Unpaid Vouchers and
Buyer shall assume the obligation to honor all Vouchers with respect to which it
has received a proration credit under this Section 8.5.3 or Section 11.
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8.6 OTHER CREDITS TO SELLER.
8.6.1 CREDITS FOR CASH BANKS. Seller shall receive a
proration credit equal to the aggregate balance of all Cash Banks as of Closing.
8.6.2 CREDIT FOR PREPAID EXPENSES. Seller shall receive a
proration credit equal to the book value, as of Closing, of all prepaid
expenses, except to the extent that the goods, services or other items for which
such expenses were incurred are not usable by Buyer.
8.6.3 CREDIT FOR RETAIL INVENTORIES. Seller shall receive a
proration credit equal to the book value, as of Closing, of the Retail
Inventories.
8.7 REGARDING HOTEL PRORATIONS GENERALLY. Unless this Section
7.2.3 expressly provides otherwise: (A) all prorations hereunder with respect to
the Hotel shall be made as of 12:00:01 a.m., local time (for the Hotel), on the
Closing Date, (B) all prorations shall be made on an actual daily basis, and
(C), for purposes of such prorations, all items of revenue and expense with
respect to the Hotel's operations shall be classified and determined in
accordance with the Uniform System of Accounts, as reasonably modified by Hotel
Manager for use at the Hotel.
8.8 UTILITY DEPOSITS. Notwithstanding any other provision of this
Agreement, no prorations shall be made or credits allowed with respect to any
utility deposits, all of which shall remain the sole property of Seller.
9. CONDITIONS TO CLOSING.
9.1 IN BUYER'S FAVOR. In addition to the conditions specified in
Section 4, Buyer's obligation to close shall be subject to timely satisfaction
of each of the following conditions:
9.1.1 PERFORMANCE OF SELLER'S OBLIGATIONS. Performance by
Seller in all material respects of its obligations under this Agreement to be
performed at or before Closing; provided, however, that no failure of this
condition shall otherwise be deemed to have occurred until and unless (A) Buyer
has given Seller written notice specifying each such default in reasonable
detail and (B) Seller has failed to cure each such noticed default by the
earlier of the Last Closing Date (and for this purpose Seller shall have the
right to extend the Last Closing Date for up to 30 days) or the 30th day after
Seller receives such notice.
9.1.2 ACCURACY OF REPRESENTATIONS. The accuracy in all
material respects, as of Closing, of each of the representations set forth in
Section 5.1, subject only to (A) changes which are required or permitted
hereunder and (B) matter which come to Buyer's Knowledge prior on or before the
Approval Date.
9.1.3 SATISFACTORY TITLE POLICY. Issuance at Closing of the
Title Policy (with Extended Coverage, so long as Buyer timely furnishes the
Title Company with the Survey; but, otherwise, the availability of any
endorsement to the Title Policy shall not be a condition to Buyer's obligation
to close unless Seller has undertaken in writing to obtain such endorsement to
cure an Objectionable Title Matter).
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9.1.4 PHYSICAL CONDITION. No material alteration or other
change in the physical condition, structure or appearance of the Hotel having
occurred since the Effective Date, normal wear and tear and damage by casualty
(and repair of such damage) excepted. For purposes of this Section 9.1.4, an
alteration or other change shall be deemed material if its cost exceeds
$250,000.
9.1.5 CONSENT OF LENDER. Lender has consented in writing to
the sale of the Hotel to Buyer pursuant to this Agreement and to Buyer's
assumption of the Existing Loan, on the terms and conditions set forth in
Section 9.25 of the Loan Agreement and, in such consent or a separate
certificate, has certified (A) the outstanding principal balance on the Existing
Loan, (B) the then current balances in each reserve and impound account held by
Lender pursuant to the Loan Agreement, and (C) that, to Lender's actual
knowledge, no event of default exists or is impending under any of the documents
evidencing, securing or governing the Existing Loan; provided, however, that
Buyer shall be deemed to have waived the condition set forth in this Section
9.1.5 if Buyer fails, in any material respect, to perform its obligations under
Section 7.4.
9.1.6 TENANT ESTOPPEL CERTIFICATES. Delivery to Buyer of:
9.1.6.1 Tenant estoppel certificates ("ESTOPPEL
CERTIFICATES") signed by tenants under Leases aggregating at least 75% of the
rentable area encumbered by all the Leases each of which (A) is dated no earlier
than 15 Business Days before the Approval Date, (B) identify the Lease in
question and state that, as so identified, such Lease is in full force and
effect and has not been modified, (C) states the amount of monthly rent
currently payable under such Lease and the date through which such rent has been
paid, (D) states the amount of the security deposit, if any, outstanding for
such Lease and (E) states that no default, or event or condition that upon
notice and/or failure to correct within a period of time would mature into a
default, exists on the part of the landlord, or identifying any such default,
event or condition claimed by the tenant to exist.
9.1.6.2 Seller certificates ("SELLER'S LEASE
CERTIFICATES"), as to the facts that would be stated in the Estoppel
Certificate, for each Lease as to which Seller cannot obtain an Estoppel
Certificate from the Tenant. Each Seller certificate shall be deemed to be a
representation by Seller, to the same extent (and subject to the same
limitations) as if set forth in Section 5.1.
9.1.7 STATEMENT OF COMPLIANCE. Delivery to Buyer of the
Development Agreement Statement of Compliance.
If any of the conditions specified in this Section is not timely satisfied (or
waived by Buyer in writing or, in the case of Section 9.1.5, deemed waived as
provided therein), then, subject to Section 5.5, Buyer shall have the right to
terminate this Agreement by giving written notice of such termination to Seller
and Escrow Agent by the Last Closing Date (but, in any event, before Closing
actually occurs). After Closing, Buyer shall not have any right to terminate
this Agreement or rescind its purchase of the Hotel by reason of the failure of
any such condition, whether or not such failure was known to or discoverable by
Buyer prior to Closing. If Seller gives Buyer written notice that either of the
conditions specified in Sections 9.1.2, 9.1.5 or 9.1.6 will not be satisfied by
Closing, then (so long as such failure of condition is not the result of a
willful breach on the part of Seller of any of its covenants or warranties under
this Agreement) Seller shall have the right to terminate this Agreement unless
Buyer, within five Business Days after receiving such notice from Seller, waives
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in a written notice to Seller the condition in question (provided, however, that
such termination shall not excuse Seller from liability to Buyer for monetary
damages if such failure of condition results from a breach on the part of
Seller, whether or not willful). Notwithstanding any provision to the contrary
herein, Buyer shall not have the right to terminate this Agreement for any
failure(s) of the conditions specified in Sections 9.1.1 and 9.1.2 unless (A)
such failures, in the aggregate, have a Material Adverse Effect or (B) any such
failure constituting a breach of Seller's covenants or representations herein is
reasonably susceptible to cure by Seller and Seller fails to cure the same by
the Last Closing Date (as may be extended by Seller under Section 5.6 or 9.1.1);
nor shall Buyer have the right to terminate this Agreement for failure of the
condition specified in Section 9.1.6.1, as long as Seller satisfies the
condition specified in Section 9.1.6.2. For the avoidance of doubt, nothing
contained in the preceding sentence shall be deemed to limit Buyer's right after
Closing to recover monetary damages for any breach of Seller's covenants or
representations to the extent such breach is not cured prior to Closing and
irrespective of whether such breach or breaches, in the aggregate, have a
Material Adverse Effect.
9.2 IN SELLER'S FAVOR. The obligation of Seller to close Escrow
shall be subject to timely satisfaction of each of the following conditions:
9.2.1 PERFORMANCE OF BUYER'S OBLIGATIONS. Performance by
Buyer in all material respects of Buyer's obligations under this Agreement to be
performed at or before Closing.
9.2.2 ACCURACY OF REPRESENTATIONS. The accuracy in all
material respects, as of Closing, of each of the representations of Buyer set
forth in Section 5.2, subject to only changes which are required or permitted
hereunder.
9.2.3 CONSENT OF LENDER. Lender has consented to the sale
of the Hotel to Buyer pursuant to this Agreement and to Buyer's assumption of
the Existing Loan, on the terms and conditions set forth in Section 9.25 of the
Loan Agreement unless Buyer otherwise pays or defeases the Existing Loan as
herein provided.
If any condition specified in this Section 9.2 is not satisfied (or waived by
Seller in writing) by the Closing Date, then, subject to Section 5.5, Seller
shall have the right to terminate this Agreement by giving written notice of
such termination to Buyer and Escrow Agent by the Closing Date (but, in any
event, before Closing actually occurs). After Closing, Seller shall not have any
right to terminate this Agreement or rescind its purchase of the Hotel by reason
of the failure of any such condition, whether or not such failure was known to
or discoverable by Seller prior to Closing.
