EXHIBIT 10.1
HOTEL PURCHASE AGREEMENT
This Hotel Purchase Agreement (this "AGREEMENT") is made as of May 7,
2006, between Xxxxxx Xxxxx LLC, a Delaware limited liability company (the
"SELLER"), and Marriott Ownership Resorts, Inc., a Delaware corporation (the
"BUYER").
RECITALS:
A. Seller is the owner in fee simple of the real property described on
Exhibit A-1(1) (the "REAL PROPERTY");
B. Seller leases the Hotel to Marco Leasing LLC ("LESSEE"), pursuant
to a Percentage Lease Agreement (the "PERCENTAGE LEASE"), dated as of August 25,
2003;
C. The hotel described on Exhibit A-2 (the "HOTEL") is situated on the
Real Property;
D. Seller's Manager (defined below) operates a hotel, meeting, and
food and beverage service business at the Hotel (the "HOTEL BUSINESS");
E. The Hotel is managed by Xxxxxx Management Company Limited Liability
Company (the "SELLER'S MANAGER"); pursuant to the terms and conditions of a
Management Agreement (the "MANAGEMENT AGREEMENT"), dated August 25, 2003,
between Lessee and Seller's Manager.
F. The Hotel is operated pursuant to a License Agreement (the
"FRANCHISE AGREEMENT") dated as of August 29, 2003, with Radisson Hotels
International, Inc.
G. Buyer desires to purchase from Seller, and Seller desires to sell
to Buyer, the Real Property, all improvements located thereon, including,
without limitation, the Hotel and substantially all of the assets of the Seller
that are used in the operation of the Hotel.
NOW, THEREFORE, based on the mutual promises of the parties contained
herein and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Seller and Buyer agree as follows:
SECTION 1. PURCHASE AND SALE OF THE PROPERTY.
1.1. DESCRIPTION OF ASSETS. Upon the terms and subject to the
conditions set forth in this Agreement, at the Closing (as hereafter defined),
Seller shall convey, sell, transfer, assign and deliver to Buyer and Buyer shall
purchase and take from Seller, all right, title and interest of Seller in and to
all of the assets, properties, rights (contractual or otherwise) and business of
Seller relating to the Hotel (other than the Excluded Assets, as hereafter
defined), including, without limitation, the following:
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(1) Each reference in this Agreement to an Exhibit or Schedule shall mean an
Exhibit or Schedule attached to this Agreement and incorporated into this
Agreement by such reference.
(a) The Real Property, along with all appurtenant rights,
easements, rights of way and privileges relating thereto and all improvements on
or relating to the Real Property, including, but not limited to, the Hotel;
(b) All fixtures, furniture, furnishings, fittings, equipment,
signage, machinery, appliances, vehicles and other articles of personal property
(together with all warranties relating thereto to the extent such warranties are
transferrable) located on the Real Property or in the Hotel as of the date of
this Agreement and used or usable in connection with any present or future
occupation or operation of all or any part of the Hotel (the "FIXTURES AND
TANGIBLE PERSONAL PROPERTY");
(c) All food and beverages in open and unopened boxes,
engineering, maintenance and housekeeping supplies (including, without
limitation, soap and cleaning materials, fuel, and materials in open and
unopened boxes), stationery and printed items and supplies in open and unopened
boxes, and other supplies of all kinds in open and unopened boxes, all of which
are unused or held in reserve storage for future use in connection with the
maintenance and operation of the Hotel (the "CONSUMABLES");
(d) All china, glassware, linens and silverware used or held in
reserve storage at the Hotel for future use in connection with the operation of
the Hotel, which are on hand on the date hereof, subject to such depletion and
restocking as shall be made in the normal course of business after the date
hereof (the "OPERATING EQUIPMENT");
(e) Those contracts, agreements, contract rights (including
warranties, to the extent transferable), license agreements, franchise rights
and agreements to which Seller is a party and used in conducting the business
and operations of the Hotel that are listed on Schedule 1.1(e) (the
"CONTRACTS");
(f) All licenses, permits, consents, authorizations, approvals
and certificates of any regulatory, administrative or other governmental agency
or body held by Seller and used in conducting the business and operations of the
Hotel (to the extent the same are transferable) (the "PERMITS"), including,
without limitation, the Permits listed on Schedule 1.1(f);
(g) All trademarks, trade names, names, service marks, symbols,
logos, franchise agreements, franchises, telephone and facsimile numbers and
internet domain addresses used in conducting the business and operations of the
Hotel, which Seller has the right to use and which are transferable;
(h) All advance reservations (including deposits) existing as of
close of business on the day preceding the Closing;
(i) All guest lists, customer files, group files, sales records,
sales literature and brochures and other written marketing materials used in
conducting the business and operations of the Hotel;
(j) All books of original financial entry, internal accounting
documents and records, including electronic data, books of account, files,
correspondence and other records used or generated by Seller in conducting the
business and operations of the Hotel, and all blueprints, engineering reports
and studies and environmental reports and studies relating to the Hotel;
(k) Those leases, subleases and other occupancy agreements,
whether or not of record, which provide for the use or occupancy of space or
facilities on or relating to the Real Property or the Hotel that are listed on
Schedule 1.1(k) (the "TENANT LEASES"); and
(l) Those leases of equipment or other tangible personal property
used in conducting the business and operations of the Hotel that are listed on
Schedule 1.1(l) (the "PERSONAL PROPERTY LEASES").
All of the assets, properties, rights (contractual and otherwise) and
business to be conveyed, sold, transferred, assigned and delivered to Buyer
pursuant to this Section 1.1 are hereafter collectively referred to as the
"PURCHASED ASSETS". There shall be excluded from the assets, properties, rights
(contractual and otherwise) and business to be conveyed, sold, transferred,
assigned and delivered to Buyer pursuant to this Section 1.1 those items set
forth on Schedule 1.1(z) (the "EXCLUDED ASSETS"). Except as set forth in this
Agreement, including, without limitation, Section 7.4 hereof, the Purchased
Assets shall be delivered unencumbered, free of liens, charges and impositions.
1.2. NON-ASSIGNMENT OF CERTAIN PURCHASED ASSETS. To the extent that the
assignment hereunder of any of the Contracts, any of the Tenant Leases or any of
the Personal Property Leases shall require the consent of any other party (or in
the event that any of the same shall be non-assignable), neither this Agreement
nor any action taken pursuant to its provisions shall constitute an assignment
or an agreement to assign if such assignment or attempted assignment would
constitute a breach thereof or result in the loss or diminution in value
thereof. Seller and Buyer shall use commercially reasonable efforts to obtain
any such required consent. If such consent is not obtained, Seller shall
cooperate with Buyer, with no additional out-of-pocket expense or liability to
Seller, in any commercially reasonable arrangement designed to provide for Buyer
the benefits of any such Contract, Tenant Lease or Personal Property Lease,
including, without limitation, enforcement, for the account and benefit of
Buyer, of any and all rights of Seller against any other person with respect
thereto. Notwithstanding the foregoing, Buyer shall assume all liabilities under
such Contracts, Tenant Leases and Personal Property Leases to the extent set
forth in Section 2.1 below.
1.3 TERMINATION OF CONTRACTS. Notwithstanding anything to the contrary
contained herein, Buyer may, at its option, elect not to assume one or more of
the Contracts, Tenant Leases and Personal Property Leases by delivering written
notice identifying the Contracts Buyer does not desire to assume at least thirty
two (32) days prior to the Closing Date (the ("REJECTED CONTRACTS"). If Buyer
timely delivers any such notice, (a) the Contracts assumed at Closing shall not
include the Rejected Contracts, (b) Buyer shall have no obligation in respect of
the Rejected Contracts, and (c) Seller shall retain all liabilities arising
thereunder.
SECTION 2. LIABILITIES ASSUMED.
2.1. ASSUMPTION OF CERTAIN LIABILITIES. Buyer shall assume and be
responsible for the timely satisfaction or performance, as the case may be, of
all liabilities or obligations arising under the Purchased Assets (including,
without limitation, all liabilities and obligations under all Contracts, Tenant
Leases and Personal Property Leases other than the Rejected Contracts) to the
extent such liabilities or obligations arise or are incurred and are first
required to be performed after the Closing Date (collectively, the "ASSUMED
LIABILITIES").
2.2. LIABILITIES NOT ASSUMED. With the exception of the Assumed
Liabilities and as otherwise stated herein, Buyer shall not by execution and
performance of this Agreement or otherwise, assume or otherwise be responsible
for any liability or obligation of any nature of Seller or claims of such
liability or obligation, whether arising out of occurrences prior to, at, or
after the date hereof, including, without limitation, any Community Obligations
(as defined in Section 7.11) (collectively, the "RETAINED LIABILITIES").
SECTION 3.
3.1 PURCHASE PRICE. The purchase price for the Purchased Assets shall
be Fifty Eight Million Dollars ($58,000,000), plus or minus the adjustments and
prorations called for in this Agreement (the "PURCHASE PRICE").
3.2 ALLOCATION OF PURCHASE PRICE. Seller and Buyer shall negotiate in
good faith to agree upon a Purchase Price allocation prior to Closing. Each of
Buyer and Seller agree that it will file all tax returns (including amended
returns and claims for refund) and information reports in a manner consistent
with such agreed allocation, if any.
SECTION 4. DEPOSIT AND PAYMENT OF PURCHASE PRICE; DUE DILIGENCE PERIOD.
