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Exhibit 10.53
HOUSTON EXECUTION
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
By
And Between
NEW REMINGTON PARTNERS,
a Texas General Partnership,
As Seller
And
STARWOOD LODGING TRUST,
a Maryland Real Estate Investment Trust
And
STARWOOD LODGING CORPORATION,
a Maryland Corporation,
As Buyer.
Dated As Of: December 30, 1997
Relating to the Houston Luxury Collection Hotel,
Houston, Texas
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PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this
"Agreement") is entered into as of the 30th day of December, 1997, by and
between NEW REMINGTON PARTNERS, a Texas general partnership ("Seller"), and
STARWOOD LODGING TRUST, a Maryland Real Estate Investment Trust (the "Trust"),
and STARWOOD LODGING CORPORATION, a Maryland corporation (the "Corporation"; the
Trust and the Corporation being referred to herein collectively as, "Buyer").
A. Seller owns that certain parcel of land described in EXHIBIT A attached
hereto and made a part hereof, which is improved with a hotel building and
certain related improvements, all as more particularly set forth in this
Agreement.
B. Seller desires to sell, and Buyer desires to purchase, the above described
land and hotel together with the related improvements upon the terms and subject
to the conditions set forth in this Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and
agreements contained in this Agreement and for other good and valuable
consideration, the receipt and adequacy of which are hereby mutually
acknowledged, Buyer and Seller agree as follows:
SECTION 1
DEFINITIONS
1.1 Defined Terms
"Accounts Receivable" shall mean, collectively, all Cash Equivalent Receivables,
all Invoiced Receivables and all Other Accounts Receivable.
"Affiliate" shall have the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Exchange Act.
"Approved Service Contracts" shall mean the Service Contracts identified on
SCHEDULE 1.1.1 annexed hereto and made a part hereof and any other Service
Contracts cancelable upon thirty (30) or fewer days notice without penalty,
which Service Contracts Buyer shall assume as of the Closing pursuant to the
General Assignment and Assumption Agreement.
"Assignment and Assumption of Management Agreement" shall have the meaning set
forth in SECTION 4.2.1.4.
"Assignment and Assumption of Tenant Leases" shall have the meaning set forth in
SECTION 4.2.1.2.
"Assignment and Assumption of Liquor-Related Agreements" shall have the meaning
set forth in SECTION 4.2.1.7.
"Xxxx of Sale" shall have the meaning set forth in SECTION 4.2.1.5.
"Business Day" shall mean any day other than Saturday or Sunday on which the New
York Stock Exchange is open for business.
"Booking" shall mean a contract or reservation for the use of guest rooms,
banquet facilities, meeting rooms, and/or conference facilities at the Hotel.
"Buyer's Counsel" shall mean the law firm of Xxxxxxxxx Traurig Xxxxxxx Xxxxxx
Xxxxx & Xxxxxxx acting through Xxxxxx X. Xxxxxx, Esq.
"Buyer Default" shall have the meaning set forth in SECTION 3.5.1.
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"Cash Equivalent Receivables" shall mean all Guest Ledger Receivables which are
in the form of drafts or checks written on any bank or other financial
institution, certified checks, money orders, amounts owed to Seller from credit
card, debit card, travel and entertainment card or traveler's check companies,
and are in such other forms which are considered to be cash equivalents under
generally acceptable accounting principles, whether or not such Guest Ledger
Receivables have been presented or billed to any such bank, financial
institution or other company as of the Closing Date.
"Cash Purchase Price" shall mean (a) Twenty-One Million Dollars ($21,000,000.00)
plus (b) the Overage Cash Payment, if any, as adjusted pursuant to SECTION
3.2.2.
"Closing" or "Close of Escrow" shall have the meaning set forth in SECTION
4.7.2.
"Closing Agent" shall have the meaning set forth in SECTION 4.8.10.
"Closing Date" shall mean the day on which the Closing occurs hereunder.
"Closing Payment" shall have the meaning set forth in SECTION 3.2.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
"Collective Bargaining Agreements" shall have the meaning set forth in SECTION
14.2.
"Conveyance Documents" shall mean the Deed, the Assignment and Assumption of
Management Agreement, the Assignment and Assumption of Tenant Leases, the Xxxx
of Sale, the General Assignment and Assumption Agreement and the Assignment and
Assumption of Liquor-Related Agreements.
"Deed" shall have the meaning set forth in SECTION 4.2.1.1.
"Deposit" shall mean an amount equal to $2,857,143.00, held in accordance with
the provisions of SECTION 3 hereof together with all interest accrued thereon.
"Employer Corporation" shall mean Luxury Holdings, Inc. (formerly known as TQM
Inc.).
"Employment Agreements" shall mean the Collective Bargaining Agreements and
Employee Benefit Plans (as defined in Section 3(3) of ERISA), affecting Hotel
Employees, including pension, profit sharing, employee benefit and similar
plans, if any, and agreements with regard to any Hotel Employee each of which
are identified on or expressly described in the materials identified on SCHEDULE
1.1.2 annexed hereto and made a part hereof.
"Environmental Condition" shall mean any condition with respect to soil, surface
waters, groundwater, land, stream sediments, surface or subsurface strata,
ambient air and any environmental medium comprising or surrounding the Real
Property, which results in any damage, loss, cost, expense, claim, demand, order
or liability to or against Seller or Buyer by any third party (including,
without limitation, any government entity) as a result of a violation of any
applicable Environmental Laws.
"Environmental Laws" shall mean all presently applicable statutes, regulations,
rules, ordinances, codes, licenses, permits and orders of any and all
governmental agencies, departments, commissions, boards, bureaus or
instrumentalities of the United States, states and political subdivisions
thereof, and all applicable judicial and administrative and regulatory decrees,
judgments and orders relating to the protection of the environment, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. 9061 et seq.; the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. 1801, et seq.; the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. 6901, et seq.; the Federal
Water Pollution Control Act, as amended, 33 U.S.C. 1251, et seq.; and analogous
state laws and regulations.
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"Equipment Leases" shall mean all leases of equipment, vehicles, furniture or
other personal property leased by, or on behalf of, Seller and located at, or
used in the operation of the Real Property, together with any and all amendments
thereto, which are identified on SCHEDULE 1.1.3 annexed hereto.
"Equity Purchase Price" shall mean the number of Paired Shares with a value as
determined pursuant to the Stock Agreement equal to $26,665,500.00 to be
delivered in accordance with the applicable provisions of the Stock Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, and the regulations promulgated thereunder.
"Escrow" shall mean an escrow opened with the Escrow Holder for the purchase and
sale of the Property in accordance with the provisions of this Agreement.
"Escrow Holder" shall mean the Title Company unless otherwise agreed in writing
by Buyer and Seller.
"Escrow Instructions" shall have the meaning set forth in SECTION 4.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Excluded Property" shall mean all Seller's right, title and interest in and to:
(a) those claims of Seller attributable to the period prior to the Closing Date
and described on SCHEDULE 1.1.4 annexed hereto and made a part hereof, or which
Seller is entitled to assert under the express provisions of SECTION 5; (b) all
insurance proceeds under Seller's Insurance and workers' compensation policies,
including return premiums and dividends thereon and all claims thereunder in
each case to the extent attributable to acts or occurrences prior to the Closing
Date; (c) all accounts owned or maintained by Seller, or Manager on Seller's
behalf, in connection with the Hotel, including all operating and reserve
accounts; and (d) any books, records, files or papers specifically described in
SECTION 6.3.2 as excluded from the Property Information.
"Excluded Parties" shall have the meaning set forth in SECTION 17.18
"Execution Date" shall mean the date hereof.
"General Assignment and Assumption Agreement" shall have the meaning set forth
in SECTION 4.2.1.3.
"Guest Ledger Receivables" shall mean amounts, including, without limitation,
room charges, accrued to the accounts of guests occupying rooms at the Hotel or
group, conference or banquet customers of Seller at the Hotel.
"Xxxx-Xxxxx-Xxxxxx Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976 and the rules and regulations promulgated thereunder, as the same
has been amended from time to time.
"Hotel" shall mean the hotel located on the Land and commonly known as Houston
Luxury Collection Hotel.
"Hotel Employees" shall mean all full-time, part-time or temporary employees of
Seller and/or the Employer Corporation (but not employees of Manager or any of
its affiliates) who are employed by Seller and/or the Employer Corporation
exclusively at or in connection with the Hotel as of the Closing Date and who
are listed on SCHEDULE 1.1.6 annexed hereto and made a part hereof.
"Houston Adjacent Assets" shall have the meaning set forth in SECTION 4.2.1.11.
"Houston Right of First Offer Agreement" shall have the meaning set forth in
SECTION 4.2.1.12.
"Improvements" shall mean Seller's right, title and interest in and to the hotel
building and other
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improvements now or hereafter located on the Land.
"Insured Casualty Notice" shall have the meaning set forth in SECTION 12.1.1.
"Intangible Property" shall mean all of Seller's right, title and interest in
and to the following, in each case excluding any Excluded Property: (i) Licenses
and Permits; (ii) trademark rights, and other intangible property, rights,
titles, interests, privileges and appurtenances related to or used in connection
with the Hotel or its operations; (iii) warranties and guaranties of architects,
engineers, contractors, subcontractors, suppliers or materialmen involved in the
repair, construction, maintenance, design, reconstruction or operation of the
Hotel, or any equipment or systems constituting a part of the Hotel; (iv)
Approved Service Contracts; (v) Equipment Leases; (vi) Bookings; and (vii)
computer programs, software and documentation thereof (subject to the
limitations of any applicable license agreements pertaining thereto), and
including all electronic data processing systems, program specifications, source
codes, logs, input data and report layouts and forms, record file layouts,
diagrams, functional specifications and variable descriptions, flow charts and
other related materials used in connection therewith; and (viii) any goodwill
associated with the operation of the Hotel.
"Interim Management Agreement" shall have the meaning set forth in SECTION 17.20
hereto.
"Invoiced Receivables" shall mean all Guest Ledger Receivables other than Cash
Equivalent Receivables whether or not such Guest Ledger Receivables have been
invoiced by Seller as of the Closing Date.
"Land" shall mean Seller's right, title and interest in and to the land
described on EXHIBIT A annexed hereto and made a part hereof.
"LIBOR rate" shall mean the average of interbank offered rates for three-month
dollar deposits in the London market based on quotations at five (5) major
banks, as published from time to time in The Wall Street Journal. If The Wall
Street Journal ceases to be published, then Buyer shall propose a substitute
method of determining the interest rate generally known as the three-month LIBOR
rate, which method, absent manifest error, shall be binding on Buyer and Seller.
"Licenses and Permits" shall mean all licenses, permits, registrations,
certificates, authorizations and governmental approvals other than the Liquor
License obtained in connection with the design, construction, rehabilitation,
use and/or operation of the Hotel.
"Liquor Agreements" shall have the meaning set forth in SECTION 6.3.14.
"Liquor Lease" shall have the meaning set forth in SECTION 6.3.17.
"Liquor License" shall mean all licenses, permits, registrations, certificates,
authorizations and governmental approvals with respect to service of alcoholic
beverages at the Hotel.
"Lock Price" shall have the meaning set forth in the Stock Agreement.
"Losses" shall mean any and all losses, liabilities, obligations, damages, claim
or expense, including without limitation, reasonable attorneys' and accountants'
fees and disbursements related thereto.
"Manager" means Sheraton Operating Corporation, a wholly-owned subsidiary of ITT
Sheraton Corporation.
"Management Agreement" shall mean that certain Management Agreement entered into
as of August 13, 1997 between Seller and Manager.
"Market Price" shall have the meaning set forth in the Stock Agreement.
"Master Lease" shall have the meaning set forth in SECTION 4.2.1.11.
"Material" shall mean $5,000 for any single occurrence and $15,000 in the
aggregate for any
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group of occurrences whether or not related.
"Material Casualty" shall mean a casualty or casualties that, in the aggregate:
(i) causes in excess of $10,000,000.00 worth of damage to the Hotel; or (ii)
will take twelve (12) months or longer from the date of the casualty to fully
remediate.
"Material Taking" shall mean an exercise by an applicable governmental authority
of the power of condemnation or eminent domain that results in: (a) the taking
of more than twenty percent (20%) of the Real Property; (b) a material reduction
or restriction in access to the Property; or (c) the inability to operate the
Hotel in substantially the same manner (without material additional expense) as
it was operated prior to such taking.
"Memorandum of Contract" shall mean a memorandum of this Agreement in the form
attached as EXHIBIT B hereto.
"Monetary Lien" shall mean any monetary lien affecting the Real Property of an
ascertainable amount, other than any lien for taxes or assessments which are not
yet due and payable.
"Non-Foreign Person Certificate" shall have the meaning set forth in SECTION
4.2.1.13.
"Other Accounts Receivable" shall mean any and all rents, additional rent,
deposits, and other sums and charges owing to Seller that are in any way
attributable to the operation of the business at the Hotel, including, without
limitation, all rents and/or license fees due from Tenants under Tenant Leases,
and including any such amounts which are past due, but excluding Guest Ledger
Receivables.
"Overage Cash Payment" shall mean the portion of the Equity Purchase Price which
is payable in cash at Closing as provided in SECTION 3.2.2.1, if any.
"Ownership Limitation" shall mean the limitations contained in the declaration
of trust for the Trust and the Corporation's articles of incorporation
prohibiting actual or constructive ownership by any one person or group of
related persons of more than 8% of the issued and outstanding Paired Shares
taking into account the attribution rules of Section 544(a) of the Code as
modified by Section 856(h) of the Code or Section 318(a) of the Code as modified
by Section 856(d)(5) of the Code.
"Paired Shares" shall mean one share of beneficial interest, par value $.01 per
share of the Trust, and one share of common stock, par value $.01 per share, of
the Corporation that are subject to the Pairing Agreement, which shares shall be
transferable as provided in the Stock Agreement and the Pairing Agreement.
"Pairing Agreement" shall mean the Pairing Agreement dated as of June 25, 1980,
as amended, between the Trust and the Corporation providing, in relevant part,
for the pairing of all outstanding beneficial interests of the Trust and shares
of the Corporation.
"Permitted Encumbrances" shall have the meaning set forth in SECTION 7.3.
"Person" shall mean any natural person, partnership, corporation, association,
limited liability company, trust or any other legal entity.
"Personal Property" shall mean collectively the Tangible Personal Property and
the Intangible Property.
"Preliminary Title Report" shall have the meaning set forth in SECTION 7.1.
"Property" shall mean collectively the Real Property, the Personal Property, the
Tenant Leases, and the Accounts Receivable, but shall exclude the Excluded
Property.
"Property Information" shall have the meaning set forth in SECTION 6.4.2.
"Proration Time" shall mean 12:01 a.m. Mountain Time on the Closing Date.
"Purchase Price" shall mean the sum of the Cash Purchase Price and the Equity
Purchase Price.
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"Real Property" shall mean the Land and the Improvements, together with Seller's
right, title and interest in and to all rights of way, easements, water or
littoral rights, rights to any minerals, oil, gas and other hydrocarbon
substances, or any portion thereof, relating to the Land, and Seller's right,
title and interest in and to all streets, alleys, strips and gores abutting the
Land, if any.
"Records and Plans" shall mean, all financial records showing the income and
expenses of the Hotel for the prior three (3) calendar years and for the current
year to date, certificates of occupancy, records of the Hotel's operations
(including utility bills), building plans, specifications and drawings, lists of
Personal Property, surveys, tax bills for the Real Property for the last three
(3) years and for the current year to date, copies of the Service Contracts,
Licenses and Permits and other documents related to the use, maintenance,
repair, management, construction and/or operation of the Hotel, in each case, to
the extent located on-site at the Hotel, or to Seller's Knowledge, otherwise
under the control of Seller.
"Related Agreement" shall have the meaning set forth in SECTION 9.1.3.
"Schedule of Advance Bookings" means the Schedule of Advance Bookings delivered
pursuant to SECTION 4.2.1.19.
"Schedule of Tenant Leases" means the Schedule of Tenant Leases set forth in
SCHEDULE 1.1.7 annexed hereto and made a part hereof.
"Scheduled Closing Date" shall mean January 15, 1998, as such date may be
extended in accordance with the provisions of SECTION 7.1 time being of the
essence.
"SEC" shall mean the United States Securities and Exchange Commission.
"SEC Documents" shall have the meaning set forth in SECTION 6.1.4.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Seller Default" shall have the meaning set forth in SECTION 11.1.
"Seller's Closing Certificate" shall have the meaning set forth in SECTION
4.2.1.18.
"Seller's Counsel" shall mean Xxxxxxxx & Xxxxxxxx LLP acting through Xxxxxx X.
Xxxxxx, Esq.
"Seller's Due Diligence" shall mean the information gathering and review process
described on SCHEDULE 1.1.8.
"Seller's Insurance" shall have the meaning set forth in SECTION 6.3.12.
"Seller's Knowledge" shall mean with respect to any representation or warranty
so qualified, the knowledge of the person(s) identified on SCHEDULE 1.1.8
annexed hereto and made a part hereof, on the date on or as of which such
representation or warranty is made, following the completion by such person(s)
of Seller's Due Diligence, but without any other duty to investigate or inquire
and without attribution to any such identified person(s) of facts and matters
otherwise within the personal knowledge of any other officers, employees, or
agents of Seller or any third parties (including, but not limited to, the
Manager or any previous manager of the Hotel), but not within the actual current
knowledge of such named person(s). It is understood that none of the individuals
identified on SCHEDULE 1.1.8 shall have any personal liability for any of
Seller's representations, warranties and other obligations under this Agreement.
"Service Contracts" shall mean any and all service contracts, landscaping
contracts, maintenance agreements, open purchase orders and other contracts for
the provision of services, materials or supplies to or for the benefit of the
Property, except for the Management Agreement, together with any and all
amendments thereto.
"Specific Disclosure Matters" shall mean certain disclosures and information
provided or disclosed by Seller to Buyer described on SCHEDULE 1.1.9 annexed
hereto and made a part
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hereof.
