AGREEMENT OF PURCHASE AND SALE THE SELLER PARTIES Identified herein PYRAMID HOTEL OPPORTUNITY VENTURE LLC, a Delaware limited liability company
AGREEMENT
OF PURCHASE AND SALE
THE
SELLER PARTIES
Identified
herein
“SELLERS”
PYRAMID
HOTEL OPPORTUNITY VENTURE LLC, a Delaware limited liability company
“BUYER”
AGREEMENT
OF PURCHASE
AND SALE
INDEX
|
ARTICLE
I ASSETS PURCHASED AND SOLD
|
12
|
|
|
Section
1.01
|
Purchase
and Sale
|
12
|
|
Section
1.02
|
Personal
Property
|
12
|
|
Section
1.03
|
Operating
Agreements
|
12
|
|
Section
1.04
|
Intangible
Property
|
13
|
|
Section
1.05
|
Franchise
Agreements
|
14
|
|
Section
1.06
|
Management
Agreements
|
14
|
|
Section
1.07
|
Land
and Hotels
|
15
|
|
Section
1.08
|
Operating
Leases
|
15
|
|
ARTICLE
II PURCHASE PRICE
|
15
|
|
|
Section
2.01
|
Price
|
15
|
|
Section
2.02
|
Deposit
|
16
|
|
Section
2.03
|
Balance
of Purchase Price
|
16
|
|
Section
2.04
|
Escrow
Agent
|
16
|
|
Section
2.05
|
Reserve
Accounts
|
17
|
|
Section
2.06
|
Capital
Expenditure Plans
|
17
|
|
ARTICLE
III OPERATION OF THE PROPERTY
|
17
|
|
|
Section
3.01
|
Operation
in the Ordinary Course of Business
|
17
|
|
Section
3.02
|
Liquor
License
|
18
|
|
Section
3.03
|
Cooperation
|
18
|
|
ARTICLE
IV PRORATIONS AND ADJUSTMENTS
|
18
|
|
|
Section
4.01
|
Closing
Statement/Operations Settlement
|
18
|
|
Section
4.02
|
Taxes
and Rents
|
19
|
|
Section
4.03
|
Utilities
|
19
|
|
Section
4.04
|
Assigned
Operating Agreements and Management
Agreements
|
20
|
|
Section
4.05
|
Room
Revenues; Reservations; Tray Ledger; Accounts
Receivable
and House Funds
|
20
|
|
Section
4.06
|
Accounts
Payable and Expenses
|
21
|
|
Section
4.07
|
Guests’
Property
|
22
|
|
ARTICLE
V EMPLOYEES
|
22
|
|
|
Section
5.01
|
Salaries,
Etc.
|
22
|
|
Section
5.02
|
Employee
Claims
|
22
|
|
ARTICLE
VI REPESENTATIONS AND WARRANTIES OF SELLERS
|
23
|
|
|
Section
6.01
|
Existence
and Good Standing
|
23
|
|
Section
6.02
|
Authority
|
23
|
|
Section
6.03
|
Litigation
|
23
|
|
Section
6.04
|
Condemnation
|
23
|
|
Section
6.05
|
Title
to Personal Property
|
23
|
|
Section
6.06
|
Compliance
with Applicable Law
|
24
|
|
Section
6.07
|
Taxes
|
24
|
|
Section
6.08
|
Financial
Statements
|
24
|
|
Section
6.10
|
Insolvency
|
24
|
|
Section
6.11
|
FIRPTA
|
24
|
|
Section
6.12
|
Exclusivity
|
24
|
|
Section
6.13
|
Money
Laundering
|
24
|
|
ARTICLE
VII REPRESENTATIONS AND WARRANTIES OF BUYER
|
26
|
|
|
Section
7.01
|
Existence
and Good Standing
|
26
|
|
Section
7.02
|
Authority
|
26
|
|
Section
7.03
|
No
Conflict
|
26
|
|
Section
7.04
|
Money
Laundering
|
26
|
|
Section
7.05
|
AS
IS
|
27
|
|
ARTICLE
VIII REMEDIES
|
29
|
|
|
Section
8.01
|
Seller’s
Remedies
|
29
|
|
Section
8.02
|
Buyer’s
Remedies
|
29
|
|
Section
8.03
|
Post-Closing
Matters
|
30
|
|
ARTICLE
IX CONDITIONS
|
30
|
|
|
Section
9.01
|
Seller’s
Obligation
|
30
|
|
Section
9.02
|
Buyer’s
Obligation
|
30
|
|
ARTICLE
X CLOSING DELIVERIES
|
31
|
|
|
Section
10.01
|
Documents
and Instruments to Be Delivered At or Before
Closing
|
31
|
|
ARTICLE
XI TITLE TO REAL PROPERTY
|
33
|
|
|
Section
11.01
|
Title
Insurance Commitments
|
33
|
|
Section
11.03
|
Survey
|
33
|
|
Section
11.04
|
Access
to Property; Due Diligence
|
34
|
|
ARTICLE
XII THE CLOSING
|
34
|
|
|
Section
12.01
|
Time
and Place
|
34
|
|
Section
12.02
|
Payment
of Purchase Price
|
34
|
|
Section
12.03
|
Closing
Costs
|
34
|
|
Section
12.04
|
Revenue
and Expense Prorations
|
36
|
|
Section
12.05
|
Closing
Documents
|
36
|
|
ARTICLE
XIII INSURANCE, CONDEMNATION AND CASUALTY
|
36
|
|
|
Section
13.01
|
Insurance
|
36
|
|
Section
13.02
|
Condemnation
and Casualty
|
36
|
|
ARTICLE
XIV MISCELLANEOUS COVENANTS AND PROVISIONS
|
37
|
|
|
Section
14.01
|
Assignment;
Successors and Assigns
|
38
|
|
Section
14.02
|
Counterparts
|
38
|
|
Section
14.03
|
Waiver
|
38
|
|
Section
14.04
|
Amendments
|
38
|
|
Section
14.05
|
Further
Agreements
|
38
|
|
Section
14.06
|
Attorney’s
Fees
|
38
|
|
Section
14.07
|
Entire
Agreement
|
38
|
|
Section
14.08
|
Brokers
and Finders
|
38
|
|
Section
14.09
|
Notices
|
38
|
|
Section
14.10
|
Section
Headings; Interpretation
|
40
|
|
Section
14.11
|
Governing
Law
|
40
|
|
Section
14.12
|
Disclosure
of Confidential Information/Public Announcements/
Communication
with Governmental Authorities/Communication
with
Employees
|
40
|
|
Section
14.13
|
Non-Solicitation
|
42
|
|
Section
14.14
|
Time
of Essence
|
42
|
|
EXHIBIT
“A”
|
Legal
Description of Land
|
|
|
EXHIBIT
“B”
|
Assignment
and Assumption of Intangible Property
|
|
|
EXHIBIT
“C”
|
Assignment
and Assumption of Hotel Xxx Management Agreement
|
|
|
EXHIBIT
“D”
|
Assignment
and Assumption of Operating Agreements
|
|
|
EXHIBIT
“E”
|
Schedule
of Franchise Agreements and Guarantees of Franchise
|
|
|
Agreements
|
||
|
EXHIBIT
“F”
|
Xxxx
of Sale (Personal Property)
|
|
|
EXHIBIT
“G”
|
Schedule
of Management Agreements
|
|
|
EXHIBIT
“H”
|
Schedule
of Operating Agreements
|
|
|
EXHIBIT
“I”
|
Schedule
of Operating Leases
|
|
|
EXHIBIT
“J”
|
Purchase
Price Allocation Schedule
|
|
|
EXHIBIT
“K”
|
Schedule
of Sellers
|
|
|
EXHIBIT
“L”
|
Litigation
Schedule
|
|
|
EXHIBIT
“M”
|
Title
and Survey Defects
|
|
|
EXHIBIT
“N”
|
Schedule
of Operating Agreements to be Terminated by Sellers
|
|
|
EXHIBIT
“O”
|
Environmental
Reports
|
|
AGREEMENT
OF PURCHASE AND SALE
AGREEMENT
OF PURCHASE AND SALE
made and
entered into as of July 5, 2005, by and between Sellers and Buyer.
DEFINITIONS
For
the
purposes of this Agreement, the parties agree that the following terms shall
have the following meanings:
| 1. |
Accounts
Receivable:
All accounts receivable relating to the Hotels, other than the Tray
Ledgers, accruing prior to the Transfer Time (including, without
limitation, receivables and revenues for food, beverage and telephone
use).
|
| 2. |
Agreement:
This Agreement of Purchase and Sale by and between Buyer and Sellers
providing for the sale and purchase of the
Property.
|
| 3. |
Assignment
and Assumption of Hotel Xxx Management Agreement:
Unless the Hotel Xxx Management Agreement is terminated at Closing
as
provided in Section 1.06(d) hereof, an assignment and assumption
of
the Hotel Xxx Management Agreement in the form attached hereto as
Exhibit
“C”
and by this reference incorporated herein, pursuant to which (i)
the
Operating Tenant of the Hotel Xxx San Francisco shall assign and
transfer
to Buyer all of such Operating Tenant’s right, title and interest in and
to, and Buyer shall assume all of such Operating Tenant’s right, title and
interest in and to, and obligations and liabilities under, the Hotel
Xxx
Management Agreement first accruing from and after Closing, and (ii)
Sellers and such Operating Tenant shall indemnify, hold harmless
and
defend Buyer from and against any loss, cost or damage arising under
the
Hotel Xxx Management Agreement prior to the Transfer Time and (iii)
Buyer
shall indemnify, hold harmless and defend such Operating Tenant from
and
against any loss, cost or damage arising under the Hotel Xxx Management
Agreement from and after the Transfer
Time.
|
| 4. |
Assignment
and Assumption of Intangible Property:
An assignment and assumption of the Intangible Property in the form
attached hereto as Exhibit
“B”
and by this reference incorporated herein, pursuant to which (i)
each
Seller and/or Operating Tenant shall assign and transfer to Buyer
all of
such Seller’s and/or Operating Tenant’s right, title and interest in and
to, and Buyer shall assume all of such Seller’s and/or Operating Tenant’s
right, title and interest in and to, and obligations and liabilities
under, the Intangible Property first accruing from and after Closing,
to
the extent that such assignments are legally and contractually permitted,
(ii) Sellers and such Operating Tenant shall indemnify, hold harmless
and
defend Buyer from and against any loss, cost or damage arising under
any
Intangible Property prior to the Transfer Time and (iii) Buyer shall
indemnify, hold harmless and defend such Seller from and against
any loss,
cost or damage arising under any Intangible Property from and after
the
Transfer Time.
|
| 5. |
Assignment
and Assumption of Operating Agreements:
An assignment and assumption of the Operating Agreements in the form
attached hereto as Exhibit “D”
and by this reference incorporated herein, pursuant to which (i)
each
Seller and/or Operating Tenant shall assign and transfer to Buyer
all of
such Seller’s and/or Operating Tenant’s right, title and interest in and
to, and Buyer shall assume all of such Seller’s and/or Operating Tenant’s
right, title and interest in and to, and obligations and liabilities
under, the Operating Agreements first accruing from and after Closing,
and
(ii) such Seller and/or Operating Tenant shall indemnify, hold harmless
and defend Buyer from and against any loss, cost or damage arising
under
any Operating Agreements prior to the Transfer Time and (iii) Buyer
shall
indemnify, hold harmless and defend such Seller and/or Operating
Tenant
from and against any loss, cost or damage arising under any of the
Operating Agreements from and after the Transfer
Time.
|
| 6. |
Xxxx
of Sale (Personal Property):
A
xxxx of sale in the form attached hereto as Exhibit
“F”
and by this reference incorporated herein, pursuant to which each
Seller
and/or Operating Tenant shall transfer and convey to Buyer the Personal
Property owned by such Seller and/or Operating Tenant in an “AS IS, WHERE
IS” condition and without recourse or express or implied warranty other
than such Seller’s and/or Operating Tenant’s limited warranty of title and
freedom from encumbrance (other than (i) any liens or mortgages assumed
or
entered into by Buyer, or (ii) any personal property sales tax or
other
tax arising from the transactions contemplated pursuant to this
Agreement).
|
| 7. |
Broker:
Banc of America Securities LLC.
|
| 8. |
Buyer:
Pyramid Hotel Opportunity Venture LLC, a Delaware limited liability
company, or its Permitted
Assignee(s).
|
| 9. |
Closing:
The consummation of the transactions contemplated by this Agreement
which
shall occur on the Closing Date.
|
| 10. |
Closing
Date:
A
date which is no later than forty-five (45) days following the Effective
Date unless extended pursuant to Section 1.06 hereof, or such earlier
date
agreed to by Sellers and Buyer.
|
| 11. |
Closing
Statement:
As defined in Section 4.01.
|
| 12. |
Data
Room Web Site:
A
secure web site established by Sellers in which various due diligence
materials relating to the Property have been or will be made available
to
Buyer.
|
| 13. |
Deeds:
The deeds pursuant to which each Seller shall convey to Buyer the
Land and
Hotel which such Seller owns free and clear of all encumbrances save
and
except for the Permitted Exceptions relating to such Land and Hotel.