4.1 DEPOSIT. On May 8, 2006, Buyer shall deposit the sum of Three
Million Dollars ($3,000,000) (the "INITIAL DEPOSIT") in an escrow account
established at the offices of Fidelity National Title Insurance Company,
Cleveland, Ohio (the "ESCROW AGENT") prior to 5:00 p.m. EDT. Thereafter, on May
25, 2006, Buyer shall deposit the additional sum of Three Million Dollars
($3,000,000) with the Escrow Agent (the "ADDITIONAL DEPOSIT"). The Initial
Deposit and the Additional Deposit are hereinafter together referred to as the
"XXXXXXX MONEY DEPOSIT"). The Xxxxxxx Money Deposit shall be invested in an
interest-bearing account reasonably acceptable to both parties and shall be held
by the Escrow Agent on the terms and subject to the conditions of this
Agreement. If there is a conflict between the provisions of this Agreement and
the terms of any applicable escrow agreement, the provisions of this Agreement
shall govern. If this transaction is consummated, the Xxxxxxx Money Deposit
(together with any interest earned thereon) shall be applied against the
Purchase Price as a credit to the Buyer. Except as otherwise specifically
provided in this Agreement, including, without limitation, Section 12.2, the
Initial Deposit and the Additional Deposit shall become non-refundable at 5:00
p.m. EDT on the date required to be made hereunder. Notwithstanding anything to
the contrary set forth in this Agreement, if Buyer fails to deposit the Initial
Deposit as contemplated by the first sentence of this Section 4.1, this
Agreement shall automatically terminate and be of no further force and effect,
provided that, notwithstanding any termination pursuant to this sentence, Buyer
agrees, and shall be unconditionally liable, to immediately thereafter pay to
Seller an amount equal to the Initial Deposit.
4.2 PAYMENT. On the terms and subject to the conditions of this
Agreement, Buyer shall on the Closing Date pay to Seller in immediately
available funds the Purchase Price, less the amount of the Xxxxxxx Money Deposit
applied against the Purchase Price, plus or minus the other adjustments and
prorations called for in this Agreement. Payment of the Purchase Price shall be
made by wire transfer of immediately available funds to an account designated in
writing by Seller.
4.3 DUE DILIGENCE PERIOD. During a period commencing on the date
hereof and expiring at 5:00 p.m. EDT on May 12, 2006 (the "DUE DILIGENCE
PERIOD"), Buyer may conduct such due diligence, studies, tests and inspections
of the Purchased Assets as Buyer deems appropriate. At any time prior to
expiration of the Due Diligence Period, Buyer may notify Seller and the Escrow
Agent of Buyer's intention not to proceed with this transaction and upon receipt
of such notice, this Agreement shall thereafter be null and void and of no
further force or effect (other than provisions that by their terms expressly
survive any termination of this Agreement), provided that upon delivery of
notice of termination pursuant to this Section 4.3, Buyer shall forfeit its
right to the Xxxxxxx Money Deposit, or such portion thereof previously paid to
the Escrow Agent, and the Escrow Agent shall promptly deliver such portion of
the Xxxxxxx Money Deposit to Seller.
4.4 FRANCHISE AGREEMENT AND PERCENTAGE LEASE. Effective as of Closing,
Seller shall terminate the Franchise Agreement and Percentage Lease and pay any
and all damages, fees, costs and expenses associated with the termination
thereof.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Buyer as follows:
5.1 ORGANIZATION OF SELLER. Seller is a limited liability company
validly existing and in full force and effect under the laws of the State of
Delaware.
5.2 AUTHORITY. Seller has full power and authority to execute and
deliver this Agreement and all documents now or hereafter to be executed and
delivered by Seller pursuant to this Agreement and to perform all obligations
arising under this Agreement and under such other documents. Seller's execution,
delivery and performance of this Agreement has been duly and validly authorized
by all necessary action on the part of Seller and this Agreement has been duly
executed and delivered by Seller. This Agreement and such other documents, when
executed and delivered, will each constitute the legal, valid and binding
obligations of Seller, enforceable against Seller in accordance with their
respective terms.
5.3 LIST OF LEASES, CONTRACTS, PERSONNEL DATA, ETC. To Seller's
knowledge (as defined in Section 14.10 hereof), the Schedules listed below list
all material items within the term or description of each such Schedule. True,
correct and complete copies of the Schedules listed below have been or will be
delivered to Buyer within two (2) business days following execution of this
Agreement and true, correct and complete copies of the documents referred to in
the Schedules or related to the Schedules listed below have been furnished or
made available to Buyer (or, if not previously furnished or made available, will
promptly be furnished to or made available to Buyer upon Buyer's request).
Schedules Description
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Schedule 1.1(e) Contracts
Schedule 1.1(f) Permits
Schedule 1.1(k) Tenant Leases
Schedule 1.1(l) Personal Property Leases
Schedule 1.1(z) Excluded Assets
Schedule 5.6 Litigation
Schedule 5.7 Compliance with Laws
Schedule 5.8 Labor Matters
Schedule 5.9 Contract Compliance
Schedule 5.10 Tenant Lease Compliance
Schedule 5.14 Recapture Agreements
Schedule 5.15 Roadwork and Access
5.4 FINANCIAL STATEMENTS. The financial statements attached as Exhibit
B, which have been furnished previously to Buyer by Seller are to Seller's
knowledge (as defined in Section 14.10) true, correct and complete in all
material respects, have been prepared from and are in accordance with the books
and records relating to the Hotel in substantial conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved, conform substantially to the
Uniform System of Accounts For Hotels and fairly present the financial condition
of the Hotel as at the dates stated and the results of operations for the
periods then ended (collectively, the "FINANCIAL STATEMENTS").
5.5 TAXES. All income, property, business, occupation, sales, use and
other similar taxes imposed with respect to the Hotel, or the operation thereof,
which are due and payable by Seller have been paid in full or are current and
Seller has not received any written notice that any such tax is overdue or has
not been paid. Seller has duly filed all federal, state and local tax returns
and tax reports required to be filed by it, all such returns and reports are
true and correct in all material respects and all taxes and other charges
arising under such returns and reports have been fully paid or will be timely
paid.
5.6 LITIGATION. To Seller's knowledge, except as disclosed in Schedule
5.6, there are no claims, actions, suits or proceedings (collectively,
"LITIGATION") pending or threatened against or affecting the Hotel or the
Purchased Assets before any federal, state or local court or other governmental
or quasi-governmental agency, body, board, commission or entity (collectively,
"GOVERNMENTAL AUTHORITIES") that, if decided adversely against Seller, would
have a materially adverse effect on the Hotel or the Purchased Assets. To
Seller's knowledge, Seller is not subject to or in default with respect to any
judgment, order, writ, injunction or decree of any Governmental Authority
affecting the Hotel or the Purchased Assets.
5.7 COMPLIANCE WITH LAWS. Except as disclosed in Schedule 5.7, as of
the Effective Date, Seller has not received any written notice from any
Governmental Authority that it is in non-compliance with any law, ordinance,
regulation or order applicable to the business and operations of the Hotel,
except to the extent that non-compliance would not have a material adverse
effect on the financial condition or operations of the Hotel.
5.8 LABOR MATTERS. To Seller's knowledge, Seller has complied in all
material respects with all applicable federal, state and local laws, rules and
regulations relating to employment and all applicable laws, rules and
regulations governing payment of minimum wages and overtime rates, the
withholding and payment of taxes from compensation of employees and the payment
of premiums and/or benefits under applicable worker compensation laws. Schedule
5.8 sets forth all collective bargaining or other labor agreements applicable to
Hotel Employees. Except as disclosed in Schedule 5.8, to Seller's knowledge, as
of the Effective Date, there is no unfair labor practice charge or complaint
against Seller pending or threatened under the Labor Management Relations Act.
Except as disclosed in Schedule 5.8, as of the Effective Date, there is no labor
strike, dispute, slowdown or stoppage, or any union organizing campaign, or
petition for certification actually pending or, to Seller's knowledge,
threatened against or involving Seller.
5.9 CONTRACTS. Except as disclosed in Schedule 5.9, to Seller's
knowledge, all the Contracts are valid and binding, in full force and effect and
enforceable in accordance with their respective terms. Except as disclosed in
Schedule 5.9, to Seller's knowledge, neither Seller nor the other parties
thereto, are in default under any Contract, and no event has occurred which,
merely by notice or the passage of time or both, would constitute such a default
by Seller or such other parties. No notice has been received by Seller claiming
any such default by Seller.
5.10 TENANT LEASES. Except as disclosed in Schedule 5.10, to Seller's
knowledge, the Tenant Leases are valid and binding, in full force and effect and
enforceable in accordance with their respective terms. All rent due under the
Tenant Leases has been paid in full, no rent thereunder has been prepaid, and to
Seller's knowledge, neither Seller nor the tenants thereunder are in default
thereunder, and no event has occurred which, merely by notice or the passage of
time or both, would constitute such a default by Seller or the tenants
thereunder. No notice has been received by Seller claiming any such default by
Seller.
5.11 FOREIGN PERSON. Seller is not a foreign person for purposes of
the withholding provisions of Section 1445 of the Internal Revenue Code of 1986,
as amended.