"Starwood Disclosure" shall mean collectively, the Form S-3 filed by the
Corporation and the Trust with the SEC on November 12, 1997, and the Form S-4
filed by the Corporation and the Trust with the SEC on November 20, 1997, as the
same may be amended by any filing with the SEC made by the Trust or the
Corporation, as amended to date and from time to time thereafter.
"Starwood Operating Partnership" shall mean SLC Operating Limited Partnership, a
Delaware limited partnership.
"Starwood Realty Partnership" shall mean SLT Realty Limited Partnership, a
Delaware limited partnership.
"State" shall mean the state in which the Hotel is located.
"Stock Agreement" shall have the meaning set forth in SECTION 4.2.1.6.
"Survey" shall mean an as-built ALTA survey of the Real Property certified to
the Title Company meeting all State land survey requirements.
"Tangible Personal Property" shall mean, in each case to the extent owned by
Seller and excluding any and all of the Excluded Property: (i) all Records and
Plans; (ii) all "Inventories", as such term is defined in the Uniform System of
Accounts; (iii) all depreciable personal property; and (iv) all other tools,
vehicles, supplies, artwork, furniture, furnishings, machinery, equipment,
licensed software and personal computer based security systems, if any,
specialized hotel equipment and other tangible personal property, used in
connection with the ownership, operation or maintenance of the Property,
including, without limitation, all china, glassware, silverware, linens, towels,
curtains, uniforms, engineering, maintenance, and housekeeping supplies,
draperies, materials and carpeting, used or intended for use, but not for sale,
in connection with the operation of the Hotel, all equipment used in the
operation of the kitchen, dining rooms, lounges, bars, laundry, dry cleaners,
lobby, reservation desk and all merchandise, food and beverages held for sale in
connection with the operation of the Hotel, which are on hand on the Closing
Date; provided, however, that to the extent that any applicable law prohibits
the transfer of alcoholic beverages from Seller to Buyer, such beverages shall
not be considered a part of the Tangible Personal Property.
"Tenant" shall mean a tenant, licensee or concessionaire occupying space at any
portion of the Property pursuant to a Tenant Lease.
"Tenant Lease" shall mean a lease, concession agreement or license agreement
entered into by or on behalf of Seller with a third party for the use of any
part of the Real Property, including those leases, concession agreements and
license agreements shown on the Schedule of Tenant Leases, together with any
amendments thereto but excluding Bookings.
"Tenant Security Deposits" shall mean all security deposits or other security of
Tenants under the Tenant Leases, plus accrued interest, if any, payable thereon.
"Termination Charges" shall have the meaning set forth in SECTION 14.1.
"Termination Notice" shall have the meaning set forth in SECTION 3.5.1.
"Threshold Amount" shall mean One Million Dollars ($1,000,000).
"Title Company" shall mean Chicago Title Insurance Company.
"Title Policy" shall have the meaning set forth in SECTION 7.2.
"Transfer Restriction Period" shall have the meaning set forth in SECTION 17.18.
"Uninsured Casualty Notice" shall have the meaning set forth in SECTION 12.2.1.
"Uninsured Estimate to Repair" shall have the meaning set forth in SECTION
12.2.1.
"Uniform System of Accounts" shall mean the Uniform System of Accounts for
Hotels,
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prepared by The Hotel Association of New York City, Inc., in effect as of the
date hereof.
"Utility Deposits" shall mean Seller's right, title and interest in and to all
deposits delivered by Seller to utilities, governmental agencies, suppliers or
others pursuant to an Approved Service Contract or otherwise in connection with
the Real Property.
"Value Letter" shall have the meaning set forth in SECTION 4.3.1.4.
"WARN Act" shall mean the Workers Adjustment and Retraining Notification Act and
the Regulations promulgated thereunder, as the same has been amended.
1.2 Other Definitional Provisions. The terms "hereof," "hereto," "hereunder" and
similar terms when used in this Agreement shall refer to this Agreement
generally, rather than to the section in which such term is used, unless
otherwise specifically provided. Unless the context otherwise requires, any
defined term used in the plural shall refer to all members of the relevant
class, and any defined term used in the singular shall refer to any one or more
of the members of the relevant class.
SECTION 2
PURCHASE AND SALE OF PROPERTY
On the terms and subject to the conditions of this Agreement, Seller agrees to
sell the Property to Buyer, and Buyer agrees to purchase the Property from
Seller all as hereinafter provided. Notwithstanding any other provision of this
Agreement, there shall be excluded from the Property being conveyed hereunder
the Excluded Property.
SECTION 3
PURCHASE PRICE; PAYMENT;
BUYER'S DEFAULT; LIQUIDATED DAMAGES
3.1 Purchase Price. The purchase price for the Property shall be the Purchase
Price.
3.2 Payment. The Purchase Price shall be paid as follows:
3.2.1 Upon the execution hereof, Buyer shall deliver to Escrow Holder, in cash
or other immediately available funds, the Deposit, to be held by Escrow Holder
strictly in accordance with the provisions of this Agreement. If the Close of
Escrow shall occur, Seller shall be entitled to receive the Deposit as a credit
against the Purchase Price.
3.2.2 At least one (1) day prior to the Scheduled Closing Date (unless extended
pursuant to SECTION 7.1), Buyer shall deliver to Escrow Holder an amount (the
"Closing Payment") payable in the form specified in SECTIONS 3.2.2.1 and 3.2.2.2
below, equal to the Purchase Price less the amount of the Deposit. The Closing
Payment shall be paid as follows:
3.2.2.1 The Equity Purchase Price shall be delivered in Paired Shares without
adjustment for the pro-rations hereunder, which shares shall be delivered in
accordance with and subject to and transferable in accordance with the
provisions of the Stock Agreement and the Pairing Agreement. If any portion of
the Equity Purchase Price cannot be paid in Paired Shares on account of the
Ownership Limitation, a cash payment in an amount equal to the product of (a)
the number of Paired Shares which are not delivered hereunder or under the Stock
Agreement because of the Ownership Limitation and (b) the Lock Price (the
"Overage Cash Payment") shall be paid in cash or other immediately available
funds.
3.2.2.2 The balance of the Closing Payment shall be paid in cash or other
immediately available funds adjusted for the pro-rations provided for expressly
in this Agreement.
3.3 Investment of Escrowed Funds. Escrow Holder shall invest and reinvest any
funds deposited by Buyer in the Escrow only in bonds, notes, Treasury bills or
other securities having maturities of thirty (30) days or less and constituting
direct obligations of, or fully guaranteed
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by, the United States of America (and provided, further, that such direct
obligations or guarantees, as the case may be, are entitled to the full faith
and credit of the United States of America) or such other investments as Buyer
may direct and Seller may approve, until Escrow Holder is required to deliver or
use such funds or any interest earned thereon in accordance with the provisions
of this Agreement. All interest accruing on the Deposit shall be paid to the
party ultimately entitled to the Deposit. All risk of loss on funds held in
Escrow shall be borne by Buyer or Escrow Holder.
3.4 Allocation of Purchase Price. The Purchase Price shall be allocated among
the assets and property that comprise the Property as proposed by Seller prior
to Closing subject to the reasonable approval of Buyer, and such allocation
shall be used by Seller and Buyer in connection with the preparation of their
respective income tax, sales tax, transfer tax, and any other applicable tax
returns. Seller and Buyer shall not, nor shall they permit their respective
Affiliates to, take a federal or state income tax position with any taxing or
other public authorities in any jurisdiction which is materially inconsistent
with the allocation so agreed upon by the parties.
3.5 Default by Buyer Prior to Closing; Liquidated Damages.
3.5.1 EXCEPT AS PROVIDED TO THE CONTRARY IN SECTION 7.1.1., IF BUYER BREACHES
ITS OBLIGATION TO PURCHASE THE PROPERTY UNDER THIS AGREEMENT AND FAILS TO CURE
SUCH BREACH ON OR BEFORE THE SCHEDULED CLOSING DATE (A "BUYER DEFAULT"), THEN
UPON WRITTEN NOTICE OF TERMINATION (A "TERMINATION NOTICE") FROM SELLER TO BUYER
AND ESCROW HOLDER, THE ESCROW AND THIS AGREEMENT SHALL TERMINATE AND ESCROW
HOLDER SHALL DISBURSE FROM THE ESCROW THE DEPOSIT TO SELLER AS LIQUIDATED
DAMAGES, WHICH SHALL BE SELLER'S SOLE REMEDY AT LAW OR IN EQUITY FOR THE BUYER
DEFAULT, AND THEREAFTER NEITHER PURCHASER NOR SELLER SHALL HAVE ANY FURTHER
LIABILITY HEREUNDER, EXCEPT THAT BUYER SHALL REMAIN OBLIGATED FOR PERFORMANCE OF
ITS OBLIGATIONS UNDER SECTIONS 8, 10, 17.14, 17.19 AND ANY OTHER PROVISION
HEREOF WHICH BY ITS EXPRESS TERMS SURVIVES THE TERMINATION OF THIS AGREEMENT.
NOTHING CONTAINED HEREIN SHALL LIMIT SELLER'S RIGHT TO OBTAIN SPECIFIC
PERFORMANCE OF BUYER'S OBLIGATION TO CLOSE PURSUANT TO SECTION 7.1.1.
3.5.2 THE PARTIES ACKNOWLEDGE AND AGREE BY INITIALING THIS SECTION 3.5.2 THAT IF
A BUYER DEFAULT OCCURS ON OR PRIOR TO THE SCHEDULED CLOSING DATE AND IF, AS A
RESULT OF SUCH BUYER DEFAULT, CLOSE OF ESCROW FAILS TO OCCUR, SELLER WILL INCUR
CERTAIN COSTS AND OTHER DAMAGES IN AN AMOUNT THAT WOULD BE EXTREMELY DIFFICULT
OR IMPRACTICAL TO ASCERTAIN; AND THE DEPOSIT BEARS A REASONABLE RELATIONSHIP TO
THE DAMAGES WHICH THE PARTIES ESTIMATE MAY BE SUFFERED BY SELLER BY REASON OF
SUCH FAILURE OF THE CLOSE OF ESCROW TO OCCUR AND THAT SELLER'S RETENTION OF THE
DEPOSIT IS FAIR AND REASONABLE COMPENSATION TO SELLER BY REASON OF SUCH FAILURE
OF THE CLOSE OF ESCROW TO OCCUR.
INITIALS: /s/ MD /s/ MCM /s/ SRG
__________________________ _________________________
Seller Buyer
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SECTION 4
ESCROW; CLOSING; COSTS
4.1 Escrow. The purchase and sale of the Property shall be consummated through
the Escrow. Immediately upon the execution of this Agreement, the parties shall
deposit a copy of this Agreement with Escrow Holder. This Agreement, together
with any general provisions agreed to in writing by Buyer and Seller for the
benefit of Escrow Holder, shall constitute the escrow instructions for the
transfer of the Property (the "Escrow Instructions"). In the event of any
conflict between this Agreement and such general provisions, this Agreement
shall control unless otherwise expressly agreed in writing by Buyer, Seller and
Escrow Holder. If any requirements relating to the duties or obligations of
Escrow Holder are not acceptable to Escrow Holder, or if Escrow Holder requires
additional instructions, the parties shall make such deletions, substitutions
and additions to the Escrow Instructions as Buyer's Counsel and Seller's Counsel
shall mutually approve and which do not substantially alter this Agreement or
its intent. Written instructions from Seller's Counsel, in the case of Seller,
or from Buyer's Counsel, in the case of Buyer, shall be accepted by Escrow
Holder and shall be binding upon the party whose counsel gave such instructions
to Escrow Holder.
4.2 Seller's Deliveries to Escrow Holder.
4.2.1 Prior to the Scheduled Closing Date (subject to extension pursuant to
SECTION 7.1), Seller shall deliver to Escrow Holder the following documents duly
executed and, where applicable, acknowledged by Seller, each of which shall be
undated and the delivery of each of which shall be a condition precedent to the
obligation of Buyer to close hereunder.
4.2.1.1 Deed. A deed with respect to the Real Property in the form of EXHIBIT
4.2.1.1 annexed hereto and made a part hereof, sufficient to transfer all of
Seller's right, title and interest in and to the Real Property, subject only to
matters of record as of the Closing Date, from Seller to Buyer (the "Deed");
4.2.1.2 Assignment and Assumption of Tenant Leases. An Assignment and Assumption
of Tenant Leases in the form of EXHIBIT 4.2.1.2 annexed hereto and made a part
hereof pursuant to which Seller shall assign the Tenant Leases to Buyer and
Buyer shall assume all of Seller's obligations thereunder (the "Assignment and
Assumption of Tenant Leases");
4.2.1.3 General Assignment. A General Assignment and Assumption Agreement in the
form of EXHIBIT 4.2.1.3 annexed hereto and made a part thereof pursuant to which
Seller shall assign to Buyer all of Seller's right, title and interest in and to
all of the Intangible Property and Buyer shall assume all obligations thereunder
(the "General Assignment and Assumption Agreement");
4.2.1.4 Assignment and Assumption of Management Agreement. An Assignment and
Assumption of Management Agreement in the form of EXHIBIT 4.2.1.4 annexed hereto
and made a part hereof pursuant to which Seller shall assign to Buyer the
Management Agreement and Buyer shall assume the obligations of Seller
thereunder, provided, however, the obligation to deliver the Assignment and
Assumption of Management Agreement shall be irrevocably waived, if prior to the
Close of Escrow, the Management Agreement shall have been terminated and the
Interim Management Agreement shall have become effective in accordance with
SECTION 17.20.
4.2.1.5 Xxxx of Sale. One or more Bills of Sale in the form of EXHIBIT 4.2.1.5A
AND 4.2.1.5B annexed hereto and made a part hereof conveying to Buyer or
designees of Buyer all of Seller's right, title and interest in and to the
Tangible Personal Property (the "Xxxx of Sale");
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4.2.1.6 Stock Agreement. The Stock Agreement in the form of EXHIBIT 4.2.1.6
annexed hereto and made a part hereof (the "Stock Agreement");
4.2.1.7 Assignment and Assumption of Liquor-Related Agreements. The Assignment
and Assumption of Liquor-Related Agreements in the form of EXHIBIT 4.2.1.7
annexed hereto and made a part hereof (the "Assignment and Assumption of
Liquor-Related Agreements");
4.2.1.8 [Intentionally Omitted]
4.2.1.9 [Intentionally Omitted]
4.2.1.10 [Intentionally Omitted]
4.2.1.11 Houston Master Lease. The Master Lease in the form of EXHIBIT 4.2.1.11
annexed hereto and made a part hereof pursuant to which Seller shall lease to
Buyer on a triple net basis the land (the "Houston Adjacent Assets") more
particularly described on SCHEDULE 4.2.1.11 (the "Master Lease");
4.2.1.12 Houston Right of First Offer Agreement. A Right of First Offer
Agreement in the form of EXHIBIT 4.2.1.12 annexed hereto pursuant to which
Seller shall grant Buyer a right of first offer with respect to the Houston
Adjacent Assets (the "Houston Right of First Offer Agreement");
4.2.1.13 Non-Foreign Person Certificate. A Non-Foreign Person Certificate in the
form of EXHIBIT 4.2.1.13 annexed hereto and made a part hereof (the "Non-Foreign
Person Certificate");
4.2.1.14 Transfer Tax Forms. Any statements, such as a transfer or conveyance
tax forms or returns required by applicable state or local law to be executed by
Seller in order to effect the Closing;
4.2.1.15 Certified Rent Roll. A copy of the rent roll for the Property dated as
of the Closing Date and certified by Seller to be (a) a true, correct and
complete copy of the rent roll for the Property provided to Seller by the
Manager; and (b) to Seller's Knowledge, to be true, correct and complete;
4.2.1.16 Certified Operating Statement. An operating statement for the Property
dated as of a date no more than thirty (30) days prior to the Closing Date and
certified by Seller to be (a) a true, correct and complete copy of the operating
statement for the Property provided to Seller by Manager for the period of
Manager's employment at the Property; and (b) to Seller's Knowledge, to be,
true, correct and complete;
4.2.1.17 Guest Ledger. A copy of the guest ledger dated as of the Proration Time
showing all Guest Ledger Receivables and certified by Seller (a) to be a true,
correct and complete copy of the guest ledger provided to Seller by Manager; and
(b) to Seller's Knowledge, to be true, correct and complete;
4.2.1.18 Closing Certificate. A certification by Seller to Seller's Knowledge
that the representations and warranties set forth in SECTION 6.3 are true,
correct and complete as of the Closing Date, except to the extent that any such
representation or warranty is expressly made only as of the Execution Date
subject to Seller's right to make revisions pursuant to SECTION 6.7 to such
representations and warranties ("Seller's Closing Certificate");
4.2.1.19 Schedule of Bookings. A schedule of all Bookings relating to periods
after the Proration Time, certified by Seller (a) to be a true, correct and
complete copy of the schedule of Bookings provided to Seller by Manager; and (b)
to Seller's Knowledge, to be true, correct and complete;
4.2.1.20 Title Requirements. Any and all certificates, affidavits and other
instruments and
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documents which the Title Company shall reasonably require to permit it to issue
the Title Policy in the condition required herein; provided, however, that, (a)
Seller is given written notice by Title Company of the requirement of any such
certificates, affidavits or other instruments and documents within a reasonably
sufficient time in advance of the Scheduled Closing Date and (b) such incidental
documents do not create any liability to Seller that is inconsistent with the
liability retained by Seller under the terms of this Agreement;
4.2.1.21 Payoff Letters. A pay-off letter from the holder of any mortgage or
deed of trust presently encumbering the Real Property indicating all sums
required to satisfy the debt secured by and permit the discharge of record the
lien of such mortgage or deed of trust;
4.2.1.22 Notices to Tenants. Notices to Tenants of the assignment to Buyer of
the Tenant Leases in form and substance satisfactory to Seller and Buyer;
4.2.1.23 Opinion of Seller's Counsel. An opinion of Seller's Counsel in a form
to be agreed upon by the parties; and
4.2.1.24 Other. Any other incidental documents, not otherwise expressly provided
for herein, reasonably required by Escrow Holder to consummate the purchase and
sale of the Property; provided, however, that (a) Seller is given written notice
by Escrow Holder of the requirement of any such incidental documents within a
reasonably sufficient time in advance of the Scheduled Closing Date (subject to
extension in accordance with the provisions of SECTION 7.1); and (b) such
incidental documents do not create any liability to Seller that is inconsistent
with the liability retained by Seller under the terms of the this Agreement.