9.3 PRE-CLOSING DAMAGE OR DESTRUCTION.
9.3.1 TERMINATION RIGHTS. If, prior to Closing, all or a
material part of any of the Hotel Premises is damaged, destroyed or taken by
eminent domain (a "Casualty,"), Buyer shall have the right, at its election, to
terminate this Agreement, by written notice given to Seller by the Closing Date
(but, in any event, before Closing actually occurs). If a Casualty occurs fewer
than ten Business Days before the Closing Date, Buyer shall have the right to
extend the Closing Date until the tenth Business Day after the occurrence of
such Casualty in order to make the election permitted by this Section.
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9.3.2 IF NO TERMINATION. If a Casualty occurs and Buyer
either does not have, or does not elect to exercise, the right under Section
9.3.1 to terminate this Agreement, this Agreement shall continue in force and,
upon Closing, Buyer shall be entitled to all insurance proceeds, condemnation
awards or other amounts which have been paid or may thereafter be payable to or
for the account of Seller by any Person in connection with such Casualty
("Proceeds"), except that Seller shall retain the right to Proceeds payable
under business interruption or rent loss insurance to the extent applicable to
periods before the Closing, and the Proceeds of property hazard insurance to the
extent Seller has incurred reasonable third party costs to repair or replace
property damaged as a result of such Casualty). At Closing, Seller shall, except
to the extent entitled to retain Proceeds under the preceding sentence, pay over
to Buyer the amount of any Proceeds already received by Seller, shall assign
Buyer all of Seller's rights to Proceeds which may then be or thereafter become
payable and shall credit Buyer with the least of (A) the amount of any
applicable insurance deductible, (B) the reasonably estimated cost of repairing,
restoring or replacing the portion of the Hotel damaged by such Casualty or (C)
the amount specified to be a "material part" of the Hotel Premises in Section
9.3.3.
9.3.3 MATERIAL PART. For purposes of this Section, a
Casualty shall be deemed to affect a material part of the Hotel Premises if such
Casualty results in either (A) a permanent loss of market value of the Hotel of
more than $10,000,000 (the "Casualty Threshold") or (B) damage or loss
reasonably estimated to cost more than the Casualty Threshold to repair or
replace; provided, however, that unless Seller is able effectively to assign to
Buyer the Proceeds of its business interruption insurance with respect to such
Casualty (if and to the extent applicable to periods after Closing), or if Buyer
would be prevented by applicable Laws from restoring the damaged or taken
portion of the Hotel Improvements to substantially the same appearance and
function as they had before the Casualty, then the Casualty Threshold shall be
$2,500,000.
10. CLOSING.
10.1 TIME, PLACE AND MANNER. Subject to extensions as expressly
provided elsewhere in this Agreement, the Closing Date shall be a Business Day,
other than a Friday, that Buyer shall designate by at least 15 Days' prior
written notice to Seller and Escrow Agent; but if Buyer has not by timely notice
designated an earlier Closing Date, the Last Closing Date shall be the Closing
Date. Closing shall occur through escrow, at the offices of the Escrow Agent;
but if either Party so requests at least ten days before the scheduled Closing
Date, Closing shall be a "New York style" or "lawyers'" closing at the offices
of Seller's Counsel in Los Angeles, California (the "PLACE OF CLOSING"). In the
event of a non-escrow Closing, the Transactors shall meet at the Place of
Closing as early as practicable on the scheduled Closing Date to effect Closing
(and shall also meet at the Place of Closing in advance of the scheduled Closing
Date, as reasonably required to effect a timely Closing). Even with a non-escrow
Closing, in order to confirm concurrent delivery of the Purchase Price and
delivery of title to the Hotel Premises, Buyer's funds for Closing and the
Transfer Instruments to be recorded shall be delivered into Escrow for Closing,
in accordance with this Agreement. Notwithstanding any other provisions herein,
the Last Closing Date shall not be extended by more than 90 days in total.
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10.2 SELLER'S DELIVERIES.
10.2.1 PRE-CLOSING. On or before the Closing Date, Seller
shall deliver to Escrow Agent the following documents ("SELLER'S CLOSING
DOCUMENTS"):
10.2.1.1 The Deed and any other Transfer Instruments
(if any) to be recorded at Closing, each duly executed and acknowledged by
Seller, for recording at Closing in the official land records of San Diego
County, California.
10.2.1.2 A counterpart of the FIRPTA Certificate for
each of Holding and Operator, duly executed.
10.2.1.3 If an escrow Closing, each of the items
specified in Section 10.2.2.
10.2.1.4 Such other documents as the Escrow Agent or
the Title Company may reasonably require from Seller in order to effect Closing
in accordance with this Agreement.
10.2.2 AT CLOSING. At Closing, if a lawyers' Closing, Seller
shall deliver to Buyer, at the Place of Closing (except as otherwise indicated):
10.2.2.1 Two counterparts of each of the Transfer
Instruments (except those delivered to Escrow Agent pursuant to Section
10.2.1.1, which shall be constructively delivered to Buyer at Closing by
recording pursuant to Section 10.2.1.1), all duly executed by Seller.
10.2.2.2 Seller's Closing Certificate.
10.2.2.3 A counterpart of the FIRPTA Certificate for
each of Holding and Operator, duly executed.
10.2.2.4 Letters to tenants under the Leases, in the
form attached hereto as Exhibit O, notifying each such tenant that the Hotel has
been sold to Buyer and directing each tenant to make all payments of rent and to
send any notices or other correspondence regarding their respective Leases to
the Persons and addresses to be determined by Buyer, and specified in writing to
Seller, at least five Business Days prior to the Closing Date.
10.2.2.5 Letters to lessor, vendors or contractors
under Assumed Contracts, and utility companies serving the Hotel Premises, in
the form attached hereto as Exhibit P, advising them of the sale of the Hotel to
Buyer and directing to Buyer (at the Hotel) all bills for the services provided
to the Hotel Premises on and after the Closing Date.
10.2.2.6 Originals of Estoppel Certificates and the
Development Agreement Statement of Compliance, to the extent obtained, and
Seller's Lease Certificates with respect to Leases for which an Estoppel
Certificate is not delivered.
10.2.2.7 The Rosemont Guaranty, duly executed by L-O
Rosemont Hotel Acquisitions, Inc.
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10.3 BUYER'S DELIVERIES:
10.3.1 PRE-CLOSING. On or before the Closing Date, Buyer
shall deliver to Escrow Agent the following funds and documents ("Buyer's
Closing Documents"):
10.3.1.1 Good and immediately available funds in an
amount (when added to the Deposit) equal at least to the sum of (A) the Purchase
Price, plus (B) Buyer's share of Closing costs to be paid through Escrow, plus
or minus (C) the net amount owing Seller or Buyer (as the case may be) under
Section 7.2.3, as shown by the Preliminary Statement.
10.3.1.2 If an escrow Closing, each of the items
specified in Section 10.3.2.
10.3.1.3 Such documents as the Escrow Agent or the
Title Company may reasonably require from Buyer in order to effect Closing in
accordance with this Agreement.
10.3.1.4 Such documents as may be required in
connection with Buyer's assumption of the Existing Loan.
10.3.2 AT CLOSING. At Closing, if a lawyers' Closing, Buyer
shall deliver to Seller, as appropriate, at the Place of Closing, two
counterparts duly executed of each Transfer Instrument to be executed by Buyer.
10.4 CLOSING COSTS.
10.4.1 PAID BY SELLER. Seller shall pay:
10.4.1.1 Premium charges for endorsements, if any,
ordered by Seller to cure Objectionable Title Matters.
10.4.1.2 One-half of the realty transfer taxes
imposed by state, county and municipal Governmental Authorities on the sale and
conveyance of the Hotel Premises.
10.4.1.3 Any applicable sales taxes with respect to
the transactions contemplated hereby on the FF&E, but only to the extent that
such sales taxes are assessed on a valuation of the FF&E no greater than its
depreciated book value immediately prior to Closing.
10.4.1.4 One-half of Escrow Agent's fees and expenses
for administering Escrow.
10.4.1.5 The "advisory fee" payable to Seller's
Advisor pursuant to a to-be-negotiated agreement between Seller and Seller's
Advisor, less Buyer's share thereof under 10.4.2.7.
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10.4.2 PAID BY BUYER. Buyer shall pay:
10.4.2.1 All charges for the Title Report, Survey and
Title Policy, including the charge for Extended Coverage, except for any charges
payable by Seller under Section 10.4.1.1.
10.4.2.2 One-half of the realty transfer taxes
imposed by state, county and municipal Governmental Authorities on the sale and
conveyance of the Hotel Premises.
10.4.2.3 Any applicable sales taxes with respect to
the transactions contemplated hereby on the FF&E, but only to the extent that
such sales taxes are assessed on a valuation of the FF&E greater than its
depreciated book value immediately prior to Closing.
10.4.2.4 All other transfer taxes, stamp taxes,
documentary taxes and similar excises, if any, imposed on the sale, conveyances
and transfers under this Agreement.
10.4.2.5 All recording and filing fees and charges
incurred in connection with the recording or other filing of the Transfer
Instruments.
