EXHIBIT 10.10
SPONSOR ENTITY RIGHT OF FIRST REFUSAL AGREEMENT
BY AND AMONG
XXXX X. XXXXXXX,
REVOCABLE TRUST OF XXXX X. XXXXXXX,
XXXXXXX OF NEW MEXICO, LLC,
XXXXXXX OF FRISCO, LLC,
XXXXXXX OF COLORADO, LLC,
XXXXXXX OF ARKANSAS, LLC,
XXXXXXX OF SOUTH CAROLINA, LLC, AND
CITY CENTER HOTEL CORPORATION
XXXXXXX OF HUNTSVILLE, LLC
XXXXXXX OF LINCOLN, LLC
XXXXXXX OF FRANKLIN, LLC
XXXXXXX OF XXXXXXXXXX, LLC
XXXXXXXXXX XXXXXXX XX
XXXX X. XXXXXXX CENTER, LLC
(COLLECTIVELY, "JQH ENTITIES")
AND
JD HOLDINGS, LLC AND ANY AFFILIATE THEREOF
(COLLECTIVELY, "SPONSOR ENTITY"),
Dated as of ____________, 2005
SPONSOR ENTITY RIGHT OF FIRST REFUSAL AGREEMENT
THIS RIGHT OF FIRST REFUSAL AGREEMENT (this "Agreement") is made as of
_____________, 2005 by and among Xxxx X. Xxxxxxx ("JQH"), the Revocable Trust of
Xxxx X. Xxxxxxx, dated December 28, 1989, as amended and restated (the "JQH
Trust"), Xxxxxxx of New Mexico, LLC, Xxxxxxx of Frisco, LLC, Xxxxxxx of
Colorado, LLC, Xxxxxxx of Arkansas, LLC, Xxxxxxx of South Carolina, LLC, City
Center Hotel Corporation, Xxxxxxx of Huntsville, LLC, Xxxxxxx of Lincoln, LLC,
Xxxxxxx of Franklin, LLC, Xxxxxxx of Xxxxxxxxxx, LLC, Xxxxxxxxxx Xxxxxxx, XX and
Xxxx X. Xxxxxxx Center, LLC (collectively, with JQH and any other entity
directly or indirectly controlled by JQH which owns a Hotel Property
(hereinafter defined) now or at any time in the future, each of which will be
added as parties to this Agreement, the "JQH Entities", and each, a "JQH
Entity") and JD Holdings, LLC, and any Affiliate thereof (collectively, the
"Sponsor Entity").
WHEREAS, in connection with a transaction whereby JQH Acquisition, LLC, a
Delaware limited liability company ("Newco"), through merger of its wholly-owned
subsidiary with Xxxx X. Xxxxxxx Hotels, Inc., a Delaware corporation ("JQH,
Inc."), acquires all of the interests in JQH, Inc. and, indirectly, certain of
the partnership interests of Xxxx X. Xxxxxxx Hotels, L.P., a Delaware limited
partnership, ("LP") and Xxxx X. Xxxxxxx Hotels II, L.P., a Delaware limited
partnership, ("II LP"), in each case owned by JQH, Inc., JQH or certain of his
Affiliates (the "Formation Transaction"), Sponsor Entity desires to obtain a
right of first refusal on all Hotel Properties owned at any time by any of the
JQH Entities, and the JQH Entities are willing to grant such a right of first
refusal.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration given and received by each party,
receipt of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. For purposes of this Agreement, the following capitalized
terms shall have the meanings set forth below:
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by or under common control with such first
Person. The term "control" (including with correlative meanings, the terms
"controlling," "controlled by" and "under common control with") shall mean
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether by reason of
membership, ownership of voting stock, partnership interests, by contract or
otherwise. For purposes of this Agreement, JQH, Inc., LP and II LP and their
respective Subsidiaries shall not be deemed to be "Affiliates" of JQH.
"Hotel Properties" shall mean interests in real property and personal
property, tangible or intangible (other than any rights to any tradename using
the name "Xxxx X. Xxxxxxx" or "Xxxxxxx"), used in the operation of a hotel
facility, or any interests in any related convention or entertainment facility,
retail facility, parking facility or gaming facility, including, without
limitation, fee interests, leasehold interests, interests in ground leases,
easements and rights of way, air rights, surface rights, subsurface rights, debt
or equity interests in corporations, limited liability companies, joint
ventures, partnerships or other entities holding title to, or a leasehold
interest in, any of the foregoing, interests in mortgages or other security
interests in any of the foregoing, contractual management interests, and debt
instruments as the Person who holds title to, or a leasehold interest in, such
property may hold from time to time (each, a "Hotel Property").
"JQH Subject Hotels" shall mean those Hotel Properties set forth on
Exhibit A hereto, and any Hotel Properties or any direct or indirect interests
in Hotel Properties now or hereafter acquired by JQH or any JQH Entity or any of
either of their Affiliates, including any properties under construction or being
developed or intended to be developed as Hotel Properties (each, a "JQH Subject
Hotel").