5.12 BROKERS. Except for Xxxxxxxx Xxxxxxxx Xxxxxx, X.X., Xxxxxxxxx
Group, Inc., and UBS Investment Bank (the "BROKERS") no broker, finder or
financial adviser has acted directly or indirectly as such for the Seller, or is
entitled to any fee or commission in connection with this Agreement or the
transaction contemplated hereby. Seller shall be responsible for and shall pay,
when due, the real estate commission or other fees of the Brokers and any other
broker or person claiming a commission or fee based on its representation of
Seller in connection with this Agreement or the transaction contemplated hereby.
Buyer shall be responsible for and shall pay, when due, the real estate
commission or other fees of any broker or person claiming a commission or fee
based on its representation of Buyer in connection with this Agreement or the
transaction contemplated hereby.
5.13 CONDITION OF PURCHASED ASSETS. Buyer acknowledges that (a) it
will have a reasonable opportunity to inspect and investigate the Real Property
and the other Purchased Assets being purchased pursuant to this Agreement and
all matters relating thereto, including, without limitation, all of the
physical, environmental and operational aspects of the such Purchased Assets,
either independently or through agents and experts of Buyer's choosing and (b)
it will acquire the Purchased Assets based upon Buyer's own investigation and
inspection. SELLER AND BUYER AGREE THAT, EXCEPT AS EXPRESSLY PROVIDED FOR IN
THIS AGREEMENT, THE PURCHASED ASSETS SHALL BE SOLD, AND BUYER SHALL ACCEPT THE
PURCHASED ASSETS, ON THE CLOSING DATE AS IS, WHERE IS, WITH ALL FAULTS WITH NO
RIGHT OF SET-OFF OR REDUCTION IN THE PURCHASE PRICE, AND THAT, EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT, SUCH SALE SHALL BE WITHOUT REPRESENTATION
OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING, WITHOUT LIMITATION, WARRANTY OF INCOME POTENTIAL, OPERATING EXPENSES,
USES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND SELLER DOES HEREBY
DISCLAIM AND RENOUNCE ANY SUCH REPRESENTATION OR WARRANTY, EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT. BUYER SPECIFICALLY ACKNOWLEDGES THAT, EXCEPT AS
PROVIDED FOR IN ARTICLE 5 OF THIS AGREEMENT, BUYER IS NOT RELYING AND SHALL NOT
RELY ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, FROM SELLER OR ANY BROKER (AS DEFINED
IN SECTION 5.12 HEREOF) AS TO ANY MATTERS CONCERNING THE PURCHASED ASSETS
INCLUDING WITHOUT LIMITATION: (A) THE CONDITION OR SAFETY OF THE PURCHASED
ASSETS, INCLUDING, BUT NOT LIMITED TO, PLUMBING, SEWER, HEATING AND ELECTRICAL
SYSTEMS, ROOFING, AIR CONDITIONING, FOUNDATIONS, SOILS AND GEOLOGY INCLUDING
HAZARDOUS SUBSTANCES, LOT SIZE, OR SUITABILITY OF THE PURCHASED ASSETS FOR A
PARTICULAR PURPOSE; (B) WHETHER THE APPLIANCES, IF ANY, PLUMBING OR UTILITIES
AND ANY ASSOCIATED METERS ARE IN WORKING ORDER; (C) THE LIVABILITY OR
SUITABILITY FOR OCCUPANCY OF ANY STRUCTURE AND THE QUALITY OF ITS CONSTRUCTION;
(D) THE FITNESS OF ANY PERSONAL PROPERTY OR PURCHASED ASSETS; OR (E) WHETHER THE
IMPROVEMENTS ARE STRUCTURALLY SOUND, IN GOOD CONDITION, OR IN COMPLIANCE WITH
APPLICABLE CITY, COUNTY, STATE OR FEDERAL STATUTES, CODES OR ORDINANCES. ANY
REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE TO BE THE SOLE RESPONSIBILITY OF
BUYER AND BUYER AGREES THAT THERE IS NO OBLIGATION ON THE PART OF SELLER TO MAKE
ANY CHANGES, ALTERATIONS, OR REPAIRS TO THE PURCHASED ASSETS. BUYER AGREES AND
ACKNOWLEDGES THAT BUYER'S OBLIGATIONS HEREUNDER SHALL REMAIN IN FULL FORCE AND
EFFECT WITH BUYER HAVING NO RIGHT TO DELAY THE CLOSING OR TERMINATE THIS
AGREEMENT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, REGARDLESS
OF ANY FACTS OR INFORMATION LEARNED BY BUYER AFTER THE EFFECTIVE DATE.
5.14 RECAPTURE AGREEMENTS. To Seller's knowledge, as of the Effective
Date and except as set forth on Schedule 5.14, there are no obligations
affecting the Purchased Assets involving a refund for sewer extension,
oversizing utility lines or lighting expenses or charges for similar work or
services done upon or relating to the Purchased Assets (so called "recapture
agreements") which will bind Buyer or the Purchased Assets after the Closing
Date.
5.15 ROADWORK AND ACCESS. To Seller's knowledge, as of the Effective
Date and except as set forth on Schedule 5.15, there is no written agreement or
undertaking or bond with any governmental agency or private association
requiring the owner of the Real Property to construct any roadway improvements,
including any repaving of any street or road, acceleration or deceleration lane
or access or street lighting.
5.16 CONDEMNATION. To Seller's knowledge, as of the Effective Date,
Seller has not received any written notices from any Governmental Authority
regarding any pending or threatened condemnation proceedings or condemnation
action affecting the Real Property.
5.17 PATRIOT ACT. To the extent applicable to Seller and to the
transactions contemplated hereby:
(i) Seller hereby represents its compliance with all applicable
anti-money laundering laws, including, without limitation,
the USA Patriot Act, and the laws administered by OFAC,
including, without limitation, Executive Order 13224.
(ii) None of Seller's employees, directors or officers, or others
with a controlling interest in Seller, nor any of its
affiliates (other than the shareholders of Xxxxxx Lodging
Company, with respect to which Seller makes no
representations or warranties pursuant to this Section 5.17)
or the funding sources of either is on the SDN List.
(iii) Neither Seller nor any of its affiliates is directly or
indirectly controlled by the government of any country or
person that is subject to an embargo by the United States
government that prohibits Seller from conducting the
business activities contemplated by this Agreement with
Buyer.
(iv) Neither Seller nor any of its affiliates is acting on behalf
of an Embargoed Country.
(v) Seller represents and warrants to Buyer that Seller
(including, without limitation, any and all of its
employees, directors, officers, or others with a controlling
interest) and any of its affiliates or the funding sources
for either complies with applicable anti-terrorist financing
and anti-money laundering laws.
(vi) For purposes of this sub-section, the following definition
shall apply:
Definition of SDN: "SPECIALLY DESIGNATED NATIONAL OR BLOCKED PERSON"
means (i) a person designated by the U.S. Department of Treasury's
Office of Foreign Assets Control from time to time as a "specially
designated national or blocked person" or similar status, (ii) a
person described in Section 1 of U.S. Executive Order 13224, issued on
September 23, 2001, (iii) a person otherwise identified by government
or legal authority pursuant to a sanctions program or otherwise as a
person with whom Buyer, Marriott International or their respective
affiliates are prohibited from transacting business, or (iv) a person
otherwise identified by government or legal authority pursuant to a
sanctions program or otherwise as a person with whom the Buyer,
Marriott International or their affiliates may transact business only
if the Buyer, Marriott International or their respective affiliates
first obtains a license from such government or legal authority,
Currently, a listing of specially designated nationals or blocked
persons, the text of the Executive Order and legal documents related
to the several sanctions programs imposed by the U.S. government are
published under the internet website address:
xxxx://xxx.xxxxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx.
Each of the representations and warranties contained in this Article 5
and its various sections is intended for the benefit of Buyer and may be waived
in whole or in part by Buyer. All rights and remedies arising in connection with
the untruth or inaccuracy of any such representations and warranties shall, to
the extent applicable, survive the Closing of the transaction contemplated
hereby for a period of time as set forth in Section 11.1 of this Agreement, and
Buyer's remedies on account thereof shall be limited as provided in Section
11.2, Section 12.1 and Section 12.3 hereof. Buyer acknowledges and agrees that
the provisions of this paragraph and Section 5.13 shall survive the Closing of
the purchase of the Purchased Assets.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby represents
and warrants to Seller:
6.1 ORGANIZATION OF BUYER. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
6.2 AUTHORITY. Buyer has full power and authority to execute and
deliver this Agreement and all documents now or hereafter to be executed and
delivered by Buyer pursuant to this Agreement and to perform all obligations of
Buyer arising under this Agreement and under such documents, subject to receipt
of approval of the subject transaction by Marriott International, Inc., Buyer's
parent company. Buyer's execution, delivery and performance of this Agreement
has been duly and validly authorized by all necessary action on the part of
Buyer, and this Agreement has been duly executed and delivered by Buyer. This
Agreement and such documents will, when executed and delivered, each constitute
the legal, valid and binding obligations of Buyer, enforceable against Buyer in
accordance with their respective terms, covenants and conditions.
6.3 CONSENTS AND APPROVALS. No consent or approval of any person,
entity or governmental authority is required with respect to the execution and
delivery of this Agreement by Buyer or the consummation by Buyer of the
transactions contemplated hereby or the performance of its obligations under the
Agreement.
6.4 BROKERS. No broker, finder or financial adviser has acted directly
or indirectly as such for Buyer, or is entitled to any fee or commission in
connection with this Agreement or the transaction contemplated hereby.