Such
Deeds shall be by special warranty deed (in the case of the Land
and Hotel
located in South Carolina) and by grant deeds (in the case of the
Land and
Hotels located in California) having limited warranty-type covenants
and
in the forms as are customary for commercial transactions in the
jurisdiction in which each Hotel is
located.
|
| 14. |
Deposit:
The sum of Three Million Six Hundred Thousand and No/100 Dollars
($3,600,000.00) and any interest accrued
thereon.
|
| 15. |
Effective
Date:
The date on which this Agreement is executed and accepted by the
last of
Buyer and all Sellers, such date to be entered into the first paragraph
of
this Agreement.
|
| 16. |
Employees:
Those individuals employed by Managers at the
Hotels.
|
| 17. |
Escrow
Agent:
The Talon Group, Orlando Commercial Services Division, a division
of First
American Title Insurance Company, whose address is 000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxx
Xxxxx.
|
| 18. |
Franchise
Agreements:
The Franchise Agreements in effect with respect to certain Hotels
as
identified on the attached Exhibit
“E”.
|
| 19. |
Franchisors:
Each “Franchisor” or “Licensor” under the Franchise Agreements for the
Hotels.
|
| 20. |
Guaranty
of Franchise Agreements:
Those certain guaranty agreements with respect to franchisee’s obligations
under each Franchise Agreement as identified on the attached Exhibit
“E”.
|
| 21. |
Hotels:
The hotel buildings and all accessory buildings and structures, if
any,
and all fixtures placed on or attached thereto, owned by Sellers
and
located on the parcels comprising the Land. Each of the Hotels is
at times
herein referred to individually as a
Hotel.
|
| 22. |
Hotel
Xxx Management Agreement:
That certain Management Agreement with respect to the Hotel Xxx San
Francisco as identified on the attached Exhibit
“G”.
|
| 23. |
House
Funds:
Cash on hand at the Hotels.
|
| 24. |
Intangible
Property:
All of Sellers’ and Operating Tenants’ respective right, title and
interest in and to all intangible property in the possession of Sellers
and Operating Tenants and used in connection with the Land, Hotels
or
Personal Property, including without limitation, all licenses and
permits
(but specifically excluding any and all licenses and permits to sell
alcohol, unless and until the same are permitted to be transferred
under
applicable law, as provided in Section 3.03 hereof), approvals,
authorizations and other entitlements, all guaranties and warranties
related to the Hotels and the Personal Property or the construction,
fabrication or maintenance thereof, all plans and specifications
relating
to the Improvements and any landscaping, all tradenames, logos, telephone
numbers, websites and domains (including access to FTP file content)
and
signage rights used by Sellers and Operating Tenants in connection
with
the operation of the Hotels, and all books, records, reports, test
results, environmental assessments, surveys and other documents,
materials, promotional material, tenant data, marketing and leasing
material and forms, and keys related to Sellers’ and Operating Tenants’
operation of the Hotels and Sellers’ and Operating Tenants’ maintenance
and repair of the Property.
|
| 25. |
Inventory:
All inventory located at the Hotels, including without limitation,
all
mattresses, pillows, bed linens, towels and Operating
Supplies.
|
| 26. |
Knowledge:
As to Sellers, the actual knowledge, after due inquiry of the current
general managers of the respective Hotels, of (A) (i) Xxxxxx Xxxxxxx
and
(ii) Xxxxxx Xxxxxx and (B) as to the representation of Sellers set
forth
in Section 6.08, Xxxx Xxxxxx; and as to Buyer, the actual
knowledge
of Xxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxx; without any duty of inquiry
or
investigation (excepting, in the case of Sellers, due inquiry of
the
current general managers of the Hotels), and expressly excluding
the
knowledge of any other shareholder, partner, member, trustee, beneficiary,
director, officer, manager, employee, agent or representative of
the
Sellers or Buyer or any of their affiliates. For the purposes of
this
definition, the term “actual
knowledge”
means, with respect to any person, the conscious awareness of such
person
at the time in question, and expressly excludes any constructive
or
implied knowledge of such person.
|
| 27. |
Land:
Those certain parcels of land more particularly described in Exhibit
“A”
attached hereto and incorporated herein by reference, and all rights
and
appurtenances thereto.
|
| 28. |
Management
Agreements:
The Management Agreements in effect with respect to each Hotel as
identified on Exhibit
“G”
attached hereto.
|
| 29. |
Management
Termination Fees:
As defined in Section 1.06 hereof.
|
| 30. |
Managers:
Each “Manager” of a Hotel under and pursuant to the Management Agreements.
|
| 31. |
Material
Operating Agreements:
Those Operating Agreements that (A)(i) require more than thirty (30)
days
notice to terminate, or (ii) are terminable upon notice of thirty
(30)
days or less and require payment of a termination fee, or (iii) are
not
terminable by Sellers for convenience or upon sale of the affected
Property, and (B) either (i) require aggregate annual payments (including
any termination fee) in excess of Twenty Thousand and No/100 Dollars
($20,000.00) per Operating Agreement during the remaining term of
such
Operating Agreement after the Closing, or (ii) have an unexpired
term
following the Closing (including any mandatory renewal terms that
are
exercisable by the counterparty thereto) of more than one (1)
year.
|
| 32. |
Operating
Agreements:
The contracts, agreements, leases (including, but not limited to,
commercial space leases and equipment leases, and those certain room
agreements in which third parties have been given certain rights
to rooms
or services at each Hotel from and/or after the Closing Date), maintenance
agreements and service contracts in effect with respect to each Hotel
including, but not limited to, those listed in Exhibit
“H”
attached hereto and incorporated herein by this
reference.
|
| 33. |
Operating
Leases:
Those certain lease agreements by and between each Seller, as “Landlord,”
and each Operating Tenant, as amended, and more particularly described
on
Exhibit
“I”
attached hereto and incorporated herein by this reference, pursuant
to
which each Operating Tenant leases its respective Hotel.
|
| 34. |
Operations
Settlement:
A
final accounting prepared by Sellers’ and Buyer’s accountants in the
period between eight o’clock p.m. on the day prior to the Closing Date and
eight o’clock a.m. (local time) on the Closing Date, the results of which
shall be incorporated into the closing
statement.
|
| 35. |
Operating
Supplies:
Any and all operating supplies, whether consumables or non-consumables,
used or consumed in the ordinary course of business at the Hotels
and
owned by Sellers or Operating Tenants, including without limitation,
paper
products, soap, cleaning supplies, food, and non-alcoholic and alcoholic
beverages, provided that to the extent that any applicable law prohibits
the transfer of alcoholic beverages from Sellers to Buyer, such beverages
shall not be considered a part of Operating Supplies until such time
as
the same may lawfully be transferred after Closing, at which point
the
same shall be transferred (pending any post-Closing transfer, such
alcoholic beverages shall be subject to the terms of any post-Closing
liquor license operating agreement entered into pursuant to the terms
hereof).
|
| 36. |
Operating
Tenants:
The entities identified as the Operating Tenants of each Operating
Lease,
which are affiliates of Sellers. Each such entity is at times herein
referred to as an “Operating
Tenant.”
|
| 37. |
Other
Revenues:
All revenues earned by Sellers from the operation of the Hotels other
than
Room Revenues, including, without limitation, revenues from the sale
of
food, the sale of alcoholic and nonalcoholic beverages, rental of
meeting
and banquet rooms, telephone sales, pay television sales, valet and
parking services, and other similar revenues, together with any sales
tax
or other taxes thereon.
|
| 38. |
Permitted
Assignee:
Any entity or entities wholly owned by Buyer or controlled by Buyer
which
shall be formed by Buyer prior to the Closing Date for purposes of
acquiring all or any portion of or interest in the
Property.
|
| 39. |
Permitted
Exceptions:
Any and all (i) restrictions, easements, reservations, covenants
and other
matters of record (including, without limitation, all instruments,
matters
and items set forth as exceptions to title in the Title Commitments)
and
zoning and land use ordinances and laws of any governmental authority
(except for monetary liens, mortgages and encumbrances which shall
be paid
by Sellers prior to Closing and other matters to be cured by Sellers
pursuant to this Agreement, and subject to Sellers’ obligations under
Section 3.01 hereof); (ii) general taxes and assessments for the
year of
the Closing and thereafter and special taxes and assessments, in
each case
to the extent not then due and payable as of the Closing Date; (iii)
encroachments, overlaps, boundary line disputes, unrecorded easements
or
other matters disclosed or indicated by or shown on the Surveys or
their
updates or which would be disclosed or indicated by or shown on a
current,
accurate survey or a personal inspection of the Property; (iv) leases
and
tenancies in writing for any areas of the Land or Hotels which are
listed
on the attached Exhibit “H”
and are to be assumed by Buyer; (v) disputed liens or encumbrances
for
which Sellers shall have provided bond or security satisfactory to
the
Title Company in order to remove same as exceptions from the Title
Policies; and (vi) liens, mortgages and encumbrances created by
Buyer.
|
| 40. |
Personal
Property:
All furniture, furnishings, fixtures, equipment, vehicles, machinery,
appliances, dishes, utensils, cookware, materials, linen, china,
glassware, tableware, uniforms and similar items, whether in use
or held
in stock for future use, in connection with the operation of each
Hotel,
subject to such depletion and including such re-supplies prior to
the
Closing Date as shall occur in the ordinary course of business, and
Inventory, located at the Hotels, owned and used by any Seller or
any
Operating Tenant, and used by any Seller or any Operating Tenant
solely in
connection with the operation of the Hotels, including but not limited
to
all items included within the definition of “Property and Equipment” under
the Uniform System of Accounts for the Lodging Industry, Ninth Revised
Edition, 1996, as published by the Hotel Association of New York
City,
Inc., but (subject to the provisions of Section 1.02) specifically
excluding any Personal Property that is leased by any Seller from
a
third-party pursuant to any lease listed on the attached Exhibit “H”
and therein specifically identified, and all Rooms
Agreements.
|
| 41. |
Property:
A
collective term which shall mean all of the Land, Hotels, Intangible
Property and Personal Property.
|
| 42. |
Purchase
Price:
The amount specified in Section 2.01 as the purchase price for the
Property.
|
| 43. |
Purchase
Price Allocation Schedule:
The schedule attached hereto as Exhibit
“J”
pursuant to which the Purchase Price is allocated among each Property
for
the purposes of calculating title insurance premiums and other closing
costs.
|
| 44. |
Room
Revenues:
All revenues from the rental of guest rooms of the Hotels (but excluding
any items included in the definition of Other Revenues), together
with any
and all sales or other taxes
thereon.
|
| 45. |
Sellers:
Shall mean those entities more particularly described on Exhibit
“K”
attached hereto and by this reference incorporated herein. Each such
entity is at times herein referred to as a “Seller.”
|
| 46. |
Surveys:
The surveys of each parcel comprising the Land and the Hotel located
on
such parcel obtained by Buyer prior to execution of this Agreement.
Each
of the Surveys is at times herein referred to as a “Survey.”
|
| 47. |
Title
Company:
First American Title Insurance Company through the Talon Group, Orlando
Commercial Services Division, a division of First American Title
Insurance
Company, whose address is 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx 00000, Attention: Xxxxxxx
Xxxxx.
|
| 48. |
Title
Insurance Commitments:
The commitments of title insurance issued by Title Company and provided
by
Sellers to Buyer with respect to each parcel comprising the Land
prior to
the execution of this Agreement. Each of the Title Commitments is
at times
herein referred to as a “Title
Commitment.”
|
| 49. |
Title
Policies:
The owner’s policies of title insurance to be issued to Buyer pursuant to
the terms of the Title Insurance Commitments and this Agreement.
Each of
the Title Policies is at times herein referred to as a “Title
Policy.”
|
| 50. |
Transfer
Time:
12:01 a.m. (local time) on the Closing
Date.
|
| 51. |
Tray
Ledgers:
Any accounts receivable of registered guests who have not checked
out and
who are occupying rooms on the evening prior to, and the morning
of, the
Closing Date.
|
AGREEMENT
ARTICLE
I
ASSETS
PURCHASED AND SOLD
Section
1.01 Purchase
and Sale.»
Subject
to the terms and conditions of this Agreement and in consideration of the
performance of the covenants contained herein, Buyer agrees to purchase from
Sellers and Sellers agree to sell to Buyer, all of Sellers’ right, title and
interest in and to the Property.
Section
1.02 Personal
Property.»
Subject
to the terms and conditions of this Agreement, at Closing Sellers agree to
assign, transfer and convey the Personal Property to Buyer pursuant to the
Xxxx
of Sale (Personal Property). In the event that any Personal Property is owned
by
any Operating Tenant, Sellers agree to cause such Operating Tenant to assign,
transfer and convey any such Personal Property to Buyer at Closing, pursuant
to
a xxxx of sale in the same form as the Xxxx of Sale (Personal Property).
Section
1.03 Operating
Agreements.»