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization, other entity or governmental body, in each
case whether in such individual's or entity's own capacity or as an agent or
fiduciary of another Person.
"Sale" shall mean any sale, assignment, lease or sublease (other than any
retail space or concession lease entered into in the ordinary course of hotel
business), transfer or other disposition, in a single transaction or as part of
a single transaction or series of transactions, of (a) any interest in title to
any JQH Subject Hotel or JQH Subject Hotels (as defined herein), or (b) any
direct or indirect ownership or debt interests in the Person that owns title to
any JQH Subject Hotel or JQH Subject Hotels, as a result of which title to such
JQH Subject Hotel would not be 100% owned by JQH or an entity 100% owned by JQH.
A Sale shall include (i) any grant of an option to purchase any JQH Subject
Hotel or JQH Subject Hotels or any interest therein or any direct or indirect
interest in the Person that owns title to, or the leasehold of, any JQH Subject
Hotel or JQH Subject Hotels, and (ii) any issuance of any debt or other security
convertible into equity interests in the Person that, directly or indirectly,
holds title to, or the leasehold of, any JQH Subject Hotel or JQH Subject
Hotels. The term "Sale" shall not include (i) a mortgage, deed of trust, or
other collateral assignment intended to provide security for a loan or other
obligation in favor of an unaffiliated third-party lender with a loan-to-value
ratio not exceeding 90% and otherwise on market terms, or any foreclosure on any
such mortgage, lien, or security interest by such unaffiliated third-party
lender, (ii) any sale of a portion of the land or improvements relating to a JQH
Subject Hotel that does not include the hotel and does not adversely affect the
operation of the JQH Subject Hotel as a hotel, or (iii) the transfer by JQH or
the applicable JQH Entity of the Hotel Property commonly known as Chateau on the
Lake, located in Branson, Missouri (the "Chateau"), by means of gift, charitable
contribution or donation to any trust or foundation as set forth in Section
3.3(b) herein. The terms "Sell" or "Sold" shall mean to dispose of, or to have
disposed of, a JQH Subject Hotel or the direct or indirect ownership interests
in the Person that owns title to a JQH Subject Hotel pursuant to a Sale.
2
"Subsidiary" of any Person means any other Person that, now or at any time
hereafter, is directly or indirectly owned 50% or more (in terms of voting
securities or other voting ownership or partnership interest) by such first
Person; provided, however, that such other Person shall be deemed to be a
"Subsidiary" only so long as the foregoing test continues to be met.
ARTICLE II
RIGHT OF FIRST REFUSAL
2.1 Right of First Refusal Granted to Sponsor Entity.
(a) Prior to the Sale of any JQH Subject Hotel, the applicable JQH Entity
owning such JQH Subject Hotel shall provide to Sponsor Entity a written purchase
and sale agreement, expressly subject to Sponsor Entity's rights hereunder,
executed by the Person selling such JQH Subject Hotel and a bona fide
third-party buyer, requiring a cash deposit of at least five percent (5%) of the
purchase price, refundable only if a Sponsor Acceptance Notice (defined below)
is received, but otherwise nonrefundable, and setting forth the price for each
such JQH Subject Hotel and other material terms upon which such Person has
agreed with such third-party buyer to Sell each such JQH Subject Hotel, together
with any written information provided to such third-party buyer with respect to
such JQH Subject Hotel (the "Sponsor ROFR Notice"). Upon receipt of the Sponsor
ROFR Notice, any Sponsor Entity may elect to purchase any such JQH Subject Hotel
from the applicable seller thereof by providing a notice to such JQH Entity
within thirty (30) days following the date of the Sponsor ROFR Notice (the
"Sponsor Acceptance Notice"). If no Sponsor Entity responds to the Sponsor ROFR
Notice within such thirty- (30-) day period (the "Sponsor ROFR Period"), the
Sponsor Entity shall be deemed to have declined to purchase such JQH Subject
Hotel pursuant to this Agreement.