4.3 Buyer's Deliveries to Escrow Holder.
4.3.1 Prior to the Scheduled Closing Date (subject to extension in accordance
with the provisions of SECTION 7.1), and subject further to the provisions of
SECTION 4.3.1.4 in the case of the Value Letter, Buyer shall deliver to Escrow
Holder the following items and documents, which documents shall be duly executed
and, where applicable, acknowledged by Buyer or its designee, as applicable, and
undated, and the delivery of each of which shall be a condition precedent to the
obligation of Seller to close hereunder:
4.3.1.1 The Cash Purchase Price. The Cash Purchase Price;
4.3.1.2 Stock Certificates. Paired Shares in the amount required to be delivered
at the Closing in accordance with the provisions of this Agreement and in
accordance with and subject to the provisions of the Stock Agreement;
4.3.1.3 Assignment and Assumption of Management Agreement. A counterpart of the
Assignment and Assumption of Management Agreement, provided, however, the
obligation to deliver the Assignment and Assumption of Management Agreement
shall be irrevocably waived, if prior to the Close of Escrow, the Management
Agreement shall have been terminated and the Interim Management Agreement shall
have become effective in accordance with SECTION 17.20.;
4.3.1.4 Value Letter. A letter (the "Value Letter") to be obtained by Buyer at
Buyer's expense with respect to the reasonableness of the allocation of the
purchase price among the transactions being entered into as of the date hereof
between Buyer and Seller and/or Seller's Affiliates issued by Bear Xxxxxxx;
4.3.1.5 Opinion of Buyer's Counsel. An opinion of Buyer's counsel in a form to
be agreed upon by the parties;
4.3.1.6 Stock Agreement. A counterpart of the Stock Agreement;
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4.3.1.7 [Intentionally Omitted]
4.3.1.8 Assignment and Assumption of Liquor-Related Agreements. A counterpart of
the Assignment and Assumption of Liquor-Related Agreements;
4.3.1.9 [Intentionally Omitted]
4.3.1.10 Houston Master Lease. A counterpart of the Master Lease;
4.3.1.11 Houston Right of First Offer. A counterpart of the Houston Right of
First Offer Agreement;
4.3.1.12 Closing Certificate. A certification by Buyer that the representations
and warranties set forth in SECTION 6.1 and SECTION 6.2 are true, correct and
complete as of the Closing Date;
4.3.1.13 The Assignment and Assumption of Tenant Leases. A counterpart of the
Assignment and Assumption of Tenant Leases;
4.3.1.14 The General Assignment and Assumption Agreement. A counterpart of the
General Assignment and Assumption Agreement;
4.3.1.15 Transfer Tax Forms. Any statements, such as a transfer or conveyance
tax forms or returns required by applicable state or local law to be executed by
Buyer in order to effect the closing; and
4.3.1.16 Other. Any other incidental documents, not otherwise expressly provided
for herein, required by Escrow Holder to consummate the purchase and sale of the
Property; provided, however, that (a) Buyer is given written notice by Escrow
Holder of the requirement of such incidental documents within a reasonably
sufficient time in advance of the Scheduled Closing Date; and (b) Buyer shall
not be required to incur any liability, in connection with the delivery of such
incidental documents inconsistent with the provisions of this Agreement.
4.4 Seller's Deliveries to Buyer. At or prior to the Close of Escrow, Seller
shall deliver to Buyer or cause to be available to Buyer on-site at the Hotel,
the following documents, to the extent the same have not already been delivered
and to the extent in the possession or control of Seller:
4.4.1 Tenant Leases/Tenant Deposits. The original Tenant Leases (or if not
available, the best available copies), and the originals of Tenant Security
Deposits which are evidenced by letters of credit or escrow agreements, if any,
and if necessary to enable Buyer to realize or draw upon same, consents of the
applicable Tenants and/or financial institutions or replacement letters of
credit or escrow agreements in favor of Buyer;
4.4.2 Service Contracts. The originals, or, if not available, the best available
copies, of the Approved Service Contracts;
4.4.3 Licenses and Permits. The originals, or, if not available, the best
available copies of the Licenses and Permits; and
4.4.4 Records and Plans. The originals, or, if not available, the best available
copies of the Records and Plans.
4.5 Possession. Seller shall deliver the keys and possession of the Property to
Buyer at the Close of Escrow free and clear of all leases, tenancies and
occupancies, except for the Management Agreement, the Bookings, the rights of
guests in guest rooms, banquet facilities, conference rooms and meeting rooms,
the rights of Tenants under the Tenant Leases (including their assignees,
subtenants or licensees), and the other Permitted Encumbrances.
4.6 Evidence of Authorization. At the Close of Escrow, each party shall deliver
to the other party evidence in form and content reasonably satisfactory to the
other party and the Title
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Company that (a) the party is duly organized and validly existing under the laws
of the state of its organization and has the power and authority to enter into
this Agreement, (b) this Agreement and all documents delivered pursuant hereto
have been duly executed and delivered by the party, and (c) the performance by
the party of its obligations under this Agreement have been duly authorized by
all necessary corporate, partnership or other action.
4.7 Close of Escrow.
4.7.1 The Escrow shall close on or before the Scheduled Closing Date.
4.7.2 Provided that Escrow Holder has not received from either party written
notice of the failure of any condition precedent specified in SECTION 9 to the
obligations of such party (or any previous such notice has been withdrawn), then
when the parties have each deposited into the Escrow the documents and funds
required by this Agreement and the Title Company is unconditionally prepared to
issue the Title Policy at the Close of Escrow, Escrow Holder shall perform the
following actions (collectively, "Close of Escrow" or "Closing"):
4.7.2.1 Prepare a closing statement for the transaction for approval by Seller
and Buyer prior to the Close of Escrow;
4.7.2.2 Insert the Closing Date as the date of any undated document to be
delivered through Escrow;
4.7.2.3 Cause the Deed to be recorded in the land records of the state and
county where the Real Property is located;
4.7.2.4 Deliver to Buyer the documents deposited into the Escrow for delivery to
Buyer at the Close of Escrow;
4.7.2.5 Deliver to Seller (a) all funds and Paired Shares to be received by
Seller from Buyer through the Escrow at the Close of Escrow less (i) all amounts
to be paid by Seller for Escrow Holder's fees and expenses and (ii) all amounts
paid by Escrow Holder in satisfaction of liens and encumbrances on the Real
Property or other matters pursuant to the written instruction of Seller, and (b)
the documents deposited into the Escrow for delivery to Seller at the Close of
Escrow; and
4.7.2.6 Cause the Title Policy to be issued by the Title Company and delivered
to Buyer.
4.8 Costs of Escrow. Costs of the Escrow shall be allocated as follows:
4.8.1 Buyer and Seller shall each pay one-half (1/2) of the fees of Escrow
Holder;
4.8.2 Buyer and Seller shall each pay one-half (1/2) of the cost of providing
the Survey required to be delivered in accordance with the provisions of SECTION
7.1; provided, however, Buyer shall be responsible for the full cost of the
Survey in the event the Closing does not occur hereunder other than on account
of default of Seller;
4.8.3 Buyer and Seller shall each pay one-half (1/2) of all transfer taxes and
recording fees payable in connection with the conveyance of each portion of the
Real Property and/or the recording of the Deed and any other documents or
instruments recorded pursuant to this Agreement;
4.8.4 Buyer and Seller shall each pay one-half (1/2) of all sales or other
personal property taxes, levies, fees and charges payable as a result of the
transfer of the Personal Property to Buyer and the consummation of the
transactions contemplated hereby. Buyer shall be the reporting person for such
purposes and shall prepare the necessary sales tax reports based upon the
allocations set forth in SECTION 3.4. The parties acknowledge that additional
sales tax may be assessed as a result of the transfer of the Personal Property
to Buyer and the consummation of the transactions contemplated hereby after the
Closing and that Buyer and Seller shall
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continue to each be responsible for one-half of any such additional taxes. The
provisions of Section 4.8.3 and Section 4.8.4 shall survive the Closing;
4.8.5 Buyer and Seller shall each pay one-half (1/2) of the cost of obtaining
the coverage under the Title Policy, except that the cost of any special
endorsements shall be paid exclusively by Buyer;
4.8.6 At Closing or thereafter Buyer shall pay for the cost of the Value Letter;
4.8.7 [Intentionally Omitted]
4.8.8 If the Close of Escrow fails to occur other than as a result of a default
hereunder by either party, including, without limitation, as a result of a
failure of a condition precedent set forth in SECTION 9, the fees of the Escrow
Holder and Title Company (including, without limitation, cancellation fees)
shall be borne equally between Buyer and Seller;
4.8.9 If the Close of Escrow fails to occur as a result of a default hereunder
by either party, the fees of the Escrow Holder and Title Company (including,
without limitation, cancellation fees) shall be borne by the defaulting party;
and
4.8.10 Pursuant to Section 6045 of the Internal Revenue and Taxation Code, the
Title Company shall be designated the "Closing Agent" hereunder and shall be
solely responsible for complying with the Tax Reform Act of 1986 with regard to
the reporting of all settlement information to the Internal Revenue Service.
4.9 Other Costs. Except as set forth in SECTION 4.8.6, SECTION 11.1 and SECTION
15.1.6, each party shall pay all of its own legal, accounting and consulting
fees and other costs and expenses incurred in connection with this Agreement.
4.10 Maintenance of Confidentiality by Escrow Holder. Escrow Holder shall
maintain in strict confidence and not disclose to anyone the existence of the
Escrow, the identity of the parties thereto, the amount of the Purchase Price,
the existence or provisions of this Agreement or any other information
concerning the Escrow or the transactions contemplated hereby, without the prior
written consent of Buyer and Seller.
SECTION 5
PRORATIONS AND ASSUMPTION OF OBLIGATIONS
5.1 General. All income, receivables, expenses (whether payable or prepaid) and
payables of the Property shall be apportioned equitably between the parties as
of the Proration Time in accordance with the provisions of this SECTION 5 (all
prorations are to be based upon the number of days in a 365 day year). The
obligation to make apportionments under SECTIONS 5.1 AND 5.2 shall, unless
otherwise expressly provided in this SECTION 5, survive the Close of Escrow for
a period of sixty (60) days at which time such apportionment shall be final
unless disputed during such period.
5.2 General and Specific Prorations. Without limitation, the following items
shall be apportioned:
5.2.1 At the Closing, Buyer shall assume all of the accounts payable relating to
goods and services ordered or obtained in the ordinary course of operation of
the business of the Hotel (including without limitation, payments under the
Service Contracts and Equipment Leases) prior to the Proration Time. Seller
shall be obligated to credit Buyer at the Close of Escrow with an amount
mutually agreed upon by Buyer and Seller at the Closing, reflecting the parties'
good faith estimate of such accounts payable as of the Proration Time (which
estimate shall deduct any discounts then available in the ordinary course of
business for the prompt payment of such accounts payable), plus a further credit
for any late fees then payable with respect to any
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identified accounts payable. Buyer shall be responsible for paying when due all
accounts payable arising from the operation of the Property on or after the
Proration Time, and Seller shall have no further liability for such payables or
charges. As of the date which is sixty (60) days following the Closing Date,
Buyer and Seller shall calculate the amount of all accounts payable relating to
goods and services ordered or obtained in the ordinary course of operation of
the business of the Hotel (including without limitation, payments under the
Service Contracts and Equipment Leases) prior to the Proration Time. Seller
shall reimburse Buyer for any payments made on account of any such accounts
payable which were not reflected in the Parties' estimate of such amount
credited to Buyer at Closing and which have been paid by Buyer or for which
Buyer is obligated to pay in accordance with the provisions hereof, and if the
amount of such credit exceeds the amounts so paid or for which Buyer is so
obligated, Buyer shall pay such excess amount to Seller.
5.2.2 At the Closing, Seller shall assign to Buyer all of the Accounts
Receivable, for which Seller shall receive a credit at the Close of Escrow in an
amount equal to (a) the full, aggregate outstanding balance of the Cash
Equivalent Receivables (without discount except for service charges due to
charge card companies) plus (b) the full aggregate outstanding balance of the
Invoiced Receivables and Other Accounts Receivable as of the Proration Time,
provided, Buyer shall at its option accept or reject any Invoiced Receivables
and Other Accounts Receivable over ninety (90) days and Seller shall not receive
a credit for any Invoiced Receivables and Other Accounts Receivable over ninety
(90) days rejected by Buyer; provided, that Buyer shall at its own expense use
reasonable efforts to collect any such rejected Invoiced Receivables and Other
Accounts Receivable on behalf of Seller for a period of sixty (60) days after
the Closing Date and thereafter Seller shall have the right to collect same for
its own account; provided, further, as of the date which is sixty (60) days
following the Closing Date, Buyer and Seller shall make any adjustments required
to reflect the collectibility of any Invoiced Receivables and Other Accounts
Receivable (it being agreed that (a) any accounts receivable not listed on the
schedule of accounts receivable of the Property as of the date which is sixty
(60) days following the Closing Date shall be deemed paid as of such date and
(b) except as provided in (a), any accounts receivable which are more than
ninety (90) days past due as of the date which is sixty (60) days following the
Closing Date shall be deemed uncollectable as of such date) and Seller and Buyer
shall make a corresponding payment to the other as required to accurately
reflect the collectibility of such Invoiced Receivables and Other Accounts
Receivable and any accounts receivable deemed uncollectable as of such date in
accordance with the terms hereof shall be the property of Seller and Seller
shall be permitted (at its expense and for its own account) to collect the same;
5.2.3 In prorating the Accounts Receivable, Buyer and Seller shall each receive
credit for one-half (1/2) of all Guest Ledger Receivables attributable to the
room night during which the Proration Time occurs. Seller shall receive the
income from all restaurant and bar facilities located at the Property through
the Proration Time and Buyer shall receive such income thereafter;
5.2.4 [Intentionally Omitted]
5.2.5 All sales, use and occupancy taxes arising from the operation of the
Property shall be prorated as of the Proration Time;
5.2.6 Fees for transferable annual permits, licenses, and/or inspection fees, if
any, for periods during which the Proration Time occurs shall be prorated as of
the Proration Time;
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5.2.7 Utility charges with respect to the Property levied against Seller or the
Property and the value of fuel stored on the Property shall be prorated at
Seller's cost therefor as of the Proration Time. Seller shall notify all
utilities, governmental agencies, suppliers and others providing services to the
Property of the prospective change in ownership and operation of the Property,
and Seller shall use its reasonable efforts to cause all utilities furnished to
the Property, including, but not limited to, electricity, gas, water and sewer,
along with any fuel storage tanks to be read the day prior to the Proration
Time;
5.2.8 Permitted administrative charges, if any, on Tenant Security Deposits
shall be prorated;
5.2.9 Buyer shall receive a credit for advance payments and/or deposits, if any,
under Bookings to the extent the Bookings relate to a period after the Proration
Time;
5.2.10 Vending machine monies will be removed by Seller as of the Proration Time
for the benefit of Seller;
5.2.11 Buyer shall purchase and Seller shall sell to Buyer (or Seller shall
receive a credit therefore) all xxxxx cash funds and cash in the Property's
house banks at 100% of face value at the Proration Time;
5.2.12 Wages, salaries and payroll taxes and other payroll deductions for all
Hotel Employees shall be apportioned as of the Proration Time (i.e., the night
shift shall be prorated 50/50 for the night preceding the Closing Date). Buyer
shall assume all accrued vacation benefits and sick leave benefits due to such
Hotel Employees which relate to any period prior to the Proration Time and shall
receive a credit for the full amount of all such accrued benefits reasonably
expected to be paid after the Closing Date; provided, that as of the date which
is sixty (60) days following the Closing, Buyer and Seller shall adjust the
amount of the credit if required to take into account the benefits actually
required to be paid by Buyer or then reasonably expected to be paid following
the Closing Date by Buyer. Buyer shall also assume all obligations of Seller and
the Employer Corporation, under the Employment Agreements and/or the Management
Agreement to pay all such wages, salaries, and compensation set forth above
accruing subsequent to Proration Time; provided, however, that other than as set
forth in SECTION 14.1 hereof, no provision contained in this Agreement shall be
construed to prevent the Buyer from terminating or amending in any manner such
Employment Agreements and Management Agreements subsequent to the Proration
Time. The obligation to pay bonuses, if any, following the Closing shall be
allocated as of the Proration Time and adjusted between Buyer and Seller.
5.2.13 Real and personal property taxes, assessments and special district levies
shall be prorated for the tax fiscal year in which the Closing Date occurs on
the basis of the then most current available tax bills, Seller being charged
through the day prior to the Closing Date and Buyer with the Closing Date and
thereafter;
5.3 Deposits. All rights to utility, assessment, and other cash deposits
(including, without limitation, any Utility Deposits) held by others for
Seller's account, and all certificates of deposit or other forms of cash
collateral held by or otherwise pledged to others for Seller's account to secure
obligations of Seller under Service Contracts, Equipment Leases or other
obligations assumed by Buyer, shall be assigned or transferred to Buyer at the
Close of Escrow; provided, that if any of such deposits are not transferable,
Seller shall retain all rights with respect thereto and there shall be no debit
made to Buyer on account thereof.
5.4 Tenant Leases. At the Close of Escrow, pursuant to the Assignment and
Assumption of Tenant Leases, Buyer shall assume all of the obligations of Seller
under the Tenant Leases as of the Proration Time, including, without limitation,
tenant improvement obligations of landlord
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thereunder and obligations with respect to Tenant Security Deposits (to the
extent received by Buyer or credited to Buyer hereunder).