SECTION 7. COVENANTS; AGREEMENTS AND RELEASE.
7.1 APPROVALS AND CONSENTS. Buyer and Seller will use commercially
reasonable efforts and shall cooperate in good faith to acquire all necessary
approvals of any and all applicable Governmental Authorities and all necessary
consents of all third parties to the end of expediting consummation of the
transactions contemplated herein.
7.2 MAINTAIN HOTEL. At all times prior to the Closing Date, subject to
Section 13 of this Agreement Seller shall, and shall cause Seller's Manager to,
operate the Hotel in the ordinary course of business materially consistent with
past practices.
7.3 MAKE NO MATERIAL CHANGE IN THE PURCHASED ASSETS. Prior to the
Closing Date, Seller shall not, without the written consent of Buyer, which
consent may be denied or withheld, in Buyer's sole and absolute discretion: (a)
transfer or otherwise dispose of any material portion of the
Purchased Assets, except Consumables in the ordinary course of business; (b)
make any material change in the Purchased Assets; (c) enter into any contract,
license, franchise or commitment relating to the Purchased Assets unless such
agreement is terminable by Seller at or prior to Closing; (d) significantly
alter or revise the accounting principles, procedures, methods or practices in
place at the Hotel; or (e) remove or permit to be removed from the Hotel any
Fixtures and Tangible Personal Property or Operating Equipment or other similar
personal property, except in the ordinary course of business.
7.4 TITLE AND TITLE INSURANCE; TITLE CONVEYANCE.
(a) Seller shall convey fee simple title to each parcel of the
Real Property by a good and marketable Special Warranty Deed in the form
attached hereto as Exhibit A-3 (the "SPECIAL WARRANTY DEED"), duly and properly
executed, free and clear of all liens, charges and encumbrances, except (i)
restrictions of record, reservations, limitations, easements and conditions of
record, if any, as shall have been approved by Buyer as provided for in
subsections (b) or (c) below; (ii) zoning and building ordinances, if any; (iii)
taxes and general assessments, which constitute a lien but which are not due and
payable; and (iv) all legal highways.
(b) Buyer acknowledges and agrees that it has received, prior to
execution of this Agreement, a title report (the "TITLE REPORT") prepared by
First American Title Insurance Company (the "TITLE COMPANY"). Buyer shall have
the right, prior to the expiration of the Due Diligence Period, to terminate
this Agreement if any restrictions, reservations, limitations, easements,
conditions, defects or encumbrances are disclosed in the Title Report that are
objectionable to Buyer (together herein called "TITLE DEFECTS" ) by delivering
written notice of termination to Seller and the Escrow Agent. If Buyer elects to
terminate this Agreement pursuant to the immediately preceding sentence, Buyer
shall forfeit its right to the Xxxxxxx Money Deposit, or such portion thereof
previously paid to the Escrow Agent, and the Escrow Agent shall promptly deliver
such portion of the Xxxxxxx Money Deposit to Seller. Notwithstanding the
foregoing, Seller shall be required to discharge at or before Closing any
mortgage or deed of trust or other monetary lien encumbering the Purchased
Assets or any portion thereof and any and all mechanic's or supplier's liens
encumbering the Purchased Assets or any portion thereof arising from work
performed or materials furnished at the Real Property by or on behalf of Seller
("MONETARY TITLE DEFECTS").
(c) In the event any restrictions, reservations, limitations,
easements, conditions, defects or encumbrances with respect to the Real Property
arise after the end of the Due Diligence Period (the "NEW TITLE DEFECTS"), Buyer
may object to such New Title Defects by notifying Seller of its objection to
such New Title Defects within five (5) calendar days of Buyer obtaining
knowledge of such New Title Defects. All New Title Defects not objected to by
Buyer within such five (5) calendar day period shall be deemed acceptable to
Buyer. Seller shall have a period of five (5) calendar days following Seller's
receipt of Buyer's objection to any New Title Defects, in which to notify Buyer
of which New Title Defects Seller will cure or have removed. For avoidance of
doubt, all Monetary Title Defects, regardless of the date on which they arise,
shall be removed by Seller prior to Closing, whether or not expressly objected
to by Buyer. If Seller will not cure or remove all such non-monetary New Title
Defects, Buyer shall elect within the time period set forth below either to (i)
waive its objection to those New Title Defects that Seller will not cure or
remove, in which case this Agreement will continue in full force and effect, and
Seller shall have until the Closing Date to use its commercially reasonable
efforts to cure or remove those New Title Defects identified in its notice to
Buyer as New Title Defects that Seller will cure or remove or (ii) terminate
this Agreement, in which case, the Escrow Agent shall thereupon return to Buyer
the funds and documents previously paid or deposited by it, including, but not
limited to, the Xxxxxxx Money Deposit, and the parties shall be fully released
and discharged from any obligation or liability hereunder. Buyer shall notify
Seller of its election in writing within five (5) business days after receipt of
Seller's notice, and Buyer's failure to provide such timely notice in response
to Seller's notice shall constitute Buyer's election to waive its objection to
the non-monetary New Title Defects that Seller will not cure or remove and
proceed as provided in (i) above. The Closing Date shall
be extended to the extent necessary (but in no event more than thirty (30) days)
to accommodate the time periods set forth in this paragraph.
7.5 BUYER'S ACCESS TO INFORMATION AND RECORDS BEFORE CLOSING, PHYSICAL
INSPECTIONS. Seller shall give Buyer, its employees, accountants and other
representatives and shall cause Seller's Manager to give Buyer, its employees,
accountants and other representatives full access throughout the period prior to
the Closing Date, upon not less than 48 hours prior notice and during normal
business hours, to all of its properties, books, contracts, commitments, and
records (including, without limitation, financial statements, leases, contracts,
engineering reports, franchise or license agreements, property improvement
plans, and environmental assessments) and furnish to Buyer during such period
all such information concerning the Purchased Assets as Buyer may reasonably
request. During the Due Diligence Period, Buyer, its employees, agents and other
representatives shall have the right, at its or their own risk and expense, upon
not less than 48 hours prior notice and during normal business hours, to inspect
the Purchased Assets and to conduct such tests or investigations as Buyer may
deem necessary or desirable, including, without limitation, environmental
audits, soil borings, soil samples, other geotechnical studies and engineering
and/or feasibility studies. After making any such tests or investigations, Buyer
shall restore the Purchased Assets substantially to its condition prior to such
tests and inspections. Buyer shall conduct its activities hereunder in a manner
to minimize any disturbance to Hotel guests, Seller, Seller's Manager and their
respective employees. Buyer shall not perform any invasive testing without
Seller's prior written consent. If the transaction contemplated by this
Agreement is not consummated due to a breach of this Agreement by Buyer, then
Buyer will deliver to Seller copies of any written reports generated in
connection with the inspection activities undertaken by Buyer. Buyer will pay
all costs incurred in connection with the inspection activities undertaken by
Buyer. Buyer shall not without the consent of Seller (a) contact the Hotel
employees; (b) disclose the nature or purpose of its activities or the
transactions contemplated by this Agreement to anyone other than employees,
agents and representatives of Buyer; (c) unreasonably interfere or otherwise
unreasonably disrupt operations of the Hotel; or (d) disrupt guests of the
Hotel. Buyer agrees to indemnify and hold harmless Seller, its partners and
Seller's Manager from and against any losses, damages or claims (including
reasonable legal fees and expenses) exclusively and directly caused by Buyer,
its employees, accountants or other representatives in connection with any
inspection activities undertaken by Buyer, its employees, agents or
representatives. Notwithstanding the foregoing, in no event shall Buyer be
permitted to review or inspect Hotel employee personnel files and such files
shall at all times remain the property of Seller's Manager.
7.6 CONFIDENTIALITY. Each of the parties hereto agrees (each a
"RECEIVING PARTY"), on behalf of itself and its representatives and agents, to
keep confidential and not disclose any and all information and data of a
proprietary or confidential nature with respect to another party (a "DISCLOSING
PARTY") in its possession or which it has received in connection with this
Agreement and the transactions contemplated hereby other than information which
is or becomes generally available to the public other than as a result of
disclosure by the Receiving Party in violation of this Agreement; provided,
however, that notwithstanding the foregoing, each of the parties hereto shall be
free to disclose any such information or data (i) to the extent required by
applicable law, and (ii) during the course of or in connection with any legal
proceeding based upon or in connection with the subject matter of this
Agreement. In the event of termination of this Agreement, each party shall
return all documents (including copies thereof) obtained hereunder by such party
from the other party (unless readily available from public information sources).
The Receiving Party will use such confidential information solely in connection
with the transaction contemplated by this Agreement. This Section 7.6 shall
survive any termination of this Agreement and continue in effect for three (3)
years thereafter. Except as required by law, neither party shall, without the
prior written consent of the other party, disclose or make public this
Agreement, its terms or the transactions contemplated by this Agreement.
Notwithstanding anything herein to the contrary, each party hereto (and each
employee, representative or other agent of each party hereto) may disclose to
any and all persons, without limitation of any kind, the tax treatment and tax
structure of the transactions contemplated by this Agreement and all materials
of any kind (including
opinions or other tax analyses) that are provided to a person or representative
of a person that is a party to this Agreement, relating to such tax treatment or
tax structure.