(b) If any Sponsor Entity exercises its right of first refusal hereunder
and sends a Sponsor Acceptance Notice within the Sponsor ROFR Period, then (i)
contemporaneously with the delivery of the Sponsor Acceptance Notice, such
Sponsor Entity shall deposit a nonrefundable amount equal to the lesser of (y)
the amount of any xxxxxxx money deposit required to be made by such third-party
buyer as set forth in the Sponsor ROFR Notice, or (z) one percent (1%) of the
purchase price set forth in the Sponsor ROFR Notice (the "Sponsor Deposit") in
escrow with a title insurance company or other escrow agent approved in advance
by the parties and (ii) the parties shall close such sale transaction on
substantially identical economic terms, except that (I) the purchase price
payable by such Sponsor Entity shall be net of any broker's commission payable
pursuant to the transaction described in the Sponsor ROFR Notice, (II) if the
Sponsor ROFR Notice describes any non-cash consideration payable as all or any
part of the purchase price of such JQH Subject Hotel, then a Sponsor Entity
shall have the right to (A) pay non-cash consideration of a similar type and of
equivalent value, and/or (B) pay cash consideration equivalent in value to such
non-cash consideration, and (III) such JQH Subject Hotel shall be transferred
(A) free and clear of any existing management agreement, (B) free and clear of
any liens or encumbrances or restrictions or agreements of any kind of any
Affiliate of JQH or any JQH Entity, and (C) if such JQH Subject Hotel is to be
transferred subject to an existing mortgage pursuant to the transaction
described
3
in the Sponsor ROFR Notice, then JQH, or the applicable JQH Entity selling such
JQH Subject Hotel, will pay any fee payable to the holder of such mortgage by
reason of such transfer, and (D) if any fee is payable to any licensor or
franchisor under any License Agreement affecting such JQH Subject Hotel by
reason of such transfer, JQH or the applicable JQH Entity selling such JQH
Subject Hotel, will pay any such fee. The Sale to such Sponsor Entity of such
JQH Subject Hotel shall be closed at the time and on the date specified in the
Sponsor ROFR Notice, but not earlier than sixty (60) days following the date of
the Sponsor Acceptance Notice. The closing shall take place on the terms set
forth in the Sponsor ROFR Notice, except as otherwise provided herein. If such
Sponsor Entity shall fail to consummate such sale transaction in accordance with
its terms, then the applicable seller shall have the right to sell the
applicable JQH Subject Hotel as set forth in Section 2.1(c) below, and such
seller may, as its sole and exclusive remedy, retain the Sponsor Deposit as
liquidated damages, and not as a penalty.
(c) If no Sponsor Entity delivers a Sponsor Acceptance Notice prior to the
end of the Sponsor ROFR Period, then the applicable JQH Entity, or its
applicable Subsidiary shall, as of the end of the Sponsor ROFR Period (or the
earlier waiver of such period by the Sponsor Entity), be free thereafter to sell
the JQH Subject Hotel to such third parties on substantially identical terms as
those set forth in the Sponsor ROFR Notice, and the Sponsor Entity shall provide
to the applicable JQH Entity or the applicable Subsidiary the documents
necessary to release its recorded right of first refusal as provided herein; and
such documents shall be recorded upon closing of the sale of the JQH Subject
Hotel to such third party; provided, however, that if the JQH Entity which owns
the JQH Subject Hotel subsequently proposes to sell such JQH Subject Hotel to
such third party for a price (the "Final Price") which is less than the price
specified in the Sponsor ROFR Notice by an amount in excess of $50,000, then
such JQH Entity shall, at least thirty (30) days prior to closing of such Sale,
so notify Sponsor Entity, and Sponsor Entity shall have a period of fifteen (15)
days within which to execute (at its option) a binding agreement to purchase
such JQH Subject Hotel for the Final Price (net of any broker's commission) and
with substantially identical economic terms as such JQH Entity proposed to sell
such JQH Subject Hotel to such third party, except as otherwise provided in
Section 2.1(b) herein. If Sponsor Entity elects to execute such purchase
agreement and delivers a Sponsor Deposit with respect thereto, the applicable
JQH Entity shall be obligated to accept it, and the Sale of such JQH Subject
Hotel to such Sponsor Entity will thereafter be finalized in accordance with the
provisions of Section 2.1 (b). If the applicable JQH Entity has not succeeded in
consummating the Sale of such JQH Subject Hotel to such third party on
substantially identical terms as those contained in the Sponsor ROFR Notice
within 30 days after the time and date for closing of such transaction as set
forth in the Sponsor ROFR Notice, then the applicable JQH Entity shall again
comply with all of the provisions of this Section 2.1 prior to any Sale of such
JQH Subject Hotel.
(d) It is understood and agreed that, if a Sponsor ROFR Notice is
delivered hereunder with respect to a Sale of a partial interest in any JQH
Subject Hotel, including any partial interest in the Person directly or
indirectly owning title to any such JQH Subject Hotel, then Sponsor Entity shall
have the right, but not the obligation, to deliver hereunder a Sponsor
Acceptance Notice with respect to 100% of the interest in each such JQH
Subject Hotel, and such Sponsor Entity shall purchase 100% of each such JQH
4
Subject Hotel for a purchase price calculated in proportion to the purchase
price set forth in such Sponsor ROFR Notice and otherwise pursuant to the
provisions of this Section 2.1. For example, if the Sponsor ROFR Notice provides
that 20% of the interest in a JQH Subject Hotel will be sold for $1,000,000,
then Sponsor Entity may deliver a Sponsor Acceptance Notice, in accordance
herewith, to purchase 100% of such JQH Subject Hotel for a purchase price of
$5,000,000, and otherwise on the terms and conditions set forth in the Sponsor
ROFR Notice.