5.5 Service Contracts and Other Intangible Property. At the Close of Escrow,
Seller shall assign to Buyer pursuant to the terms of the General Assignment and
Assumption Agreement, all right, title and interest of Seller in and to the
Approved Service Contracts and other Intangible Property, and Buyer shall assume
all of the obligations of Seller under the Approved Service Contracts arising
from and after the Close of Escrow. Buyer shall protect, hold harmless,
indemnify and defend Seller and its directors, officers, agents, affiliates,
principals, partners, shareholders, representatives and controlling persons from
any Losses attributable to the period beginning on and after the Closing Date
with respect to the Approved Service Contracts. Seller shall be responsible for
all obligations thereunder attributable to the period prior to the Closing Date
with respect to Approved Service Contracts (except to the extent that Buyer
shall have received a credit hereunder with respect to any such obligations).
The provisions of this SECTION 5.5 shall survive the Close of Escrow.
5.6 Tax Refunds and Proceedings. Buyer shall have the exclusive right to
commence or continue any proceeding to determine the assessed value of the
Property, the real or personal property taxes payable with respect to the
Property or any action to contest water charges, sewer charges, sales tax or use
tax for the relevant taxable period during which the Proration Time occurs and
to settle or compromise any claim thereof, and any refunds or proceeds resulting
from such proceedings along with the costs (including reasonable legal and
accounting fees) incurred by Buyer in obtaining the same, shall be prorated as
of the Proration Time. In prosecuting any such action, Buyer shall utilize the
services of Xxxxxx Xxxx & Co. and Xxxxxxx Xxxxxx. Seller shall retain the right
to continue, commence, prosecute, settle or compromise any proceedings relating
exclusively to any relevant taxable period or periods prior to the period during
which the Proration Time shall occur. Buyer and Seller agree to cooperate with
each other and to execute any and all documents reasonably requested in
furtherance of the foregoing. The provisions of SECTION 5.6 shall survive the
Closing.
5.7 Guest Baggage. As of the Close of Escrow, Buyer shall indemnify and hold
harmless Seller against all Losses with respect to all baggage of departed
guests or guests who are still registered at the Hotel on the Closing Date which
has been checked with the Hotel. As of the Close of Escrow, Seller shall assign
to Buyer all claims and causes of action against the Manager with respect to any
Losses with respect to such baggage. Seller agrees to submit to Seller's
Insurance any claims for Losses with respect to such baggage which arose from
acts or omissions prior to the Closing Date to the extent coverage is available
under said insurance and provide Buyer with the proceeds therefrom provided
Buyer is not in default under this SECTION 5.7. The provisions of this SECTION
5.7 shall survive the Closing.
5.8 Safe Deposit Boxes. As of the Close of Escrow, Buyer shall indemnify and
hold harmless Seller against all Losses with respect to the contents of any
safety deposit boxes in use at the Hotel. As of the Close of Escrow, Seller
shall assign to Buyer all claims and causes of action against the Manager with
respect to any Losses relating to said safety deposit boxes. Seller agrees to
submit to Seller's insurance any claims for Losses which arose from acts or
omissions prior to the Closing Date to the extent coverage is available under
said insurance and provide Buyer with the proceeds therefrom provided Buyer is
not in default under this SECTION 5.8. The provisions of this SECTION 5.8 shall
survive the Closing.
5.9 Advance Bookings. Buyer shall assume and honor for its account all Bookings
relating
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to dates after the Proration Time set forth on the Schedule of Advance Bookings
delivered by Seller to Buyer at the Close of Escrow pursuant to SECTION 4.2.1.9.
5.10 Special Purchase Price Adjustment. In the event that the Closing Date is
extended beyond January 30, 1998 for any reason other than on account of a
default by Buyer hereunder, Buyer shall receive a credit at Closing against the
Cash Purchase Price in an amount equal to interest on the Purchase Price
calculated at the LIBOR Rate plus 2% per annum for the period from January 30,
1998 through the earlier of (a) the Closing Date and (b) sixty (60) days after
January 30, 1998. Nothing in this SECTION 5.10 shall create a waiver of any
other remedy of Buyer for a Seller default permitted under the provisions of
this Agreement.
SECTION 6
REPRESENTATIONS AND WARRANTIES;
CONDITION OF PROPERTY
6.1 Of the Trust. As an inducement to Seller to enter into this Agreement, the
Trust hereby represents, warrants and covenants to Seller as follows:
6.1.1 Power and Authority. The Trust is a real estate investment trust duly
organized and validly existing under the laws of the State of Maryland. The
Trust has the power and authority to carry on its present business, to enter
into this Agreement and to consummate the transactions herein contemplated;
neither the execution and delivery of this Agreement by the Trust, nor the
performance by the Trust of the Trust's obligations hereunder will violate or
constitute an event of default under any material terms or material provisions
of any agreement, document, instrument, judgment, order or decree to which the
Trust is a party or by which the Trust is bound and/or violate any applicable
law, rule or regulation the violation of which would have a Material effect upon
the principal benefits intended to be provided by this Agreement.
6.1.2 Authorization; Valid Obligation. All proceedings required to be taken by
or on behalf of the Trust to authorize the Trust to make, deliver and carry out
the terms of this Agreement will be duly taken prior to the Closing Date. No
consent to the execution, delivery and performance of this Agreement will be
required from any partner, board of directors, shareholder, creditor, investor,
judicial or administrative body, governmental authority or other person, other
than any such consent which already has been (or prior to the Closing will have
been unconditionally given. The individuals executing this Agreement and the
documents referenced herein on behalf of the Trust have the legal power, right
and actual authority to bind the Trust to the terms and conditions hereof. This
Agreement is a valid and binding obligation of Trust, enforceable in accordance
with its terms, except as the same may be affected by bankruptcy, insolvency,
moratorium or similar laws, or by legal or equitable principles relating to or
limiting the rights of contracting parties generally.
6.1.3 Capital Structure. The authorized and outstanding capital stock and units
of the Trust and its operating partnership are as set forth in the Starwood
Disclosure. All Paired Shares to be issued as the Equity Purchase Price at the
Closing in accordance with this Agreement will, when so issued, be duly
authorized, validly issued, fully paid and nonassessable and free of preemptive
rights and will be paired with each other in the same ratio as all other shares
are paired with each other pursuant to the Pairing Agreement.
6.1.4 SEC Documents and Other Reports. The Trust has filed all required
documents with the SEC since January 1, 1996 (such documents together with the
Starwood Disclosure being referred to herein as the "SEC Documents"). As of
their respective dates, the SEC Documents complied in all material respects with
the requirements of applicable law, and, at the respective times they were
filed, none of the SEC Documents contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The consolidated financial statements
(including, in each case, any notes
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thereto) of the Trust included in the SEC Documents complied as to form in all
material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto as of their respective
dates of filing, were prepared in accordance with generally accepted accounting
principles (except, in the case of the unaudited statements, as permitted by
Regulation S-X of the SEC) applied on a consistent basis during the periods
involved (except as may be indicated therein or in the notes thereto) and fairly
presented the consolidated financial position of the Trust and its consolidated
subsidiaries as of the respective dates thereof and the consolidated results of
their operations and their consolidated cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments and to any other adjustments described therein). Except as disclosed
in the SEC Documents or as required by generally accepted accounting principles,
the Trust has not, since December 31, 1996, made any change in the accounting
practices or policies applied in the preparation of their financial statements.
Prior to the Closing Date, the Trust will file all required documents with the
SEC, which documents will comply in all material respects with the requirements
of the applicable law, and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
6.1.5 Absence of Certain Changes or Events. Except as disclosed in the SEC
Documents filed prior to the date of this Agreement, since December 31, 1996,
(a) there have not been any events, changes or developments that, individually
or in the aggregate, have had or would reasonably be expected to have, a
material adverse change in or effect on the financial condition, properties,
business, results of operations or prospects of the Trust and its subsidiaries
taken as a whole, or (b) there has not been any split, combination or
reclassification of any of the capital stock or units of the Trust or its
operating partnership or any issuance or the authorization of any issuance of
any other securities in respect of, in lieu of, or in substitution for shares of
such capital stock.
6.1.6 Actions and Proceedings. Except as set forth in the SEC Documents filed
prior to the date of this Agreement, there are no outstanding orders, judgments,
injunctions, awards or decrees of any governmental entity against or involving
the Trust or any of its subsidiaries, or against or involving any of the
directors, officers or employees of the Trust or any of its subsidiaries, as
such, or any of its or their properties, assets or business that, individually
or in the aggregate, have had, or would reasonably be expected to have, a
material adverse change in or effect on the financial condition, properties,
business, results of operations or prospects of the Trust and its subsidiaries
taken as a whole. Except as set forth in the SEC Documents, there are no
actions, suits or claims or legal, administrative or arbitrative proceedings or
investigations pending or, to the knowledge of the Trust, threatened against or
involving the Trust or any of its subsidiaries or any of their directors,
officers or employees, as such, or any of its or their properties, assets or
business that, individually or in the aggregate, have had, or would reasonably
be expected to have, a material adverse change in or effect on the financial
condition, properties, business, results of operations or prospects of the Trust
and its subsidiaries taken as a whole. As of the date hereof, there are no
actions, suits, labor disputes or other litigation, legal or administrative
proceedings or governmental investigations pending or, to the knowledge of the
Trust, threatened against or affecting the Trust or any of their subsidiaries or
any of their officers, directors or employees, as such, or any of their
properties, assets or business relating to the transactions contemplated by this
Agreement.
6.1.7 REIT Status. The Trust is currently a "real estate investment trust"
("REIT") for federal income tax purposes and, to its knowledge, the Trust is and
at all times during the testing period described in Code Section 897(h)(4)(D)
has been a "domestically controlled REIT" (as defined in Section 897(h)(4)(D) of
the Code). From and after January 1, 1995, neither the
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Internal Revenue Service nor any other taxing entity or authority has made any
assertion that the Trust does not qualify as a REIT for income tax purposes, nor
has there been any challenge to the REIT status of the Trust. From time to time
upon request by the Seller or its assigns after the Closing Date, the Trust
agrees to inform Seller or such assigns whether to its knowledge it complies
with the representation and warranties set forth in this Section 6.1.7.
6.1.8 Partnership Status. Starwood Realty Partnership is classified and taxable
as a partnership for U.S. federal income tax purposes.
6.1.9 Xxxx-Xxxxx-Xxxxxx Act. The provisions of the Xxxx-Xxxxx-Xxxxxx Act are not
applicable to the transactions contemplated hereby and neither the Trust nor
Seller is required to make any filings or submissions or obtain any approvals
thereunder in connection herewith.
6.2 Of the Corporation. As an inducement to Seller to enter into this Agreement,
the Corporation hereby represents, warrants and covenants to Seller as follows:
6.2.1 Power and Authority. The Corporation is a corporation duly organized and
validly existing under the laws of the State of Maryland. The Corporation has
the power and authority to carry on its present business, to enter into this
Agreement and to consummate the transactions herein contemplated; neither the
execution and delivery of this Agreement by the Corporation nor the performance
by the Corporation of the Corporation's obligations hereunder will violate or
constitute an event of default under any material terms or material provisions
of any agreement, document, instrument, judgment, order or decree to which the
Corporation is a party or by which the Corporation is bound and/or violate any
applicable law, rule or regulation the violation of which would have a Material
effect upon the principal benefits intended to be provided by this Agreement.
6.2.2 Authorization; Valid Obligation. All proceedings required to be taken by,
or on behalf of the Corporation, to authorize the Corporation to make, deliver
and carry out the terms of this Agreement will be duly taken prior to the
Closing Date. No consent to the execution, delivery and performance of this
Agreement will be required from any partner, board of directors, shareholder,
creditor, investor, judicial or administrative body, governmental authority or
other person, other than any such consent which already has been (or prior to
the Closing will have been) unconditionally given. The individuals executing
this Agreement and the documents referenced herein on behalf of the Corporation
have the legal power, right and actual authority to bind the Corporation to the
terms and conditions hereof. This Agreement is a valid and binding obligation of
Corporation, enforceable in accordance with its terms, except as the same may be
affected by bankruptcy, insolvency, moratorium or similar laws, or by legal or
equitable principles relating to or limiting the rights of contracting parties
generally.
6.2.3 Capital Structure. The authorized and outstanding capital stock and units
of the Corporation and its operating partnership are as set forth in the
Starwood Disclosure. All Paired Shares to be issued as the Equity Purchase Price
at the Closing in accordance with this Agreement will, when so issued, be duly
authorized, validly issued, fully paid and nonassessable and free of preemptive
rights and will be paired with each other in the same ratio as all other shares
are paired with each other pursuant to the Pairing Agreement.
6.2.4 SEC Documents and Other Reports. The Corporation has filed all required
SEC Documents since January 1, 1996. As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the
applicable law, and, at the respective times they were filed, none of the SEC
Documents contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The consolidated financial statements (including, in each case,
any notes thereto) of the Corporation included in the SEC Documents complied as
to form in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect
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thereto as of their respective dates of filing, were prepared in accordance with
generally accepted accounting principles (except, in the case of the unaudited
statements, as permitted by Regulation S-X of the SEC) applied on a consistent
basis during the periods involved (except as may be indicated therein or in the
notes thereto) and fairly presented the consolidated financial position of the
Corporation and its consolidated subsidiaries as of the respective dates thereof
and the consolidated results of their operations and their consolidated cash
flows for the periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments and to any other adjustments described
therein). Except as disclosed in the SEC Documents or as required by generally
accepted accounting principles, the Corporation has not, since December 31,
1996, made any change in the accounting practices or policies applied in the
preparation of their financial statements. Prior to the Closing Date, the
Corporation will file all required documents with the SEC, which documents will
comply in all material respects with the requirements of the applicable law, and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
6.2.5 Absence of Certain Changes or Events. Except as disclosed in the SEC
Documents filed prior to the date of this Agreement, since December 31, 1996,
(a) there have not been any events, changes or developments that, individually
or in the aggregate, have had or would reasonably be expected to have, a
material adverse change in or effect on the financial condition, properties,
business, results of operations or prospects of the Corporation and its
subsidiaries taken as a whole, or (b) there has not been any split, combination
or reclassification of any of the capital stock or units of the Corporation or
its respective operating partnerships or any issuance or the authorization of
any issuance of any other securities in respect of, in lieu of or in
substitution for shares of such capital stock.
6.2.6 Actions and Proceedings. Except as set forth in the SEC Documents filed
prior to the date of this Agreement, there are no outstanding orders, judgments,
injunctions, awards or decrees of any governmental entity against or involving
the Corporation or any of its subsidiaries, or against or involving any of the
directors, officers or employees of the Corporation or any of its subsidiaries,
as such, or any of its or their properties, assets or business that,
individually or in the aggregate, have had, or would reasonably be expected to
have, a material adverse change in or effect on the financial condition,
properties, business, results of operations or prospects of the Corporation and
its subsidiaries taken as a whole. Except as set forth in the SEC Documents,
there are no actions, suits or claims or legal, administrative or arbitrative
proceedings or investigations pending or, to the knowledge of the Corporation,
threatened against or involving the Corporation or any of its subsidiaries or
any of their directors, officers or employees, as such, or any of its or their
properties, assets or business that, individually or in the aggregate, have had,
or would reasonably be expected to have, a material adverse change in or effect
on the financial condition, properties, business, results of operations or
prospects of the Corporation and its subsidiaries taken as a whole. As of the
date hereof, there are no actions, suits, labor disputes or other litigation,
legal or administrative proceedings or governmental investigations pending or,
to the knowledge of the Corporation, threatened against or affecting the
Corporation or any of their subsidiaries or any of their officers, directors or
employees, as such, or any of their properties, assets or business relating to
the transactions contemplated by this Agreement.
6.2.7 Starwood Operating Partnership is classified and taxable as a partnership
for U.S. Federal Income Tax purposes.
6.2.8 Xxxx-Xxxxx-Xxxxxx. The provisions of the Xxxx-Xxxxx-Xxxxxx Act are not
applicable to the transactions contemplated hereby and neither the Corporation
nor Seller is required to make any filings or submissions to obtain any
approvals thereunder in connection herewith.
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6.3 Of Seller. As an inducement to Buyer to enter into this Agreement, Seller,
represents, warrants and covenants to Buyer as follows:
6.3.1 Regarding Seller's Authority.
6.3.1.1 Seller is a general partnership in dissolution under the laws of the
State of Texas. Seller has the power and authority to enter into this Agreement
and the Conveyance Documents and, to sell the Property on the terms set forth in
this Agreement. The execution and delivery hereof and the performance by Seller
of its obligations hereunder, will not violate or constitute an event of default
under any material terms or material provisions of any agreement, document,
instrument, judgment, order or decree to which Seller is a party or by which
Seller is bound and/or violate any applicable law, rule or regulation the
violation of which would have a Material effect upon the principal benefits
intended to be provided by this Agreement.
6.3.1.2 The individuals executing this Agreement and the documents referenced
herein on behalf of Seller have the legal power, right and actual authority to
bind Seller to the terms and conditions hereof. This Agreement is a valid and
binding obligation of Seller, enforceable in accordance with its terms, except
as the same may be affected by bankruptcy, insolvency, moratorium or similar
laws, or by legal or equitable principles relating to or limiting the rights of
contracting parties generally.
6.3.2 Tenant Leases. There are no leases, licenses or concessions for space
which will affect the Real Property or any portion thereof following the Close
of Escrow other than as set forth on the Schedule of Tenant Leases. Seller has
delivered to Buyer a true, correct and complete copy of each lease and agreement
listed on the Schedule of Lease. Seller has not received written notice of any
sublease and/or assignment of any Tenant Lease except as set forth on SCHEDULE
6.3.2. No outstanding written notice of any Material default has been delivered
by Seller or received by Seller with respect to any Tenant Lease, except as
disclosed on the SCHEDULE 6.3.2 annexed hereto and made a part hereof. To
Seller's knowledge, all rent under the leases listed on the Schedule of Leases
is being paid currently. All Material brokerage, leasing and other commissions
due in connection with the Tenant Leases have been paid by Seller other than
those payable with respect to the renewal or extension of such Tenant Leases or
expansion of the leased premises thereunder after the Closing Date, each of
which are payable under agreements described on SCHEDULE 6.3.2.