10.4.2.6 One-half of Escrow Agent's fees and expenses
for administering Escrow.
10.4.2.7 The lesser of (A) one-half or (B) $750,000
of the "advisory fee" payable to Seller's Advisor pursuant to a to-be-negotiated
agreement between Seller and Seller's Advisor.
10.4.2.8 The transfer fee payable to Lender in
connection with Buyer's assumption of the Existing Loan and any other expenses
(such as recording fees, charges for any required endorsements to Lender's title
insurance policy with respect to the Existing Loan, any rating agency charges
for reviewing the proposed sale and assumption and legal fees and expenses)
incidental to such assumption.
10.4.3 OTHER CLOSING COSTS. Any other charges and expenses
incurred in effecting Closing shall be allocated between the Parties in
accordance with the custom for commercial real estate transactions in San Diego
County, California.
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10.5 COMPLETION OF CLOSING. Closing shall be effected as follows:
10.5.1 At such time as the Transactors and Counsel have
confirmed (A) the delivery to Escrow Agent of each of the items specified in
Sections 10.2.1 and 10.3.1, (B) tender of delivery of each of the items
specified in Sections 10.2.2 and 10.3.2, if applicable (and provided Escrow
Agent has not advised the Parties of any apparent obstacle to issuing the Title
Policy as of Closing), the Parties through their respective Transactors or
Counsel shall instruct Escrow Agent to record the Deed (and any other Transfer
Instruments to be recorded) in the appropriate place and (unless a lawyers'
Closing) to complete Closing by disbursing funds in accordance with Section
10.5.2 and, as appropriate, delivering Seller's Closing Documents to Buyer and
Buyer's Closing Documents to Seller.
10.5.2 If a lawyers' Closing, as soon as Escrow Agent
confirms to the Parties that the Title Company is irrevocably committed to issue
the Title Policy to Buyer, the Parties through their respective Transactors or
Counsel shall instruct Escrow Agent to disburse funds from Escrow as follows:
10.5.2.1 Disburse to Seller, in such respective
amounts as Seller shall designate to Escrow Agent in writing before Closing, the
sum of (A) the Purchase Price, minus (B) Seller's share of Closing costs to be
paid through Escrow, plus or minus (D) the net amount owing to Seller or Buyer
(as the case may be) under Section 7.2.3, as shown by the Preliminary Statement.
10.5.2.2 Pay the closing costs specified in Section
10.4.
10.5.2.3 Disburse any excess funds as directed by
Buyer.
Disbursements to a Party shall be made by wire transfer of current funds to an
account at a commercial bank within the United States, as designated to Escrow
Agent by such Party or its Counsel; but if no such account has been so
designated to Escrow Agent by the Business Day immediately following the Closing
Date, Escrow Agent may instead disburse by its own check, for any amount of
$10,000 or less, sent on the Closing Date by messenger or overnight delivery
service to the applicable Party at the address for notices to such Party
hereunder.
10.5.3 If a lawyers' Closing, concurrently with the
direction to Escrow Agent to disburse funds from Escrow as provided in Section
10.5.2, the Parties through their respective Transactors and Counsel shall
deliver to each other the items specified in Sections 10.2.2 and 10.3.2 and
Closing shall be deemed completed.
10.5.4 So long as the Title Company is irrevocably committed
to issue the Title Policy as of Closing, it shall not be a condition to
disbursement of funds at Closing that the Deed or any other Transfer Instrument
have first been recorded.
10.6 ESCROW AND RECORDING INSTRUCTIONS. This Agreement shall also
serve as instructions to Escrow Agent regarding the recording of instruments and
disbursement of funds from Escrow; but the Parties shall jointly execute and
deliver to Escrow Agent such supplementary or general instructions as may be
required under any other provision of this Agreement or reasonably
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requested by Escrow Agent. If there is any conflict between such supplementary
general instructions and the provisions of this Agreement, the latter shall
control as between the Parties.
10.7 DELIVERY OF POSSESSION. Seller shall cause possession of the
Hotel to be delivered to Buyer immediately upon Closing, free and clear of all
leases, tenancies and occupancies except for (A) Hotel guests, (B) the Leases
and Assumed Contracts, and (C) possessory rights and interests (if any) included
among the Permitted Exceptions.
10.8 FAILURE OF CLOSING. If Closing fails to occur by the Closing
Date, any Party, if not then in default of its obligations under this Agreement,
shall have the right to terminate this Agreement at any time until Closing
actually occurs, by giving written notice of such termination to the other
Parties and to Escrow Agent.
10.9 PROCEDURE FOR TERMINATION OF ESCROW. Upon any termination of
this Agreement, Seller and Buyer shall each promptly give Escrow Agent written
instructions to cancel Escrow and disburse the Deposit and all other funds and
items (if any) then held in Escrow in accordance with the provisions of this
Agreement. If, following termination of this Agreement, the Parties give Escrow
Agent conflicting instructions or one of the Parties fails to give Escrow Agent
instructions:
10.9.1 Escrow Agent shall promptly notify each Party in
writing of such conflicting instructions or of one Party's failure to give
instructions, and request that such conflict or omission be promptly resolved.
10.9.2 Where one Party has failed to give instructions,
unless Escrow Agent receives written instructions from such Party within five
Business Days after giving notice of such failure, Escrow Agent shall be free to
comply with the instructions given by the other Party and both Parties shall
Indemnify Escrow Agent from any claim or liability resulting from such
compliance.
10.9.3 Where the Parties have given conflicting
instructions, Escrow Agent shall take no action to cancel Escrow or deliver
funds or items out of Escrow except pursuant to further, joint written
instructions from the Parties or a final court order or judgment. If the Parties
fail, within 60 days after Escrow Agent has made requested such joint
instructions, to deliver to Escrow Agent joint written instructions resolving
such disputed matter, Escrow Agent shall have the right to file an action in
interpleader against all the Parties in any court of competent jurisdiction and
to deposit with such court all of the funds and other items held in Escrow,
whereupon Escrow Agent shall be discharged from any further obligations or
liability with respect to Escrow. The Parties, jointly and severally, shall hold
harmless and indemnify Escrow Agent from and against any claim, liability and
expenses resulting from such interpleader action (but, as between Seller and
Buyer, the costs of such interpleader action shall be assessed in accordance
with Section 16.10).
10.10 MAINTENANCE OF CONFIDENTIALITY BY ESCROW AGENT. Except as may
be otherwise required by applicable Law, Escrow Agent shall maintain the
existence, terms and nature of this transaction and the identities of the
Parties in strictest confidence and shall not disclose any thereof to any third
party (including, without limitation, any broker) without the prior written
consent of all the Parties.
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11. POST-CLOSING ADJUSTMENTS.
11.1 FINAL CLOSING STATEMENT. No later than 90 days after Closing,
Buyer shall prepare and deliver to Seller a final Closing statement (the "FINAL
STATEMENT"), which shall correct the estimates and (if necessary) other amounts
used in the Preliminary Statement, based on the Hotel's operating reports for
the month immediately preceding Closing and the month in which Closing occurred,
on Buyer's own post-Closing examination of the books and records of the Hotel
and on other relevant facts discovered after Closing. The Final Statement shall
be binding and conclusive on Buyer and, except for such items as to which Seller
specifically objects in a written notice given to Buyer within 30 days after
Buyer delivers the Final Statement to Seller, on Seller.
11.2 DISPUTES. If Seller gives timely and proper notice of
objection to any item(s) on the Final Statement, and Seller and Buyer are unable
between themselves to resolve each such item within 30 days after Buyer delivers
the Final Statement to Seller, then any Party may submit the unresolved items to
a mutually agreeable national accounting firm (or, if the Parties are unable to
agree on such firm within 40 days after Buyer delivers the Final Statement to
Seller or such firm is unwilling to handle the dispute, to a qualified neutral
party designated by the American Arbitration Association office located in Los
Angeles, California) for a determination which shall be binding and conclusive
upon all Parties and shall be deemed incorporated into the Final Statement.
Seller and Buyer shall pay in equal shares the fees and other expenses of such
accounting firm or other designated neutral party for making such determination.
11.3 SETTLEMENT. Within ten Business Days after Seller has notified
Buyer of its agreement to the Final Statement (or, if earlier, after the Final
Statement has otherwise become binding on Seller under Section 11.1) or, if
later, within ten Business Days after the last timely objection by Seller has
been resolved under Section 11.2, Buyer or Seller (as the case may be) shall pay
to the other the net amount owing on the settlement for the Closing prorations,
credits and other adjustments, as shown by the Final Statement. Except for
mathematical error manifest on the face of the Final Statement, no further
adjustments or payments shall be required with respect to such prorations,
credits and other adjustments.