(e) It is understood and agreed that the rights granted to Sponsor Entity
in this Section 2.1 are and shall be subordinate only to (i) that certain
Restriction, Repurchase and Right of First Refusal Agreement, entered into as of
October 18, 1999 by and between Galatyn Park Corporation, a Delaware corporation
and JQH, as Trustee of the JQH Trust relating to that certain hotel known as the
Renaissance Dallas-Xxxxxxxxxx, located at 000 Xxxx Xxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxx 00000, and (ii) a right of first refusal currently being negotiated
between JQH and Xxxx Xxxxx relating to that certain Hotel Property being
developed by JQH in Colorado Springs, Colorado. Each of JQH and any applicable
JQH Entity agrees to cooperate with and assist Sponsor Entity in any
negotiations between Sponsor Entity and either of such holders of such rights of
first refusal described in this subparagraph (e) and to keep Sponsor Entity
informed as to the status of such rights of refusal in the event of a Sale of
either such Hotel Property, and, in any event, if such rights are not exercised
by such holders in accordance with their respective terms, all of the terms and
conditions contained in this Agreement shall be in full force and effect with
respect to each such Hotel Property.
2.2 License Agreements; Mortgages.
(a) JQH and each JQH Entity agrees that, from and after the date hereof,
any franchise agreement or license agreement (each, a "License Agreement")
amended, modified or extended, and any new License Agreement executed by any of
JQH or any JQH Entity in connection with a JQH Subject Hotel shall specify that
a transfer of such JQH Subject Hotel to any Sponsor Entity is permitted under
such License Agreement, without consent of such licensor or franchisor, and JQH
and each such JQH Entity will use his or its best efforts to negotiate that no
fee is payable by reason of any such permitted transfer.
(b) JQH and each JQH Entity agrees that, from and after the date hereof,
any mortgage or deed of trust document ("Mortgage") amended, modified or
extended, and any new Mortgage executed by any of JQH or any JQH Entity in
connection with a JQH Subject Hotel shall specify that a transfer of such JQH
Subject Hotel to Sponsor Entity is permitted under such Mortgage, without
consent of such lender or mortgagee, and JQH and each such JQH Entity will use
his or its best efforts to negotiate that no fee is payable by reason of any
such permitted transfer.
(c) Each Sponsor Entity agrees to deliver to any lender, mortgagee,
licensor or franchisor under a Mortgage or a License Agreement affecting any
applicable JQH Subject Hotel, any and all financial and other information which
may reasonably be
5
requested by any such lender or franchisor in connection with its agreement to
permit transfer of any JQH Subject Hotel to any Sponsor Entity.
2.3 Transfers in Violation Void. Any Sale by JQH or any JQH Entity of any
JQH Subject Hotel in violation of the terms and provisions of this Agreement
shall be void and of no force or effect.
ARTICLE III
GENERAL PROVISIONS
3.1 Term of Agreement; Suspension of Agreement.
(a) This Agreement shall continue in effect from the date hereof until all
of the JQH Subject Hotels have been Sold.
(b) In the event (i) of the occurrence of a material funding default by
Lender under the Loan Agreement dated as of _______, 2005 between [Project
Holdco] ("Borrower"), as Borrower and [Project Lendco] ("Lender"), as Lender
(the "Line of Credit Agreement"), which is not cured within thirty (30) days
after receipt by Lender of notice from Borrower of such material funding
default, and (ii) no material default by Borrower under the Line of Credit
Agreement has occurred, then JQH shall have the right, upon delivery of at least
fifteen (15) days' prior written notice, to suspend the effectiveness of this
Agreement during the period that both (i) and (ii) above are undisputed. In the
event that the existence of a material funding default by Lender or the
existence of a material default by Borrower is disputed as between the parties
(in any such case, a "Disputed LOC Default"), then the parties to this Agreement
agree (which agreement shall have no effect on any rights or obligations of
Borrower or Lender under the Line of Credit Agreement) to submit such dispute to
an arbitration proceeding, such arbitration to be completed within seventy-five
(75) days of receipt by Borrower of a notice from Sponsor Entity of a Disputed
LOC Default (a "Disputed LOC Default Notice"), held in a neutral city and
conducted in accordance with the rules of the American Arbitration Association
in effect at the date such Disputed LOC Default Notice is given, but not under
the authority of that Association. Such arbitration proceeding shall be
conducted by an arbitrator who is a partner at a nationally recognized
accounting firm, or any other person with experience in the matter or matters to
be arbitrated, mutually selected by Sponsor Entity and JQH. If JQH and Sponsor
Entity fail to agree on an arbitrator within fifteen (15) days (the "Arbitrator
Selection Period") of Borrower's receipt of a Disputed LOC Default Notice from
Sponsor Entity, then, within ten (10) days after the expiration of the
Arbitrator Selection Period, JQH and Sponsor Entity each shall select one
arbitrator who is a partner at a nationally recognized accounting firm, or any
other person with experience in the matter or matters to be arbitrated, who
shall then select a third arbitrator who meets the qualifications specified
above to conduct the arbitration. The decision of the arbitrator shall be
binding upon the parties to this Agreement, and neither party shall have the
right to appeal any such decision (except in the case of manifest error). The
thirty- (30-) day cure period, or, if applicable, the fifteen- (15-) day notice
period referenced in the preceding sentence shall commence upon the issuance of
an arbitration decision by such arbitrator.