6.3.3 Service Contracts. There are no Service Contracts which will affect the
Property after the Closing Date except for the Approved Service Contracts. No
outstanding written notice of any Material default has been delivered by Seller
or received by Seller with respect to any Approved Service Contract, except as
disclosed on SCHEDULE 6.3.3 annexed hereto and made a part hereof.
6.3.4 Claims. There are no pending litigation or condemnation proceedings with
respect to Seller or the Property which would result in an adverse effect on the
ability of Buyer to operate the Property after the Closing, except as disclosed
on SCHEDULE 6.3.4 annexed hereto and made a part hereof. There is no pending
litigation or to Seller's knowledge, other claims of Seller with respect to the
Property attributable to the period prior to the date hereof which may result in
a material judgment in favor of Seller except as disclosed on SCHEDULE 6.3.4.
6.3.5 Employees. To Seller's Knowledge, SCHEDULE 1.1.6 sets forth a true and
complete list of all Hotel Employees as of the Execution Date together with
their positions, salaries or hourly wages, as applicable, and years of service.
Except for or pursuant to the Employment Agreements, the Collective Bargaining
Agreements, the Management Agreement and the agreements related to the
Xxxx-Xxxxxxx management of the Hotel described on SCHEDULE 6.3.5 hereto, neither
Seller nor the Employer Corporation has relating to the Property (i) at any time
maintained, contributed to or participated in, (ii) or had at any time
obligation to maintain, contribute to, or participate in, or (iii) any liability
or contingent liability, direct or indirect, with respect to: any
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employment agreement, oral or written retirement or deferred compensation plan,
incentive compensation plan, stock plan, unemployment compensation plan,
vacation pay plan, severance plan, bonus plan, stock compensation plan or any
other type or form of employee-related (or independent contractor-related)
arrangement, program, policy, plan or agreement. Except as set forth on SCHEDULE
6.3.5, to Seller's knowledge there is no Material default under any of the
Employment Agreements.
6.3.6 Compliance with Laws. During the past twelve (12) months, Seller has not
received any written notice from any party, including, without limitation, from
any municipal, state, federal or other governmental authority, of a Material
violation of any zoning, building, fire, water, use, health, or other similar
statute, ordinance, or code bearing on the construction, operation or use of the
Property or any part thereof (other than as to matters previously cured), except
as disclosed on SCHEDULE 6.3.6 annexed hereto and made a part hereof and except
for violations of Environmental Laws, which are addressed in SECTION 6.3.7
below.
6.3.7 Hazardous Materials. Seller has not received any written notice from any
municipal, state, federal or other governmental authority or from any other
person during the last three (3) years of (a) any Material violation of
applicable Environmental Laws or (b) any Environmental Condition requiring
Material remediation under applicable Environmental Laws, in either case only to
the extent relating to Environmental Conditions at or on the Real Property,
except as disclosed on SCHEDULE 6.3.7 annexed hereto and made a part hereof;
6.3.8 Records and Plans. Seller will have delivered to Buyer on the Closing Date
true and correct copies of the Records and Plans.
6.3.9 Licenses and Permits. Seller has delivered to Buyer true and correct
copies of the Liquor License and all other Material Licenses and Permits and
such Licenses and Permits are identified on SCHEDULE 6.3.9 annexed hereto and
made a part hereof.
6.3.10 Management Agreements. There are no hotel management or property
management agreements, which will be binding upon Buyer after the Closing Date,
other than the Management Agreement, a true and complete copy of which will be
delivered to Buyer on the Closing Date. Seller has not sent or received any
notice of default or notice of termination under or with respect to the
Management Agreement.
6.3.11 Personal Property. Seller owns the Tangible Personal Property (other than
the Tangible Personal Property that is subject to the Equipment Leases) free and
clear of any liens and/or encumbrances other than the Permitted Encumbrances.
6.3.12 Insurance. The Seller in respect of the Real Property is insured under
those policies of casualty and general liability insurance ("Seller's
Insurance") described on SCHEDULE 6.3.12 annexed hereto, each of which is in
full force and effect as of the date hereof and will remain in full force and
effect through the Closing Date. Seller has received no notices of any Material
default or demands to cure from any applicable insurer in respect of Seller's
Insurance.
6.3.13 Real Estate Taxes. Except as set forth on SCHEDULE 6.3.13 annexed hereto
and made a part hereof, Seller has not commenced any proceedings which are
pending for the reduction of the assessed valuation of the Real Property or any
portion thereof, and other than the Permitted Encumbrances, to Seller's
Knowledge, there are no special assessments affecting the Property. Nothing in
this SECTION 6.3.13 or any other provision of this Agreement shall be construed
to limit Seller's rights to initiate or prosecute after the Close of Escrow
additional proceedings for property tax refunds for taxes relating to any
relevant taxable period or periods prior to the taxable period during which the
Proration Time occurs.
6.3.14 Liquor-Related Agreements. Except for that certain Notice dated December
1, 1977, from the Texas Comptroller of Public Accounts to Five Star Beverage,
Inc., to Seller's Knowledge, Seller has not received written notice from the
Texas Alcoholic Beverage Commission of any violation or
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threatened violation of any applicable laws, rules or ordinance with respect to
(i) the agreements identified on Schedule 1 to the Assignment and Assumption of
Liquor-Related Agreements (collectively, the "Liquor Agreements"), (ii)
Five-Star Beverages, Inc. (the party thereto which holds the Liquor Licenses),
or (iii) the Liquor Licenses. To Seller's Knowledge, each of the Liquor
Agreements is in full force and effect, and Seller has received no written
notice of any default by Seller thereunder. The rent payable to Seller under the
"Liquor Lease" identified on Schedule 1 to the Assignment and Assumption of
Liquor-Related Agreements has not been modified from the amount stated therein.
6.4 Buyer's Review of Records and Plans.
6.4.1 Access to Records and Plans; Specific Disclosures. Buyer acknowledges that
prior to the Closing Date, Buyer has been provided with such access to the
Records and Plans and such other information relating to the Hotel as Buyer has
deemed relevant. Buyer acknowledges that it (a) has been made aware of and given
an opportunity to inquire into the Specific Disclosure Matters described herein;
(b) has been given access to the Property and the opportunity to conduct such
inquiries and analyses as Buyer has deemed necessary or appropriate in order to
evaluate the physical condition of the Property and any and all other matters
concerning the current and future use, feasibility, or value, or any other
matter or circumstance relevant to Buyer concerning the Property or its
marketability; and (c) the Records and Plans and the other books and records of
Seller with respect to the Hotel may not be complete.
6.4.2 Limitation on Access to Records and Plans. Notwithstanding anything in
this Agreement to the contrary, Buyer acknowledges and agrees that the Records
and Plans or other information made available to or delivered to Buyer prior to,
or at the Closing, shall not include any information which is privileged,
confidential or proprietary to Seller or any of its constituent partners or
affiliates, including without limitation, (i) Seller's internal financial
analyses, any appraisals undertaken for Seller or other parties, income tax
returns, financial statements, corporate or partnership governance records,
investment advisory records, and other records concerning Seller's professional
relationships, any Hotel Employee personnel files (prior to the Closing), or any
other internal, proprietary, or confidential information, files, or records of
Seller, (ii) the work papers, memoranda, analysis, correspondence, and similar
materials prepared by or for Seller in connection with the negotiation and
documentation of the transaction contemplated hereby or any other offer to
purchase the Property received by Seller, and (iii) any documents or
communications subject to the attorney/client privilege or attorney work product
privilege. Buyer expressly agrees that its review of the Records and Plans, and
any and all other information of any type or nature, whether oral or written,
provided to Buyer by or on behalf of Seller and relating to the Property
(collectively, the "PROPERTY INFORMATION") is for informational purposes only,
and neither Seller nor any agent, advisor, officer, attorney, representative or
other person acting or purporting to act on behalf of Seller has verified either
the accuracy of the Property Information, or the adequacy of any method used to
compile the Property Information or the qualifications of any person preparing
the Property Information except that, in delivering or making available a copy
of any document or papers to Buyer, Seller has delivered or made available
copies of the originals of such documents or papers in Seller's possession or
included in the Records and Files. Except as expressly set forth in this SECTION
6, neither Seller nor any agent, advisor, officer, attorney, representative or
other person acting or purporting to act on behalf of Seller is making or giving
any representation or warranty about, or assuming any responsibility for, the
accuracy or completeness of the Property Information. Reliance by Buyer upon any
Property Information shall not create or give rise to any liability of or
against Seller or any agent, advisor, officer, attorney, representative or other
person acting or purporting to act on behalf of
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Seller. Subject to Seller's express representations and warranties set forth
herein, the consummation of the Closing shall constitute Buyer's unconditional
approval of all aspects of the Property and Buyer's unconditional acknowledgment
that Buyer has had the opportunity to request from Seller and review such
documents and materials relating of the Property as Buyer deems appropriate. All
copies of such documents delivered to Buyer shall be returned to Seller if the
Closing fails to occur for any reason.
6.5 PURCHASE AS IS. BUYER REPRESENTS, WARRANTS AND COVENANTS TO SELLER THAT
BUYER HAS INDEPENDENTLY AND PERSONALLY INSPECTED THE PROPERTY AND THE PROPERTY
INFORMATION AND THAT BUYER HAS ENTERED INTO THIS AGREEMENT BASED UPON SUCH
PERSONAL EXAMINATION AND INSPECTION. BUYER ACCEPTS THE PROPERTY, IN ITS
CONDITION ON THE CLOSE OF ESCROW AS-IS AND WITH ALL ITS FAULTS, INCLUDING
WITHOUT LIMITATION, ANY FAULTS AND CONDITIONS SPECIFICALLY REFERENCED IN THIS
AGREEMENT. NO PERSON ACTING ON BEHALF OF SELLER IS AUTHORIZED TO MAKE, AND BY
EXECUTION HEREOF, BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS SPECIFICALLY
PROVIDED IN THIS AGREEMENT, SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY
NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS,
AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR
IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH
RESPECT TO:
(A) THE VALUE OF THE PROPERTY;
(B) THE INCOME TO BE DERIVED FROM THE PROPERTY;
(C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH
BUYER MAY CONDUCT THEREON;
(D) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OF THE PROPERTY;
(E) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY;
(F) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING WITHOUT
LIMITATION, THE WATER, SOIL AND GEOLOGY;
(G) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES,
ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY;
(H) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED
INTO THE PROPERTY;
(I) THE COMPLIANCE OF THE PROPERTY WITH ANY ENVIRONMENTAL LAWS OR THE AMERICANS
WITH DISABILITIES ACT;
(J) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, ON, UNDER, OR ADJACENT TO
THE PROPERTY;
(K) THE CONTENT, COMPLETENESS OR ACCURACY OF ANY OF THE RECORDS AND PLANS OR
OTHER INFORMATION PROVIDED BY SELLER TO BUYER WITH RESPECT TO THE PROPERTY;
(L) THE CONFORMITY OF THE IMPROVEMENTS TO ANY PLANS OR SPECIFICATIONS FOR THE
PROPERTY, INCLUDING ANY PLANS AND SPECIFICATIONS THAT MAY HAVE BEEN OR MAY BE
PROVIDED TO BUYER;
(M) THE CONFORMITY OF THE PROPERTY TO PAST, CURRENT OR FUTURE APPLICABLE ZONING
OR BUILDING REQUIREMENTS;
(N) DEFICIENCY OF ANY UNDER SHORING;
(O) DEFICIENCY OF ANY DRAINAGE;
(P) THE FACT THAT ALL OR A PORTION OF THE PROPERTY MAY BE LOCATED ON OR NEAR AN
EARTHQUAKE FAULT LINE;
(Q) THE EXISTENCE OF VESTED LAND USE, ZONING OR BUILDING ENTITLEMENTS AFFECTING
THE PROPERTY;
(R) WITH RESPECT TO ANY OTHER MATTER CONCERNING THE PROPERTY (INCLUDING, WITHOUT
LIMITATION, THE TENANT LEASES, THE EQUIPMENT LEASES, ANY FIXTURES AND EQUIPMENT,
THE LICENSES AND PERMITS, THE PERSONAL PROPERTY, THE SERVICE CONTRACTS, THE
EMPLOYMENT CONTRACTS, ANY EMPLOYEE BENEFIT PLANS AND THE LIQUOR LICENSE) EXCEPT
AS MAY BE OTHERWISE EXPRESSLY STATED HEREIN;
(S) [INTENTIONALLY OMITTED]
(T) ANY OF THE SPECIFIC DISCLOSURE MATTERS; OR
(U) WITHOUT LIMITING THE OTHER DISCLAIMERS SET FORTH HEREIN BUT SUBJECT TO THE
EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, THE
ASSIGNMENTS AND CONVEYANCES OF THE PERSONAL PROPERTY AND THE MANAGEMENT
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AGREEMENT, ARE WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF
ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, (1) WARRANTIES AS TO THE
VALIDITY, ENFORCEABILITY OR ASSIGNABILITY OF THE MANAGEMENT AGREEMENT, (2)
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, (3)
WARRANTIES RELATING TO THE DESIGN, CONDITION, QUALITY, WORKMANSHIP OR CAPACITY
OF THE TANGIBLE PERSONAL PROPERTY, (4) REPRESENTATIONS OR WARRANTIES THAT THE
TANGIBLE PERSONAL PROPERTY IS IN COMPLIANCE WITH ALL LAWS, STATUTES, ORDINANCES
RULES, REGULATIONS, SPECIFICATIONS OR CONTRACTS PERTAINING THERETO, (5)
WARRANTIES AGAINST PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, AND (6)
WARRANTIES AS TO THE VALIDITY, ENFORCEABILITY, OR COLLECTIBILITY OF ANY ITEM.
6.6 Limitation on Representations and Warranties of Seller. In no event shall
Buyer be entitled to seek recovery against Seller for an alleged breach of any
representation or warranty by Seller if the information, transaction, or
occurrence alleged to give rise to such breach was disclosed to, made available
to or discovered by Buyer, whether in the course of its review of the Records
and Plans or otherwise, prior to the Close of Escrow (the sole adjustment with
respect to same being as set forth in SECTION 6.7 below). Without limiting the
foregoing, each of the representations and warranties by Seller set forth herein
shall be deemed to be qualified in their entirety by the Specific Disclosure
Matters in addition to any other qualifications of such representations and
warranties.
6.7 Right to Supplement Disclosures. At any time prior to the Closing, Seller
may add additional disclosures to the Specific Disclosure Matters and the
Schedules referenced in this SECTION 6, and may make appropriate revisions
thereto, provided, however, that any such revisions do not in the aggregate
disclose any matter or matters which would reasonably be expected to have an
impact upon the value of the Property in excess of the amount of the Deposit;
and provided, further, that the receipt of any notice of termination under the
Management Agreement shall not be deemed to create any diminution in value to
the Property. In the event that Buyer or Seller discovers any matter or matters
which would be expected to exceed the Threshold Amount, then, in such event, the
provisions of SECTION 7.1.1 shall apply.
6.8 Basket. In no event will Seller be liable to Buyer for any breach of a
representation or warranty hereunder unless and to the extent the Loss actually
and directly incurred by Buyer as results of such breach together with the Loss
actually and directly incurred by Buyer as results of any other breach(s) in the
aggregate exceed the Threshold Amount, provided, that in no event shall Seller
have any liability to Buyer for any consequential damages arising from a breach
by Seller of any representation or warranty unless such breach results from the
intentional concealment by Seller.
6.9 Survival. The Trust, the Corporation and Seller each hereby covenants and
agrees with the other that the representations and warranties of the Trust, the
Corporation and Seller (as the case may be) set forth in SECTIONS 6.1.1 through
6.1.3, inclusive, SECTION 6.2.1 through SECTION 6.2.3, inclusive and SECTION
6.3.1 and SECTION 6.3.2 shall survive the Close of Escrow without limitation as
to duration. The remaining warranties and representations set forth in SECTION 6
shall survive the Close of Escrow until the date which is one (1) year following
the Closing Date, at which time such representations and warranties shall expire
unless prior to such time Buyer or Seller, as the case may be, have duly
commenced an action in a court of competent jurisdiction, alleging a breach of
such representation or warranty. Notwithstanding anything herein to the
contrary, in no event shall either Buyer or Seller have any right to make a
claim after the Closing with respect to any representation or warranty, the
breach of which such party shall have discovered prior to the Closing, unless
such party shall have notified the other party of such breach prior to the Close
of Escrow. Nothing contained in this SECTION 6.9 shall limit the right of Seller
to any remedy otherwise available under Federal or other applicable securities
law.
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SECTION 7
TITLE TO THE REAL PROPERTY:
EXTENSION OF THE CLOSING
7.1 Buyer's Review of Title. Seller has caused to be delivered to Buyer and
Buyer's Counsel a current preliminary title commitment for title insurance
issued by the Title Company showing the condition of title to the Real Property
(the "Preliminary Title Report") together with a copy of all documents
evidencing or creating the exceptions to title referenced therein.
7.1.1 Failure to Satisfy Certain Closing Conditions; Monetary Liens. On or prior
to the Close of Escrow, Seller shall be obligated (i) to cause to be insured
over or removed of record all Monetary Liens affecting the Property as of the
date hereof; and (ii) to remove or to bond over any Monetary Lien arising after
the issuance of the Preliminary Title Report which (a) was created by or with
the consent of Seller, or (b) is in an amount less than or equal to the Deposit.