12. THIRD-PARTY CLAIMS AND OBLIGATIONS.
12.1 ASSUMED AND RETAINED LIABILITIES. Buyer shall Indemnify Seller
from and against any and all Claims that Seller incurs by reason of (A) any
obligation or liability which is assumed by Buyer pursuant to this Agreement, as
provided in Section 2, (B) Buyer's failure to pay any Closing cost allocated to
it under Section 10.4.2. Seller shall Indemnify Buyer from and against any and
all Claims which Buyer incurs by reason of any obligation or liability which is
not assumed by Buyer pursuant to this Agreement, including, without limitation
(i) the Employee Liabilities retained by Seller (ii) any Closing cost allocated
to it under Section 10.4.1, and (iii) any Disputed Payables, but excluding any
Claims arising after Closing due to any condition of the Hotel, whether or not
existing as of the time of Closing. If Buyer, within five Business Days, after
Seller has given Buyer written notice of a Disputed Payable (stating therein the
basis for Seller's objection to paying it), gives Seller written notice of
Buyer's good faith belief that Seller's objection is without substantial merit
(stating therein the basis for Buyer's belief), then Seller shall also Indemnify
Buyer against any actual out-of-
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pocket loss unavoidably suffered by Buyer if the party to whom such Disputed
Payable is owed legally exercises a right to terminates an Assumed Contract for
non-payment.
12.2 EMPLOYEE LIABILITIES.
12.2.1 BUYER'S OBLIGATIONS. Upon Closing Buyer shall:
12.2.1.1 Assume (A) all Employee Liabilities with
respect to the Continuing Employees accruing or first arising on and after the
date on which Buyer or Buyer's Manager hires such employees or triggered by a
termination of employment after Closing by Buyer or Buyer's Manager (except to
the extent that such Employee Liabilities arise under or relate to any Hotel
Employee Plan sponsored, maintained by Seller or Hotel Manager), and (B) all
Employee Liabilities accrued as of Closing, if any, for which Buyer has received
a proration credit under Section 8. In addition, Buyer shall assume the
obligation to pay to the Hotel Employees who are "sales managers" the one-half
balance of their commission with respect to Reservations booked prior to
Closing, due and payable when and if such Reservations are used ("consumed"),
whether or not such Hotel Employees are Continuing Employees.
12.2.1.2 Indemnify Seller and Hotel Manager from and
against any and all Claims arising out of (A) Employee Liabilities assumed by
Buyer under Section 12.2.1.1 or (B) any alleged discrimination by Buyer or
Buyer's Manager in the re-hiring of Hotel Employees.
Notwithstanding anything herein to the contrary, nothing in this Section 12.2.1
shall require Buyer (i) to be responsible for, (ii) withhold any deductions from
compensation payable by Buyer to any Continuing Employee for purposes of
contributing to, or (iii) make any payments on behalf of any Continuing Employee
to, any Hotel Employee Plan sponsored or maintained by Seller or Hotel Manager.
Seller shall take any and all actions necessary, including, but not limited to,
causing the "Section 401(k) plan" maintained by Hotel Manager ("Hotel Manager's
401(k) Plan"), to be amended to (i) cause each Continuing Employee who as of the
Closing Date maintains an account balance in Hotel Manager's 401(k) Plan, to be
fully vested as of the Closing Date in his or her account balance under Hotel
Manager's 401(k) Plan; (ii) permit each Continuing Employee to receive, as soon
as practicable after the Closing Date, a distribution of his or her account
balance in Hotel Manager's 401(k) Plan upon a severance from employment
resulting from his or her termination of employment as described in Section
12.2.2, and (iii) provide that, at the election of each such Continuing
Employee, each distribution made from Hotel Manager's 401(k) Plan which is an
"eligible rollover distribution" (as defined in section 402(c)(4) of the Code)
may be directly rolled over into a similar plan created, maintained or
established by Buyer or by Buyer's Manager (it being understood and agreed that
neither Buyer nor Buyer's Manager shall have any obligation to create, maintain
or establish such a plan to cover Continuing Employees). To the extent
designated by such Continuing Employee, Buyer will cause any tax-qualified
defined contribution plan that Buyer or by Buyer's Manager or operator may in
its sole discretion create or maintain to accept any portion of such Continuing
Employee's distribution which constitutes an "eligible rollover distribution"
(as defined in section 402(c)(4) of the Code), provided that Buyer is satisfied
that (A) Hotel Manager's 401(k) Plan has received a favorable letter of
determination as to its qualification under Section 401(a) of the Code, (B)
Hotel Manager's 401(k) Plan has at all times been administered in conformity
with the terms of such plan and ERISA, and (C) all filing and notification
requirements
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required to property effect such transfer have been timely observed and
performed by Hotel Manager.
12.2.2 SELLER'S OBLIGATIONS. Seller shall cause the Hotel
Manager to terminate the employment of all Hotel Employees effective as of
midnight Closing Eve and shall promptly satisfy all amounts due and owning to
Hotel Employees as salary, wages and Employee Leave through the day prior to the
Closing Date. Seller shall Indemnify Buyer from and against any and all Claims
arising out of any and all (A) Employee Liabilities with respect to Continuing
Employees accruing prior to Closing (except those which are triggered by a
termination of employment by Buyer or Buyer's Manager after Closing or for which
Buyer has received a proration credit under Section 7.2.3), or which Buyer has
otherwise expressly assumed under Section 12.2.1.1, (B) Employee Liabilities
with respect to Hotel Employees who are not Continuing Employees, except for
those which Buyer has expressly assumed under Section 12.2.1.1, and (C) Employee
Liabilities arising under or relating to any Hotel Employee Plan sponsored or
maintained by Seller or Hotel Manager.
12.2.3 WARN NOTICES. Within five Business Days after Buyer
(A) gives Seller written notice of its election to proceed with the purchase of
the Hotel, as provided in Section 4.9, (B) timely makes the Additional Deposit
in accordance with Section 3.3.1, Seller shall cause the applicable WARN Notice
to be sent to each Person entitled to receive such notice under either the WARN
Act or Cal WARN, in accordance with the requirements of such statute.
12.3 INDEMNIFICATION OF RELATED PERSONS. Any indemnification of a
Party against third-Person Claims contained herein shall also run in favor of
such Party's partners, shareholders, beneficial owners, directors, officers,
employees, Affiliates, agents and managers (including, without limitation, Hotel
Manager and Buyer's Manager), all of whom are intended by the Parties to be
third-party beneficiaries of this Section 12.
13. HOTEL RECORDS. As reasonably required for tax filings, preparation and
auditing of financial statements, other reporting and similar purposes, Seller
shall have the right to make and retain copies of the Hotel Records which are
transferred to Buyer at Closing and to disclose information contained therein.
Buyer shall also make the Hotel Records available to Seller and its authorized
representatives at the Hotel, at reasonable times and upon reasonable prior
notice, and allow Seller to make copies thereof; and Buyer shall not dispose of
any Hotel Records prior to the fifth anniversary of Closing without giving
Seller at least 30 days' prior written notice and opportunity to recover the
same.
14. ASSIGNMENT. Neither this Agreement nor any of Buyer's rights hereunder
may be assigned, encumbered or transferred without Seller's prior written
consent. Notwithstanding the foregoing, prior to Closing, Buyer shall have the
right to assign or transfer its rights under this Agreement to an Affiliate of
Buyer, or to Person that is wholly owned and controlled, directly or indirectly,
by Buyer and KSL, or to a Person for which Buyer acts as an investment advisor
(each, a "PERMITTED ASSIGNEE"), provided Buyer gives Seller at least ten days'
prior written notice of such assignment and that such assignee concurrently with
such assignment assumes, in a written instrument delivered and satisfactory in
form to Seller, all of the obligations and liabilities of Buyer hereunder. Upon
any assignment of this Agreement by Buyer make in accordance with this Section
14, such assignee shall become "Buyer" for all purposes of this Agreement and,
so long as such assignee after Closing
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maintains a net worth (on an GAAP basis) of at least $20,000,000, the assignor
after Closing shall have no liability for Buyer's obligations hereunder.
15. NOTICES. Except in the case (if any) where this Agreement expressly
provides for an alternate form of communication, any notice, consent, demand or
other communication to be delivered to a Party hereunder shall be deemed
delivered and received when made in writing and transmitted to the applicable
Party either by receipted courier service, or by the United States Postal
Service, first class registered or certified mail, postage prepaid, return
receipt requested, or by electronic facsimile transmission ("Fax"), at the
address or addresses indicated for such Party below (and/or to such other
address as such Party may from time to time by written notice designate to the
other):
If to Seller: c/o Lowe Enterprises Investment Management, Inc.
00000 Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Bleecker Xxxxxx
Fax: (000) 000-0000
with a copy to: c/o Lowe Enterprises, Hospitality Group Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
Fax: (000) 000-0000
and a copy to: Xxxxxx, Xxxxx & Bockius LLP
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: J. Xxxx Xxxxxx, Esq.