6
3.2 Sale of JQH Subject Hotels upon JQH Demise. JQH, each applicable JQH
Entity and the JQH Trust agree that, upon the death of JQH, the JQH Trust and
each applicable JQH Entity will Sell for cash or cause the Sale for cash of all
of the JQH Subject Hotels to be completed no later than the later to occur of
(a) two (2) years after the date of JQH's demise, and (b) full redemption or
other permitted disposition by JQH and his Affiliates of all of his and their
preferred interests in Newco. Subject to the provisions of Section 3.16 herein,
each of Sponsor Entity and the JQH Trust and other applicable JQH Entity agrees,
for a period expiring 90 days after the date of JQH's demise, to negotiate
exclusively and in good faith with each other to Sell the JQH Subject Hotels to
a Sponsor Entity or an Affiliate thereof for prices and upon terms mutually
acceptable to the JQH Trust or other applicable JQH Entity and to Sponsor
Entity. Any other Sale of a JQH Subject Hotel shall be subject to the provisions
of this Agreement.
3.3 Successors and Assigns.
(a) This right of first refusal of Sponsor Entity may be assigned, without
JQH's approval, to any other Person controlled, directly or indirectly, by any
Sponsor Entity or Newco or any Affiliate of any of them. Any other assignment of
any Sponsor Entity's rights hereunder shall be subject to JQH's prior written
approval. Except as provided in the foregoing sentence, this Agreement shall
inure to the benefit of, and be binding upon, the parties hereto and their
successors by operation of law or otherwise. Notwithstanding anything herein to
the contrary, following delivery of a Sponsor Acceptance Notice, such Sponsor
Entity may assign the right to purchase such JQH Subject Hotel to any other
Sponsor Entity or an Affiliate thereof.
(b) Notwithstanding anything to the contrary set forth in this Agreement,
each of JQH and any applicable JQH Entity owning a JQH Subject Hotel or direct
or indirect interest therein agrees not to transfer, by means of gift,
charitable contribution or donation to a charitable organization or otherwise,
any JQH Subject Hotel or interest therein during the term of this Agreement,
other than the Chateau, the initial transfer of which is subject to a separate
agreement of even date herewith among the parties hereto. Any subsequent sale of
the Chateau for consideration shall be deemed to be a Sale hereunder and shall
be subject to the terms and conditions of this Agreement.
3.4 Delivery of Information. JQH and each JQH Entity agrees to deliver to
the other parties hereto any and all broker solicitations and correspondence and
any and all written offers to purchase or expressions of interest in any JQH
Subject Hotel, identifying the interested party (whether solicited or
unsolicited), within ten (10) days after receipt thereof. In addition, subject
to the provisions of Section 3.16 herein, each of JQH and any JQH Entity agrees,
to the extent not otherwise delivered in accordance with any other Formation
Transaction document, to deliver to the other parties hereto (for informational
purposes only) annual operating statements of each JQH Subject Hotel, together
with annual budgets for each JQH Subject Hotel.
3.5 Amendments; Waivers. This Agreement may not be amended or modified
except by an instrument in writing signed by, or on behalf of, each of the
parties hereto. The failure of a party to insist upon strict adherence to any
term of this Agreement on any
7
occasion shall not be considered a waiver or deprive such party of the right to
insist later on adherence hereto, or thereafter to insist upon strict adherence
to that term or any other term of this Agreement. Any waiver must be in writing
and signed by the party against whom enforcement is sought in order to be
effective.
3.6 Governing Law. The interpretation and construction of this Agreement
and (unless otherwise expressly provided herein) all amendments hereof and
waivers and consents hereunder shall, to the extent the particular subject
matter is controlled by state law, be governed by and be construed in accordance
with the substantive law of the State of Delaware, without regard to the
conflicts of laws principles thereof.
3.7 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVER, (B) IT UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY
AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 3.7.
3.8 Jurisdiction; Service of Process. Any action or proceeding seeking to
enforce any provision of, or based on any right arising out of, this Agreement
shall be brought against any of the parties only in the Courts of the State of
Delaware or, if it has or can acquire jurisdiction, in the United States
District Court for the District of Delaware, and each of the parties consents to
the exclusive jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waives any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on any party anywhere in the world.
3.9 Entire Agreement. This Agreement constitutes a complete statement of
all of the binding agreements among the parties as of the date hereof with
respect to the subject matter contained herein and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, between them with respect to such subject matter.