At
Closing, each Seller shall assign and transfer to Buyer all of such Seller’s
right, title and interest in and to, and Buyer shall assume all of such Seller’s
obligations and liabilities first arising from and after Closing under, the
Operating Agreements pursuant to the Assignment and Assumption of Operating
Agreements; provided, however, that Sellers shall terminate or cause to be
terminated as of the Closing Date, at Buyer’s cost and expense, all Operating
Agreements listed on Exhibit “N”
attached
hereto, provided that the same can be terminated pursuant to their terms. Buyer
shall pay all out of pocket fees and expenses of third parties under the
Operating Agreements in regard to such assignments, transfers and terminations,
including any transfer charges reasonably necessary to obtain the consent of
any
such third party. Sellers shall promptly provide Buyer with complete copies
of
any new contracts, agreements, leases (including, but not limited to, commercial
space leases and equipment leases), maintenance agreements and service contracts
in effect with respect to each Hotel entered into subsequent to the Effective
Date and prior to the Closing Date (“New
Operating Agreements”).
Notwithstanding the foregoing, Sellers reserve the right to provide Buyer with
access to all Operating Agreements and New Operating Agreements via the Data
Room Web Site in lieu of delivering hard copies of such Operating Agreements
and
New Operating Agreements to Buyer; provided, Sellers shall give prior notice
to
Buyer of any New Operating Agreements entered into subsequent to the Effective
Date, including but not limited to any that are provided in the Data Room Web
Site. Sellers shall not enter into any material New Operating Agreement(s)
which
will obligate Buyer following Closing, except those which (i) are terminable
without payment or penalty on thirty (30) or fewer days notice or (ii) have
otherwise been reasonably approved by Buyer. Buyer
shall have five (5) business days to approve or disapprove any material New
Operating Agreement to be entered into prior to Closing following a written
request therefor by any Seller, which approval may be granted or withheld in
Buyer’s reasonable discretion. Buyer’s failure to provide a written response to
such Seller within five (5) business days following a written request from
such
Seller shall be deemed an approval of such New Operating Agreement by Buyer.
After such approval or deemed approval of any New Operating Agreement, such
approved or deemed approved New Operating Agreement shall be and be deemed
to be
an Operating Agreement to be assigned by Seller and assumed by Buyer hereunder.
Buyer understands and agrees that it is solely Buyer’s responsibility to obtain
any and all contracts, agreements, leases (including, but not limited to,
commercial space leases and equipment leases), maintenance agreements and
service contracts necessary to conduct business at the Hotels from and after
the
Closing Date. Buyer’s failure to obtain any of the same which are necessary or
convenient to the operation of the Hotels shall not affect or delay the
performance of Buyer’s obligations under this Agreement. In the event that any
Operating Tenant is a party to and holder of rights under any Operating
Agreement, Sellers agree to cause such Operating Tenant to assign and transfer
such rights to Buyer at Closing, pursuant to an assignment and assumption
agreement in the same form as the Assignment and Assumption of Operating
Agreements, or if such Operating Agreement is listed on Exhibit “N”
attached
hereto and can be terminated pursuant to its terms, to terminate the same as
herein required.
Section
1.04 Intangible
Property.»
At
Closing, each Seller shall assign and transfer to Buyer all of such Seller’s
right, title and interest in and to, and Buyer shall assume all of each Seller’s
obligations and liabilities first arising from and after Closing under, the
Intangible Property, pursuant to the Assignment and Assumption of Intangible
Property. Sellers have, to Sellers’ Knowledge, provided Buyer with copies of all
documents comprising the Intangible Property which were in Sellers’ possession
and in effect as of the Effective Date. Sellers shall promptly provide Buyer
with copies of any documents comprising Intangible Property issued to Sellers
or
entered into by any Seller subsequent to the Effective Date and prior to the
Closing Date. Notwithstanding the foregoing, Sellers reserve the right to
provide Buyer with access to all such documents comprising Intangible Property
via the Data Room Web Site in lieu of delivering hard copies of such documents
comprising Intangible Property to Buyer; provided, Sellers shall give prior
notice to Buyer of any new Intangible Property received subsequent to the
Effective Date, including but not limited to any that are provided in the Data
Room Web Site. Buyer understands and agrees that it is solely Buyer’s
responsibility to obtain any and all Intangible Property necessary to conduct
business at the Hotels from and after the Closing Date. Buyer’s failure to
obtain any Intangible Property which are necessary or convenient to the
operation of the Hotels shall not affect or delay the performance of Buyer’s
obligations under this Agreement. In the event that any Operating Tenant is
the
holder of rights under any Intangible Property, Sellers agree to cause such
Operating Tenant to assign and transfer such rights to Buyer at Closing,
pursuant to an assignment and assumption agreement in the same form as the
Assignment and Assumption of Intangible Property.
Section
1.05 Franchise
Agreements.»
Buyer
and
Sellers acknowledge that in connection with, and as a condition to Sellers’
obligations hereunder, the Franchise Agreements and the Guaranty of Franchise
Agreements shall be terminated at Buyer’s expense, all as of the Closing Date.
Buyer acknowledges that as a condition to the termination of the Franchise
Agreements and Guaranty of Franchise Agreements, each Franchisor shall require
that Buyer satisfy such Franchisor’s requirements for issuance of new Franchise
Agreement and shall require that the applicable Operating Tenant execute and
deliver to such Franchisor before Closing its standard form of termination
of
Franchise Agreement. Buyer agrees that Buyer will timely submit its applications
for a new franchise agreement to replace each of the Franchise Agreements to
be
terminated at Closing, together with the appropriate application fee, and will
proceed with all due diligence and good faith to satisfy each Franchisor’s
requirements for issuance of a new franchise agreement prior to the Closing
Date. Buyer hereby acknowledges and agrees that Buyer shall be responsible
for
the termination fee (or in the event such Franchisor does not approve Buyer
as a
new franchisee, the applicable liquidated damages, if any, set forth in the
applicable Franchise Agreement), if any, due to any Franchisor pursuant to
the
applicable Franchise Agreement. Buyer further agrees that in no event shall
issuance of a new franchise agreement that is required to terminate an existing
Franchise Agreement or Guaranty of Franchise Agreement be a condition to Buyer’s
obligation to close hereunder and Buyer’s failure to obtain any such new
franchise agreement prior to the Closing Date shall under no circumstances
excuse Buyer from any of its obligations hereunder. If Buyer has not satisfied
all requirements of each Franchisor for issuance of a new franchise agreement
as
of the Closing Date, and as a result any such Franchisor does not issue a new
franchise agreement to Buyer as of the Closing Date, then Buyer shall pay and
indemnify and hold Sellers and the Operating Tenants harmless from and against
any and all loss, costs, liability, damages and expenses (including, without
limitation, reasonable attorneys’ fees and any liquidated damages payable to
such Franchisor) incurred by any Seller or Operating Tenant as a result of
the
failure of Buyer to obtain a replacement franchise agreement for each Franchise
Agreement terminated at Closing.
Section
1.06 Management
Agreements.»
(a) Prior
to
the execution of this Agreement, Sellers have furnished Buyer with copies of
all
Management Agreements in Sellers’ possession or control (or made such Management
Agreements available to Buyer via the Data Room Web Site in lieu of delivering
hard copies of the Management Agreements to Buyer).
(b) Sellers
shall cause the applicable Operating Tenant under each of the Management
Agreements other than the Hotel Xxx Management Agreement to terminate such
Management Agreements as of or prior to Closing. Sellers shall provide written
notice of termination to the Managers of the Management Agreements within three
(3) business days of the Effective Date in the form and manner required pursuant
to each such Management Agreement. In the event any Management Agreement other
than the Hotel Xxx Management Agreement requires a minimum notice period prior
to termination that extends beyond the outside Closing Date hereunder and the
applicable Manager thereunder does not agree to an earlier termination of such
Management Agreement, Buyer and Sellers shall each have the right to postpone
the Closing Date until the earliest date on which all such Management Agreements
other than the Hotel Xxx Management Agreement can be terminated.
(c)
At
Closing, Seller shall pay all applicable termination fees with respect to the
termination of the Management Agreements (the “Management
Termination Fees”).
(d)
The
Sellers shall cause the Operating Tenant of the Hotel Xxx to provide written
notice of termination of the Hotel Xxx Management Agreement to the Manager
within three (3) business days of the Effective Date in the form and manner
required pursuant to the Hotel Xxx Management Agreement. Buyer acknowledges
and
agrees that the termination of the Hotel Xxx Management Agreement shall not
be a
condition to close the transactions contemplated pursuant to this Agreement,
that the minimum notice period to terminate the Hotel Xxx Management Agreement
is ninety (90) days. Buyer and Sellers hereby agree to use good faith efforts
to
obtain the Hotel Xxx Manager’s agreement to terminate the Hotel Xxx Management
Agreement at Closing at no additional cost to Sellers; provided, however, in
the
event that the Hotel Xxx Manager does not so agree, Buyer acknowledges and
agrees that Buyer shall assume all of the applicable Operating Tenant’s
obligations under the Hotel Xxx Management Agreement accruing from and after
the
Transfer Time, which assignment and assumption shall be accomplished through
the
execution by such parties of the Assignment and Assumption of Hotel Xxx
Management Agreement at Closing. Sellers shall use good faith efforts to obtain
the applicable Manager’s consent to the assumption of the Hotel Xxx Management
Agreement by Buyer, provided however Buyer hereby agrees that Buyer shall
indemnify and hold Sellers and the Operating Tenants harmless from and against
any and all loss, costs, liability, damages and expenses (including, without
limitation, reasonable attorneys’ fees) incurred by any Seller or Operating
Tenant as a result of the failure to obtain the Hotel Xxx Manager’s consent to
the Assignment and Assumption of Hotel Xxx Management Agreement.
Section
1.07 Land
and Hotels.»
At
Closing, each Seller shall convey title to the Land and Hotels owned by such
Seller to Buyer pursuant to the Deeds.
Section
1.08 Operating
Leases.»
At
or
prior to Closing, Sellers, at Sellers’ sole cost and expense, shall terminate
the Operating Leases.
ARTICLE
II
PURCHASE
PRICE
Section
2.01Price.»
The
Purchase Price for the Property shall be One Hundred Nine Million and No/100
Dollars ($109,000,000.00), all cash, subject to closing adjustments as provided
in this Agreement. Sellers and Buyer agree that the Purchase Price shall be
allocated among each Hotel as set forth on the attached Exhibit
“J”.
Section
2.02 Deposit.»
Provided
that the Deposit has not already been lodged with Escrow Agent prior to
execution of this Agreement, upon execution of this Agreement by Buyer, the
Deposit, in the form of a cashier’s or certified check or wire transfer, shall
be immediately deposited with the Escrow Agent by Buyer. Such Deposit shall
be
deposited by the Escrow Agent into an interest-bearing,
fully-insured account.
In the event that the Deposit has not been lodged with Escrow Agent within
one
(1) business day following the Effective Date, this Agreement shall immediately
terminate. The Deposit shall be applied to payment of the Purchase Price at
Closing or shall otherwise be paid as herein provided. Buyer acknowledges and
agrees the Deposit is “At Risk” and is not refundable to Buyer except as
expressly provided in this Agreement. All interest earned in said account of
the
Escrow Agent shall be reported by the Escrow Agent to the Internal Revenue
Service as income to Buyer (and Buyer agrees to execute a W-9 form and any
other
federal tax documents necessary in connection therewith).
Section
2.03 Balance
of Purchase Price.»
The
balance of the Purchase Price for the Property (subject to the adjustments
and/or prorations provided in this Agreement) shall be paid by Buyer by wire
transfer of good funds to Escrow Agent at Closing as set forth in Section
12.02.
Section
2.04 Escrow
Agent.»
(a) The
Escrow Agent, in its capacity as holder of the Deposit in escrow, joins in
the
execution of this Agreement for the limited purpose of acknowledging and
agreeing to the provisions of this Section 2.04.
(b) The
duties of the Escrow Agent shall be as follows:
(1) The
Escrow Agent shall hold and disburse the Deposit in accordance with the terms
and provisions of this Agreement.
(2) If
this
Agreement shall be terminated by the mutual written agreement of Sellers and
Buyer, or if the Escrow Agent shall be unable to determine at any time to whom
the Deposit should be paid, or if a dispute shall develop between Sellers and
Buyer concerning to whom the Deposit should be paid and delivered, then and
in
any such event, the Escrow Agent shall pay and deliver such in accordance with
the joint written instructions of Sellers and Buyer. In the event that such
written instructions shall not be received by the Escrow Agent within ten (10)
days after the Escrow Agent has served a written request for instructions upon
Sellers and Buyer, then the Escrow Agent shall have the right to pay and deliver
the Deposit into an appropriate court of proper jurisdiction in the state of
Florida, and interplead Sellers and Buyer in respect thereof, and thereupon
the
Escrow Agent shall be discharged of any obligations in connection with this
Agreement.
(3) If
costs
or expenses are incurred by the Escrow Agent in its capacity as holder of the
Deposit in escrow because of litigation or a dispute between Sellers and Buyer
arising out of the holding of the Deposit in escrow, Sellers and Buyer shall
each pay the Escrow Agent one-half of such reasonable costs and expenses not
to
exceed a total of $2,000.00. Except for such costs or expenses, no fee or charge
shall be due and payable to the Escrow Agent for its services as escrow holder
only.