Fax: (000) 000-0000
If to Buyer: CNL Hospitality Corp.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Fax: (000) 000-0000
and copies to: Lowndes Drosdick Xxxxxx Xxxxxx & Xxxx, P.A.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
and to Xxxxx Xxxxxxx Xxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
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and shall be deemed delivered and received (A), if delivered or transmitted
before 5:00 p.m. recipient's local time on a Business Day, or if tendered for
delivery between the hours 9:00 a.m. and 5:00 p.m. recipient's local time on a
Business Day and refused, then on the date of actual (or refused) delivery or
actual transmission as evidenced by postal or courier receipt (or by a completed
transmission log sheet generated by the sending telecopier) and (B), otherwise,
on the Business Day next following the date of actual delivery or transmission;
provided, however, that any communication delivered by Fax must be confirmed
within three Business Days by duplicate notice delivered as otherwise provided
herein.
16. GENERAL PROVISIONS.
16.1 CONFIDENTIALITY. Except for Permitted Disclosures (defined
below), (A) Buyer shall keep confidential the terms of this Agreement, and (B)
until and unless the Closing occurs, Buyer shall keep confidential all
non-public information regarding the Hotel. In addition, except as required by
Law, no party shall issue press release or communication with the public prior
to Closing without the prior written consent of the other. As used herein,
"Permitted Disclosures" include only (i) disclosures by Buyer to its Affiliates,
attorneys, accountants and other consultants and prospective lender (and such
lender's attorneys and consultants) as reasonably necessary in negotiation of
this Agreement, the conduct of due diligence, the consummation of the
transactions contemplated hereby and the exercise of Buyer's rights and the
performance its duties hereunder, (ii) disclosures to KSL, as Buyer's Manager,
and KSL's attorneys, accountants and other consultants and prospective lender
(and such lender's attorneys and consultants) as reasonably necessary to KSL's
due diligence and financing of its part in this transaction, provided that KSL
first agrees in writing, on behalf of itself and all such related disclosees, to
keep confidential all information regarding the Hotel disclosed to them and
otherwise to comply with this Section 16.1, (iii) disclosure to any government
regulatory agency which requests the information in question in the course of
its regulatory functions, and (iv) any other disclosure required by Law
(including, without limitation, in response to any subpoena). In the case of any
Permitted Disclosure described in clause (i) above, Buyer shall advise the
Person to whom such disclosure is made of the confidential nature of any
information disclosed and obtain from such Person an undertaking to respect such
confidentiality. Any confidentiality agreement regarding the Hotel or the
transaction contemplated by this Agreement previously made between the Parties
or their agents shall continue in full force and effect and shall not be deemed
to have merged into, or been superseded by, this Agreement, subject to the
following. Notwithstanding anything else in this Agreement or any such prior
confidentiality agreement between the Parties to the contrary, each Party (and
each employee, representative, or other agent of any Party) may disclose to any
and all Persons, without limitation of any kind, the federal income tax
treatment and federal income tax structure of any and all transaction(s)
contemplated hereby and all materials of any kind (including opinions or other
tax analyses) that are or have been provided to any Party (or to any employee,
representative, or other agent of any Party) relating to such tax treatment or
tax structure, provided, however, that this authorization of disclosure shall
not apply to restrictions reasonably necessary to comply with securities laws.
This authorization of disclosure is retroactively effective immediately upon
commencement of the first discussions between the Parties regarding the
transactions contemplated hereby, and the Parties aver and affirm that this tax
disclosure authorization has been given on a date which is no later than 30 days
from the first day that any Party (or any employee,
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representative, or other agent of a Party) first made or provided a statement as
to the potential federal income tax consequences that may result from the
transactions contemplated hereby
16.2 EFFECT OF TERMINATION. Upon any termination of this Agreement,
no Party shall have any further obligation or liability to the other hereunder
except (i) as provided below (regarding Buyer's return or destruction of
materials received from Seller), (ii) any liability which any Party may have
hereunder by reason of the fact that termination either (A) was wrongfully made
by it or (B) resulted from a breach of its covenants or other obligations
hereunder and (iii) any obligation under Sections 4.7 or 16.10. Within 30 days
after termination of this Agreement without Closing, Buyer shall either return
to Seller all materials of a confidential nature which Buyer has received from
Seller pursuant to this Agreement or confirm to Seller in writing that Buyer has
destroyed all such materials. Within 30 days after Seller's request following
the termination of this Agreement without Closing, Buyer shall deliver to Seller
all reports, studies and analyses prepared by third parties at Buyer's request
or direction relating to the Hotel Premises (unless this Agreement has been
terminated due to the default of Seller).
16.3 CONSTRUCTION; PARTICIPATION IN DRAFTING. Each Party
acknowledges that it and it Counsel have participated substantially in the
drafting of this Agreement and agree that, accordingly, in the interpretation
and construction of this Agreement, no ambiguity, real or apparent, in any
provision hereof shall be construed against a Party by reason of the role of
such Party or its Counsel in the drafting of such provision.
16.4 NO THIRD-PARTY BENEFICIARIES. Except as expressly provided in
Section 12.3, nothing in this Agreement is intended or shall construed to confer
any rights or remedies on any Person other than the Parties and their active
successors and assigns, or to relieve, discharge or alter the obligations of any
third Person to either Party or to give any third Person any right of
subrogation or action over against Party. Without limiting the generality of the
foregoing, no Hotel Employee shall be deemed a third party beneficiary of any
provision of this Agreement.
16.5 INTEGRATION AND BINDING EFFECT. This Agreement constitutes the
entire agreement among the Parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings and representations of the
Parties with respect to the subject matter hereof (including, without
limitation, any letter of intent, offer sheet, broker's set-up, disclosure
materials, offering circular or other such written materials of any kind). This
Agreement may not be modified, amended, supplemented or otherwise changed,
except by a writing executed by all Parties. Except as otherwise expressly
provided herein, this Agreement shall bind and inure to the benefit of the
Parties and their respective successors and assigns.
16.6 SURVIVAL OF PROVISION. In addition to any express provisions
for survival of obligations in this Agreement, the Parties' respective
obligations and liability under the following provisions shall survive Closing
(subject to any limitations on their survival contained in such provisions):
4.7, 5.1, 5.2, 5.3, 7.2.2, 7.2.3, 7.4 (as to Buyer's indemnification of Seller
only), 11, 12, 13, 16.1, 16.9, 16.10 and 19.
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16.7 COMPUTATION OF TIME. Any time period specified in this
Agreement which would otherwise end on a non-Business Day shall automatically be
extended to the immediately following Business Day.
16.8 CAPTIONS. Article and section headings used herein are for
convenience of reference only and shall not affect the construction of any
provision of this Agreement.
16.9 FURTHER ASSURANCES. The Parties shall cooperate with each
other as reasonably necessary to effect the provisions of this Agreement, shall
use reasonable and good faith efforts to satisfy conditions to Closing and, at
and after Closing, shall each execute and deliver such additional instruments or
other documents as the other Party may reasonably request to accomplish the
purposes and intent of this Agreement; provided, however, that nothing in this
Section shall be deemed to enlarge the obligations of the Parties hereunder or
to require any to incur any material expense or liability not otherwise required
of it hereunder.
16.10 ENFORCEMENT COSTS. Should either Buyer or Seller institute any
action or proceeding to enforce any provision of this Agreement or for damages
by reason of any alleged breach of any provision hereof, the prevailing Party
shall be entitled to recover from the other Party all costs and expenses
(including reasonable attorneys' fees) incurred by such prevailing Party in
connection with such action or proceeding. A Party also shall be entitled to
recover all costs and expenses (including reasonable attorneys' fees) incurred
in the enforcement of any judgment or settlement in its favor obtained in such
action or proceeding (and in any such judgment provision shall be made for the
recovery of such post-judgment costs and expenses.)
16.11 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE AN
AGREEMENT MADE UNDER THE LAW OF THE STATE CALIFORNIA AND FOR ALL PURPOSES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH SUCH LAWS.
16.12 COUNTERPARTS. This Agreement, and any amendment hereto, may be
executed in any number of counterparts and by each Party on Separate
counterparts, each of which when executed and delivered shall be deemed an
original and all of which taken together shall constitute but one and the same
instrument.
17. EXHIBITS. Each of the following exhibits is hereby incorporated into
and made an integral of this Agreement:
A Legal Description of Hotel Parcel
B Form of Deed
C Form of Xxxx of Sale
D Form of Assignment and Assumption of Leases
E Form of Assignment and Assumption of Assumed Contracts
F Form of General Assignment and Assumption
G Form of FIRPTA Certificate
H Exceptions to Seller Representations
I Schedule of Leases
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J Schedule of Contracts
K Schedule of Employee Benefit Plans
L Form of Rosemont Guaranty
M Current Operating Budget
N Schedule of Environmental Report and Existing Survey
O Form of Tenant Notification
P Form of Vendor Notification
Q Schedule of Approved Capital Expenditures
R Schedule of Retail Inventory
S Form of Seller's Closing Certificate
T Schedule of Expansion Entitlements
U Schedule of Registered Marks
V Schedule of Membership Agreements
W Form of WARN Notices
Seller shall have until (and including) the tenth Business Day after the
Effective Date to prepare and deliver to Buyer, Exhibits H, I, J, K, Q, R, T, U,
V and W or modifications thereof. Any modification of such Exhibits that Seller
timely delivers shall supplement or supersede (as the case may be) the prior
version of such Exhibit for all purposes of this Agreement.