3.10 Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given (a) when delivered by hand or
certified mail, return receipt requested, postage prepaid, (b) when transmitted
by telecopier
8
(providing electronic confirmation of transmission) or (c) when received if sent
by overnight courier (providing proof of delivery), to the addressee at the
following addresses or telecopier numbers (or to such other address or
telecopier number as a party may specify from time to time by notice hereunder):
(i) If to JQH:
Xxxx X. Xxxxxxx
300 Xxxx X. Xxxxxxx Xxxxxxx,
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx and
Xxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to Sponsor Entity:
Xxxxxxxx X. Xxxxxx
XX Holdings, LLC
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxx Xxxxxxx, LLC
Three First National Plaza,
70 West Madison Street, Suite 4100
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx and
Xxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
9
3.11 Titles and Headings. Titles and headings to sections herein are
inserted for the convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement. References to
"Sections" refer to Sections of this Agreement, unless otherwise stated.
3.12 Severability. If any term or provision of this Agreement or the
application thereof to any party hereto or set of circumstances shall, in any
jurisdiction and to any extent, be finally held to be invalid or unenforceable,
such term or provision shall only be ineffective as to such jurisdiction, and
only to the extent of such invalidity or unenforceability, without invalidating
or rendering unenforceable any other terms or provisions of this Agreement or
under any other circumstances, and the parties shall negotiate in good faith a
substitute provision which comes as close as possible to the invalidated or
unenforceable term or provision, and puts the parties in a position as nearly
comparable as possible to the position they would have been in but for such
finding of invalidity or unenforceability, while remaining valid and
enforceable.
3.13 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be considered an original, but all of which together shall
constitute one and the same instrument.
3.14 Remedies Including Injunction and Specific Performance.
(a) In the event that any JQH Entity shall fail to perform any of its
obligations under this Agreement, the Sponsor Entity shall be entitled, in
addition to any other remedy that may be available at law or in equity as a
result of such failure, to obtain an injunction and/or specific performance of
any such obligations as a remedy for such breach, and each JQH Entity further
waives any requirements for securing or posting a bond in connection with any
such remedy.
(b) In the event that any JQH Entity shall default in the performance of
any of its obligations hereunder in any material respect, then the Sponsor
Entity shall have the right (i) to payment by such JQH Entity of any and all
attorneys' fees and costs, including any court costs and costs of any
consultants incurred by such Sponsor Entity in seeking to enforce its rights
under this Agreement, and (ii) to purchase any JQH Subject Hotel in relation to
which the JQH Entity failed to perform its obligations under this Agreement, in
accordance with the provisions of this Agreement, except that the purchase price
payable by such Sponsor Entity to purchase such JQH Subject Hotel shall equal
eighty percent (80%) of the price otherwise payable hereunder.
3.15 Recording. Each of the parties hereto agrees that this Agreement
evidences a right in real property of each of the parties hereto, and each
agrees that this Agreement, or a Memorandum of this Agreement summarizing its
material terms, shall be recorded in the appropriate recording office for each
JQH Subject Hotel at closing of the Formation Transaction. JQH and each
applicable JQH Entity hereby agrees that this Agreement or a Memorandum hereof
may be recorded in any appropriate recording office in connection with any JQH
Subject Hotel acquired or developed by JQH or any
10
JQH Entity from and after the date hereof, and JQH and each JQH Entity hereby
authorizes Sponsor Entity to record such Agreement or Memorandum.
3.16 Confidentiality. Except as otherwise required by law or judicial
order or decree or by any governmental authority, each Sponsor Entity shall
maintain the confidentiality of all nonpublic information obtained by it under
this Agreement in a Sponsor ROFR Notice or pursuant to Section 3.4 herein,
unless such information becomes known to the public in a manner unrelated to
such Sponsor Entity. It is understood and agreed that such nonpublic information
may be disclosed to attorneys, consultants, officers, directors, members or
agents of any Sponsor Entity, to the extent deemed necessary by such Sponsor
Entity, subject to such attorneys', consultants', officers', directors',
members' or agents' maintaining the confidentiality of such information as set
forth herein.
[SIGNATURE PAGE FOLLOWS]
11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
JD HOLDINGS, LLC
By:_____________________________________
Name: __________________________________
Title: _________________________________
________________________________________
XXXX X. XXXXXXX
________________________________________
XXXX X. XXXXXXX, as Trustee of the
REVOCABLE TRUST OF XXXX X.XXXXXXX
XXXXXXX OF NEW MEXICO, LLC
By:_____________________________________
Name: __________________________________
Title: _________________________________
XXXXXXX OF FRISCO, LLC
By:_____________________________________
Name: __________________________________
Title: _________________________________
XXXXXXX OF COLORADO, LLC
By:_____________________________________
Name: __________________________________
Title: _________________________________
00
XXXXXXX XX XXXXXXXX, LLC
By:_____________________________________
Name: __________________________________
Title: _________________________________
XXXXXXX OF SOUTH CAROLINA, LLC
By:_____________________________________
Name: __________________________________
Title: _________________________________
XXXXXXX OF HUNTSVILLE, LLC
By:_____________________________________
Name: __________________________________
Title: _________________________________
XXXXXXX OF LINCOLN, LLC
By:_____________________________________
Name: __________________________________
Title: _________________________________
XXXXXXX OF XXXXXXXX, LLC
By:_____________________________________
Name: __________________________________
Title: _________________________________
XXXXXXX OF XXXXXXXXXX, LLC
By:_____________________________________
Name: __________________________________
Title: _________________________________
13
XXXXXXXXXX XXXXXXX, XX
By:_____________________________________
Name: __________________________________
Title: _________________________________
XXXX X. XXXXXXX CENTER, LLC
By:_____________________________________
Name: __________________________________
Title: _________________________________
CITY CENTER HOTEL CORPORATION
By:_____________________________________
Name: __________________________________
Title: _________________________________
14
STATE OF________________)
)SS.