(4) By
joining herein, the Escrow Agent undertakes only to perform the duties and
obligations imposed upon the Escrow Agent under the terms of this Agreement
and
expressly does not undertake to perform any of the other covenants, terms and
provisions incumbent upon Sellers and Buyer hereunder.
(5) Buyer
and
Sellers hereby agree and acknowledge that the Escrow Agent assumes no liability
in connection herewith except for its negligence or willful misconduct; that
the
Escrow Agent shall never be responsible for the validity, correctness or
genuineness of any document or notice referred to under this Agreement; and
that
in the event of any dispute under this Agreement, the Escrow Agent may seek
advice from its own legal counsel and shall be fully protected in any action
taken by it in good faith in accordance with the good faith opinion of its
legal
counsel.
Section
2.05 Reserve
Accounts.»
All
funds
held in bank accounts, cash accounts and all funds held in reserve accounts
for
furniture, fixtures and equipment, for capital expenditures, or for other
matters relating to the operation of the Hotels, whether such accounts are
held
in the name of the Sellers, Operating Tenants or Managers on behalf of Sellers
or Operating Tenants, shall be retained by Sellers. In the event that any such
funds are held by a Manager, Buyer may elect to have Manager retain such funds
on behalf of Buyer and reimburse Sellers at Closing for the amount so retained
by such Manager in lieu of such amount being delivered by Manager to the
applicable Seller.
Section
2.06 Capital
Expenditure Plans.»
Sellers
have heretofore incurred in the calendar year 2005, and will continue to incur,
expenditures with respect to the Hotels pursuant to existing capital expenditure
plans and/or property improvement plans (if any) prior to Closing. Prior to
the
execution of this Agreement, the Sellers have delivered and Buyer hereby
acknowledges receipt of the current budget for the expenditures contemplated
by
this Section 2.06, and all renovation, property improvement plans or capital
improvement contracts entered into by Sellers with respect to such expenditures.
Sellers agree to not change the scope of the work contemplated by such budgets
prior to Closing; provided, however, with respect to that certain Hotel known
as
the Holiday Inn located in Columbia, South Carolina, the applicable Seller
shall
not be required to incur any expenditures required by any capital expenditure
plan in effect with respect to such Hotel unless the same, in Sellers’ good
faith, reasonable judgment, are immediately necessary to protect the physical
integrity or lawful operation of the Hotel or the health or safety of its
occupants.
ARTICLE
III
OPERATION
OF THE PROPERTY
Section
3.0 1 Operation
in the Ordinary Course of Business.»
Sellers
shall not (and Sellers shall cause Operating Tenants and Manager to not),
without the prior written consent of Buyer, (i) enter into any material leases
or tenancies with respect to the Property, (ii) enter into any material service
or maintenance agreements which are not terminable upon thirty (30) days notice
without penalty, (iii) except in the ordinary course of business, engage or
retain any new or additional employees, entities or independent contractors
whose compensation may be assumable by Buyer (or reimbursable by Buyer to
Manager), (iv) modify or release any material warranties or guaranties with
respect to the Property, (v) grant or permit any encumbrances on the Property
or
contract for any construction or service for the Property which may impose
any
mechanics or materialmen’s lien on the Property beyond Closing, or (vi) execute,
record in the public records and/or deliver to the other party any document
affecting title to the Property, all except as otherwise specifically
contemplated in this Agreement. Buyer shall have five (5) business days to
approve or disapprove any of the foregoing proposed actions following a written
request therefore by any Seller, which approval may be granted or withheld
in
Buyer’s reasonable discretion. Buyer’s failure to provide a written response to
such Seller within five (5) business days following a written request from
such
Seller shall be deemed an approval of such proposed action by Buyer. Sellers
shall and shall cause Operating Tenants to, subject to the terms of the
Management Agreements, use reasonable efforts to cause the Managers to maintain
inventory levels consistent with Managers’ prior practices and continue to
operate and maintain each Hotel in the ordinary course of business pursuant
to
the terms of the Management Agreements during the period between the Effective
Date and the Closing Date.
Section
3.02Liquor
Licenses.»
Buyer
shall make an application to the appropriate governmental authorities to have
a
new liquor license at each Property issued in, or any existing liquor license
transferred to, the name of Buyer or an entity designated by Buyer in compliance
with local law, and Sellers shall cooperate with Buyer in this regard, at
Buyer’s sole cost and expense, provided, however, Buyer acknowledges that the
Holiday Inn Columbia, SC Hotel is the only Property where Seller holds a liquor
license. Buyer shall use commercially reasonable efforts, at its sole cost
and
expense, to obtain the approval of applicable authorities for the issuance
of a
new liquor license for each of the Hotels or transfer of the existing liquor
license prior to, or contemporaneously with, the Closing. Seller shall cause
the
Managers at the other Hotels to reasonably cooperate with Buyer with respect
to
transferring the existing liquor licenses to Buyer at such Hotels, to the extent
Seller has the right to do so under the applicable Management Agreements and
as
permitted by law. In such event, Buyer shall maintain liquor liability insurance
in amounts currently maintained by Sellers naming Sellers as additional insured
parties, and further agrees to indemnify, defend and hold Sellers harmless
from
and against any liability, cost or expense arising out of Sellers’ cooperation
with Buyer during such interim period. The provisions of this Section 3.03
shall survive the Closing.
Section
3.03Cooperation.»
Sellers
shall cooperate reasonably, at no cost to Sellers, with Buyer in securing the
transfer or issuance of any permits or licenses, including, without limitation,
a liquor license, necessary to permit the lawful, continuous operation of any
Property by Buyer immediately following the Closing Date.
ARTICLE
IV
PRORATIONS
AND ADJUSTMENTS
Section
4.01 Closing
Statement/Operations Settlement.»
(a) Closing
Statement.
Taxes,
rents (including but not limited to any rents paid more than one month in
advance), revenues and expenses pertaining to assigned Operating Agreements,
any
security deposits held by Sellers under any leases affecting the Property (other
than the Operating Leases), prepaid utility charges, and material deviations,
if
any, in the amount of the Personal Property at the Hotels occurring in the
period between the first and second inventories provided for in Section 10.02
shall be allocated and prorated between Buyer and Sellers pursuant to a written
Closing Statement to be prepared by Sellers and executed by Buyer and Sellers
at
the Closing. Any additional amounts owed by Buyer or credits due to Buyer shall
be reflected in such statement and the Purchase Price shall be adjusted
accordingly.
(b) Operations
Settlement.
Room
Revenues for the night of the Closing Date, prepaid deposits for confirmed
reservations, hotel facilities and services for periods after the Transfer
Time,
and the purchase price for the Tray Ledgers, House Funds and Accounts Receivable
shall be determined by the Operations Settlement. With respect to the Closing
Date, Buyer agrees to the Hotel’s employees’ completion of posting of financial
activity, all schedules, credit card xxxxxxxx, and all other activities normally
associated with the daily activity of the Hotels. Any amounts determined to
be
due and owing to Sellers by Buyer or to Buyer by Sellers pursuant to the
Operations Settlement shall be incorporated into the Closing Statements but
to
the extent that any of the foregoing information is unavailable or is found
to
be inaccurate, the same shall be handled as a post-closing adjustment, the
obligations of which shall survive the Closing.
Section
4.02 Taxes
and Rents.»
At
Closing, all general real estate and personal property taxes for the year of
the
Closing and special taxes and assessments shall be prorated as of the Closing
Date (with Buyer to pay taxes attributed to the Closing Date and all periods
thereafter) using the latest available tax rates and assessments and taking
advantage of any discounts or rebates available for early payment and/or payment
before delinquency. The parties shall have no obligation to readjust such
prorations after the Closing; provided, however, if the proration is based
upon
the previous tax year’s bills, the parties shall make an appropriate adjustment
upon receipt of the current tax year’s bills; Sellers shall pay general real
estate and personal property taxes for all years prior to the year of the
Closing and all special taxes or assessments then due and payable as of the
Closing Date, except that, if any assessment against the Property, or any
portion thereof, is payable in installments, Buyer shall pay any and all of
such
installments which may be paid after the Closing Date, and any installment
relating to the year of Closing shall be prorated as of the Closing Date (with
Buyer to pay all portions of such installment attributed to the Closing Date
and
all periods thereafter). Any tax refunds or rebates occurring or accruing with
respect to any and all time periods before the Closing Date shall remain the
property of Sellers, and, if Buyer collects or receives same, Buyer shall
promptly remit same to Sellers. The provisions of the immediately preceding
sentence shall survive the Closing. All taxes or assessments which become due
and payable on or after the Closing Date shall be paid by Buyer.
Section
4.03 Utilities.»
Prior
to
the Closing, Sellers shall notify all utility companies servicing their
respective portions of the Property of the anticipated change in ownership
of
the Property and request that all xxxxxxxx after the Transfer Time be made
to
Buyer at the addresses of the Hotel located on their portion of the Property.
Utility meters will be read, to the extent that the utility company will do
so,
during the daylight hours on the Closing Date, with charges to that time paid
by
Sellers and charges thereafter paid by Buyer. Prepaid utility charges shall
be
adjusted on the Closing Statement and paid for at Closing. Charges for utilities
which are unmetered, or the meters for which have not been read on the Closing
Date, will be prorated between Buyer and Sellers as of the Transfer Time based
upon utility xxxxxxxx received after Closing. Sellers or Buyer, as appropriate,
shall, upon receipt, submit a copy of the utility xxxxxxxx for any such charges
to the other party and such party shall pay its pro rata share of such charges
to the party requesting payment within ten (10) business days from the date
of
any such request. This obligation shall survive Closing.
Buyer
shall be responsible for paying, before the Closing, all deposits required
by
utility companies in order to continue service at the Hotels for periods after
the Transfer Time and shall take any other action and make any other payments
required to assure uninterrupted availability of utilities at the Hotels and
the
Land for all periods after Closing. Following Closing, all utility deposits
made
by any Sellers shall be refunded directly to Sellers by the utility company
holding same. This right to receive any such refund shall survive
Closing.
Section
4.04 Assigned
Operating Agreements and Management Agreements.»
(a) All
income and expenses with respect to the assigned Operating Agreements will
be
prorated as of the Closing Date (with income and expenses for the Closing Date
and thereafter to be allocated to Buyer). There shall be added to the amount
due
to Buyer at Closing, on the Closing Statement, the amount of any prepaid rents
applicable to periods following Closing, security deposits, or other deposits
previously paid to Sellers under any assigned Operating Agreements, and there
shall be deducted from the amount due Sellers at Closing, on the Closing
Statement, any such amounts paid to and collected by Sellers under any Operating
Agreements attributable to periods including and after the Closing Date.
(b) Sellers
shall be responsible for all management fees and other amounts payable or
reimbursable under the Management Agreements that accrue to the period prior
to
the Closing Date, including, without limitation, any accrued incentive fees
under the Management Agreements, subject to the provisions of Section 1.06(c)
hereof. In the event the Hotel Xxx Management Agreement is not terminated as
of
the Closing Date, Buyer shall be responsible for all management fees and other
amounts payable or reimbursable under the Hotel Xxx Management Agreement that
accrue to the period from and after the Closing Date.
Section
4.05 Room
Revenues; Reservations; Tray Ledger; Accounts Receivable and House
Funds.»
(a) Room
Revenues for the night of the Closing Date (the “night
of the Closing Date”
being
defined for the purposes of this Section 4.05(a) to mean the night ending
concurrent with the expiration of the Operations Settlement) shall be divided
equally between Buyer and Sellers pursuant to the Operations Settlement. Other
Revenues for the night of the Closing Date shall belong solely to
Sellers.
(b) Buyer
will honor, for its account, the terms and rates of all pre-closing reservations
confirmed by Sellers or Managers for dates after the Closing Date. Buyer
authorizes Sellers and Managers to continue to accept reservations for periods
after the Closing in the ordinary course of Sellers’ or Managers’ business.
Buyer recognizes that such reservations may include discounts or other benefits
provided in the ordinary course of business, including, without limitation,
benefits under any awards programs, sports team, corporate, government or group
discounts, weekend discounts or requirements that ancillary food, beverage
or
other benefits be delivered by Buyer to the guest(s) holding such reservations.
Buyer agrees to honor all such reservations in accordance with their terms.
Any
pre-closing deposits made to Sellers with respect to confirmed reservations
for
dates after the Closing Date will be credited to Buyer at the Operations
Settlement. Any post-closing deposits received by Sellers with respect to
confirmed reservations for dates after the Closing Date will be forwarded to
Buyer upon receipt.
Buyer
will honor, for its account, all of Sellers’ room allocation agreements and
banquet facility and service agreements entered into in the ordinary course
of
business consistent with past practices which have been granted to groups,
persons or other customers for periods after the Closing Date at the rates
and
terms provided in such agreements.
Buyer
agrees that Sellers cannot make and have made no representation or warranty
that
any party holding a room reservation or agreement for Hotel facilities or
services will utilize such reservation or honor such agreement. Buyer, by the
execution hereof, assumes the risk of non-utilization of reservations and
nonperformance of such agreements.