18. SIGNERS' WARRANTY. Each individual executing and delivering this
Agreement on behalf of a corporate Party hereby warrants and represents to the
other Parties that he or she is duly authorized and empowered to do so.
19. WAIVER OF JURY TRIAL. EACH OF SELLER AND BUYER HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVES THE RIGHT WHICH ANY OF THE UNDERSIGNED MAY
HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BETWEEN THE PARTIES,
INCLUDING, BUT NOT LIMITED TO, WITH RESPECT TO ANY AND ALL CAUSE OR CAUSES OF
ACTION, DEFENSES, COUNTERCLAIMS, CROSS-CLAIMS, THIRD PARTY CLAIMS, AND
INTERVENOR'S CLAIMS, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, REGARDLESS OF THE CAUSE OR
CAUSES OF ACTION, DEFENSES OR COUNTERCLAIMS ALLEGED OR THE RELIEF SOUGHT BY ANY
PARTY, AND REGARDLESS OF WHETHER SUCH CAUSES OF ACTION, DEFENSES OR
COUNTERCLAIMS ARE BASED ON, OR ARISE OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ITS SUBJECT MATTER, OUT OF ANY ALLEGED CONDUCT OR COURSE OF
CONDUCT, DEALING OR COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN),
OR OTHERWISE. ANY PARTY HERETO MAY FILE A COPY OF THIS AGREEMENT WITH ANY COURT
AS CONCLUSIVE EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF ANY
RIGHT THEY MAY HAVE TO TRIAL BY JURY.
20. LIMITATION ON REMEDIES FOR SELLER'S BREACH.
20.1 PROHIBITION ON SPECIFIC PERFORMANCE AND LIS PENDENS. If Seller
in breach of this Agreement fails to close, Buyer shall, except as expressly
permitted by Section 20.2, be limited to an
-52-
action for monetary damages only and shall have no right to seek specific
performance or to record a lis pendens against the Hotel Premises. Except as
expressly permitted by Section 20.2, this provision shall be an absolute bar to
any action by Buyer for specific performance of this Agreement and Seller shall
be entitled to the immediate expungement of any lis pendens filed by Buyer
against the Hotel Premises. If Buyer, except as expressly permitted by Section
20.2, brings an action for specific performance of the Agreement, or records a
lis pendens against the Hotel Premises, or otherwise creates any cloud on
Seller's title to the Hotel Premises, Buyer shall hold harmless and indemnify
Seller from and against all costs, expenses (including attorneys' fees) and
losses which Seller incurs by reason thereof.
20.2 EXCEPTION FOR WILLFUL BREACH. Notwithstanding Section 20.1, if
Seller, in breach of this Agreement, fails to close, Buyer may in lieu of an
action for monetary damages bring an action for specific performance of Seller's
obligation to close, subject to strict compliance with each of the following
conditions:
20.2.1 Buyer gives Seller at least ten Business Days' prior
written notice of its intention to commence such an action;
20.2.2 Buyer commences such action, and serves Seller with a
complaint therein, within 30 days after the Last Closing Date (which 30-day
period shall be extended, day for day, for any period of time during which Buyer
is barred from filing such action by reason of a temporary restraining order,
injunction or other order of court obtained by Seller);
20.2.3 Such action, to the extent seeking specific
performance (or other equitable relief) is limited to an action to compel Seller
to deliver into Escrow the Deed and other Seller's Closing Documents actually
required to convey the Property free of Liens and to perform Seller's other
obligations to be performed at Closing and does not seek specific performance of
any other covenant or warranty of Seller hereunder (including, without
limitation, any covenant or warranty contained in Sections 5.1 or 6), or the
correction of any condition respecting the Property; or any abatement of the
Purchase Price; provided, however, that the foregoing shall not bar Buyer, after
it has acquired the Property, from bringing an action to recover monetary
damages for any breach of covenant or representation contained in Sections 5.1
or 6 or any provision hereof intended to survive Closing as provided in Section
16.6, to the extent otherwise permitted to do so; and
20.2.4 During the pendency of such action, the Deposit
remains in Escrow (or is deposited with the court hearing such action);
provided, however, that if Seller, at any time during the pendency of such
action, delivers the Deed and other required Seller's Closing Documents into
Escrow (or into the court before which such action is pending), including (if a
Casualty has occurred) an assignment or delivery (as applicable) to Buyer of
Proceeds to the extent required under Section 9.3), and authorizes Closing in
accordance with Section 10 (other than as to time of Closing), including
instructions to Escrow Agent to apply the proceeds of the Purchase Price to the
payment of any Lien that would otherwise appear as an exception on the Title
Policy and that Seller is obligated to discharge (altogether, "Seller's
Compliance"), Buyer shall either proceed immediately to close the purchase of
the Property or immediately to dismiss such action to the extent it seeks
specific performance or other equitable
-53-
relief and expunge from the record any lis pendens Buyer has filed. By electing
to seek specific performance under this Section 20.2, Buyer shall be deemed to
have waived any claim or right to monetary damages for Seller's failure to
close, other than such damages for delay as are customarily awarded in
conjunction with specific performance of an obligation to sell real property
(but, if such action results in Buyer's purchasing the Property, such waiver
shall not apply to any claim for damages for Seller's subsequent breach of any
of its post-Closing obligations under this Agreement) or which Buyer is
otherwise permitted to make pursuant to the proviso contained in Section
20.2.3). If Buyer brings or maintains an action for specific performance other
than as expressly permitted under this Section 20.2, or fails to close the
purchase of the Property within 30 days after Seller's Compliance, Seller shall
have the right to terminate this Agreement and recover the Deposit as liquidated
damages under Section 21 Notwithstanding the foregoing, if solely as a result of
Seller's breach of its obligation to close Lender withholds or revokes its
consent to Buyer's assumption of the Existing Loan (or, if Buyer has waived the
condition in Section 9.1.5 and obtained a binding commitment for alternative
debt financing, the lender under such commitment terminates the same solely as a
result of Seller's breach of its obligation to close), Buyer shall have until 90
days after Seller's Compliance to obtain either Lender's consent to assumption
of the Existing Loan or alternative financing; but by the end of such 90-day
period (or by such earlier date as Buyer ceases diligent efforts to obtain such
consent or alternative financing), if Seller has not either closed the purchase
of the Property or dismissed its action for specific performance (and expunged
any lis pendens), Seller shall have the right to terminate this Agreement and
recover the Deposit as liquidated damages under Section 21.
21. LIQUIDATED DAMAGES FOR BUYER'S BREACH. IF CLOSING FAILS TO OCCUR ON OR
BEFORE THE LAST CLOSING DATE DUE TO A MATERIAL BREACH OF BUYER'S OBLIGATIONS
HEREUNDER, THEN UPON WRITTEN NOTICE OF TERMINATION (A "TERMINATION NOTICE") FROM
SELLER TO BUYER AND ESCROW AGENT, THIS AGREEMENT SHALL TERMINATE (EXCEPT FOR
THIS SECTION AND BUYER'S OBLIGATIONS PURSUANT TO SECTIONS 4.7, 16.2, 7.4 (AS TO
BUYER'S INDEMNIFICATION OF SELLER ONLY), AND 16.10). THE PARTIES ACKNOWLEDGE AND
AGREE BY INITIALING THIS SECTION 20 THAT:
21.1 IF BUYER FAILS TO CLOSE IN BREACH OF THIS AGREEMENT, SELLER
WILL INCUR CERTAIN COSTS AND OTHER DAMAGES IN AN AMOUNT THAT WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICAL TO ASCERTAIN.