In the event that any Monetary Lien not reflected on the Preliminary Title
Report exceeds the Deposit and was not created by or with the consent of Seller
or any other title defect or other matters arise which requires Seller to
supplement its disclosure pursuant to SECTION 6.7 and which in the aggregate may
create a diminution in value to the Property in excess of the Deposit, (i) the
Deposit shall be refunded by Escrow Holder to Buyer on February 28, 1998 if the
Closing does not occur by such date in accordance with the provisions hereof;
(ii) the Scheduled Closing Date shall be extended and Seller shall use all
reasonable efforts, to remove or bond over or otherwise cause the Title Company
to omit such Monetary Lien as an exception from coverage under the Title Policy
and/or remove or cure as applicable such other defect or condition as
applicable; and (iii) Buyer shall be permitted to record the Memorandum of
Contract in the real property records of the state and county in which the Real
Property is located. In the event that the Scheduled Closing Date is so extended
and Seller is able to remove or cure such Monetary Lien, remove or cure as
applicable the title defect or other condition the Close of Escrow shall occur
as soon as practicable following such removal or cure with time being of the
essence as to the performance of both Buyer's and Seller's obligations
hereunder. THE PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES WILL NOT BE AN
ADEQUATE REMEDY TO SELLER IF BUYER SHALL DEFAULT IN ITS OBLIGATION TO CLOSE IN
ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 7.1.1 AND CONSEQUENTLY THAT
BUYER'S OBLIGATIONS UNDER THIS SECTION 7.1.1 SHALL BE SPECIFICALLY ENFORCEABLE
AGAINST THE TRUST. IN CONSIDERATION FOR THE REFUND TO BUYER OF THE DEPOSIT
PROVIDED FOR UNDER THIS SECTION 7.1.1, THE RIGHT OF BUYER TO RECORD THE
MEMORANDUM OF CONTRACT PURSUANT TO THIS SECTION 7.1.1, SELLER'S AGREEMENT TO
ENTER INTO THE INTERIM MANAGEMENT AGREEMENT PURSUANT TO THE PROVISIONS OF THIS
SECTION 7.1.1 (UNDER WHICH AGREEMENT THE VALUE OF THE HOTEL MAY BE AFFECTED BY
THE PERFORMANCE BY THE MANAGER OF ITS RESPONSIBILITIES THEREUNDER) AND TO
ENCUMBER THE PROPERTY WITH THIS AGREEMENT FOR A PERIOD OF UP TO FIVE (5) YEARS
IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 17.20 AND IN LIGHT OF THE
RISKS WHICH SELLER WILL BE ASSUMING AS A RESULT IN RELATION TO THE VALUE OF THE
EQUITY PURCHASE PRICE TO BE DELIVERED IF AND WHEN THE CLOSING OCCURS HEREUNDER,
THE PARTIES HAVE AGREED THAT THE PROVISIONS OF THIS SECTION 7.1.1 ARE
SPECIFICALLY ENFORCEABLE AGAINST THE TRUST AS AND TO THE EXTENT PROVIDED IN THE
PRECEDING SENTENCE. In the event that a Monetary Lien cannot be removed or cured
or a title defect or other condition cannot be removed or cured as required
hereunder to close within five (5) years of the date of this Agreement, this
Agreement shall terminate and the parties hereto shall have no further
obligations.
7.1.2 [Intentionally Omitted]
7.2. Title Insurance Policy. Buyer's title to the Real Property shall be insured
at Closing by an ALTA extended coverage owner's policy or policies of title
insurance in the amount of the Purchase Price (the "Title Policy") issued by the
Title Company, insuring title to the Real Property vested in Buyer, subject only
to the Permitted Encumbrances, together with such
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customary endorsements or affirmative insurance as may be reasonably requested
by Buyer and purchased at Buyer's sole cost and expense.
7.3 Title to Real Property. At the Close of Escrow, title to the Real Property
will be conveyed to Buyer by Seller pursuant to the Deed, subject only to the
matters of title respecting the Property shown on SCHEDULE 7.3 annexed hereto
and, if the Closing is delayed pursuant to SECTION 7.1.1, any additional
easements, covenants, conditions, restrictions or other matters entered into
with the prior written consent of Buyer which consent shall not be unreasonably
withheld, delayed or conditioned (collectively, the "Permitted Encumbrances");
Buyer agrees to rely exclusively on the Title Policy for protection against any
title defects except as set forth in SECTION 7.1.2. Buyer shall have no claim
following the Closing against Seller on account of the Permitted Encumbrances.
Buyer's agreement under this SECTION 7.1 shall survive the execution, delivery,
and recordation of the Deed.
SECTION 8
INTERIM ACTIVITIES
During the period from the Execution Date through the Close of Escrow, Seller
shall (subject to the provisions of the Interim Management Agreement if entered
into in accordance with the provisions of this Agreement) cause the Property to
be continued to be operated in ordinary course as a hotel consistent with
current operating practices during the period since Manager has been manager of
the Hotel. Buyer shall have the right to enter onto and inspect the Property,
from and after the date hereof, through the Closing Date to inspect the Property
and otherwise perform its due diligence provided such inspections are performed
upon prior notice to Seller and so as not to interfere with the operation of the
Property or to disclose the pendency of the transaction contemplated hereby. All
fees and expenses of any kind relating to the inspection of the Property by
Buyer will be paid for by Buyer. Buyer agrees to keep the Property free from any
liens arising out of or in connection with Buyer's or its agents entry or the
Property. Buyer shall at its sole cost and expense, clean up and repair the
Property as reasonably necessary after Buyer's or its agents entry thereon.
Buyer shall hold harmless, indemnify and defend Seller from all Losses relating
to any action by Buyer, its Affiliates and/or agents at or on the Property prior
to Closing. Any of Buyer's agents shall be bound by the provisions of SECTION
17.19.
SECTION 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Conditions Precedent to Buyer's Obligations. The Close of Escrow and the
obligation of Buyer to purchase the Property is subject to the satisfaction, not
later than the Scheduled Closing Date, (subject to extensions as provided in
Section 7.1) of the following conditions:
9.1.1 Seller's Deliveries. Seller shall have delivered the items described in
SECTION 4.2 and shall be prepared to deliver the items described in SECTION 4.4;
9.1.2 Title Policy. The Title Company shall be unconditionally prepared (subject
only to payment of all necessary title insurance premiums and other charges) to
issue to Buyer the Title Policy insuring Buyer's title to the Real Property
subject only to the Permitted Encumbrances;
9.1.3 Performance Under Related Agreement. All conditions precedent to the
closing of the transactions contemplated by that certain Purchase and Sale
Agreement and Joint Escrow Instructions (the "Related Agreement") dated as of
the date hereof by and between Buyer and Savanah Limited Partnership, a District
of Columbia limited Partnership, shall have been satisfied or waived and the
Seller and Escrow Holder thereunder shall be ready, willing and able to perform
thereunder, and there shall be no default of Seller under such agreement.
9.1.4 [Intentionally Omitted].
9.1.5 Seller Performance. Seller shall have performed in all material respects
all of the obligations of Seller under this Agreement, to the extent
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required to be performed at or prior to the Close of Escrow.
9.1.6 Representations and Warranties of Seller. The Seller's representations and
warranties set forth in SECTION 6.3 shall be true, correct and complete, as of
the Close of Escrow subject to modification thereof to the extent permitted
under SECTION 6.7 and subject further to the applicable provisions of SECTION
7.1.1.
The conditions set forth in this SECTION 9.1 are solely for the benefit of Buyer
and may be waived only by Buyer. Buyer shall at all times have the right to
waive any such condition. Any such waiver or waivers shall be in writing and
shall be delivered to Seller and Escrow Holder.
9.2 Conditions Precedent to Seller's Obligations. The Close of Escrow and
Seller's obligation with respect to the transactions contemplated by this
Agreement are subject to the satisfaction, not later than the Scheduled Closing
Date, of the following conditions:
9.2.1 Funds and Documents. Buyer shall have delivered to Escrow Holder, prior to
the Closing Date, for disbursement as directed by Seller, the Paired Shares and
all cash or other immediately available funds due from Buyer in accordance with
SECTION 4 of this Agreement and the documents described in SECTION 4.3;
9.2.2 Representations and Warranties of Buyer. The Trust's representations and
warranties set forth in SECTION 6.1 and the Corporation's representations and
warranties set forth in SECTION 6.2 shall be true, correct and complete, as of
the Close of Escrow;
9.2.3 No Material Changes. There shall have been no casualty or condemnation for
which Buyer has elected to terminate this Agreement pursuant to SECTION 12 or
SECTION 13 of this Agreement;
9.2.4 [Intentionally Omitted]
9.2.5 Performance Under Related Agreement. All conditions precedent to the
closing of the transactions contemplated by the Related Agreement shall have
been satisfied or waived and the Buyer and Escrow Holder thereunder shall be
ready, willing and able to perform thereunder and there shall be no default of
Buyer under such agreement.
The conditions set forth in this SECTION 9.2 are solely for the benefit of
Seller and may be waived only by Seller. Seller shall at all times have the
right to waive any such condition. Any such waiver or waivers shall be in
writing and shall be delivered to Buyer and Escrow Holder.
9.3 Failure of Condition. Except as otherwise provided in this Agreement, if the
Escrow fails to close on the Outside Closing Date for any reason whatsoever,
including, without limitation, a failure of a condition precedent set forth in
this SECTION 9, either Buyer or Seller, if not then in default under this
Agreement, may terminate the Escrow and this Agreement upon notice to the other;
and, thereupon:
9.3.1 This Agreement and the Escrow shall terminate;
9.3.2 The costs of the Escrow through the Scheduled Closing Date shall be
governed by SECTION 4.8;
9.3.3 All monies paid into the Escrow and all documents deposited in the Escrow
shall be returned to the party paying or depositing the same together with
interest earned thereon; and
9.3.4 Each party shall be released from all obligations under this Agreement
except for the obligations that are expressly stated to survive the termination
of this Agreement.
SECTION 10
BROKER
Buyer and Seller each represent and warrant to the other that it has not dealt
with any broker, finder or other middleman in connection with this Agreement, or
the transactions contemplated hereby and that no broker, finder, middleman or
other person has claimed, or has the right to claim a commission, finder's fee
or other brokerage fee in connection with this Agreement or the transactions
contemplated hereby. Each party shall indemnify, protect, defend and hold the
other party harmless from and against any costs, claims or expenses (including
actual attorneys' fees and
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expenses), arising out of the breach by the indemnifying party of any of its
representations, warranties or agreements contained in this SECTION 10. The
representations and obligations under this SECTION 10 shall survive the Close of
Escrow, or, if the Close of Escrow does not occur, the termination of this
Agreement.
SECTION 11
REMEDIES FOR SELLER'S DEFAULT
11.1 Buyer's Remedies in General. If Buyer shall discover prior to the Close of
Escrow any default in any of Seller's obligations under this Agreement (a
"Seller Default"), Buyer shall notify Seller thereof, and Seller shall have a
reasonable period of time (not in excess of thirty (30) days) unless extended by
Buyer in its sole discretion in which to cure such default, in which case the
Scheduled Closing Date shall be extended during the continuation of such cure
period. If there shall be any Seller Default discovered by Buyer prior to the
Close of Escrow and not cured by the Scheduled Closing Date, then Buyer's sole
right and remedy other than with respect to a breach of a representation and
warranty which shall be subject to the provisions of SECTION 6.7, shall be to
compel specific performance of this Agreement; provided, however, that Buyer
shall only be entitled to compel specific performance of this Agreement if, as
of the time of Seller's default, Buyer shall (a) not be in default hereunder,
(b) shall be ready, willing and able to perform its obligations hereunder, and
(c) shall have waived all contingencies to closing other than those relating to
Seller's default.
11.2 MATERIAL INDUCEMENT. BUYER SPECIFICALLY ACKNOWLEDGES THAT THE LIMITATIONS
ON DAMAGES AND SURVIVAL AND OTHER REMEDIES WHICH BUYER MAY RECOVER FROM AND
ENFORCE AGAINST SELLER UNDER THIS AGREEMENT ARE A SPECIFIC AND MATERIAL
INDUCEMENT TO SELLER TO ENTER INTO THIS TRANSACTION.
SECTION 12
DAMAGE TO OR DESTRUCTION OF THE PROPERTY
12.1 Insured Casualty.
12.1.1 If, prior to the Close of Escrow, the Property is damaged or destroyed,
whether by fire or other insured casualty, Seller shall promptly notify Buyer of
such damage or destruction and of the good-faith estimate of a reputable
licensed contractor selected by Seller and reasonably approved by Buyer of the
cost to repair the damage and Seller's good-faith belief that such casualty is
insured (the "Insured Casualty Notice"). If the Insured Casualty Notice
indicates that such casualty is a Material Casualty, Buyer may elect to be
released from its obligations hereunder (including its obligation to purchase
the Property) by delivering to Seller written notice of Buyer's intent to do so
within ten (10) days after the date Buyer receives the Insured Casualty Notice.
In such event, the Deposit together with all interest accrued thereon shall be
promptly returned to Buyer.
12.1.2 If the casualty is insured, and (i) it is not a Material Casualty, or
(ii) it is a Material Casualty, but Buyer elects not to terminate this Agreement
in accordance with this SECTION 12.1, then the Escrow and this Agreement shall
remain in full force and effect, the Closing shall occur on or before the
Outside Closing Date, and Seller shall assign to Buyer, as a condition precedent
to the Close of Escrow, all of Seller's right, title and interest in and to any
of the casualty insurance proceeds or claims therefor with respect to such
damage or destruction, together with any and all rental loss or business
interruption insurance of Seller, if any, payable with respect to the Property
for any period after the Proration Time and any and all claims against other
persons for such damage or destruction. Additionally, if the Escrow and this
Agreement remain in full force and effect, Seller shall pay to Buyer, by way of
a reduction in the Cash Portion of the Closing Payment, an amount equal to the
deductible under the casualty insurance. Within twelve (12) months following the
Close of Escrow, Buyer shall upon thirty (30) days written notice by Seller,
present reasonably satisfactory evidence to Seller that Buyer applied the
proceeds of such insurance to the Property. If Buyer fails to present such
evidence or such evidence is not reasonably satisfactory to Seller, Buyer shall
promptly, but
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in any event within thirty (30) days of demand therefor from Seller, pay to
Seller the proceeds of the casualty insurance assigned by Seller to Buyer as
provided herein, together with an amount equal to the deductible under such
insurance for which Buyer received a credit to the Purchase Price.
12.2 Uninsured Casualty.
12.2.1 If, prior to the Close of Escrow, all or any portion of the property is
damaged or destroyed by an uninsured casualty (including, without limitation, a
casualty as to which coverage has been disclaimed by Seller's insurers), Seller
shall promptly notify Buyer of such damage or destruction and of the Seller's
reasonable estimate of the cost to Seller to repair the same of a reputable
licensed contractor selected by Seller and reasonably approved by Buyer (the
"Uninsured Estimate to Repair") and Seller's reasonable belief that such
casualty is uninsured (the "Uninsured Casualty Notice").
12.2.2 If such Uninsured Estimate to Repair indicates the occurrence of a
Material Casualty, either Seller or Buyer may elect to terminate this Agreement
by giving to the other party written notice of its intent to do so within ten
(10) days after the Seller delivers the Uninsured Casualty Notice to Buyer. If
this Agreement is terminated pursuant to this SECTION 12.2.2, the Deposit
together with interest accrued thereon shall be promptly returned to Buyer.
12.2.3 If the casualty is uninsured, and (i) it is not a Material Casualty, or
(ii) it is a Material Casualty and Buyer and Seller have not elected to
terminate this Agreement in accordance with SECTION 12.2.2, then the Escrow and
this Agreement shall remain in full force and effect, the Closing shall occur on
or before the Outside Closing Date, and Buyer shall be entitled to a reduction
in the Purchase Price in an amount equal to the Uninsured Estimate to Repair.
12.2.4 If and to the extent that the Purchase Price is adjusted pursuant to this
SECTION 12.2 as a result of a disclaimer of coverage by Seller's insurers, Buyer
shall not be entitled to insurance proceeds due under Seller's policies, or to
be assigned any claim under or with respect to Seller's policies, and Seller
shall retain all rights thereunder or with respect thereto and to proceeds
therefrom, it being the intent of this SECTION 12 that there be no double
recovery by, or double compensation of, Buyer for the casualty.
SECTION 13
CONDEMNATION
If, prior to the Close of Escrow, a Material Taking has occurred or is pending,
Seller shall immediately notify Buyer of such fact. In such event, Buyer may
elect upon written notice to Seller given not later than fifteen (15) days after
receipt of Seller's notice to terminate this Agreement. If Buyer does not
exercise option which Buyer may have pursuant to this SECTION 13 to terminate
this Agreement, or if any such taking is not a Material Taking, then neither
party shall have the right to terminate this Agreement, but Seller shall assign
and turn over, and Buyer shall be entitled to receive and keep, all awards for
the taking of any of the Real Property by eminent domain which accrue to Seller
(other than those relating to loss of use prior to the Closing), and the parties
shall proceed to the Close of Escrow pursuant to the terms hereof, without
modification of the terms of this Agreement and without any reduction in the
Purchase Price.
SECTION 14
EMPLOYEES
14.1 Hiring of Hotel Employees; WARN Act Compliance. Buyer agrees to make an
offer of employment to all existing Hotel Employees as of the Close of Escrow,
on terms and conditions generally comparable to their existing terms and
conditions of employment (to the extent such terms and conditions have been
disclosed by Seller and/or its agents to Buyer) and to make all reasonable
efforts to retain such employees for a reasonable period of time. Without
limiting the foregoing, Buyer shall offer to maintain without loss of employment
(as defined in the WARN Act) the employment at the Property (other
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than upon good cause for termination) of such number of Hotel Employees and on
such terms and conditions as shall not result in, and only to the extent
necessary to prevent, a plant closing or mass layoff as defined in the WARN Act.