Buyer
agrees to indemnify, defend and hold Sellers harmless from and against any
claim
which may be asserted against any Seller alleging that Buyer has failed to
honor
any such pre-closing reservation or agreement in accordance with its terms.
The
provisions of this Section 4.05(b), including, without limitation, the
assumptions of risk and indemnities by Buyer set forth above, shall survive
the
Closing.
(c) Buyer
shall purchase the Tray Ledgers from Sellers pursuant to the Operations
Settlement.
(d) Buyer
shall purchase the House Funds, exclusive of any non-cash items, from Sellers
pursuant to the Operations Settlement.
(e) At
Closing, Sellers shall receive a credit for all Accounts Receivable in an amount
equal to: (i) one hundred percent (100%) of all such Accounts Receivable which
are unpaid for not more than sixty (60) days; plus
(ii)
seventy five percent (75%) of all such Accounts Receivable which are unpaid
for
more than sixty (60) days, but not more than ninety (90) days. Seller shall
not
receive any credit for any Accounts Receivable which are unpaid for more than
ninety (90) days (the “Aged Accounts Receivable”). All Aged Accounts Receivable
which are unpaid as of the Closing Date shall remain the property of Seller
following Closing and Buyer shall promptly remit to Seller all such Aged
Accounts Receivable to the extent received by Buyer, as and when received by
Buyer, it being agreed that Buyer shall not be deemed to have collected any
such
Aged Accounts Receivable until such time as the payor is current in the payment
to Buyer of all amounts accruing in the month of, and all months after, the
Closing. Nothing herein shall limit Seller’s right to pursue collection of Aged
Accounts Receivable that are to remain the property of Seller following the
Closing Date, and following the Closing Date Buyer shall reasonably cooperate
with Seller with respect thereto, but Buyer will not be obligated to institute
any lawsuit or other collection procedures to collect Aged Accounts Receivable
or expend any out-of-pocket sums in connection with the collection of Aged
Accounts Receivable.
Section
4.06 Accounts
Payable and Expenses.»
All
accounts payable and expenses related to operations of the Property which have
accrued before the Transfer Time shall be paid by Sellers. Buyer understands
and
agrees that Sellers may postpone and/or contest payment of any account payable
or expense which is the subject of a bona fide dispute, or for which a xxxx
is
not rendered until after Closing. All accounts payable and expenses accruing
after the Transfer Time will be Buyer’s responsibility.
Section
4.07 Apportionments/Adjustments
Generally.
Except
as
otherwise expressly provided herein, all apportionments and adjustments shall
be
made on an accrual basis in accordance with generally accepted accounting
principles, consistently applied. The computation of the adjustments shall
be
jointly prepared by Sellers and Buyer. To the extent the exact amount of any
adjustment item provided for in this Article IV cannot be precisely
determined on the Closing Date, the parties shall estimate the amount thereof,
for purposes of computing the net amount due Sellers or Buyer pursuant to this
Article IV and shall determine the exact amount thereof not later than
sixty (60) days after the Closing Date.
Section
4.08 Guests’
Property.»
All
baggage or other property of patrons of a Property checked or left in care
of
any Seller and/or Operating Tenant or Manager shall be listed in an inventory
to
be prepared in duplicate and signed by Sellers’ and Buyer’s representatives on
the Closing Date. Buyer shall be responsible from and after the Closing Date
and
will indemnify and hold Sellers harmless from and against all claims for all
baggage and property listed in such inventory. Sellers shall indemnify and
hold
harmless Buyer from and against claims for baggage and property not listed
in
such inventory but shown to have been left in custody at a Property prior to
the
Closing Date. All baggage or other property of guests retained by Sellers as
security for unpaid accounts receivable may be left on such Property without
any
responsibility or liability therefor on the part of Buyer, for a period not
to
exceed one (1) month from Closing Date, within which time such baggage or other
property shall be removed or otherwise disposed of by Sellers.
ARTICLE
V
EMPLOYEES
Section
5.01 Salaries,
Etc. »
Sellers
shall be responsible for the payment of the salaries, wages, accrued vacation
pay, sick leave, bonuses, pension benefits, and other benefits earned by and
due
to or accrued to employees at any of the Hotels prior to the Closing Date,
together with F.I.C.A., unemployment and other taxes and benefits due from
any
employer of such employees accruing prior to the Closing Date. Sellers shall
indemnify and hold Purchaser harmless from and against any and all liability,
loss, cost, damage or expense related to any of the foregoing items. Such
indemnity shall survive Closing. Sellers shall not be responsible for the
payment of any such items accruing after the Transfer Time.
Section
5.02 Employee
Claims.»
(a) Buyer
shall indemnify, defend and hold harmless Sellers from and against any and
all
loss, costs, liability, damages and expenses (including, without limitation,
reasonable attorneys’ fees) incurred by any Seller arising out of, based upon or
in anyway relating or incidental to or connected with (i) any violation, actual
or alleged, by any Seller, Manager or Buyer of the Worker Adjustment Retraining
and Notification Act (“WARN
Act”)
or any
similar local, state or federal statute or law relating to the transactions
contemplated by this Agreement (a “WARN
Act Violation”)
and
(ii) any other labor-and/or employee-related claims and demands occurring as
of
and/or after the Closing Date or in connection with the transactions
contemplated by this Agreement.
(b) Sellers
shall indemnify, defend and hold harmless Buyer from and against any and all
loss, costs, liability, damages and expenses (including, without limitation,
reasonable attorneys’ fees) incurred by Buyer arising out of, based upon or in
anyway relating or incidental to or connected with any labor-and/or
employee-related claims and demands occurring prior to the Closing Date or
in
connection with the transactions contemplated by this Agreement, other than
any
WARN Act Violation.
(c) The
provisions of this Article V shall survive the Closing.
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES OF SELLERS
Sellers
represent and warrant to Buyer as follows:
Section
6.01 Existence
and Good Standing.»
Sellers
are duly organized, validly existing and in good standing under the laws of
the
state of their respective organization.
Section
6.02 Authority.»
Seller
has, and on the Closing Date will have, all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated herein pursuant to the terms and conditions of this Agreement.
All
persons or entities required to approve this Agreement pursuant to Seller’s
governance documents have approved this Agreement and certified resolutions
evidencing such approval will be delivered to Buyer at Closing.
Section
6.03 No
Conflict.»
The
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein will not conflict with, breach, result in
a
default under, or violate any commitment, document or instrument to which any
of
the Sellers is a party or by which any of the Sellers is bound.
Section
6.04 Litigation.»
Except
as
set forth on the schedule attached as Exhibit
“L”
hereto,
there is no pending and Sellers have no Knowledge of any threatened litigation,
arbitration or governmental investigations with respect to the Property in
which
any Seller or any Operating Tenant is named a party which has not been resolved,
settled or dismissed.
Section
6.04 Condemnation.»
Sellers
have not received any written notice of any pending condemnation proceeding
or
other proceeding in eminent domain, and to the Sellers’ Knowledge, no such
condemnation proceeding or eminent domain proceeding is threatened affecting
the
Property or any portion thereof.
Section
6.05 Title
to Personal Property.»
Sellers
have good and valid title to all tangible Personal Property, which shall be
free
and clear of all liens and encumbrances as of the Closing Date.
Section
6.06 Compliance
with Applicable Law.»
Sellers
have not received any written notice of a violation of any applicable law with
respect to the Property which have not been cured or dismissed.
Section
6.07 Taxes.»
All
property, sales use and occupancy taxes which accrue prior to the Closing Date
will be paid in full or prorated at Closing.
Section
6.08 Financial
Statements.»
To
Sellers’ Knowledge, the financial statements delivered by Sellers to Buyer are
complete, accurate and fairly represent the historical results of the operations
and financial condition of the Hotels.
Section
6.09 Contracts.
Sellers
have no Knowledge of any material non-compliance with any Material Operating
Agreement. To Sellers’ Knowledge, the schedule of Operating Agreements attached
hereto as Exhibit
“H”
includes
all Material Operating Agreements.
Section
6.10 Insolvency.»
No
Seller
has made a general assignment for the benefit of creditors, become insolvent
or
filed a petition for voluntary bankruptcy or filed a petition or answer seeking
reorganization or an arrangement or composition, extension or readjustment
of
its indebtedness.
Section
6.11 FIRPTA.»
No
Seller
is a foreign entity, foreign corporation, foreign partnership, foreign trust
or
foreign estate (as those terms are defined in the U.S. Bankruptcy Code and
the
regulations promulgated thereunder).
Section
6.12 Exclusivity.»
No
Seller
has entered into any other agreement providing for a sale of all or any of
the
Property or any interest therein that is still in effect, and while this
Agreement remains in force and effect, Sellers agree that they shall not enter
into any such agreement.
Section
6.13 Hotel
Xxx Management Agreement. The
copy
of the Hotel Xxx Management Agreement delivered by Sellers to Buyer (or posted
by Sellers to the Data Room Web Site) is a full and complete copy of the Hotel
Xxx Management Agreement in all material respects.
Section
6.14 Franchise
Agreements.
The
requirements to terminate the Franchise Agreements, including the calculation
of
the termination fees, if any, are set forth in the copies of the Franchise
Agreements delivered by Sellers to Buyer (or posted by Sellers to the Data
Room
Web Site).
Section
6.15 Employee
Matters.
To
Seller’s Knowledge, Sellers have not received any notice of violation of any
employment laws or regulations with respect to the Hotels, and to Seller’s
Knowledge there are no collective bargaining agreements in place at the Hotels
other than with respect to the Hilton Fisherman’s Wharf Hotel in San Francisco,
CA.
Section
6.16 Hazardous
or Toxic Substances
To
Sellers’ Knowledge, all of the environmental reports in Seller’s possession
concerning environmental conditions, Hazardous Substances or Toxic Substances
in, on, under or affecting the Property have been delivered to Buyer by Sellers
or posted to the Data Room Web Site (the “Environmental
Reports”)
and
are listed on Exhibit
“O”
attached
hereto. Sellers make no representations or warranties whatsoever as to the
accuracy of the information in the Environmental Reports (including, without
limitation, whether the Environmental Reports are complete with regard to
identifying, characterizing the extent of or remediation of Hazardous Substances
or Toxic Substances at any Property) or as to the environmental condition of
any
Property or the compliance thereof with Environmental Laws. Buyer acknowledges
that it has hired environmental consultants and counsel to make an independent
analysis of information in the Environmental Reports and to make an independent
inspection of the Property with respect to environmental conditions. Sellers
make no representation or warranty whatsoever with respect to the presence
or
absence of Hazardous Substances or Toxic Substances located on or under,
emanating from or affecting any of the Property or its compliance with, or
violation of, any Environmental Laws. As used herein, the terms “Hazardous
Substances”, “Toxic Substances” and “Environmental Laws” shall have the meanings
given to such terms in Section 7.05 hereof.
Section
6.16 Money
Laundering.»
Neither
any of the Sellers nor, to Sellers’ Knowledge, any of their respective partners,
investors or shareholders or any of their respective affiliates, is in violation
of any laws relating to terrorism, money laundering or the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept
and
Obstruct Terrorism Action of 2001, Public Law 107-56 and Executive Order No.
13224 (Blocking Property and Prohibiting Transactions with Persons Who Commit,
Threaten to Commit, or Support Terrorism) (the “Executive
Order”)
(collectively, the “Anti-Money Laundering and Anti-Terrorism
Laws”).
Neither
any of the Sellers nor, to Sellers’ Knowledge, any of their respective partners,
investors or shareholders or any of their respective affiliates, is acting,
directly or indirectly, on behalf of terrorists, terrorist organizations or
narcotics traffickers, including, without limitation, those persons or entities
that appear on the Annex to the Executive Order, or are included on any relevant
lists maintained by the Office of Foreign Assets Control of U.S. Department
of
Treasury, U.S. Department of State, or other U.S. government agencies, all
as
may be amended from time to time.
Neither
any of the Sellers nor, to Sellers’ Knowledge, any of their respective partners,
investors or shareholders or any of their respective affiliates, in any capacity
in connection with the sale of the Property (i) conducts any business or engages
in making or receiving any contribution of funds, goods or services to or for
the benefit of any person included in the lists set forth in the preceding
paragraph; (ii) deals in, or otherwise engages in any transaction relating
to,
any property or interests in property blocked pursuant to the Executive Order;
or (iii) engages in or conspires to engage in any transaction that evades or
avoids, or has the purpose of evading or avoiding, or attempts to violate,
any
of the prohibitions set forth in any Anti-Money Laundering and Anti-Terrorism
Laws.
Sellers
understand and acknowledge that Buyer may become subject to further anti-money
laundering regulations, and agree to execute instruments, provide information,
or perform any other acts as may reasonably be requested by Buyer, for the
purpose of: (i) carrying out due diligence as may be required by applicable
law
to establish any Seller’s identity and source of funds; (ii) maintaining records
of such identities and sources of funds, or verifications or certifications
as
to the same; and (iii) taking any other actions as may be required to comply
with and remain in compliance with anti-money laundering regulations applicable
to any Seller.