21.2 THE DEPOSIT, TOGETHER WITH ALL INTEREST EARNED THEREON, BEARS
A REASONABLE RELATIONSHIP TO THE DAMAGES WHICH THE PARTIES ESTIMATE MAY BE
SUFFERED BY SELLER BY REASON OF SUCH A FAILURE OF CLOSING TO OCCUR, AND THE
DEPOSIT AND INTEREST IS NOT AN AMOUNT WHICH IS UNREASONABLE UNDER THE
CIRCUMSTANCES EXISTING AT THE TIME THIS AGREEMENT IS MADE (BUYER ACKNOWLEDGING
AND AGREEING THAT BUYER HAS FULLY CONSIDERED THE PROVISIONS OF THIS SECTION 20
AND SUCH CIRCUMSTANCES PRIOR TO ENTERING INTO THIS AGREEMENT AND HAS CONSULTED
WITH BUYER'S COUNSEL WITH RESPECT THERETO); AND
-54-
21.3 UPON DELIVERY TO ESCROW AGENT BY SELLER OF A PROPERLY GIVEN
TERMINATION NOTICE, SELLER SHALL BE ENTITLED TO RECEIVE AND RETAIN THE DEPOSIT,
TOGETHER WITH ALL INTEREST EARNED THEREON, AS LIQUIDATED DAMAGES, WHICH DAMAGES
SHALL BE SELLER'S SOLE REMEDY HEREUNDER IF BUYER IN BREACH OF THIS AGREEMENT
FAILS TO CLOSE, AND BUYER SHALL FORTHWITH INSTRUCT ESCROW AGENT TO RELEASE THE
DEPOSIT AND ALL INTEREST EARNED THEREON TO SELLER AND TO RETURN TO SELLER ALL
DOCUMENTS AND INSTRUMENTS THERETOFORE DEPOSITED INTO THE ESCROW BY OR ON BEHALF
OF THEM; PROVIDED, HOWEVER, THAT THE DEPOSIT SHALL BE IN ADDITION TO AND NOT IN
LIEU OF ANY AMOUNTS OWED TO SELLER BY BUYER AS A RESULT OF BUYER'S OBLIGATIONS
PURSUANT TO SECTIONS 4.7, 16.2 AND 16.10; AND PROVIDED FURTHER THAT SELLER SHALL
BE ENTITLED TO RECOVER FROM BUYER ATTORNEYS' FEES AND OTHER DIRECT OUT-OF-POCKET
COSTS INCURRED BY THEM IN CONNECTION WITH THE ENFORCEMENT OR DEFENSE OF
OBLIGATIONS CONTAINED IN THIS SECTION 20.
IN FURTHER EVIDENCE OF THEIR AGREEMENT TO THIS LIQUIDATED DAMAGES
PROVISION, SELLER AND BUYER HAVE INITIALED BELOW:
SELLER: RES BUYER: TJH
22. JOINT AND SEVERAL LIABILITY. The liability of the entities comprising
Seller, and the liability of Buyer and any assignee(s) of Buyer's rights, title
and interest under this Agreements, shall be joint and several.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed and delivered, each by its own representative thereunto duly
authorized, as of the date first above written.
SELLER: L-O CORONADO HOLDING II, INC., a
Delaware corporation
DATED: September 23, 2003 By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: EVP
L-O CORONADO HOTEL, INC., a Delaware
corporation
DATED: September 23, 2003 By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: EVP
L-O CORONADO IP, INC., a Delaware
corporation
DATED: September 23, 2003 By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: EVP
BUYER: CNL HOSPITALITY CORP., a Florida
corporation
DATED: September 23, 2003 By: /s/ Xxxxxx X. Xxxxxxxxx III
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx, III
Title: CEO
[ESCROW AGENT'S SIGNATURE ON THE FOLLOWING PAGE]
The undersigned hereby accepts this Agreement as its escrow instructions and
agrees to act as Escrow Agent hereunder, in accordance with the terms and
conditions hereof.
FIRST AMERICAN TITLE INSURANCE COMPANY
By: /s/ Xxxxxxx Xxxx
---------------------------
Name: Xxxxxxx Xxxx
Title: Certified Escrow Officer
Date: September 25, 2003
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS
1. Definitions............................................................................................ 1
1.1 Account....................................................................................... 1
1.2 Affiliate..................................................................................... 1
1.3 Approval Date................................................................................. 1
1.4 Approved Capital Expenditures................................................................. 1
1.5 Assumed Contracts............................................................................. 1
1.6 Xxxx of Sale.................................................................................. 1
1.7 Business Day.................................................................................. 2
1.8 Buyer's Knowledge............................................................................. 2
1.9 Buyer's Manager............................................................................... 2
1.10 Cal WARN...................................................................................... 2
1.11 Cash Bank..................................................................................... 2
1.12 Claim......................................................................................... 2
1.13 Closing....................................................................................... 2
1.14 Closing Date.................................................................................. 2
1.15 Closing Documents............................................................................. 3
1.16 Closing Eve................................................................................... 3
1.17 Collective Bargaining Agreements.............................................................. 3
1.18 Committed Capital Expenditures................................................................ 3
1.19 Continuing Employees.......................................................................... 3
1.20 Contracts..................................................................................... 3
1.21 Contract Assignment........................................................................... 3
1.22 Counsel....................................................................................... 3
1.23 Day........................................................................................... 3
1.24 Deed.......................................................................................... 3
1.25 Deposit....................................................................................... 3
1.26 Development Agreement......................................................................... 3
1.27 Development Agreement Assignment.............................................................. 3
i
TABLE OF CONTENTS
(continued)
PAGE
1.28 Development Agreement Statement of Compliance................................................. 3
1.29 Disputed Payable.............................................................................. 4
1.30 Effective Date................................................................................ 4
1.31 Employee Leave................................................................................ 4
1.32 Employee Liabilities.......................................................................... 4
1.33 Environmental Report.......................................................................... 4
1.34 Equipment Lease............................................................................... 4
1.35 ERISA......................................................................................... 4
1.36 Escrow........................................................................................ 5
1.37 Escrow Agent.................................................................................. 5
1.38 Estoppel Certificate.......................................................................... 5
1.39 Existing Loan................................................................................. 5
1.40 Expansion Entitlements........................................................................ 5
1.41 Existing Survey............................................................................... 5
1.42 Extended Coverage............................................................................. 5
1.43 FF&E.......................................................................................... 5
1.44 Final Statement............................................................................... 6
1.45 FIRPTA Certificate............................................................................ 6
1.46 General Assignment............................................................................ 6
1.47 Governmental Authority........................................................................ 6
1.48 Hazardous Substance........................................................................... 6
1.49 HDC LLC....................................................................................... 6
1.50 Hotel......................................................................................... 6
1.51 Hotel Employee Plan........................................................................... 6
1.52 Hotel Employees............................................................................... 7
1.53 Hotel Improvements............................................................................ 7
1.54 Hotel Manager................................................................................. 7
1.55 Hotel Management Agreement.................................................................... 7
1.56 Hotel Operating Reports....................................................................... 7
1.57 Hotel Parcel.................................................................................. 7
ii
TABLE OF CONTENTS
(continued)
PAGE
1.58 Hotel Payable................................................................................. 7
1.59 Hotel Premises................................................................................ 7
1.60 Hotel Records................................................................................. 7
1.61 Indemnify..................................................................................... 8
1.62 Initial Deposit............................................................................... 8
1.63 Intangibles................................................................................... 8
1.64 Inventory..................................................................................... 8
1.65 IP License Agreement.......................................................................... 8
1.66 KSL........................................................................................... 8
1.67 Laws.......................................................................................... 8
1.68 Last Closing Date............................................................................. 8
1.69 Lease......................................................................................... 9
1.70 Lease Assignment.............................................................................. 9
1.71 Leased Equipment.............................................................................. 9
1.72 Lender........................................................................................ 9
1.73 Licensed Premises............................................................................. 9
1.74 Lien.......................................................................................... 9
1.75 Liquor Inventory.............................................................................. 9
1.76 Liquor License................................................................................ 9
1.77 Liquor Operations............................................................................. 9
1.78 Loan Agreement................................................................................ 9
1.79 Marks......................................................................................... 9
1.80 Material Adverse Effect....................................................................... 9
1.81 Member........................................................................................ 10
1.82 Membership Agreements......................................................................... 10
1.83 Natural Hazard Report......................................................................... 10
1.84 Objectionable Title Matters................................................................... 10
1.85 Official Records.............................................................................. 10
1.86 Operating Lease............................................................................... 10
1.87 Ordinary Course............................................................................... 10
iii
TABLE OF CONTENTS
(continued)
PAGE
1.88 Original...................................................................................... 10
1.89 Paid Voucher.................................................................................. 10
1.90 Permit........................................................................................ 10
1.91 Permitted Assignee............................................................................ 10
1.92 Permitted Exceptions.......................................................................... 10
1.93 Person........................................................................................ 11
1.94 PIK Voucher.................................................................................. 11
1.95 Place of Closing.............................................................................. 11
1.96 Preliminary Statement......................................................................... 11
1.97 Purchase Price................................................................................ 11
1.98 Repair Warranties............................................................................. 11
1.99 Reservation................................................................................... 11
1.100 Reservation Deposit........................................................................... 11
1.101 Retail Inventory.............................................................................. 11
1.102 Rosemont Guaranty............................................................................. 11
1.103 Seller's Advisor.............................................................................. 11
1.104 Seller's Closing Certificate.................................................................. 11
1.105 Seller's Closing Documents.................................................................... 11
1.106 Seller's Lease Certificate.................................................................... 12
1.107 Seller's Knowledge............................................................................ 12
1.108 Service Contract.............................................................................. 12
1.109 Survey........................................................................................ 12
1.110 Taxes......................................................................................... 12
1.111 Title Company................................................................................. 12
1.112 Title Report.................................................................................. 12
1.113 Title Policy.................................................................................. 12
1.114 Transactor.................................................................................... 12
1.115 Transfer Instruments.......................................................................... 12