Buyer (i) shall also cause each of the health and medical benefit plans
maintained for Hotel Employees to waive any preexisting condition in connection
with employment at the Property that was not excluded under the applicable
program as of the Closing Date, (ii) shall also cause each of such benefit plans
to take into account any deductibles or coinsurance amounts incurred by each
Hotel Employee for the year in which the Closing Date occurs, and (iii) shall
also cause each of the health and medical benefit plans to deem each Hotel
Employee to be eligible for participation in such plan as of the Close of
Escrow. In the event that Buyer fails to comply with any of the foregoing
covenants, Buyer agrees that Buyer shall be solely responsible for the payment
of any and all costs, charges, penalties, compensation, severance pay, benefits
and liabilities, arising under the WARN Act, and any other applicable law, rule
or regulation on account thereof, and Buyer agrees to indemnify, defend and hold
Seller and the Employer Corporation and their directors, officers, agents,
affiliates, principals, partners, shareholders representatives and controlling
persons harmless from and against any and all claims, causes of action,
judgments, damages, penalties and liabilities asserted under the WARN Act or any
other applicable law, rule or regulation, whether against Buyer or Seller, the
Employer Corporation or any other such indemnified party and whether based on
employment of any of the Hotel Employees prior to or following the Closing,
arising from Buyer's failure to comply with the foregoing covenants
(collectively, "Termination Charges"). Following the Closing, if Buyer desires
to terminate the employment of any Hotel Employees other than for cause, Buyer
shall be solely responsible for complying with all applicable provisions of the
WARN Act and all other applicable laws, rules and regulations with respect to
such termination, including without limitation, the payment of all costs and
termination payments owing under the WARN Act and all other applicable laws,
rules and regulations to any of such employees. Buyer shall assume all
obligations under the Employment Agreement for the Director of Finance
attributable to the period from and after the Closing Date (it being agreed that
the Director of Finance may resign thereunder at any time without penalty).
14.2 Collective Bargaining Agreements. Without limiting the provisions of
SECTION 14.1, immediately upon the Close of Escrow, without the necessity of
further action by Buyer, Buyer shall assume each collective bargaining agreement
or other labor union contracts identified on SCHEDULE 14.2 (the "Collective
Bargaining Agreements"). Buyer further agrees to indemnify Seller and the
Employer Corporation and their directors, officers, employees, agents,
affiliates, principals, partners, shareholders, representatives and controlling
persons for any and all liability to the bargaining agents or Hotel Employees,
resulting from the failure of Buyer to comply with the terms and conditions of
any of the Collective Bargaining Agreements with respect to periods beginning
after the Close of Escrow.
14.3 Continuation of Benefits.
14.3.1 Except as provided in SECTION 14.3.2, on and after the Closing Date,
Seller (or any insurer at Seller's cost) shall continue to process and pay (or
cause applicable insurers and third party administrators, including ITT
Sheraton, to process and pay) in an expeditious manner and with respect to all
covered Hotel Employees (and, to the extent applicable, their covered spouses,
dependents and beneficiaries) all claims under the Employment Agreements that
provide health and medical, or other welfare, benefits submitted for covered
expenses with respect to occurrences commencing on or prior to the Closing Date,
including, but not limited to: (A) covered hospital benefits for any
confinements; (B) covered life and survivor income benefits, if any, for deaths
which occur on or prior to the Closing Date; (C) workers' compensation benefits
for disabilities resulting from a work-related accident which occurred on or
prior to the Closing Date; (D) all covered
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benefits that are being, or that may be, paid to, or with respect to, any of
such individuals who are on short or long term disability, or medical, personal
or other leaves of absence as of the Closing Date; (E) covered benefits under
any "spending account," or similar arrangement, under any "cafeteria plan" (as
defined under Section 125 of the Internal Code) with respect to salary reduction
elections made prior to the Closing Date; and (F) covered benefits under all
other such Employment Agreements which accrue on or before the Closing Date;
but, only in each instance, to the extent that Buyer shall not have received a
credit against the Purchase Price on account of such item.
14.3.2 Buyer (or any plan maintained by Buyer) will provide continued health and
medical coverage as required under Section 4980B of the Code, Part 6 of Title I
of ERISA or any other applicable federal, state or local law or ordinance to all
current and former Hotel Employees (and their spouses, dependents and
beneficiaries) with respect to whom a "qualifying event" (as such term is
defined under Sections 4980B(f)(3) of the Code or 603 of ERISA) or other
triggering event described under the applicable federal, state or local laws or
ordinances occurred on or before the Closing Date.
14.3.3 Buyer shall maintain supplies of claims forms necessary for Hotel
Employees to make claims under Employment Agreements that provide health,
medical or other welfare benefits with respect to occurrences commencing on or
prior to the Closing Date, and shall furnish such forms to the Hotel Employees
when needed and otherwise assist the Hotel Employees in presenting such claims.
14.4 Buyer and Seller intend by this Agreement to comply with Section 4204 of
ERISA, so as to prevent Seller from incurring at the Closing Date a complete or
partial withdrawal in respect of any employee benefit plans, if any, in which
the Hotel Employees currently participate that are "multiemployer plans," as
defined in Section 4001(a)(3) of ERISA (and which have been disclosed to Buyer
on the Schedule of Employment Agreements), determined as if Buyer is the "buyer"
referred to in such Section 4204. Accordingly, with respect to such
multiemployer plans, Buyer agrees as follows:
(A) For the first plan year of each such multiemployer plan commencing after the
Close of Escrow, and for each of the succeeding four plan years for each such
plan, Buyer shall assume the obligation to contribute to each such plan with
respect to operations conducted with business assets acquired from Seller for
substantially the same number of contribution base units (as defined in Section
4001(a)(11) of ERISA) for which Seller had an obligation to contribute to such
plan.
(B) Prior to each such multiemployer plan's first plan year beginning after the
Close of Escrow, Buyer, shall apply to such plan for a variance from the
requirement of Section 4204(a)(1)(b) of ERISA, that a bond be obtained or an
amount be held in escrow as provided in said Section. In the event any such plan
determines that the request does not qualify for a variance on it, Buyer shall
obtain any required bond or establish any required escrow within thirty (30)
days after the date on which it receives notice of the plan's decision, and
shall maintain such bond or escrow until the earliest of: (i) the date a
variance is obtained from the plan; (ii) the date a variance or exemption is
obtained from the Pension Benefit Guaranty Corporation; or (iii) the last day of
the fifth (5th) plan year commencing after the Close of Escrow; which bond or
escrow shall be paid to such plan if Buyer withdraws therefrom or fails to make
a contribution to such plan when due, at any time during the first (1st) five
(5) plan years of such plan beginning after the Closing Date. In order to comply
with subsection (a)(1)(C) of such Section 4204, if Buyer withdraws in a complete
withdrawal or a partial withdrawal from any multiemployer plan with respect to
which Buyer has assumed an obligation to contribute pursuant to this Agreement
and such withdrawal or partial withdrawal occurs during the five (5) plan years
commencing with the first (1st) plan year beginning after the date of the Close
of Escrow, Seller shall be secondarily liable for any withdrawal liability it
would have had to such multiemployer plan on the date of the Close of Escrow
under Title IV of ERISA. Buyer agrees to provide
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Seller with reasonable advance notice of its anticipated failure to pay any
withdrawal liability and to furnish Seller promptly with a copy of any notice of
withdrawal liability it may receive with respect to such plans.
14.5 Indemnification. Buyer and Seller (as applicable, the "Indemnitor") agrees
to indemnify, defend, protect and hold the other and, the Employer Corporation
in the case of Seller, and their directors, officers, agents, affiliates,
principals, partners, shareholders, representatives and controlling persons (as
applicable, the "Indemnitee") harmless from and against any and all claims,
damages, liabilities, losses, and expenses, (including attorneys' fees and
costs) paid, suffered or incurred by the Indemnitee, arising out of or related
to Indemnitor's failure to comply with any of the covenants, obligations, or
duties contained in SECTION 14.
14.6 Survival. The provisions of this SECTION 14 shall survive the Close of
Escrow.
SECTION 15
COOPERATION
15.1 Seller has advised Buyer that it may be necessary after the Close of Escrow
for Seller (or its representatives) to audit the Records and Plans with respect
to the period prior to the Closing Date. In addition, Seller may require access
to the such Books and Records in connection with any litigation by or against
Seller and its Affiliates with respect to the Property, any tax audit,
examination or challenge or similar proceeding, or any calculation of sums
payable under SECTION 5. Accordingly, Buyer hereby: (i) agrees to retain the
Records and Plans with respect to the period prior to the Closing Date at the
Property for a period of seven (7) years after the Close of Escrow or such
additional period as may reasonably be requested by Seller; (ii) grants Seller,
its Affiliates and their respective representatives access to the such Records
and Plans and the Property after the Close of Escrow, at reasonable times and
upon reasonable prior notice, for such purposes; (iii) subject to the rights of
guests in guest rooms, tenants under tenant leases, grants Seller, its
Affiliates, and their respective representatives access to the Property after
the Close of Escrow for the purpose of conducting such inspections and/or
testing (including destructive testing) of the Property as may be necessary or
advisable in connection with any litigation and other proceedings to which
Seller is a party (provided that Seller shall give Buyer prior notice of the
scope of such inspections and testing) which shall be scheduled for such periods
as shall be reasonably agreeable to the parties;
15.1.1 All inspections fees, appraisal fees, engineering fees and other expenses
of any kind relating to the inspection of the Property by Seller or Seller's
Affiliate will paid for by Seller and/or Seller's Affiliate.
15.1.2 Prior to Seller or Seller's Affiliate's entry on the Property for the
purpose of conducting inspections and/or tests, Seller or Seller's Affiliate
shall provide Buyer with certificates of insurance from Seller's agents from an
insurance carrier and for such risks and policy limits as Seller shall
reasonably approve.
15.1.3 Seller agrees to keep the Property free from any liens arising out of or
in connection with such testing and inspection.
15.1.4 Seller, shall, at its sole cost and expense, clean up and repair the
Property as reasonably necessary, after Seller's or Seller's agents, entry
thereon.
15.1.5 Seller shall hold harmless, indemnify and defend Buyer for all losses
relating to any action by Seller, its Affiliates and/or agents at or on the
Property after the Closing.
15.1.6 Buyer agrees to cooperate with Seller, its Affiliates and their
respective representatives in connection with any such litigation or proceedings
with respect to the Property, any such tax audit, examination or challenge or
similar proceeding, or any such calculation of sums payable under SECTION 5,
said cooperation to be at no material cost or expense to Buyer.
15.2 Seller shall cooperate with Buyer in connection with the assignment of
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all transferable Licenses and Permits to Buyer and the application for and
procurement of replacements of any non-transferable Licenses and Permits.
SECTION 16
NOTICES
16.1 Addresses. Whenever any notice, demand or request is required or permitted
hereunder, such notice, demand or request shall be made in writing and shall be
(a) sent via a nationally recognized overnight courier service fully prepaid,
(b) deposited in the United States by mail, registered or certified, return
receipt requested, postage prepaid, or (c) sent via telefacsimile, provided that
the original of such notice, demand or request shall also be sent via one of the
methods described in (a) and (b) above, in each case to the addressees (and
individuals) set forth below:
As to Seller:
New Remington Partners
c/o Al Anwa USA Incorporated
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: General Counsel
Telefacsimile: (000) 000-0000
With a copy to Seller's Additional Addressees:
Xxxxxx Eng, Esq.
00000 X. Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Telefacsimile: (000) 000-0000
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telefacsimile: (000) 000-0000
As to Buyer:
Starwood Lodging Corporation
Starwood Lodging Trust
0000 X. Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Telefacsimile: (000) 000-0000
With a copy to Buyer's Additional Addressee:
Xxxxxxxxx Traurig Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telefacsimile: (000) 000-0000
As to Escrow Holder:
Chicago Title Insurance Company
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Telefacsimile: (000) 000-0000
16.2 Receipt of Notices. Any notice, demand or request that shall be delivered
to Buyer and its Additional Addressee in the manner aforesaid shall be deemed
sufficiently given to and received by Buyer for all purposes hereunder, and any
notice, demand or request that shall be delivered to
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Seller and its Additional Addresses in the manner aforesaid shall be deemed
sufficiently given to and received by Seller for all purposes hereunder (i) the
next business day following the day such notice, demand or request is delivered
by a nationally recognized overnight courier service fully prepaid, to such
party and its Additional Addressee, (ii) if sent via registered or certified
mail, at the time of receipt by such party and its Additional Addressee, or
(iii) if sent via telefacsimile, as of the date and time stated upon
confirmation reports generated by the sending party's telefacsimile machine
confirming the delivery of such notice, demand or request to such party and its
Additional Addressee.
16.3 Refusal of Delivery. The inability to deliver any notice, demand or request
because the individual to whom it is properly addressed in accordance with this
SECTION 16 refused delivery thereof or no longer can be located at that address
shall constitute delivery thereof to such individual.
16.4 Change of Address. Each party shall have the right from time to time to
designate by written notice to the other parties hereto such other person or
persons and such other place or places as said party may desire written notices
to be delivered or sent in accordance herewith.
SECTION 17
GENERAL PROVISIONS
17.1 Amendment. Except as provided in SECTION 4.1, no provision of this
Agreement or of any documents or instrument entered into, given or made pursuant
to this Agreement may be amended, changed, waived, discharged or terminated
except by an instrument in writing, signed by the party against whom enforcement
of the amendment, change, waiver, discharge or termination is sought.
17.2 Time of Essence. All times provided for in this Agreement for the
performance of any act will be strictly construed, time being of the essence.
17.3 Entire Agreement. This Agreement and other documents delivered at Closing,
set forth the entire agreement and understanding of the parties in respect of
the transactions contemplated by this Agreement, and supersede all prior
agreements, arrangements and understandings relating to the subject matter
hereof and thereof. No representation, promise, inducement or statement of
intention has been made by Seller or Buyer which is not embodied in this
Agreement, or in the attached Exhibits or the written certificates, schedules or
instruments of assignment or conveyance delivered pursuant to this Agreement,
and neither Buyer nor Seller shall be bound by or liable for any alleged
representations, promise, inducement or statement of intention not therein so
set forth.
17.4 No Waiver. No failure of any party to exercise any power given such party
hereunder or to insist upon strict compliance by the other party with its
obligations hereunder shall constitute a waiver of any party's right to demand
strict compliance with the terms of this Agreement.
17.5 Counterparts. This Agreement, any document or instrument entered into,
given or made pursuant to this Agreement or authorized hereby, and any amendment
or supplement thereto may be executed in two or more counterparts, and, when so
executed, will have the same force and effect as though all signatures appeared
on a single document. Any signature page of this Agreement or of such an
amendment, supplement, document or instrument may be detached from any
counterpart without impairing the legal effect of any signatures thereon, and
may be attached to another counterpart identical in form thereto but having
attached to it one or more additional signature pages.
17.6 Costs and Attorneys' Fees. If any legal action or any arbitration or other
proceeding is brought for the enforcement of this Agreement or any document or
instrument entered into, given or made pursuant to this Agreement or authorized
hereby or thereby (including, without limitation, the enforcement of any
obligation to indemnify, defend or hold harmless provided for herein or
therein), or because of an alleged dispute, default, or misrepresentation in
connection with any of the provisions of this Agreement or of such document or
instrument, or if Escrow Holder commences any action
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with respect to the Escrow(s), the successful or prevailing party shall be
entitled to recover actual attorneys' fees, charges and other costs incurred in
that action or proceeding, in addition to any other relief to which it may be
entitled.
17.7 Payments; Interests. Except as otherwise provided herein, payment of all
amounts required by the terms of this Agreement shall be made in the United
States and in immediately available funds of the United States of America which,
at the time of payment, is accepted for the payment of all public and private
obligations and debts. Unless the parties otherwise agree, payments shall be
made through the Escrow Holder. If any payment due under this Agreement is not
paid when due, it shall thereafter bear interest at a variable rate equal to the
rate announced from time to time by Citibank, N.A. as its prime or reference
rate, plus five percent (5%) per annum, but in no event more than the maximum
rate, if any, allowed by law to be charged by the party receiving the interest
on such type of indebtedness.
17.8 Transfer By Buyer. Buyer shall not have the right to assign this Agreement,
but shall be permitted to designate an Affiliate or Affiliates to take title to
the Property. In the event that Buyer elects to so designate any Affiliate or
Affiliates to take title to the Property hereunder, (i) Buyer shall upon close
of Escrow be released of all obligations hereunder other than pursuant to
SECTION 6, SECTION 7.1, SECTION 10, SECTION 17.18, SECTION 17.19 and SECTION
17.20 or arising prior to the Close of Escrow, (ii) such Affiliate or Affiliates
shall assume all of Buyer's obligations hereunder; and (iii) such Affiliate of
Affiliates shall represent and warrant to Seller that such entities are duly
organized and validly existing and otherwise as to the matters covered in
SECTION 6.1.1 and SECTION 6.1.2 as applicable.
17.9 Parties in Interest. Subject to SECTION 17.8, the rights and obligations of
the parties hereto shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors, assigns, heirs and the legal
representatives of their respective estates. Nothing in this Agreement is
intended to confer any right or remedy under this Agreement on any person other
than the parties to this Agreement and their respective successors and permitted
assigns, or to relieve or discharge the obligation or liability of any person to
any party to this Agreement or to give any person any right of subrogation or
action over or against any party to this Agreement.
17.10 Applicable Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the state in which the Real Property is
located without giving effect to the conflict-of-law rules and principles of
that state.
17.11 Incorporation of Recitals and Exhibits. The Recitals and Exhibits attached
to this Agreement are incorporated into and made a part of this Agreement.
17.12 Construction of Agreement. The language in all parts of this Agreement
shall be in all cases construed simply according to its fair meaning and not
strictly for or against any of the parties hereto. Headings at the beginning of
sections of this Agreement are solely for the convenience of the parties and are
not a part of this Agreement. When required by the context, whenever the
singular number is used in this Agreement, the same shall include the plural,
and the plural shall include the singular, the masculine gender shall include
the feminine and neuter genders, and vice versa. As used in this Agreement, the
term "Seller" shall include the respective permitted successors and assigns of
Seller, and the term "Buyer" shall include the permitted successors and assigns
of Buyer, if any.
17.13 Severability. If any term or provision of this Agreement is determined to
be illegal, unconscionable or unenforceable, all of the other terms, provisions
and sections hereof will nevertheless remain effective and be in force to the
fullest extent permitted by law.