Neither
Sellers, nor, to Sellers’ Knowledge, any person controlling or controlled by any
of the Sellers, is a country, territory, individual or entity named on a
Government List, and, to Sellers’ Knowledge, the monies used in connection with
this Agreement and amounts committed with respect thereto were not and are
not
derived from any activities that contravene any applicable anti-money laundering
or anti bribery laws and regulations (including, without limitation, funds
being
derived from any person, entity, country or territory on a Government List
or
engaged in any unlawful activity defined under 18 USC §1956(c)(7)). For purposes
of this Agreement, “Government List” means of any of (a) the two lists
maintained by the United States Department of Commerce (Denied Persons and
Entities), (b) the list maintained by the United States Department of Treasury
(Specially Designated Nationals and Blocked Persons) and (c) the two lists
maintained by the United States Department of State (Terrorist Organizations
and
Debarred Parties).
The
representations and warranties in this Article 6 shall survive the Closing
for a
period of one (1) year following the Closing Date.
ARTICLE
VII
REPRESENTATIONS
AND WARRANTIES OF BUYER
Buyer
represents and warrants to Sellers as follows:
Section
7.01 Existence
and Good Standing.»
Buyer
is
a limited liability company, and is duly organized, validly existing and in
good
standing under the laws of the state of its organization.
Section
7.02 Authority.»
Buyer
has, and on the Closing Date will have, all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated herein pursuant to the terms and conditions of this Agreement.
All
persons or entities required to approve this Agreement pursuant to Buyer’s
governance documents have approved this Agreement and certified resolutions
evidencing such approval will be delivered to Sellers at Closing.
Section
7.03 No
Conflict.»
The
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein will not conflict with, breach, result in
a
default under, or violate any commitment, document or instrument to which Buyer
is a party or by which it is bound.
Section
7.04 Money
Laundering.»
Neither
Buyer nor, to Buyer’s Knowledge, any of its partners, investors or shareholders
or any of their respective affiliates, is in violation of any Anti-Money
Laundering and Anti-Terrorism Laws.
Neither
Buyer nor, to Buyer’s Knowledge, any of its partners, investors or shareholders
or any of their respective affiliates, is acting, directly or indirectly, on
behalf of terrorists, terrorist organizations or narcotics traffickers,
including, without limitation, those persons or entities that appear on the
Annex to the Executive Order, or are included on any relevant lists maintained
by the Office of Foreign Assets Control of U.S. Department of Treasury, U.S.
Department of State, or other U.S. government agencies, all as may be amended
from time to time.
Neither
Buyer nor, to Buyer’s Knowledge, any of its partners, investors or shareholders
or any of their respective affiliates, in any capacity in connection with the
purchase of the Property (i) conducts any business or engages in making or
receiving any contribution of funds, goods or services to or for the benefit
of
any person included in the lists set forth in the preceding paragraph; (ii)
deals in, or otherwise engages in any transaction relating to, any property
or
interests in property blocked pursuant to the Executive Order; or (iii) engages
in or conspires to engage in any transaction that evades or avoids, or has
the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions
set forth in any Anti-Money Laundering and Anti-Terrorism Laws.
Buyer
understands and acknowledges that Sellers may become subject to further
anti-money laundering regulations, and agrees to execute instruments, provide
information, or perform any other acts as may reasonably be requested by
Sellers, for the purpose of: (i) carrying out due diligence as may be required
by applicable law to establish Buyer’s identity and source of funds; (ii)
maintaining records of such identities and sources of funds, or verifications
or
certifications as to the same; and (iii) taking any other actions as may be
required to comply with and remain in compliance with anti-money laundering
regulations applicable to Buyer.
Neither
Buyer, nor, to Buyer’s Knowledge, any person controlling or controlled by Buyer,
is a country, territory, individual or entity named on a Government List, and,
to Buyer’s Knowledge, the monies used in connection with this Agreement and
amounts committed with respect thereto were not and are not derived from any
activities that contravene any applicable anti-money laundering or anti bribery
laws and regulations (including, without limitation, funds being derived from
any person, entity, country or territory on a Government List or engaged in
any
unlawful activity defined under 18 USC §1956(c)(7)).
Section
7.05 AS
IS.»
BUYER
EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE PROPERTY IS BEING SOLD TO BUYER
AND
THAT BUYER AGREES TO PURCHASE AND ACCEPT THE PROPERTY, AND EACH AND EVERY PART
AND COMPONENT THEREOF, IN AN “AS IS, WHERE IS” CONDITION AS OF THE CLOSING WITH
NO REPRESENTATIONS OR WARRANTIES FROM SELLERS, EITHER EXPRESS OR IMPLIED, EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT. BUYER AGREES THAT BUYER IS NOT RELYING
UPON, AND HAS NOT RECEIVED OR BEEN GIVEN, ANY REPRESENTATIONS (EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT), STATEMENTS OR WARRANTIES (ORAL OR
WRITTEN, IMPLIED OR EXPRESS) OF OR BY ANY OFFICER, EMPLOYEE, AGENT OR
REPRESENTATIVE OF SELLERS, OR ANY SALESPERSON OR BROKER (IF ANY) INVOLVED IN
THIS TRANSACTION, AS TO THE PROPERTY OR ANY PART OR COMPONENT THEREOF IN ANY
RESPECT, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATIONS, STATEMENTS OR
WARRANTIES AS TO THE PHYSICAL OR ENVIRONMENTAL CONDITION OF THE PROPERTY, THE
FITNESS OF THE PROPERTY FOR USE AS A HOTEL, THE FINANCIAL PERFORMANCE OR
POTENTIAL OF THE PROPERTY, THE COMPLIANCE OF THE PROPERTY WITH APPLICABLE
BUILDING, ZONING, SUBDIVISION, ENVIRONMENTAL, LIFE SAFETY OR LAND USE LAWS,
CODES, ORDINANCES, RULES, ORDERS, OR REGULATIONS, OR THE STATE OF REPAIR OF
THE
PROPERTY, AND BUYER, FOR ITSELF AND ITS HEIRS, LEGAL REPRESENTATIVES, SUCCESSORS
AND ASSIGNS, WAIVES ANY RIGHT TO ASSERT ANY CLAIM OR DEMAND AGAINST SELLERS
AT
LAW OR IN EQUITY RELATING TO ANY SUCH MATTER, WHETHER LATENT OR PATENT,
DISCLOSED OR UNDISCLOSED, KNOWN OR UNKNOWN, NOW EXISTING OR HEREAFTER ARISING.
EXCEPT TO THE EXTENT SELLERS BREACH THIS AGREEMENT, BUYER AGREES THAT IT SHALL
HAVE NO RECOURSE WHATSOEVER AGAINST SELLERS, AT LAW OR IN EQUITY, SHOULD THE
SURVEY OR THE TITLE INSURANCE COMMITMENTS OR THE TITLE POLICIES FAIL TO DISCLOSE
ANY MATTER AFFECTING THE PROPERTY OR REVEAL ANY SUCH MATTER IN AN INACCURATE,
MISLEADING OR INCOMPLETE FASHION OR OTHERWISE BE IN ERROR. BUYER ACKNOWLEDGES
THAT IT SHALL REVIEW THE SURVEY AND THE TITLE INSURANCE COMMITMENTS (AS SAME
MAY
BE MARKED AT CLOSING) AND TO DISCUSS THEIR CONTENTS WITH THE INDEPENDENT
CONTRACTORS WHO PREPARED OR ISSUED EACH OF THEM. BUYER ACCORDINGLY AGREES TO
LOOK SOLELY TO THE PREPARER OF THE SURVEY AND THE ISSUER OF THE TITLE INSURANCE
COMMITMENTS AND TITLE POLICIES FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION
WITH SUCH INSTRUMENTS AND HEREBY RELEASES SELLERS FROM ANY SUCH CLAIM (EXCEPT
FOR ANY CLAIM THAT SELLERS AGREE TO CURE AS SET FORTH IN THIS
AGREEMENT).
Buyer
recognizes that the Hotels and Personal Property are not new and that there
exists a possibility that the Property is not in compliance with the
requirements which would be imposed on a newly constructed hotel by presently
effective federal, state and local building, plumbing, electrical, fire, health,
handicap, environmental and life safety laws, codes, ordinances, rules, orders
and/or regulations (collectively, the “building
codes”).
The
Hotels and other improvements on the Land may contain substances or materials
no
longer permitted to be used in newly constructed buildings including, without
limitation, asbestos or other insulation materials, lead or other paints,
wiring, electrical, or plumbing materials and may not contain other materials
or
equipment required to be installed in a newly constructed building. Buyer has
had the opportunity, as set forth in Section 11.04, to conduct such
investigations and inspections of the Property as Buyer deemed necessary with
respect to all such matters. Buyer agrees to accept and shall accept the
Property in an “AS-IS, WHERE IS” condition and at Closing to accept and assume
the risk of noncompliance of the Property with all such building codes. Buyer
waives any right to excuse or delay performance of its obligations under this
Agreement or to assert any claim against Sellers (before or after Closing)
arising out of any failure of the Property to comply with any such building
codes.
It
is
specifically understood and agreed by Sellers and Buyer that Sellers do not
make, and shall not be deemed to have made, any representation, warranty or
covenant with respect to (i) any Environmental Laws that may affect any of
the
Property or (ii) the presence or absence of any Hazardous or Toxic Substances
in, on, above, under or about any of the Property. As used in this Section
7.05,
(A) the term “Environmental
Laws”
means
all federal, State and local laws, codes, ordinances, rules, orders and
regulations now or hereafter in effect relating to pollution or the protection
of the environment, including without limitation, all laws, codes, ordinances,
rules, orders and regulations governing the generation, use, collection,
treatment, storage, transportation, recovery, removal, discharge, spill or
disposal of any or all Hazardous or Toxic Substances, and (B) the term
“Hazardous Substances” or “Toxic Substances” means materials and substances
defined as “hazardous substances”, “hazardous wastes”, “toxic substances” or
“toxic wastes” in (I) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Sections 9601-9675, as amended by the Superfund
Amendments and Reauthorization Act of 1988, and any further amendments thereto
and rules, orders and regulations thereunder; (II) the Resource Conservation
and
Recovery Act of 1976, 42 U.S.C. Sections 6901-6992, as amended by the Hazardous
and Solid Waste Amendments of 1984, and any further amendments thereto and
rules, orders and regulations thereunder; or (III) any other Environmental
Laws.
It
is
understood and agreed by Sellers and Buyer that in the event of any conflict
between the terms and provisions of this Section 7.05 and any other term or
provision of this Agreement, the relevant term or provision of this Section
7.05
shall control and govern. The provisions of this Section 7.04 shall survive
Closing.
ARTICLE
VIII
REMEDIES»
Section
8.01 Sellers’
Remedies.»
If
Buyer
defaults under any provision of this Agreement before the Closing, Buyer and
Sellers agree that the damages that Sellers will sustain as a result thereof
will be substantial, but the actual damages will be difficult or impossible
to
ascertain. Accordingly, Buyer and Sellers agree that, in the event of Buyer’s
default, Sellers may, as their sole and exclusive remedies, terminate this
Agreement by written notice to Buyer in which event Sellers shall receive the
Deposit as liquidated damages for such default, the amount of which Deposit
Buyer and Sellers agree is not punitive or a penalty but is just, fair and
reasonable, and the Escrow Agent shall immediately pay the Deposit to
Sellers.
Section
8.02 Buyer’s
Remedies.»
In
the
event of a default hereunder on the part of any Seller before Closing, or if
there shall be an inaccuracy or breach of any representation or warranty
contained (or deemed contained) in Article VI of this Agreement made as of
the
Effective Date or as of the Closing Date as if then made, Buyer’s sole and
exclusive remedies hereunder shall be either: (1) the right to terminate this
Agreement and receive a return of the full amount of the Deposit, plus interest
thereon, or (2) the right to seek specific performance hereof, provided that
Buyer must file a suit for specific performance in the appropriate jurisdiction
within ninety (90) days from the date of such default by such
Seller.
The
parties waive all damages and remedies for defaults prior to Closing except
as
provided in this Agreement. Following Closing, RFS Partnership, L.P., shall
be
liable for obligations of Wharf Associates that survive Closing pursuant to
the
terms of this Agreement; provided, however, that, following Closing, Wharf
Associates shall only be liable for its own obligations that survive Closing
pursuant to the terms of this Agreement and shall not be liable for the
obligations of RFS Partnership, L.P., or any other Seller. All Sellers shall
be
jointly and severally liable for any and all obligations of any Seller or all
Sellers under this Agreement.
Section
8.03 Post-Closing
Matters.»
Notwithstanding
the terms and provisions of Sections 8.01 and 8.02 or any other term or
provision of this Agreement, Sellers and Buyer shall each retain the right
to
seek and obtain relief for events occurring, or the breach of any representation
and warranty discovered, after the Closing Date provided that: (a) this
transaction in fact closes; (b) the obligations for which relief is sought
are
obligations which by their express terms are to survive Closing or which by
their express terms are to performed following Closing (including any
indemnities hereunder, if any); and (c) such relief shall be limited to a suit
for monetary damages, unless expressly otherwise provided in this Agreement.