7.7 GUEST BAGGAGE. Buyer and Seller shall cooperate in good faith to
return or dispose of any baggage or other property of departed guests held by
Seller or Seller's Manager as of the Closing Date. All baggage of guests who are
still in the Hotel on the Closing Date that has been checked with or left in the
care of Seller shall be inventoried, sealed and tagged jointly by Seller and
Buyer immediately after the Closing.
7.8 SAFE DEPOSITS. Buyer and Seller will cooperate in good faith to
return the contents of any safe deposits boxes held at the Hotel to the
appropriate guest(s) of the Hotel, including, without limitation, attempting to
notify any safe deposit holders who have departed the Hotel.
7.9 EMPLOYEE MATTERS. At Closing, Seller or Seller's Manager shall
terminate or cause to be terminated the employment of all Hotel employees. Buyer
shall employ from and after the Closing Date such of the Hotel employees as
Buyer determines, in its sole and absolute discretion, on such terms and
conditions as Buyer may determine. Nothing in this provision shall be construed
to either require Buyer to employ any Hotel employees or to limit Buyer's right
to terminate, at Buyer's sole cost and expense, the Hotel employees (if in fact
hired by Buyer) subsequent to the Closing Date, subject to the requirements of
applicable law and employment agreements that Buyer has agreed to assume. Seller
agrees to indemnify and hold Buyer harmless from and against any violations of
the Workers Adjustment Retraining and Notification Act, 29 U.S.C. Section 2101
et seq. (the "WARN ACT"), arising as a result of the transactions contemplated
by this Agreement. Buyer, Seller and Seller's Manager each hereby acknowledges
and agrees that none of its respective employee benefit programs are being
assumed or continued by Buyer. Nothing in this Section 7.9 is intended to, or
shall, confer on any person or entity not a party of this Agreement any rights
or benefits. To the extent necessary to comply with the Warn Act, Seller shall
entitled to extend the Closing Date for a period not to exceed 30 days upon
delivery of written notice to Buyer delivered at least 3 days prior to Closing.
7.10 FURTHER ASSURANCES. Prior to, at and after the Closing, Buyer,
Seller and Seller's Manager all agree to execute and deliver such further
instruments of conveyance, sale, assignment or transfer, and shall take or cause
to be taken such other or further action as is reasonably requested by a party
hereto, in order to vest, confirm or evidence in Buyer title to all or part of
the Purchased Assets intended to be conveyed, sold, transferred, assigned and
delivered to Buyer under this Agreement and to, in any other manner, effectuate
the terms and conditions of this Agreement.
7.11 COMMUNITY OBLIGATIONS. With respect to commitments made or
entered into pre-Closing and outside the ordinary course of business, Seller
shall retain liability for, and from and after Closing shall pay, any donations
or other contributions to or for housing, schools, parks, fire departments or
any other public entity or facilities that are required to be made as a result
of a voluntary commitment made by Seller in respect of the Purchased Assets
("COMMUNITY OBLIGATIONS"), provided however, that the Community Obligations
shall specifically exclude taxes of any kind, assessments of general
applicability, items set forth in the Title Report, payments required by law,
regulation or order, any payment obligations described in any materials
delivered to Buyer or its representatives prior to the Effective Date and
utility payments
SECTION 8. CLOSING MATTERS.
8.1 CLOSING. Subject to satisfaction of the conditions to Closing set
forth in Section 10 hereof, the closing of the transactions contemplated by this
Agreement (the "CLOSING") shall occur on June 30, 2006, subject to extension as
contemplated by Section 7.9 or such earlier or later date as the parties hereto
may mutually agree (the "CLOSING DATE"). As part of the Closing the actions
specified in Sections 8.2 and 8.3 below shall be taken, all of which will be
deemed taken simultaneously at the
Closing and no one of which will be deemed completed until all have been
completed and the Closing shall have occurred.
8.2 SELLER'S DELIVERIES. No later than two (2) business days before
the Closing Date, Seller shall deliver to the Escrow Agent (all duly executed,
notarized and witnessed, where applicable) the following:
(a) The Special Warranty Deed and the affidavit identified in
Section 10.2(f) herein.
(b) A General Conveyance, Xxxx of Sale and Assignment in the form
of Exhibit B.
(c) An Assignment and Assumption of the Contracts, Tenant Leases
and Personal Property Leases in the form of Exhibit C (the "ASSIGNMENT AND
ASSUMPTION AGREEMENT").
(d) A certificate of an executive officer of the General Partner
of Seller or its parent in accordance with Section 10.2(d) in the form of
Exhibit D.
(e) Resolutions of Seller authorizing the execution and delivery
of this Agreement by Seller and the performance of Seller's obligations
hereunder.
(f) A certificate of full force and effect issued by the
Secretary of State of the State of Delaware dated as of a recent date.
(g) Evidence of termination of the Percentage Lease and the
Franchise Agreement.
(h) Such other separate instruments of sale, assignment or
transfer that Buyer may reasonably deem necessary or appropriate in order to
perfect, confirm or evidence title to all or any part of the Purchased Assets.
8.3 BUYER'S DELIVERIES. At Closing, Buyer shall pay to Escrow Agent
the Purchase Price, less the amount of the Xxxxxxx Money Deposit, plus or minus
the adjustments and prorations called for in this Agreement, and Buyer shall, no
later than two (2) business days before the Closing Date, deliver to the Escrow
Agent (all duly executed, notarized and witnessed, where applicable) the
following:
(a) Resolutions of the board of directors of Buyer authorizing
the execution and delivery of this Agreement by Buyer and the performance of
Buyer's obligations hereunder.
(b) A certificate of an officer of Buyer in accordance with
Section 10.1(d) in the form of Exhibit E.
(c) The Assignment and Assumption Agreement.
(d) A good standing certificate of the Secretary of State of
Delaware, dated as of a recent date.
(e) Such other separate instruments of assumption that Seller may
reasonably deem necessary or appropriate in order to confirm or evidence Buyer's
assumption of the Assumed Liabilities.
SECTION 9. ADJUSTMENTS AND PRORATIONS - CLOSING STATEMENT.
9.1 ADJUSTMENTS AND PRORATIONS. The following matters and items
pertaining to the Purchased Assets shall be apportioned between the parties
hereto or, where applicable, credited in total to a particular party, as of
12:01 a.m. on the Closing Date (the "CUTOFF TIME"). Net credits in favor of
Buyer shall be deducted from the balance of the Purchase Price at the Closing,
and net credits in favor of Seller shall be added to the balance of the Purchase
Price at the Closing. Unless otherwise indicated below, Buyer shall receive a
credit for any of the following items to the extent the same are accrued but
unpaid as of the Cutoff Time (whether or not due, owing or delinquent as of the
Cutoff Time), and Seller shall receive a credit to the extent any of the
following items shall have been paid prior to the Closing Date to the extent the
payment thereof relates to any period of time after the Cutoff Time:
(a) Guest ledger receivables (e.g., all amounts, including,
without limitation, room charges, food and beverage charges, telephone, in-room
movies and any and all incidental charges accrued to the accounts of guests
occupying rooms in the Hotel as of the Cutoff Time) shall be prorated as of the
Cutoff Time between Buyer and Seller. Seller shall receive a credit for all
guest ledger receivables for all room nights up to and including the room night
during which the Cutoff Time occurs, and Buyer shall be entitled to the amounts
of guest ledger receivables for the room nights after the Cutoff Time. All
restaurant and bar facilities will be closed as of the Cutoff Time, and Seller
shall receive the income from the same until the Cutoff Time.
(b) All nondelinquent ad valorem taxes, special or general
assessments, real and personal property taxes, hotel occupancy tax, water and
sewer rents, rates and charges, vault charges, and any municipal permit fees
shall be prorated as of the Cutoff Time between Buyer and Seller by Escrow
Agent. Seller shall be charged with such taxes and assessments accrued up to,
but not including, the date on which the Cutoff Time occurs, and Buyer shall be
entitled to a credit for said taxes and assessments. If the amount of any such
item is not ascertainable on the Closing Date, the credit therefor shall be
based on the most recent available xxxx and adjusted as necessary post-closing
as contemplated in Section 9.2.
(c) Telephone and telex contracts and contracts for the supply of
heat, steam, electric power, gas, lighting and any other utility service shall
be prorated as of the Cutoff Time between Buyer and Seller by the Escrow Agent.
Seller shall receive a credit for all deposits, if any, made by Seller as
security under any such public service contracts if the same are transferable
and provided such deposits remain on deposit for the benefit of Buyer. Where
possible, cutoff readings will be secured for all utilities as of the Cutoff
Time. To the extent they are not available, the cost of such utilities shall be
apportioned between the parties on the basis of the latest actual (not
estimated) xxxx for such service and adjusted as necessary post-closing as
contemplated in Section 9.2.
(d) Any amounts prepaid or payable by Seller or Seller's Manager
under any surviving Contracts, Personal Property Leases, Tenant Leases or
otherwise shall be prorated as of the Cutoff Time between Buyer and Seller by
the Escrow Agent. Such amounts include but are not limited to, prepaid
advertising fees, prepaid permits and licenses, prepaid dues and subscriptions,
prepaid maintenance, prepaid accounting and legal services, prepaid franchise
taxes and fees, prepaid visitor and convention bureau fees and prepaid
utilities. Evidence supporting these items will be provided to the Buyer at
closing in determination of prorata credit to the Seller. All amounts known to
be due under the Contracts and Personal Property Leases with reference to
periods prior to the Closing Date shall be paid by Seller or credited to Buyer
as a reduction of the Purchase Price. Rents (including percentage rents) and
other payments due under Tenant Leases shall be adjusted at Closing based on
current information. Any additional amounts not known and any final calculation
of percentage rent not available at the Closing will be part of the post-closing
adjustments contemplated in Section 9.2.