17.14 Announcements. Seller and Buyer shall consult with each other and provide
each other one (1) Business Day prior notice with regard to all press
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releases and other announcements issued at or prior to the Close of Escrow and
during the one year period thereafter concerning the existence of this Agreement
or the sale of the Property and, except as permitted under SECTION 17.19,
neither Seller nor Buyer shall issue any such press release or other such
publicity prior to the Close of Escrow without the prior written consent of the
other party, which consent may be withheld in such other party's sole and
absolute discretion. Buyer will not issue any public announcement with respect
to Seller (other than to describe the transaction contemplated hereby to the
extent permitted hereunder) without the prior written consent of Seller which
may be withheld in its sole and absolute discretion. The agreements of the
parties in this SECTION 17.14 shall survive the Close of Escrow or any
termination of this Agreement.
17.15 Submission of Agreement. The submission of this Agreement to Buyer or its
broker, agent or attorney for review or signature does not constitute an offer
to sell the Property to Buyer or the granting of an option or other rights with
respect to the Property to Buyer. No agreement with respect to the purchase and
sale of the Property shall exist, and this writing shall have no binding force
or effect, until this Agreement shall have been executed and delivered by Buyer
and by Seller and Buyer shall have deposited the Deposit with Escrow Holder.
17.16 Further Assurances. Buyer and Seller agree to execute such instructions to
the Escrow Holder and such other instruments and take such further actions
either before or after the Close of Escrow as may be reasonably necessary to
carry out the provisions of this Agreement provided that no material additional
cost or liability shall be created thereby.
17.17 Cooperation. Buyer and Seller shall cooperate with the other to carry out
the purpose of this Agreement (provided, such cooperation shall not require
either party to expend any sum not otherwise required pursuant to the other
provisions of this Agreement). This SECTION 17.17 shall survive the Close of
Escrow.
17.18 Moratorium on Re-Sale. In the event Buyer does not consummate the proposed
acquisition of ITT Corporation, substantially as such transaction is described
in the Starwood Disclosure, the Buyer covenants and agrees that it will not sell
the Property to any third-party for a period (the "Transfer Restriction Period")
commencing upon the Close of Escrow and expiring upon the later of (a) five (5)
years following the Close of Escrow, and (b) settlement of or the final
non-appealable judgment is issued in connection with the existing litigation
between Seller and the Ritz Carlton Hotel Company, LLC and their respective
affiliates, provided, however, the foregoing prohibition shall not apply to a
sale of all or substantially all of the assets of Buyer, the merger of Buyer
into another entity or the transfer of the Property to a subsidiary and/or
Affiliate of Buyer but shall be binding upon the party succeeding to all or
substantially all of the assets of Buyer, the surviving entity in such merger,
or such subsidiary or Affiliate. In the event Buyer does consummate the proposed
acquisition of ITT Corporation described above, Buyer covenants and agrees that
it will not sell the Property to Marriott International, Inc., Host Marriott,
the Ritz Carlton Hotel Company, L.L.C. or any of their respective affiliates,
successors and assigns, or any other party that Buyer reasonably believes will
sell, and/or operate the Property pursuant to a franchise or operating agreement
with any of the above-described entities, (collectively, "Excluded Parties")
during the Transfer Restriction Period and shall cause any permitted purchaser
of the Property during the Transfer Restriction Period to covenant and agree not
to sell the Property to any Excluded Party for the balance of the Transfer
Restriction Period. The provisions of this SECTION 17.18 shall be specifically
enforceable. Buyer hereby waives any requirement for Seller to post a bond in
order to seek or obtain any temporary restraining order or other injunctive
relief pursuant to this SECTION 17.18. The parties acknowledge and agree that
the provisions of this Section 17.18 form a material part of the consideration
to Seller for entering into this Agreement. The parties agree that these
provisions are reasonable in light
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of Seller's ongoing litigation with Ritz Carlton Hotel Company and its
affiliates.
17.19 Confidentiality. Buyer shall hold as confidential all information
concerning the transaction contemplated by this Agreement, Seller and the
Property disclosed in connection with this transaction and Buyer shall not,
prior to the Close of Escrow, release any such information relating to the
transaction, Seller or the Property to any governmental agencies or third
parties without Seller's prior written consent except as may be required by law
and in such case subject to the provisions of SECTION 17.14. Seller hereby gives
its consent to Buyer's disclosure of information relating to the transaction
contemplated hereby to Buyer's Counsel and other consultants, in each instance
to the extent reasonably necessary to verify information given to Buyer by
Seller or otherwise to carry out the purposes of this Agreement and provided in
each instance, such consultants agree in writing to be bound by the
confidentiality provisions of this SECTION 17.19. If the Close of Escrow shall
fail to occur for any reason, neither party shall issue any press release,
publicity or other public announcement of the subject matter of this Agreement,
or to make any other disclosure concerning the subject matter of this Agreement
(except as may be required by law and in such case subject to the provisions of
SECTION 17.14.), without the prior written consent of the other party, which
consent may be withheld in such other party's sole and absolute discretion. The
agreements of the parties in this SECTION 17.19 shall survive any termination of
this Agreement.
17.20 Interim Management Agreement. Seller shall provide Manager with a notice
of termination of the Management Agreement on January 2, 1998 or as soon
thereafter as Seller shall have obtained any required lender consent thereto.
Seller shall on or prior to January 2, 1998 seek any required lender consent and
use all reasonable commercial efforts to obtain same as promptly as possible.
Buyer and Seller shall enter into a management agreement with respect to the
Property in the form attached as EXHIBIT 17.20 hereto (the "Interim Management
Agreement") which shall be effective (and the Interim Management Agreement shall
be dated as of such effective date) on the earlier of (a) thirty days from the
date of delivery to Manager of such termination notice and (b) the effective
date of a written waiver of Manager of the notice of termination required under
the Management Agreement. Buyer shall advance any fee payable to Manager under
the Management Agreement on account of the termination thereof up to $80,620.00.
Buyer shall be deemed to have waived delivery of all items under SECTIONS
4.2.1.15, 4.2.1.16, 4.2.1.17 and 4.2.1.19 in the event the Management Agreement
is terminated in accordance with the provisions of this SECTION 17.20 prior to
the Closing Date.
17.21 Starwood Lodging Trust. The parties hereto understand and agree that the
name "Starwood Lodging Trust" is a designation of the Trust and its trustees (as
trustees but not personally) under the Trust's Declaration of Trust, and all
persons dealing with the Trust shall look solely to the Trust's assets for the
enforcement of any claims against the Trust, and that the Trustees, officers,
agents and security holders of the Trust assume no personal liability for
obligations entered into on behalf of the Trust, and their respective individual
assets shall not be subject to the claims of any person relating to such
obligations.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Buyer and Seller have caused this Agreement to be executed
as of the day and year first above written.
"Seller"
NEW REMINGTON PARTNERS,
a Texas general partnership
By: REMINGTON VENTURERS, INC.,
a Texas corporation,
a General Partner
By: /s/ Mansor Dalaan
----------------------------------
Name: Mansor Dalaan
Title: President
By: REMINGTON VENTURERS II, INC.,
a Texas corporation,
a General Partner
By: /s/ Mansor Dalaan
----------------------------------
Name: Mansor Dalaan
Title: President
"Buyer"
STARWOOD LODGING TRUST,
a Maryland real estate investment trust
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
STARWOOD LODGING CORPORATION,
a Maryland corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
"Escrow Agent"
CHICAGO TITLE INSURANCE COMPANY,
a Missouri corporation
By: /s/ Xxxxxx X. Xxxxxx*
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
*Subject to receiving mutual
instructions in the event
paragraph #3.5 becomes operative
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TABLE OF CONTENTS
SECTION 1 - DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 10
SECTION 2 - PURCHASE AND SALE OF PROPERTY 11
SECTION 3 - PURCHASE PRICE; PAYMENT; BUYER'S DEFAULT; LIQUIDATED DAMAGES 11
3.1 Purchase Price 11
3.2 Payment 11
3.3 Investment of Escrowed Funds 11
3.4 Allocation of Purchase Price 12
3.5 Default by Buyer Prior to Closing; Liquidated Damages 12
SECTION 4 - ESCROW; CLOSING; COSTS 13
4.1 Escrow 13
4.2 Seller's Deliveries to Escrow Holder 13
4.2.1.1 Deed 13
4.2.1.2 Assignment and Assumption of Tenant Leases 13
4.2.1.3 General Assignment 14
4.2.1.4 Assignment and Assumption of Management Agreement 14
4.2.1.5 Xxxx of Sale 14
4.2.1.6 Stock Agreement 14
4.2.1.7 Liquor Licenses Management Agreement 14
4.2.1.8 [Intentionally Omitted] 14
4.2.1.9 [Intentionally Omitted] 14
4.2.1.10 [Intentionally Omitted] 14
4.2.1.8 Houston Master Lease 14
4.2.1.12 Houston Right of First Offer Agreement 14
4.2.1.13 Non-Foreign Person Certificate 15
4.2.1.14 Transfer Tax Forms 15
4.2.1.15 Certified Rent Roll 15
4.2.1.16 Certified Operating Statement 15
4.2.1.17 Guest Ledger 15
4.2.1.18 Closing Certificate 15
4.2.1.19 Schedule of Bookings 15
4.2.1.20 Title Requirements 15
4.2.1.21 Payoff Letters 15
4.2.1.22 Notices to Tenants 16
4.2.1.23 Opinion of Seller's Counsel 16
4.2.1.24 Other 16
4.3 Buyer's Deliveries to Escrow Holder 16
4.3.1.1 The Cash Purchase Price 16
4.3.1.2 Stock Certificates 16
4.3.1.3 Assignment and Assumption of Management Agreement 16
4.3.1.4 Value Letter 16
4.3.1.5 Opinion of Buyer's Counsel 17
4.3.1.6 Stock Agreement 17
4.3.1.7 [Intentionally Omitted] 17
4.3.1.8 Assignment and Assumption of Liquor-Related Agreements 17
4.3.1.9 [Intentionally Omitted] 17
4.3.1.10 Houston Master Lease 17
4.3.1.11 Houston Right of First Offer 17
4.3.1.12 Closing Certificate 17
4.3.1.13 The Assignment and Assumption of Tenant Leases 17
4.3.1.14 The General Assignment and Assumption Agreement 17
4.3.1.15 Transfer Tax Forms 17
4.3.1.16 Other 17
4.4 Seller's Deliveries to Buyer 17
4.4.1 Tenant Leases/Tenant Deposits 17
4.4.2 Service Contracts 18
4.4.3 Licenses and Permits 18
4.4.4 Records and Plans 18
4.5 Possession 18
4.6 Evidence of Authorization 18
4.7 Close of Escrow 18
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4.8 Costs of Escrow 19
4.9 Other Costs 20
4.10 Maintenance of Confidentiality by Escrow Holder 20
SECTION 5 - PRORATIONS AND ASSUMPTION OF OBLIGATIONS 20
5.1 General 20
5.2 General and Specific Prorations 20
5.3 Deposits 23
5.4 Tenant Leases 23
5.5 Service Contracts and Other Intangible Property 23
5.6 Tax Refunds and Proceedings 23
5.7 Guest Baggage 24
5.8 Safe Deposit Boxes 24
5.9 Advance Bookings 24
Special Purchase Price Adjustment 24
SECTION 6 - REPRESENTATIONS AND WARRANTIES; CONDITION OF PROPERTY 24
6.1 Of the Trust 24
6.1.1 Power and Authority 24
6.1.2 Authorization; Valid Obligation 25
6.1.3 Capital Structure 25
6.1.4 SEC Documents and Other Reports 25
6.1.5 Absence of Certain Changes or Events 25
6.1.6 Actions and Proceedings 25
6.1.7 REIT Status 25
6.1.8 Partnership Status 25
6.1.9 Xxxx-Xxxxx-Xxxxxx Act 25
6.2 Of the Corporation 25
6.2.1 Power and Authority 25
6.2.2 Authorization; Valid Obligation 25
6.2.3 Capital Structure 25
6.2.4 SEC Documents and Other Reports 25
6.2.5 Absence of Certain Changes or Events 25
6.2.6 Actions and Proceedings 25
6.2.8 Xxxx-Xxxxx-Xxxxxx 25
6.3 Of Seller 25
6.3.1 Regarding Seller's Authority 25
6.3.2 Tenant Leases 25
6.3.3 Service Contracts 25
6.3.4 Claims 25
6.3.5 Employees 25
6.3.6 Compliance with Laws 25
6.3.7 Hazardous Materials 25
6.3.8 Records and Plans 25
6.3.9 Licenses and Permits 25
6.3.10 Management Agreements 25
6.3.11 Personal Property 25
6.3.12 Insurance 25
6.3.13 Real Estate Taxes 25
6.3.14 Liquor Related Agreements 25
6.4 Buyer's Review of Records and Plans 25
6.4.1 Access to Records and Plans; Specific Disclosures 25
6.4.2 Limitation on Access to Records and Plans 25
6.5 PURCHASE AS IS 25
6.6 Limitation on Representations and Warranties of Seller 25
6.7 Right to Supplement Disclosures 25
6.8 Basket 25
6.9 Survival 25
SECTION 7 - TITLE TO THE REAL PROPERTY: EXTENSION OF THE CLOSING 25
7.1 Buyer's Review of Title 25
7.1.1 Failure to Satisfy Certain Closing Conditions; Monetary Liens 25
7.1.2 [Intentionally Omitted] 25
7.2 Title Insurance Policy 25
7.3 Title to Real Property 25
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SECTION 8 - INTERIM ACTIVITIES 25
SECTION 9 - CONDITIONS PRECEDENT TO CLOSING 25
9.1 Conditions Precedent to Buyer's Obligations 25
9.1.1 Seller's Deliveries 25
9.1.2 Title Policy 25
9.1.3 Performance Under Related Agreement 25
9.1.4 [Intentionally Omitted] 25
9.1.5 Seller Performance 25
9.1.6 Representations and Warranties of Seller 25
9.2 Conditions Precedent to Seller's Obligations 25
9.2.1 Funds and Documents 25
9.2.2 Representations and Warranties of Buyer 25
9.2.3 No Material Changes 25
9.2.4 [Intentionally Omitted] 25
9.2.5 Performance Under Related Agreement 25
9.3 Failure of Condition 25
SECTION 10 - BROKER 25
SECTION 11 - REMEDIES FOR SELLER'S DEFAULT 25
11.1 Buyer's Remedies in General 25
11.2 MATERIAL INDUCEMENT 25
SECTION 12 - DAMAGE TO OR DESTRUCTION OF THE PROPERTY 25
12.1 Insured Casualty 25
12.2 Uninsured Casualty 25
SECTION 13 - CONDEMNATION 25
SECTION 14 -EMPLOYEES 25
14.1 Hiring of Hotel Employees; WARN Act Compliance 25
14.2 Collective Bargaining Agreements 25
14.3 Continuation of Benefits 25
14.5 Indemnification 25
14.6 Survival 25
SECTION 15 - COOPERATION 25
SECTION 16 - NOTICES 25
16.1 Addresses 25
16.2 Receipt of Notices 25
16.3 Refusal of Delivery 25
16.4 Change of Address 25
SECTION 17 - GENERAL PROVISIONS 25
17.1 Amendment 25
17.2 Time of Essence 25
17.3 Entire Agreement 25
17.4 No Waiver 25
17.5 Counterparts 25
17.6 Costs and Attorneys' Fees 25
17.7 Payments; Interests 25
17.8 Transfer By Buyer 25
17.9 Parties in Interest 25
17.10 Applicable Law 25
17.11 Incorporation of Recitals and Exhibits 25
17.12 Construction of Agreement 25
17.13 Severability 25
17.14 Announcements 25
17.15 Submission of Agreement 25
17.16 Further Assurances 25
17.17 Cooperation 25
17.18 Moratorium on Re-Sale 25
17.19 Confidentiality 25
17.20 Interim Management Agreement 25
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EXHIBITS
Exhibit A Legal Description
Exhibit B Memorandum of Contract
Exhibit 4.2.1.1 Deed
Exhibit 4.2.1.2 Assignment and Assumption of Tenant Leases
Exhibit 4.2.1.3 General Assignment and Assumption Agreement
Exhibit 4.2.1.4 Assignment and Assumption of Management Agreement
Exhibit 4.2.1.5A Xxxx of Sale for Capitalized Tangible Property
Exhibit 4.2.1.5B Xxxx of Sale for Expensed Tangible Property
Exhibit 4.2.1.6 Stock Agreement
Exhibit 4.2.1.7 Assignment and Assumption of Liquor-Related Agreements
Exhibit 4.2.1.11 Master Lease
Exhibit 4.2.1.12 Right of First Offer Agreement
Exhibit 4.2.1.13 Non-Foreign Person Certificate
Exhibit 17.20 Interim Management Agreement
SCHEDULES
Schedule 1.1.1 Approved Service Contracts
Schedule 1.1.2 Employment Agreements
Schedule 1.1.3 Equipment Leases
Schedule 1.1.4 Excluded Property
Schedule 1.1.5 [Intentionally Omitted]
Schedule 1.1.6 Hotel Employees
Schedule 1.1.7 Schedule of Tenant Leases
Schedule 1.1.8 Seller's Due Diligence and Seller's Knowledge
Schedule 1.1.9 Specific Disclosure Matters
Schedule 3.4 Allocation of Purchase Price
Schedule 4.2.1.11 Houston Adjacent Assets
Schedule 6.3.2 Material Defaults Under Tenant Lease
Schedule 6.3.3 Material Defaults Under Approved Service Contracts
Schedule 6.3.4 Material Claims
Schedule 6.3.5 Material Defaults Under Employment Agreements
Schedule 6.3.6 Material Violations
Schedule 6.3.7 Material Environmental Conditions
Schedule 6.3.9 Licenses and Permits
Schedule 6.3.12 Seller's Insurance
Schedule 6.3.13 Pending Tax Protests
Schedule 7.3 Permitted Encumbrances
Schedule 14.2 Collective Bargaining Agreements
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