1.116 True and Complete Copy........................................................................ 13
1.117 Uniform System of Accounts.................................................................... 13
iv
TABLE OF CONTENTS
(continued)
PAGE
1.118 Unpaid Voucher................................................................................ 13
1.119 Voucher....................................................................................... 13
1.120 WARN Act...................................................................................... 13
1.121 WARN Notices.................................................................................. 13
1.122 Other Definitions............................................................................. 13
2. Covenant of Purchase and Sale.......................................................................... 13
3. Purchase Price and Deposit............................................................................. 14
3.1 Amount of Purchase Price...................................................................... 14
3.2 Allocation of Price........................................................................... 14
3.3 Deposit....................................................................................... 14
3.3.1 Amount and Delivery.................................................................. 14
3.3.2 Investment........................................................................... 14
3.3.3 Disposition.......................................................................... 14
3.4 EINs.......................................................................................... 15
4. Title and Due Diligence Conditions..................................................................... 15
4.1 Title Report and Survey....................................................................... 15
4.2 Objectionable Title Matters and Permitted Exceptions.......................................... 15
4.3 Cure of Objectionable Title Matters........................................................... 15
4.4 Termination for Objectionable Title Matter.................................................... 15
4.5 Extension of Closing Date for Notice and Cure................................................. 16
4.6 Access to Property and Records................................................................ 16
4.7 Indemnification............................................................................... 17
4.8 Due Diligence Materials....................................................................... 17
4.9 Buyer's Right of Termination.................................................................. 18
5. Representations........................................................................................ 19
5.1 By Seller..................................................................................... 19
5.1.1 Regarding the Hotel.................................................................. 19
5.1.2 Regarding the Existing Loan.......................................................... 22
5.1.3 Regarding Seller..................................................................... 22
5.2 By Buyer...................................................................................... 23
v
TABLE OF CONTENTS
(continued)
PAGE
5.3 WAIVER AND RELEASE............................................................................ 25
5.4 Survival and Limitations...................................................................... 25
5.5 Guaranty...................................................................................... 26
5.6 Notice of Subsequent Event or Discovery....................................................... 26
6. Operation of the Hotel Pending Closing................................................................. 26
7. Other Agreements....................................................................................... 28
7.1 Operating Lease; Property Management Agreement; IP License Agreement.......................... 28
7.2 Liquor License(s) and Inventory............................................................... 29
7.2.1 Application for New Licenses......................................................... 29
7.2.2 Transfer of Liquor Inventory......................................................... 29
7.2.3 Transitional Arrangements............................................................ 29
7.3 Property of Guests............................................................................ 30
7.4 Assumption of Existing Loan................................................................... 30
7.5 Development Agreement Statement of Compliance................................................. 31
7.6 Tax Clearance Certificate..................................................................... 32
7.7 Shadow Management............................................................................. 32
7.8 Residual Payments with respect to Works of Art in FF&E........................................ 32
8. Prorations, Credits and Other Adjustments.............................................................. 32
8.1 Proration of Taxes............................................................................ 33
8.2 Proration of Expenses......................................................................... 33
8.3 Proration of Hotel Revenues................................................................... 34
8.3.1 Guest Ledger......................................................................... 34
8.3.2 Bar and Restaurant Revenues.......................................................... 34
8.3.3 Rents and other Operating Revenues................................................... 34
8.3.4 Other Hotel Receivables.............................................................. 35
8.4 Hotel Payables................................................................................ 35
8.5 Other Credits to Buyer........................................................................ 35
8.5.1 Credits for Reservation Deposits and Security Deposits............................... 35
8.5.2 Credit for Existing Loan Balances.................................................... 35
vi
TABLE OF CONTENTS
(continued)
PAGE
8.5.3 Credit for Vouchers.................................................................. 35
8.6 Other Credits to Seller....................................................................... 36
8.6.1 Credits for Cash Banks............................................................... 36
8.6.2 Credit for Prepaid Expenses.......................................................... 36
8.6.3 Credit for Retail Inventories........................................................ 36
8.7 Regarding Hotel Prorations Generally.......................................................... 36
8.8 Utility Deposits.............................................................................. 36
9. Conditions to Closing.................................................................................. 36
9.1 In Buyer's Favor.............................................................................. 36
9.1.1 Performance of Seller's Obligations.................................................. 36
9.1.2 Accuracy of Representations.......................................................... 36
9.1.3 Satisfactory Title Policy............................................................ 36
9.1.4 Physical Condition................................................................... 37
9.1.5 Consent of Lender.................................................................... 37
9.1.6 Tenant Estoppel Certificates......................................................... 37
9.1.7 Statement of Compliance.............................................................. 37
9.2 In Seller's Favor............................................................................. 38
9.2.1 Performance of Buyer's Obligations................................................... 38
9.2.2 Accuracy of Representations.......................................................... 38
9.2.3 Consent of Lender.................................................................... 38
9.3 Pre-Closing Damage or Destruction............................................................. 38
9.3.1 Termination Rights................................................................... 38
9.3.2 If No Termination.................................................................... 39
9.3.3 Material Part........................................................................ 39
10. Closing................................................................................................ 39
10.1 Time, Place and Manner........................................................................ 39
10.2 Seller's Deliveries........................................................................... 40
10.2.1 Pre-Closing.......................................................................... 40
10.2.2 At Closing........................................................................... 40
10.3 Buyer's Deliveries:........................................................................... 41
vii
TABLE OF CONTENTS
(continued)
PAGE
10.3.1 Pre-Closing.......................................................................... 41
10.3.2 At Closing........................................................................... 41
10.4 Closing Costs................................................................................. 41
10.4.1 Paid By Seller....................................................................... 41
10.4.2 Paid by Buyer........................................................................ 42
10.4.3 Other Closing Costs.................................................................. 42
10.5 Completion of Closing......................................................................... 43
10.6 Escrow and Recording Instructions............................................................. 43
10.7 Delivery of Possession........................................................................ 44
10.8 Failure of Closing............................................................................ 44
10.9 Procedure for Termination of Escrow........................................................... 44
10.10 Maintenance of Confidentiality by Escrow Agent................................................ 44
11. Post-Closing Adjustments............................................................................... 45
11.1 Final Closing Statement....................................................................... 45
11.2 Disputes...................................................................................... 45
11.3 Settlement.................................................................................... 45
12. Third-Party Claims and Obligations..................................................................... 45
12.1 Assumed and Retained Liabilities.............................................................. 45
12.2 Employee Liabilities.......................................................................... 46
12.2.1 Buyer's Obligations.................................................................. 46
12.2.2 Seller's Obligations................................................................. 47
12.2.3 WARN Notices......................................................................... 47
12.3 Indemnification of Related Persons............................................................ 47
13. Hotel Records.......................................................................................... 47
14. Assignment............................................................................................. 47
15. Notices................................................................................................ 48
16. General Provisions..................................................................................... 49
16.1 Confidentiality............................................................................... 49
16.2 Effect of Termination......................................................................... 50
16.3 Construction; Participation in Drafting....................................................... 50
viii
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(continued)
PAGE
16.4 No Third-Party Beneficiaries.................................................................. 50
16.5 Integration and Binding Effect................................................................ 50
16.6 Survival of Provision......................................................................... 50
16.7 Computation of Time........................................................................... 51
16.8 Captions...................................................................................... 51
16.9 Further Assurances............................................................................ 51
16.10 Enforcement Costs............................................................................. 51
16.11 GOVERNING LAW................................................................................. 51
16.12 Counterparts.................................................................................. 51
17. Exhibits............................................................................................... 51
18. Signers' Warranty...................................................................................... 52
19. Waiver of Jury Trial................................................................................... 52
20. Limitation on Remedies for Seller's Breach............................................................. 52
20.1 Prohibition on Specific Performance and Lis Pendens........................................... 52
20.2 Exception for Willful Breach.................................................................. 53
21. LIQUIDATED DAMAGES FOR BUYER'S BREACH.................................................................. 54
22. Joint and Several Liability............................................................................ 55
[ESCROW AGENT'S SIGNATURE ON THE FOLLOWING PAGE................................................................. 1
EXHIBITS:
ix
TABLE OF CONTENTS
(continued)
PAGE
A Legal Description of Hotel Parcel
B Form of Deed
C Form of Xxxx of Sale
D Form of Assignment and Assumption of Leases
E Form of Assignment and Assumption of Assumed Contracts
F Form of General Assignment and Assumption
G Form of FIRPTA Certificate
H Exceptions to Seller Representations
I Schedule of Leases
J Schedule of Contracts
K- Schedule of Employee Benefit Plans
L Form of Rosemont Guaranty
M Current Operating Budget
N Schedule of Environmental Report and Existing Survey
O Form of Tenant Notification
P Form of Vendor Notification
Q Schedule of Approved Capital Expenditures
R Schedule of Retail Inventory
S Form of Seller's Closing Certificate
T Schedule of Expansion Entitlements
U Schedule of Registered Marks
V Schedule of Membership Agreements
W Form of WARN Notices
x