(e) Fees paid for transferable Permits in the current period
shall be prorated as of the Cutoff Time between Buyer and Seller by the Escrow
Agent.
(f) Buyer shall receive a credit for advance payments, if any,
under bookings to the extent the bookings relate to a period after the Cutoff
Time and have been incurred in accordance with the terms hereof.
(g) Vending machine monies will be removed by Seller as of the
Cutoff Time for the benefit of Seller.
(h) All cash on hand in house banks (including the general
manager's xxxxx cash fund) on the morning of the Closing Date shall become the
property of Buyer and the amount thereof shall be credited to Seller at the
Closing.
(i) Buyer shall be entitled to a credit for all security and
other deposits held by Seller as of the Cutoff Time with respect to Tenant
Leases, Personal Property Leases and Contracts, to the extent Buyer assumes such
leases and contracts.
(j) Seller shall pay for all transfer, documentary stamp and
sales taxes and fees (including State and County mortgage and deed taxes). Buyer
and Seller shall each pay one-half of the escrow fees incidental to the Closing.
Buyer shall pay for the all costs and fees incurred in connection with obtaining
title insurance, including, without limitation, all costs and fees related to
title premiums, title searches and title endorsements. Buyer shall pay for all
costs and fees associated with obtaining a Survey of the Real Property. Buyer
shall pay any mortgage taxes incurred in connection with any financing of the
Purchased Assets.
(k) Seller shall receive a credit equal to Seller's replacement
cost for all (i) unopened boxes of Consumables, unless the condition of such
Consumables renders such Consumables unusable in the ordinary course of business
at the Hotel and (ii) new and unused Operating Equipment at the Hotel as of the
Closing Date. This Section 9.1(k) shall be void and of no force and effect if
Buyer delivers written notice to Seller at least 15 days prior to Closing that
Buyer does not desire to purchase the Consumables and Operating Equipment.
Following receipt of such notice, Seller shall be permitted to remove the
Consumables and Operating Equipment from the Hotel.
(l) Such other items as are provided for in this Agreement or as
are normally prorated and adjusted in the sale of real property or of a hotel
shall be prorated as of the Cutoff Time.
(m) All city ledger accounts receivable (excluding guest ledger
receivables described in Section 9.1(a) above) generated from the operation of
the Hotel prior to the Cutoff Time (the "PRE-CLOSING CITY LEDGER ACCOUNTS"),
shall remain the property of Seller and shall not be transferred to Buyer. There
shall be no adjustment to the Purchase Price for the Pre-Closing City Ledger
Accounts. All accounts payable from the operation of the Hotel prior to the
Cutoff Time (the "PRE-CLOSING ACCOUNTS PAYABLE"), shall be paid by Seller and
shall not become the obligations of Buyer. There shall be no adjustment to the
Purchase Price for the Pre-Closing Accounts Payable. Buyer shall (i) on a
monthly basis, provide Seller with a listing of collections made on each
Pre-Closing City Ledger Account and (ii) on a weekly basis, remit to Seller all
amounts paid to Buyer with respect to Pre-Closing City Ledger Accounts.
9.2 CLOSING STATEMENT. Seller shall cause its accounting staff
("SELLER'S ACCOUNTANTS") to make such inventories, examinations and audits of
the Hotel Business, and of the books and records of the Hotel Business, as may
be necessary to make the adjustments and prorations and allocations of Purchase
Price among the assets being transferred required under this Section 9 or under
any other provisions of this Agreement. Buyer or its designated representatives
may be present at such inventories, examinations and audits of the Hotel
Business. Based upon such audits and inventories, Seller's Accountants will
prepare and deliver to Buyer and Escrow Agent no later than two (2) business
days prior to the Closing Date a closing statement (the "CLOSING STATEMENT").
The Closing Statement shall contain Seller's best estimate of the amounts of the
items requiring the prorations and adjustments in
this Agreement and shall be subject to the concurrence therewith of Buyer. The
amounts set forth on the Closing Statement shall be the basis upon which the
prorations and adjustments provided for herein shall be made at the Closing. The
Closing Statement shall be binding and conclusive on all parties hereto to the
extent of the items covered by the Closing Statement, unless within one hundred
eighty (180) days after receipt by Buyer of the Closing Statement, either Buyer
or Seller notifies the other that it disputes such Closing Statement and
specifies in reasonable detail the items and reasons that it so disputes such
Closing Statement. The parties shall attempt to resolve such dispute. If such
dispute is not resolved within forty-five (45) days after delivery of the
original notice of dispute by Buyer or Seller, then the parties shall submit
such dispute to an outside accounting firm appointed not later than fifteen (15)
days after the expiration of said 45 day period, with the mutual consent of
Buyer and Seller or, if the parties cannot agree, two outside accounting firms,
one of which shall be appointed by Buyer and one of which shall be appointed by
Seller ("OUTSIDE ACCOUNTANTS"), and the determination of the Outside
Accountants, which shall be made within a period of fifteen (15) days after such
submittal by the parties, shall be conclusive. The fees and expenses of the
Outside Accountants shall be paid equally by Buyer and Seller. In the event
that, at any time within ninety (90) days after the Closing Date, either party
discovers any items which should have been included in the Closing Statement but
were omitted therefrom, such items shall be adjusted in the same manner as if
their existence had been known at the time of the preparation of the Closing
Statement. The foregoing limitation shall not apply to any item which, by its
nature, cannot be finally determined within the period specified.
9.3 FILING AND CLOSING DELIVERIES. On the Closing Date, or as soon
thereafter as practicable, the Title Company shall file for record any
instruments required to be recorded and shall thereupon deliver to each of the
parties the funds and documents to which they shall be respectively entitled,
together with its escrow statement in triplicate, provided that the Title
Company shall then have on hand all funds and documents necessary to complete
the within transaction and shall be in a position to and will issue and deliver
the Title Policies.
SECTION 10. CONDITIONS TO OBLIGATIONS.
10.1 CONDITIONS TO SELLER'S OBLIGATIONS. The obligation of Seller to
close the transaction and deliver the documents and instruments required
hereunder shall be subject to satisfaction in full of the following conditions
("Seller's Conditions") on the Closing Date:
(a) Buyer's representations and warranties set forth in Section 6
of this Agreement shall have been true and correct in all material respects when
made and shall be true and correct in all material respects at and as of the
Closing as if such representations and warranties were made as of the Closing,
except for representations and warranties made as of a specified date which
shall be true and correct in all material respects at and as of such date.
(b) All covenants, conditions and other obligations under this
Agreement that are to be performed or complied with by Buyer shall have been
fully performed and complied with in all material respects on or prior to the
Closing, including, without limitation, the delivery of the fully executed
instruments and documents in accordance with Section 8.3.
(c) Buyer shall have delivered to Seller a certificate executed
by a duly authorized executive officer of Buyer in the form of Exhibit E,
stating that the conditions set forth in subsections (a) and (b) of this Section
10.1 have been satisfied.
Seller's Conditions are solely for the benefit of Seller and may be
waived only by Seller. Any such waiver or waivers shall be in writing and shall
be delivered to Buyer.
10.2 CONDITIONS TO BUYER'S OBLIGATIONS. The obligations of Buyer to
make payment of the Purchase Price and other sums provided for herein and to
close the transactions contemplated hereby
are subject to satisfaction in full of each of the following conditions
("BUYER'S CONDITIONS") on or before the Closing Date or as otherwise provided in
this Agreement:
(a) Seller's representations and warranties set forth in Section
5 of this Agreement shall have been true and correct in all material respects
when made and shall be true and correct in all material respects at and as of
the Closing as if such representations and warranties were made as of the
Closing, except for representations and warranties made as of a specified date
which shall be true and correct in all material respects at and as of such date.
(b) All covenants, conditions and other obligations under this
Agreement that are to be performed or complied with by Seller shall have been
fully performed and complied with in all material respects on or prior to the
Closing, including, without limitation, the delivery of the fully executed
instruments and documents in accordance with Section 8.2.
(c) Seller shall have delivered to Buyer a certificate executed
by a duly authorized executive officer of Seller in the form of Exhibit D, to
the effect that the conditions set forth in subsections (a) and (b) of this
Section 10.2 have been satisfied.
(d) Buyer shall have received an affidavit to the effect that
Seller is not a foreign person for purposes of the withholding provision of
Section 1445 of the Internal Revenue Code of 1986 or, to the extent such
withholding is required, instructions as to the required withholding.
(e) Seller shall have caused the Management Agreement, the
Percentage Lease and, the Franchise Agreement to be terminated at no cost to
Buyer.
Buyer's Conditions are solely for the benefit of Buyer and may be
waived only by Buyer. Any such waiver or waivers shall be in writing and shall
be delivered to Seller. For the avoidance of doubt, notwithstanding the fact
that Buyer has not obtained approval from Marriott International Inc. prior to
the Effective Date, such approval shall not constitute one of Buyer's Conditions
and Buyer shall have no right to delay the Closing or terminate this Agreement
as a result of the failure to obtain such approvals.
SECTION 11. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS;
INDEMNIFICATION.