Except for obligations which by their express terms are to survive Closing
or
which by their express terms are to be performed following Closing, the terms
and provisions of this Agreement shall not survive the Closing and shall merge
into the Deeds from Sellers to Buyer. The provisions of this Section 8.03 shall
survive Closing.
ARTICLE
IX
CONDITIONS
Section
9.01 Sellers’
Obligation.»
In
addition to any other conditions precedent for the benefit of Sellers expressly
set forth in this Agreement, the obligation of Sellers to perform this Agreement
is subject to the following conditions unless waived in writing by
Sellers:
(a) The
representations and warranties of Buyer in this Agreement shall be true and
correct in all material respects as of the Closing Date as if made on and as
of
the Closing Date.
(b) Each
of
the documents referred to in Article X hereof to be executed and delivered
by
Buyer shall have been fully executed and delivered as contemplated
hereby.
(c) Buyer
shall have performed all obligations required to be performed by it under this
Agreement on or prior to the Closing Date.
Section
9.02 Buyer’s
Obligation.»
In
addition to any other conditions precedent for the benefit of Buyer expressly
set forth in this Agreement, the obligation of Buyer to perform this Agreement
is subject to the following conditions unless waived in writing by
Buyer:
(a) The
representations and warranties of Sellers in this Agreement shall be true and
correct in all material respects as of the Closing Date as if made on and as
of
the Closing Date, subject to matters or circumstances of which Buyer becomes
aware prior to Closing and does not provide written notice thereof to Seller
on
or prior to the Closing Date; it being understood and agreed by Buyer and Seller
that upon closing of the transactions contemplated herein, Buyer shall be deemed
to have waived any violation by Seller of any representations or warranties
hereunder of which Buyer had knowledge prior to the Closing.
(b) Buyer
shall have received written waiver of any right of first refusal or right of
first offer in a form reasonably acceptable to the Title Company (if such right
of first refusal or right of first offer would otherwise be an exception to
the
Title Policies) and in recordable form, (if the document containing such right
of first refusal or right of first offer was itself recorded) to purchase any
Land and Hotel held by any Franchisor or Manager and of any other Purchase
Rights held by or for the benefit of any other party.
(c) Each
of
the documents referred to in Article X hereof to be executed and delivered
by
any of the Sellers and/or Operating Tenants shall have been fully executed
and
delivered as contemplated hereby.
(d) The
Title
Company shall be in a position to “xxxx up” the Title Commitments or deliver the
Title Policies to Buyer
for
the Land and Hotels, in either case in conformance with the provisions of
Article XI hereof.
(e) Sellers
shall have performed all obligations required to be performed by them under
this
Agreement on or prior to the Closing Date.
(f) No
Material Change in Condition shall have occurred with respect to the Property
during the period from the Effective Date through and including the Closing
Date. As used herein, the term “Material Change in Condition” means any change
in the condition of any of the Hotels and the Land on which the same are
located, or any of the Personal Property, from the condition the same was in
on
the Effective Date, reasonable wear and tear, to the extent permitted by this
Agreement, casualty and taking excepted, that would require the expenditure
of
(i) $1,000,000 or more with respect to any individual Hotel or parcel of the
Land on which such Hotel is located, or any of the Personal Property, or (ii)
$2,000,000 or more with respect to all of the Hotels and the Land on which
the
same are located and all of the Personal Property in the aggregate, to restore,
repair, replace, remediate or otherwise cure (the “Material Change Threshold”),
unless
Sellers
credit Buyer at Closing an amount equal to the amount by which the cost to
repair, replace, remediate or otherwise cure the Material Change in Condition
exceeds the Material Change Threshold.
ARTICLE
X
CLOSING
DELIVERIES
Section
10.01 Documents
and Instruments To Be Delivered At or Before Closing.»
At
Closing, Sellers (and/or Operating Tenant) and Buyer shall execute and deliver
to each other or the Escrow Agent, as the parties may agree, the following
documents and instruments:
(a) Sellers
shall execute and deliver to Buyer the Deeds.
(b) Each
Seller and/or Operating Tenant and Buyer shall execute and deliver to each
other
a Xxxx of Sale (Personal Property).
(c) Each
Seller and/or Operating Tenant and Buyer shall execute and deliver to each
other
counterparts of an Assignment and Assumption of Intangible
Property.
(d) Each
Seller and/or Operating Tenant and Buyer shall execute and deliver to each
other
counterparts of an Assignment and Assumption of Operating
Agreements.
(e) The
Hotel
Xxx Operating Tenant and Buyer shall execute and deliver to each other
counterparts of an Assignment and Assumption of Hotel Xxx Management Agreement,
if permitted pursuant to Section 1.06(d) hereof.
(f) Sellers
shall deliver written evidence of termination of the Management Agreements,
subject, however, to the Sellers’ right to assign the Hotel Xxx Management
Agreement pursuant to Section 1.06(d) hereof.
(g) Subject
to the provisions of Section 1.05, Sellers shall deliver written evidence of
termination of the Franchise Agreements.
(h) Each
of
Sellers and Buyer shall deliver a certificate reaffirming the truth and accuracy
of its representations and warranties as if made on and as of the Closing Date
and such representations and warranties shall be deemed remade as of the Closing
Date, subject to the provisions of Section 9.02(a) hereof.
(i) Sellers
shall deliver possession of the Property to Buyer, together with all keys,
including, without limitation, keys for all security systems, rooms and
offices.
(j) Sellers
shall deliver an estoppel certificate from those tenants under space leases
listed in Exhibit “H”
attached
hereto, who are obligated to provide such estoppels pursuant to the terms of
each such applicable space lease, and/or as otherwise required under
Exhibit “M”
attached
hereto, containing such information as is required thereunder, dated no earlier
than thirty (30) days prior to the Closing Date.
(k)
Sellers shall deliver, or shall have delivered prior to the Closing Date, any
instruments required under Exhibit “M”
attached
hereto to cure any of the title and survey defects therein specified, all of
which shall be in form and substance reasonably satisfactory to the title
Company.
(l) Sellers
and Buyer shall execute a closing statement.
(m) Each
Seller shall execute and deliver, at Closing, a so-called “Non-Foreign
Affidavit” (pursuant to Section 1445 of the Internal Revenue Code).
(n) If
applicable and customary, each Seller of any Land and Hotel located in
California shall execute and deliver to Escrow Agent a Real Estate Withholding
Certificates (Form 593-C) and such other documents as are required by local
custom and practice in the states, counties and municipalities of California
and
South Carolina wherein any of the Property is located.
(o) Sellers
shall deliver written evidence of termination of the Operating Agreements listed
on Exhibit
“N”
attached
hereto.
(p)
Buyer
shall complete and deliver at Closing a Form 1099 as required by the Internal
Revenue Code.
(q) Buyer
and
Sellers shall execute such other affidavits, authorizing resolutions, and
documents as may be reasonably required by the Title Company to effectuate
the
transactions contemplated by this Agreement and to induce the Title Company
to
insure title to the Hotels and the Land on which the same are located as
described herein, including authorizing consent or resolutions and, in the
case
of Sellers, mechanics’ liens and parties in possession affidavits and a “gap
indemnity” to the extent customary in each applicable jurisdiction.
ARTICLE
XI
TITLE
TO REAL PROPERTY
Section
11.01 Title
Insurance Commitments.»
Prior
to
the execution of this Agreement, Sellers obtained the Title Insurance
Commitments and delivered the same to Buyer. Buyer hereby acknowledges that
Buyer has approved the Title Insurance Commitments and has accepted the Title
Insurance Commitments as so delivered to Buyer as evidence of the status of
Sellers’ title to the Hotels and Land. It is understood and agreed by Buyer and
Sellers that, notwithstanding any other term or provision of this Agreement
to
the contrary, Sellers shall have no obligation to pay for any endorsements
to
the Title Policies and, if desired or required by Buyer, the premiums and costs
of such endorsements shall be at Buyer’s sole cost and expense. If Buyer
defaults under this Agreement or terminates this Agreement for any reason
hereunder (other than a default by any of the Sellers), then Buyer shall pay
any
and all search and examination fees, cancellation fees and other costs or
charges assessed in connection with the services of the title insurer, the
cancellation of the Title Insurance Commitments or the non-issuance of the
Title
Policies. The foregoing sentence shall survive any termination of this Agreement
by Buyer (other than by reason of a default by any of the Sellers). Upon Buyer’s
selection of a lender, Buyer shall notify Seller whether such lender requires
co-title insurance with respect to the transactions contemplated herein, and
what such requirements are, if any. Buyer acknowledges and agrees that (i)
Buyer
shall be responsible for all additional costs, fees and premiums resulting
from
its election to have the Title Policies co-insured, (ii) such co-insurer shall
be a nationally-recognized title insurance company, and (iii) Buyer shall not
have the right to extend the Closing Date in order to accommodate the lender’s
co-insurance requirements.
Section
11.02 Title
Defects.»
Prior
to
the execution of this Agreement, Buyer has objected to, and Sellers have agreed
to cure, those title matters, if any, set forth on Exhibit
“M”
attached
hereto and by this reference incorporated herein (the “Title
Defects”).
Sellers shall have thirty (30) days from the Effective Date to cure any such
Title Defects except for monetary liens and encumbrances which may be paid
at
Closing. If Sellers fail to cure any of the Title Defects (other than monetary
liens and encumbrances, which Sellers shall be obligated to cure at Closing),
Buyer’s sole and exclusive remedy shall be to either (i) terminate this
Agreement by written notice to Sellers given on or before the Closing Date
without recourse against Sellers and to obtain a refund of the Deposit from
the
Escrow Agent, or (ii) to accept title to the Land and Hotels in their then
condition without reduction of the Purchase Price or reservation of any claim
against Sellers.
Section
11.03 Survey.»
Prior
to
the execution of this Agreement, Sellers have provided Buyer with copies of
any
surveys of the Land which Sellers have in their possession or control. Prior
to
the execution of this Agreement, Buyer has obtained and provided Sellers and
Title Company with a copy of, Surveys of the Hotels and Land prepared by a
licensed surveyor in the state in which the Hotel which is the subject of the
Survey is located and otherwise meeting the ALTA requirements and standards.
Prior to the execution of this Agreement, Buyer has objected to, and Sellers
have agreed to cure, those survey matters, if any, set forth on Exhibit
“M”
attached
hereto and by this reference incorporated herein (the “Survey
Defects”).
Sellers shall have thirty (30) days from the Effective Date to cure any such
Survey Defects. If Sellers fail to cure any of the Survey Defects, Buyer’s sole
and exclusive remedy shall be to either (i) terminate this Agreement by written
notice to Sellers given on or before the Closing Date without recourse against
Sellers and to obtain a refund of the Deposit from the Escrow Agent, or (ii)
to
accept the condition of the Land and Hotels in their then condition without
reduction of the Purchase Price or reservation of any claim against
Sellers.
Section
11.04 Access
to Property; Due Diligence.»
Buyer
acknowledges that prior to the Effective Date, Buyer has had the opportunity
to
inspect and conduct a full inspection and investigation of the Property and,
subject to the provisions of Section 9.02(f) hereof, accepts the condition
of
the Property in its “AS IS”“WHERE IS” condition and acknowledges that Buyer has
no right to terminate this Agreement except as otherwise expressly provided
in
this Agreement.
ARTICLE
XII
THE
CLOSING
Section
12.01 Time
and Place.»
Subject
to the conditions in Article IX, and the casualty and condemnation provisions
in
Article XIII, the Closing shall take place on the Closing Date at 10:00 a.m.
(local time) at the office of the Escrow Agent, or at such other date, place
and
time as Buyer and Sellers may mutually agree upon in writing. At the request
of
either party, Buyer and Sellers shall reasonably cooperate to accomplish this
Closing “by mail.” Buyer shall take possession of the Property effective as of
the Closing Date.
Section
12.02 Payment
of Purchase Price.»
At
the
Closing, Buyer shall deliver by wire transfer of good funds the balance of
the
Purchase Price (subject to adjustments and/or prorations provided in this
Agreement) to the Escrow Agent no later that 12:00 p.m. (Eastern Time) on the
Closing Date (or such later time as the final Closing Statement has been agreed
upon by the parties). The Deposit and the balance of the Purchase Price (as
adjusted) shall be paid to each of the Sellers, in such amounts as directed
by
the Sellers, by the Escrow Agent by wire transfer of good funds to such bank
accounts specified by Sellers after delivery of the closing documents by Sellers
to the Title Company but before recordation of the Deeds or any other instrument
all as more particularly set forth in the escrow closing instructions of Sellers
and Buyer. With respect to the transfer of the Land and Hotels located in
California, the Escrow Agent shall be responsible for withholding any taxes
due
from the applicable Sellers on account of such transfers, based on the Real
Estate Withholding Certificates (Form 593-C) delivered by such Sellers at
Closing if applicable, and remitting same to the California Franchise Tax Board.
Funds representing the Deposit and funds representing the balance of the
Purchase Price shall be wired to Sellers’ bank accounts no later than 5:00 P.M.