COUNTY OF_______________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that ______________, ________________ of JD
Holdings, LLC, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before me this day in person
and acknowledged that he/she signed and delivered the said instrument as his/her
free and voluntary act and deed and the free and voluntary act of such limited
liability company for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ____ day of ______, 2005.
_______________________________
Notary Public
My commission expires: ______________________________
STATE OF_____________________
)SS.
COUNTY OF____________________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxx X. Xxxxxxx, personally known to me to be
the same person whose name is subscribed to the foregoing instrument, appeared
before this day in person and acknowledged that he signed and delivered the said
instrument as his free and voluntary act and deed for the uses and purposes
therein set forth.
GIVEN under my hand and notarial seal this ____ day of ______, 2005.
_______________________________
Notary Public
My commission expires: _____________________________
STATE OF_________________
)SS.
COUNTY OF________________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxx X. Xxxxxxx, ____________ of XXXXXXX OF
NEW MEXICO, LLC, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before this day in person and
acknowledged that he signed and delivered the said instrument as his free and
voluntary act and deed for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this _____ day of _____, 2005.
_______________________________
Notary Public
My commission expires:______________________________
STATE OF___________________
)SS.
COUNTY OF__________________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxx X. Xxxxxxx, the Trustee of the XXXX X.
XXXXXXX REVOCABLE TRUST, personally known to me to be the same person whose name
is subscribed to the foregoing instrument, appeared before this day in person
and acknowledged that he signed and delivered the said instrument as his free
and voluntary act and deed for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ____ day of _____, 2005.
_______________________________
Notary Public
My commission expires: ________________________________
STATE OF______________________
)SS.
COUNTY OF_____________________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxx X. Xxxxxxx, ____________ of XXXXXXX OF
FRISCO, LLC, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before this day in person and
acknowledged that he signed and delivered the said instrument as his free and
voluntary act and deed for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ____ day of _____, 2005.
_______________________________
Notary Public
My commission expires:________________________________
STATE OF_____________________
)SS.
COUNTY OF____________________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxx X. Xxxxxxx, ____________ of XXXXXXX OF
COLORADO, LLC, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before this day in person and
acknowledged that he signed and delivered the said instrument as his free and
voluntary act and deed for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ____ day of _____, 2005.
_______________________________
Notary Public
My commission expires:________________________________
STATE OF_______________________
)SS.
COUNTY OF______________________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxx X. Xxxxxxx, ____________ of XXXXXXX OF
ARKANSAS, LLC, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before this day in person and
acknowledged that he signed and delivered the said instrument as his free and
voluntary act and deed for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ____ day of ______, 2005.
_______________________________
Notary Public
My commission expires:________________________________
STATE OF_____________________
)SS.
COUNTY OF____________________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxx X. Xxxxxxx, ____________ of XXXXXXX OF
SOUTH CAROLINA, LLC, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before this day in person and
acknowledged that he signed and delivered the said instrument as his free and
voluntary act and deed for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ____ day of ______, 2005.
_______________________________
Notary Public
My commission expires:________________________________
STATE OF___________________
)SS.
COUNTY OF__________________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxx X. Xxxxxxx, ____________ of XXXXXXX OF
HUNTSVILLE, LLC, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before this day in person and
acknowledged that he signed and delivered the said instrument as his free and
voluntary act and deed for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ___ day of ______, 2005.
_______________________________
Notary Public
My commission expires:________________________________
STATE OF________________
)SS.
COUNTY OF_______________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxx X. Xxxxxxx, ____________ of XXXXXXX OF
LINCOLN, LLC, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before this day in person and
acknowledged that he signed and delivered the said instrument as his free and
voluntary act and deed for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ____ day of ______, 2005.
_______________________________
Notary Public
My commission expires:________________________________
STATE OF_________________
)SS.
COUNTY OF________________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxx X. Xxxxxxx, ____________ of XXXXXXX OF
XXXXXXXX, LLC, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before this day in person and
acknowledged that he signed and delivered the said instrument as his free and
voluntary act and deed for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ___ day of _______, 2005.
_______________________________
Notary Public
My commission expires:________________________________
STATE OF_________________
)SS.
COUNTY OF________________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxx X. Xxxxxxx, ____________ of XXXXXXX OF
XXXXXXXXXX, LLC, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before this day in person and
acknowledged that he signed and delivered the said instrument as his free and
voluntary act and deed for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ____ day of _____, 2005.
_______________________________
Notary Public
My commission expires:________________________________
STATE OF_________________
)SS.