11.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. All
representations and warranties contained in Sections 5 and 6 of this Agreement
shall survive the Closing and continue in effect for fifteen (15) months
thereafter. Unless otherwise specified in this Agreement, the covenants and
agreements contained in this Agreement shall terminate as of the Closing.
11.2 SELLER'S INDEMNIFICATION. Seller hereby agrees to indemnify, hold
harmless and defend Buyer, its members, directors, officers, employees, agents
and representatives from and against any and all loss, damage, claim, cost and
expense and any other liability in excess of twenty thousand dollars ($20,000),
including, without limitation, reasonable accountants' and attorneys' fees,
charges and costs, incurred by Buyer by reason of, or with respect to (i) any
inaccuracy in or breach of any of the representations, warranties or agreements
made by Seller in the Agreement or the non-performance of any covenant or
obligation to be performed by Seller hereunder (including, without limitation,
Seller's timely discharge of the Retained Liabilities); (ii) Seller's failure to
comply with the bulk transfer laws of any state or its misapplication of the
proceeds of the Purchase Price in fraud of its creditors; or (iii) any liability
imposed upon Buyer as transferee of the business or operations of Seller or the
assets being transferred under the Agreement, or otherwise relating to the
conduct of the business and operations of Seller or the Hotel Business prior to
the Closing, except to the extent such liability has been expressly assumed by
Buyer pursuant to Section 2.1 of this Agreement. Seller's liability under clause
(i) shall be limited to six million dollars ($6,000,000) in the aggregate.
Seller hereby agrees to remain validly existing for at least fifteen (15) months
following Closing.
11.3 BUYER'S INDEMNIFICATION. Buyer hereby agrees to indemnify, hold
harmless and defend Seller, its general partner and their respective members,
directors, officers, employees, agents and representatives from and against any
and all loss, damage, claim, cost and expense and any other liability in excess
of twenty thousand dollars ($20,000), including, without limitation, reasonable
accountants' and attorneys' fees, charges, and costs incurred by Seller by
reason of, or with respect to (i) Buyer's breach of any representations,
warranties and covenants of Buyer contained in this Agreement; (ii) Buyer's
failure to duly discharge the Assumed Liabilities from and after the Closing
Date; or (iii) any liability imposed upon Seller as a result of Buyer's conduct
of the business and operations of the Hotel Business after the Closing Date.
Buyer's liability under clause (i) shall be limited to six million dollars
($6,000,000).
11.4 PROCEDURE FOR INDEMNIFICATION WITH RESPECT TO THIRD PARTY CLAIMS.
If a claim by a third party is made against either of the parties hereto, and if
either of such parties intends to seek indemnity with respect thereto under this
Section 11.4, such party shall promptly notify the other party of such claim.
The indemnifying party shall have thirty (30) days after receipt of the
above-referenced notice to undertake, conduct and control, through counsel of
its own choosing (subject to the consent of the indemnified party, such consent
not to be unreasonably withheld or delayed) and at its expense, the settlement
or defense therefor, and the indemnified party shall cooperate with it in
connection therewith; provided that: (i) the indemnifying party shall not
thereby permit to exist any lien, encumbrance or other adverse charge upon any
asset of any indemnified party; (ii) the indemnifying party shall permit the
indemnified party to participate in such settlement or defense through counsel
chosen by the indemnified party, provided that the fees and expenses of such
counsel shall be borne by the indemnified party; and (iii) the indemnifying
party shall agree promptly to reimburse the indemnified party for the full
amount of any loss resulting from such claim and all related expenses incurred
by the indemnified party within the limits of this Section 11.4 and Section 11.2
or Section 11.3, as the case may be. As long as the indemnifying party is
reasonably contesting any such claim in good faith, the indemnified party shall
not pay or settle any such claim. Notwithstanding the foregoing, the indemnified
party shall have the right to pay or settle any such claim, provided that in
such event they shall waive any right to indemnity therefor by the indemnifying
party. If the indemnifying party does not notify the indemnified party within
thirty days after receipt of the indemnified party's notice of a claim of
indemnity hereunder that it elects to undertake the defense thereof, the
indemnified party shall have the right to contest, settle or compromise the
claim in the exercise of its exclusive discretion at the expense of the
indemnifying party.
11.5 LIMITATIONS ON INDEMNIFICATION LIABILITY. Notwithstanding
anything in this Agreement to the contrary, (i) Seller shall have no liability
or obligation to indemnify Buyer or any of its officers, directors, affiliates,
assignees or transferors for any breach of any representation, warranty or
covenant contained in this Agreement if Buyer or any of its directors,
affiliates, assignees or transferors had actual knowledge of such breach prior
to the Closing; and (ii) Buyer shall have no liability or obligation to
indemnify Seller or any of its officers, directors, affiliates, assignees or
transferors for any breach of any representation, warranty or covenant contained
in this Agreement if Seller or any of its directors, affiliates, assignees or
transferors had actual knowledge of such breach prior to the Closing. For
purposes of this Section 11.5, Buyer's actual knowledge shall mean the current
actual knowledge of Xxxxx Xxxxxx, Senior Vice President of Development, after
reasonable investigation.
SECTION 12. TERMINATION; EFFECT OF TERMINATION; REMEDIES.
12.1 TERMINATION. This Agreement may be terminated as follows: (a) at
any time by mutual consent of Buyer and Seller; (b) by either Buyer or Seller if
the Closing shall not have occurred on or before July 7, 2006, subject to
extension as contemplated by Section 7.4 or Section 7.9 (provided, however, that
the right to terminate this Agreement under this clause (b) shall not be
available to any party whose failure to fulfill any covenant or obligation of
this Agreement (inclusive of the failure to close pursuant to the terms thereof)
has been the cause of, resulted in or contributed to the failure of the
transaction contemplated by this Agreement to have occurred on or before the
aforesaid date); (c) by Seller, if Buyer breaches any of Buyer's
representations, warranties or covenants set forth in this
Agreement and, as a result of such breach, the conditions set forth in Section
10.1(a) or Section 10.1(b) are not satisfied and would be incapable of being
satisfied within 15 days after delivery of written notice thereof to Buyer; (d)
by Buyer, if Seller breaches any of Seller's representations, warranties or
covenants set forth in this Agreement and, as a result of such breach, the
conditions set forth in Section 10.2(a) or Section 10.2(b) are not satisfied and
would be incapable of being satisfied within 15 days after delivery of written
notice thereof to Seller; (e) by Buyer in accordance with Section 4.3 or Section
7.4(b); or (f) by either Buyer or Seller if any court of competent jurisdiction
or other governmental agency of competent jurisdiction shall have issued an
order, decree or ruling or taken any other action restraining, enjoining or
otherwise prohibiting the transaction contemplated by this Agreement, and such
order, decree, ruling or other action shall have become final and
non-appealable.
12.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement by Buyer or Seller pursuant to Section 12.1 hereof, notice thereof
shall forthwith be given to Seller or Buyer, respectively, and this Agreement
shall terminate without any further action by any of the parties hereto. If this
Agreement is terminated as provided herein, no party hereto shall have any
liability or further obligation to any other party to this Agreement, except
that any termination shall be without prejudice to the rights of any party
hereto arising out of a breach by the other party of any covenant or agreement
contained in this Agreement; provided, however, the provisions of Section 7.6
shall survive such termination. If Buyer terminates this Agreement for any
reason set forth in Section 12.1 (a), 12.1(b), 12.1(d) or 12.1(f), then the
Xxxxxxx Money Deposit shall be refunded to Buyer. If Seller terminates this
Agreement for any reason set forth in Section 12.1 hereof (except 12.1(c) or
12.1(f), to the extent the order, decree, ruling or action results from Buyer's
actions or inactions, in which case the Xxxxxxx Money Deposit shall be delivered
to Seller), the Xxxxxxx Money Deposit shall be refunded to Buyer. If Buyer
terminates this Agreement in accordance with Section 4.3 or Section 7.4(b) (as
contemplated by Section 12.1(e)), the Xxxxxxx Money Deposit shall be delivered
to Seller.
12.3 REMEDIES.
(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, IF THE SALE OF THE PURCHASED ASSETS TO BUYER IS NOT CONSUMMATED BY
REASON OF BUYER'S DEFAULT OF ITS OBLIGATION TO PURCHASE THE PURCHASED ASSETS
PURSUANT TO THE TERMS OF THIS AGREEMENT, SELLER SHALL BE RELEASED FROM ITS
OBLIGATIONS UNDER THIS AGREEMENT AND SHALL BE ENTITLED TO RECEIVE AND RETAIN THE
XXXXXXX MONEY DEPOSIT (OR SUCH INSTALLMENTS THEREOF AS HAVE ACTUALLY BEEN
DEPOSITED AT TIME OF DEFAULT) AS LIQUIDATED DAMAGES WHICH SHALL CONSTITUTE
SELLER'S SOLE AND EXCLUSIVE REMEDY; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT
LIMIT SELLER'S REMEDIES FOR BREACH OF BUYER'S OBLIGATIONS UNDER SECTIONS 7.5 OR
7.6 OF THIS AGREEMENT. THE PARTIES AGREE THAT IT WOULD BE IMPRACTICABLE AND
EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES SUFFERED BY SELLER AS A RESULT OF
BUYER'S FAILURE TO COMPLETE THE PURCHASE OF THE PURCHASED ASSETS PURSUANT TO
THIS AGREEMENT AND THAT, UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS
AGREEMENT, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION REPRESENT A
REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WILL INCUR AS A RESULT OF SUCH
FAILURE. THE PARTIES FURTHER AGREE THAT SUCH LIQUIDATED DAMAGES ARE NOT INTENDED
AS A FORFEITURE OR PENALTY, BUT ARE INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO
THE SELLER.
(b) In the event the Closing fails to occur solely because of
Seller's failure to perform Seller's obligations under this Agreement, Buyer
shall have the right among its other remedies to (i) request return of the
Xxxxxxx Money Deposit by written notice sent to the Escrow Agent with a copy
thereof to Seller; and (ii) exercise any and all legal remedies that Buyer may
have against Seller, including the right to require that Seller specifically
perform its obligations under this Agreement. In the event that Seller has not
commenced action to restrain the return of the Xxxxxxx Money Deposit within
five (5) business days of delivery of said notice, the Escrow Agent shall return
to Buyer the Xxxxxxx Money Deposit and any documents and other monies deposited
by Buyer.
(c) In the event Buyer obtains actual knowledge of any breach of
Seller's representations or warranties under Section 5 prior to Closing, Buyer
shall give written notice thereof to Seller at or prior to the Closing. Upon
receipt of such notice, Seller may elect to extend the Closing for as long as
sixty (60) days to enable Seller to attempt to cure the condition that gives
rise to such breach or otherwise provide evidence to Buyer that the same does
not exist. If Seller either does not elect to extend or, at or prior to the
extended Closing, shall be unable to cure such condition or provide such
evidence to Buyer, then Buyer shall elect either (a) to terminate this Agreement
on account thereof (as provided in Section 12.1) or (b) to close the purchase of
the Purchased Assets and pay the Purchase Price in accordance with the terms of
this Agreement, but in the case of an election under clause (b), Buyer shall be
entitled to indemnification under Section 11.2(i) on account of such breach
subject to the limitations on Seller's liability under Section 11.2, which
limitations shall be applicable to all claims of Buyer for breach in the
aggregate, whether made under this Section 12.3(c) or Section 11.1. The
provisions of this Section 12.3 shall survive the closing of the purchase of the
Purchased Assets.
SECTION 13. DAMAGE OR DESTRUCTION: CONDEMNATION.
13.1 DAMAGE OR DESTRUCTION. If the Purchased Assets shall, after
the Effective Date and prior to the Closing Date, be damaged or destroyed by
fire or any other cause, and the cost of such damage does not exceed $4,000,000
and such damage shall not have been repaired or reconstructed prior to the
Closing Date in a good and workmanlike manner to the reasonable satisfaction of
Buyer, Buyer shall receive the proceeds of the insurance payable in connection
therewith under any insurance policy or policies covering the Purchased Assets
together with a cash payment from Seller in the amount of the deductible, if
any, and thereupon remain obligated to perform this Agreement. If the Purchased
Assets shall, prior to the Closing Date, be damaged or destroyed by fire or any
other cause, and the cost of such damage exceeds $4,000,000 and such damage
shall not have been repaired or reconstructed prior to the Closing Date in a
good and workmanlike manner to the reasonable satisfaction of Buyer, Buyer may,
at its option, (a) receive the proceeds of the insurance payable in connection
therewith under any insurance policy or policies covering the Purchased Assets
together with a cash payment from Seller in the amount of the deductible, if
any, and thereupon remain obligated to perform this Agreement, or (b) terminate
this Agreement and receive any funds and documents previously deposited,
including the Xxxxxxx Money Deposit. Upon termination of this Agreement by Buyer
pursuant to this Section, neither party shall thereafter be under further
liability to the other. Seller shall be entitled to receive the proceeds of any
and all insurance claims for any damage to the Purchased Assets occurring prior
to the Effective Date.
13.2 CONDEMNATION. If, prior to the Closing Date, the Purchased
Assets shall be subjected to a partial or total taking by eminent domain or
inverse condemnation or for any public or quasi-public use, or if any notice of
intent of taking or sale in lieu of taking is received by Seller or Buyer, Buyer
shall have the right either to (a) terminate this Agreement by giving written
notice of termination to Seller, in which event any funds and documents
previously deposited in escrow shall be refunded to the depositing party, and
thereafter, Buyer and Seller shall be relieved of all rights and obligations
hereunder and this Agreement shall be null and void and of no force or effect,
or (b) proceed to close this transaction, in which event Buyer shall be entitled
to receive all of the proceeds of such taking. Seller and Buyer each agree to
promptly forward to the other any notice of intent received pertaining to a
taking of all or a portion of the Purchased Assets by way of condemnation,
eminent domain or similar procedure for a taking of the Purchased Assets in
connection with any public or quasi-public use.
SECTION 14. MISCELLANEOUS.
14.1 NOTICES. All notices, consents or waivers required or
permitted in this Agreement shall be in writing and be deemed to have been duly
given (a) when delivered to the recipient personally; (b) 72 hours after being
mailed by registered or certified mail, return receipt requested, postage
prepaid,
addressed to the recipient as set forth below; or (c) upon electronically
verified transmission by telecopier, whichever is earlier. A party may change
its address for notice by giving notice in the manner described above.
If to Buyer:
Marriott Ownership Resorts, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Vice President
With a copy to:
Marriott Ownership Resorts, Inc.
Law Department
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
If to Seller: c/x Xxxxxx Lodging Company
Guildhall Building
00 X. Xxxxxxxx Xxx., Xxxxx 0000
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
With a copy to: Xxxxx & Xxxxxxxxx LLP
3200 National City Center
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx
14.2 ENTIRE AGREEMENT. This Agreement, including the Exhibits,
Schedules and other documents referred to herein, contains the entire agreement
between the parties pertaining to the subject matter hereof and fully supersedes
all prior agreements and understandings between the parties pertaining to such
subject matter. No change in or amendment to this Agreement shall be valid
unless set forth in writing and signed by all of the parties hereto.
14.3 APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida without giving
effect to the principles of conflicts of law thereof.
14.4 COUNTERPARTS. This Agreement may be executed in several
counterparts, and all such executed counterparts shall constitute the same
agreement. It shall be necessary to account for only one such counterpart in
proving this Agreement. Counterpart signature pages delivered via facsimile and
other electronic transmissions shall be sufficient for purposes of binding the
parties hereto.
14.5 HEADINGS, GENDER AND NUMBER. The section headings used in
this Agreement are intended solely for convenience of reference and shall not
amplify, limit, modify or otherwise be used in the interpretation of any
provision of this Agreement. The masculine, feminine or neuter gender and the
singular or plural number shall be deemed to include the others whenever the
context so indicates or requires.
14.6 [INTENTIONALLY OMITTED.]
14.7 BINDING AGREEMENT; ASSIGNMENT. The provisions of this
Agreement shall be binding upon and inure to the benefit of the successors and
permitted assigns of the parties hereto. Buyer shall have the right to assign
all of its rights and obligations under this Agreement without the prior written
consent of Seller provided that such assignment shall not relieve Buyer of
liability for failure to perform its obligations under this Agreement.
14.8 SEVERABILITY. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable,
the remainder of this Agreement shall nonetheless remain in full force and
effect.
14.9 EXHIBITS AND SCHEDULES. References in this Agreement to
"Exhibits" refers to the exhibits described in the List of Exhibits attached
hereto, all of which are incorporated by reference into this Agreement.
References in this Agreement to "Schedules" refers to the schedules described in
the List of Schedules attached hereto, all of which are incorporated by
reference into this Agreement.
14.10 SELLER'S KNOWLEDGE. For purposes of this Agreement, "to
Seller's knowledge," "known to Seller" and other like phrases shall mean the
current actual knowledge of (i) Xxxx Xxxxxxxxx, Senior Vice President of
Development at the corporate offices of Seller, after reasonable investigation,
or (ii) Xxxxx Xxxxxxxx, the current general manager of the Hotel.
14.11 FEES AND EXPENSES. Buyer and Seller will each be
responsible for payment of the fees, costs and expenses of their respective
legal counsel.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
SELLER: Xxxxxx Xxxxx LLC
By: Xxxxxx Hotel Properties, L.P., its
sole member
By: Xxxxxx Lodging Company, its general
partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
Its: CEO
BUYER: Marriott Ownership Resorts, Inc.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
Its: Vice President
Acceptance by Escrow Agent
The undersigned Escrow Agent agrees to act as Escrow Agent in
conformance with all of the terms and provisions hereof.
Fidelity National Title Insurance
Company
By /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Title Commercial Closer
Date 5/8/06
LIST OF EXHIBITS
TO
HOTEL PURCHASE AGREEMENT
Exhibit Description
------- -----------
A-1 Legal Description of Real Property
A-2 Legal Description of Hotel
A-3 Special Warranty Deed
B General Conveyance, Xxxx of Sale and Assignment
C Assignment and Assumption Agreement
D Officer's Certificate - Seller
E Officer's Certificate - Buyer
LIST OF SCHEDULES TO
HOTEL PURCHASE AGREEMENT
Schedule Description
-------- -----------
Schedule 1.1(e) Contracts
Schedule 1.1(f) Permits
Schedule 1.1(k) Tenant Leases
Schedule 1.1(l) Personal Property Leases
Schedule 1.1(z) Excluded Assets
Schedule 5.7 Litigation
Schedule 5.8 Compliance with Laws
Schedule 5.9 Labor Matters
Schedule 5.10 Contract Compliance
Schedule 5.11 Tenant Lease Compliance