COUNTY OF________________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxx X. Xxxxxxx, ____________ of XXXXXXXXXX
XXXXXXX, XX, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before this day in person and
acknowledged that he signed and delivered the said instrument as his free and
voluntary act and deed for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ____ day of _____, 2005.
_______________________________
Notary Public
My commission expires:________________________________
STATE OF__________________
)SS.
COUNTY OF_________________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxx X. Xxxxxxx, ____________ of XXXX X.
XXXXXXX CENTER, LLC, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before this day in person and
acknowledged that he signed and delivered the said instrument as his free and
voluntary act and deed for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ____ day of _____, 2005.
_______________________________
Notary Public
My commission expires:________________________________
STATE OF__________________
)SS.
COUNTY OF_________________)
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Xxxx X. Xxxxxxx, ____________ of CITY CENTER
HOTEL CORPORATION, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before this day in person and
acknowledged that he signed and delivered the said instrument as his free and
voluntary act and deed for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this ___ day of ____, 2005.
_______________________________
Notary Public
My commission expires:________________________________
EXHIBIT A
JQH SUBJECT HOTELS [AND LEGAL DESCRIPTIONS]
A. DEVELOPED HOTELS
1. Courtyard by Marriott
0000 Xxxx Xxxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000
Owner: Xxxxxxxxxx Xxxxxxx, XX
2. University Plaza Hotel and Convention Center
333 S Xxxx X. Xxxxxxx Xxxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Trust
3. Embassy Suites Lincoln
0000 X Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Trust
4. Holiday Inn City Centre
000 X 0xx Xx., Xxxxx Xxxxx, Xxxxx Xxxxxx 00000
Owner: City Centre Hotel Corporation
5. Sheraton Hotel Sioux Falls
0000 X. Xxxx Xxx., Xxxxx Xxxxx, Xxxxx Xxxxxx 00000
Owner: Xxxx X. Xxxxxxx Trust
6. Embassy Suites Nashville South/Cool Springs
000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx 00000
Owner: Richardson Xxxxxxx, XX
7. Renaissance Xxxxxx Xxxxxxxxxx
000 Xxxx Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx 00000
Owner: Richardson Xxxxxxx, XX
8. Residence Inn Springfield
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000
Owner: Richardson Xxxxxxx, XX
9. Embassy Suites Northwest Arkansas
0000 Xxxxxxxx Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx 00000
Owner: Xxxxxxx of Arkansas, LLC
10. Courtyard by Marriott Oklahoma City Downtown
0 Xxxx Xxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Trust
11. Renaissance Tulsa Hotel & Convention Center
0000 Xxxxx 000xx Xxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Trust
12. Embassy Suites Hot Springs
000 Xxxxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxx 00000
Owner: Xxxxxxx of Arkansas, LLC
13. Residence Inn Charleston Airport
0000 Xxxxxxxxxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxxx, XX 00000
Owner: Xxxxxxx of South Carolina, LLC
14. Courtyard by Marriott Junction City
000 Xxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxx 00000
Owner: Xxxx X. Xxxxxxx Trust
15. Embassy Suites Albuquerque
0000 Xxxxxxxx Xxxxx XX, Xxxxxxxxxxx, Xxx Xxxxxx 00000
Owner: Xxxxxxx of New Mexico, LLC
16. Embassy Suites Dallas-Frisco
7600 Xxxx X. Xxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000
Owner: Xxxxxxx of Frisco, LLC
17. Embassy Suites St. Louis-St. Xxxxxxx
Xxx Xxxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxxxx, XX 00000
Owner: Xxxx X. Xxxxxxx
18. Holiday Inn Express Springfield
0000 Xxxx Xx. Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000
Owner: Xxxx X. Xxxxxxx Trust
19. Embassy Suites at Hampton Roads Convention Center
0000 Xxxxxxxx Xxxxx, Xxxxxxx, XX 00000
Owner: Xxxx X. Xxxxxxx Trust
20. Chateau on the Lake Resort Spa and Convention Center
000 Xxxxx Xxxxx Xxxxxxx 000, Xxxxxxx, Xxxxxxxx 00000
Owner: Chateau Lake LLC
B. PROPERTIES UNDER CONSTRUCTION / DEVELOPMENT
1. Embassy Suites
000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000
Owner: Xxxxxxx of Huntsville, LLC
2. Embassy Suites
East Peoria, IL
Owner: Xxxx X. Xxxxxxx Trust
3. Embassy Suites
Concord, North Carolina
Owner: Xxxx X. Xxxxxxx Trust
4. Embassy Suites: Loveland, CO
5. Embassy Suites: San Marcos, TX
6. Residence Inn: LaVista, NE
7. Marriott: Normal, IL
8. Embassy Suites, Bricktown, OK
9. Embassy Suites, Asheville, NC
10. Marriott: Rogers, AR
11. Marriott: Colorado Springs, CO
12. Marriott: North Charleston, SC
13. Residence Inn: Joplin, MO