(Eastern Time) on the Closing Date (or such later time as the final Closing
Statement has been agreed upon by the parties).
Section
12.03 Closing
Costs.»
(a)
Sellers
shall pay the following costs and expenses at Closing:
(1)
Sellers’ prorated share of real estate and tangible personal property taxes,
rents or assessments as set forth in this Agreement.
(2)
The
cost of issuing the Title Insurance Commitments and the premium for issuance
of
the Title Policies for the Doubletree Del Mar Hotel and the Xxxxxxx Heritage
Hotel.
(3) Sellers’
own legal expenses.
(4) One-half
of the closing fee and/or settlement fee charged by the Escrow Agent with
respect to the Doubletree Del Mar Hotel and the Holiday Inn, Columbia, SC Hotel,
and all of the closing fee and/or settlement fee charged by the Escrow Agent
with respect to the Xxxxxxx Heritage Hotel.
(5) Any
transfer taxes or stamp taxes pertaining to the transfer of the Property from
Sellers to Buyer.
(6) All
costs
of satisfying in full any existing debt secured by the Property and removing
any
monetary encumbrances from the Title Policies.
(7)
Sellers shall pay the Broker fees.
(8) All
Management Termination Fees.
(9) Any
and
all other costs and expenses expressly allocated to Sellers under this Agreement
or customarily payable by sellers in the jurisdictions where the Property is
located.
(b) Buyer
shall pay the following costs and expenses at Closing:
(1) Costs
of
transferring, terminating or canceling any Operating Agreements.
(2) Costs
of
recording the Deeds and any other transfer documents requiring
recordation.
(3)
The
cost of issuing the Title Insurance Commitments and the premium for issuance
of
the Title Policies for the Holiday Inn Columbia, SC Hotel, the Hotel Xxx and
the
Fisherman’s Wharf Hotel, and any fees or additional premiums charged with
respect to any of the Hotels in connection with any co-insurance requested
by
Buyer pursuant to Article 11.
(4) All
premiums and costs for issuing any endorsements or additional coverage to the
Title Policy and any title insurance premium or cost (including endorsements
and
additional coverage with respect thereto) related to Buyer’s
financing.
(5)
Any
indebtedness or mortgage related taxes and recording or other fees relating
to
any mortgage, deed of trust or other security instrument executed by
Buyer.
(6)
Costs
of supplying tax certificates to the Title Company, if and to the extent
applicable.
(7)
All
fees, costs and expenses incurred with respect to any purchase money
financing.
(8) Buyer’s
prorated share of all real estate and tangible personal property taxes, rents,
or assessments as set forth in this Agreement.
(9) Buyer’s
own legal expenses.
(10)
One-half of the closing fee and/or settlement fee charged by the Escrow Agent
with respect to the Doubletree Del Mar Hotel and the Holiday Inn, Columbia,
SC
Hotel, and all of the closing fee and/or settlement fee charged by the Escrow
Agent with respect to the Hotel Xxx and the Fisherman’s Wharf
Hotel.
(11)
The
cost of preparing the Surveys.
(12)
Any
UCC searches.
(13)
Any
costs or expenses incurred by Buyer in connection with its inspections and
due
diligence preformed on the Property.
(14)
All
Franchise Agreement termination fees or liquidated damages, as applicable,
pursuant to Section 1.05 hereof.
(15)
Any
and all other costs and expenses expressly allocated to Buyer under this
Agreement or customarily payable by buyers in the jurisdictions where the
Property is located.
Section
12.04 Revenue
and Expense Prorations.»
Pursuant
to Article IV, Sellers and Buyer will make appropriate apportionments and
prorations of expenses, rents, taxes and revenues and settle them by appropriate
credits on the Closing Statement or pursuant to the Operations Settlement,
as
the case may be.
Section
12.05 Closing
Documents.»
At
the
Closing, Buyer and Sellers shall also execute and deliver such documents as
are
specified or contemplated by this Agreement, including, but not limited to,
those required by Sections 4.01 and 10.01.
ARTICLE
XIII
INSURANCE,
CONDEMNATION AND CASUALTY
Section
13.01 Insurance.»
All
Sellers’ insurance policies, including, without limitation, fire and any
additional hazard insurance, shall be cancelled by Sellers as of the Transfer
Time, and any refunded premiums shall be retained by Sellers. Buyer will be
responsible for acquiring and placing its own insurance in force from and after
the Transfer Time.
Section
13.02 Condemnation
and Casualty.
(a) If,
before the Closing, any Seller receives notice that any Hotel or Hotels and
any
parcel or parcels comprising the Land are to be wholly condemned, or to be
condemned in such substantial part that the value of the portion of the Hotels
and Land so condemned exceeds Twelve Million and No/100 Dollars
($12,000,000.00), or if one or more of the Hotels is wholly or partially
destroyed by fire or other casualty, or if so much of the Hotels is damaged
by
fire or other casualty to the extent that the cost of repairing such damage
shall exceed Twelve Million and No/100 Dollars ($12,000,000.00) as determined
by
the casualty insurer(s) insuring the Hotels, then, in any such event, Buyer
and
each of the Sellers shall each have the right to terminate this Agreement by
delivering notice of termination in writing to the other party within thirty
(30) days after the receipt of notice of such condemnation or casualty (but
not
later than the Closing Date) (which notice will, to the extent then known,
contain the amount of compensation offered for such condemnation or the amount
of insurance proceeds offered to be paid on account of such casualty, as the
case may be) and upon giving such notice of termination the Deposit shall be
returned by the Escrow Agent to Buyer, and Sellers and Buyer shall each be
released and discharged from any further obligation to each other hereunder
except for those which expressly survive the termination of this Agreement;
provided, however, that if neither Buyer nor Sellers elects to terminate this
Agreement, the purchase contemplated herein shall be consummated without
reduction of the Purchase Price, within the later of (i) fifteen (15) days
after
the expiration of such thirty (30) day period or (ii) the Closing Date, but
Buyer shall be entitled to all proceeds of fire or other casualty insurance
or
condemnation (other than proceeds relating to business interruption or loss
for
periods prior to the Transfer Time), Buyer shall receive a credit to the
Purchase Price for any deductibles with respect to any insurance proceeds and
Sellers shall have no responsibility for the restoration and repair of the
Property.»
(b) If,
before the Closing, any one or more Hotel is damaged by fire or other casualty
to the extent that the cost of repairing or restoring the same shall be less
than an amount equal to Twelve Million and No/100 Dollars ($12,000,000.00),
or
if any Seller receives notice that any Hotel and/or Land is to be partially
condemned but that the value of the Land and Hotels to be condemned does not
exceed Twelve Million and No/100 Dollars ($12,000,000.00), then, and in any
such
event, the Closing shall proceed as scheduled and Sellers shall assign to Buyer
the proceeds (excluding proceeds for business interruption or loss for periods
prior to the Transfer Time) of any casualty insurance or any condemnation award,
as the case may be, Buyer shall receive a credit to the Purchase Price for
any
deductibles with respect to any insurance proceeds and Sellers shall have no
responsibility for restoration or repair of the Property.
ARTICLE
XIV
MISCELLANEOUS
COVENANTS AND PROVISIONS
Section
14.01 Assignment;
Successors and Assigns.»
Except
as
otherwise provided in this Section 14.01, neither this Agreement nor any right
or interest herein may be assigned by Buyer without the prior written approval
of Sellers. Notwithstanding anything to the contrary, (i) Buyer shall have
the
right to designate one or more of the Permitted Assignees to take title to
any
of the Property without obtaining Sellers’ consent, provided that Buyer gives
written notice of such designation to Sellers so that all applicable transfer
documents may be properly prepared prior to the Closing, and (ii) Buyer may
assign all or any portions of this Agreement to one or more Permitted Assignees
without obtaining Sellers’ consent; provided that (1) such Permitted Assignee(s)
assumes in writing all of Buyer’s applicable obligations and liabilities
hereunder, (2) a copy of the assignment and assumption of this Agreement is
provided to Sellers promptly following execution thereof and (3) Buyer shall
not
be released from any of its obligations to Sellers hereunder. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of
the
parties hereto and their respective heirs, legal representatives, successors
and
assigns.
Section
14.02 Counterparts.»
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which shall constitute one and the same
instrument.
Section
14.03 Waiver.»
No
failure or delay in acting by any party to this Agreement shall be deemed a
waiver of such party’s rights. Any waiver of rights or remedies shall be
required to be signed by the party charged with the waiver in order for such
waiver to be effective.
Section
14.04 Amendments.»
This
Agreement may be modified or amended only by the written consent of Sellers
and
Buyer.
Section
14.05 Further
Agreements.»
Each
party agrees that it will execute and deliver to the other party any additional
documents, agreements or instruments necessary or reasonable to give effect
to
this Agreement or any provision hereof.
Section
14.06 Attorneys’
Fees.»
In
the
event that any party is required to retain the services of an attorney to
enforce or otherwise litigate or defend any matter or claim arising out of
or in
connection with this Agreement, then the prevailing party shall be entitled
to
its reasonable attorneys’ fees from the non-prevailing party.
Section
14.07 Entire
Agreement.»
This
Agreement sets forth all the promises, representations, agreements, conditions
and understandings relative to the transactions set forth herein, and neither
Sellers nor Buyer are relying upon any promises, representations, agreements,
conditions or understandings, either oral or written, (which are hereby
superseded in their entirety) other than those expressed in this
Agreement.
Section
14.08 Brokers
and Finders.»
Sellers
and Buyer each represent and warrant to the other that it has not employed,
retained or consulted any broker, agent or other finder with respect to the
Property or in carrying on negotiations relative to this Agreement, except
as
provided for in this Section 14.08, and Sellers and Buyer shall indemnify and
hold the other harmless from and against any and all claims, demands, causes
of
action, debts, liabilities, judgments and damages (including costs and
reasonable attorneys’ fees incurred in connection with the enforcement of this
indemnity) which may be asserted or recovered against the other on account
of
any brokerage fee, commission, or other compensation arising in breach of this
representation and warranty. Sellers and Buyer hereby acknowledge that Broker,
a
licensed real estate broker involved in the negotiation of the transactions
contemplated herein, shall be paid a sales commission by Sellers at Closing
if,
and only if, the transactions contemplated by this Agreement are closed and
consummated.
Section
14.09 Notices.»
All
notices, demands and requests required, permitted or given pursuant to the
provisions of this Agreement shall be in writing, and either hand delivered
in
person or delivered by certified mail, postage prepaid, return receipt
requested, or by Federal Express or other similar overnight courier service,
addressed as follows:
|
If
to Buyer:
|
Pyramid
Hotel Opportunity Venture LLC
|
|
c/o
Pyramid Advisors LLC
|
|
|
c/o
Pyramid/Contrarian Investment LLC
0000
Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
Attention:
Xxxxxxx X. Xxxxx, Xx.
Fax:
000-000-0000
xxxxxxx@xxx.xxx
|
|
|
with
a copy to:
|
|
|
Xxx
Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
XX 00000
Attention:
Xx. Xxxxxx X. Xxxxxx
Fax:
000-000-0000
xxxxxxx@xxxxxxxxxxxxxxx.xxx
|
|
|
and:
|
|
|
Xxxxxxxx
& Xxxxxx, X.X.000 Xxxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxxxx, Esq.
Fax:
000-000-0000
xxxxxxxx@xxxxxxxxxxxxxx.xxx
|
|
|
and:
|
|
|
Xxxxxxx
Xxxxx - Executive Director
Xxxxxx
Xxxxxxx, US RE Investing Division
0000
Xxxxxxxx, Xxxxx 00
Xxx
Xxxx, XX 00000
Fax:
000-000-0000
Xxxxxxx.Xxxxx@xxxxxxxxxxxxx.xxx
|
|
|
If
to Sellers
|
CNL
Hotels & Resorts, Inc.
CNL
Center at City Commons
000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxx 00000-0000
Attention:
Xxxxxx Xxxxxxx, Senior Vice President and Chief Investment
Officer
Fax:
(000) 000-0000
Xxxxxxxx@xxx.xxx
|
|
with
a copy to:
|
|
|
Lowndes,
Drosdick, Doster, Xxxxxx
&
Xxxx, P.A.
000
X. Xxxx Xxxxx
Xxxxxxx,
Xxxxxxx 00000-0000
Attention:
Xxxxxxx X. Xxxxxx
000-000-0000
Xxxx.Xxxxxx@xxxxxxx-xxx.xxx
|
Any
notice, demand or request which shall be served upon any of the parties in
the
manner aforesaid shall be deemed sufficiently given (i) upon being hand
delivered in person, or (ii) upon being transmitted by facsimile transmission
provided a copy is sent pursuant to (iii) the following business day, or (iii)
upon being deposited with Federal Express or other similar overnight courier
service; provided, however, the time period in which any response to such
notice, demand or request must be given shall commence on the date of actual
delivery of the notice, demand or request to the address to which it is sent
(rather than delivery to the specific addressee). Rejection or other refusal
to
accept or the inability to deliver because of changed address of which no notice
was given as provided below shall be deemed delivery of the notice, demand
or
request sent. The addresses given above may be changed by any party by prior
notice to all other parties given in the manner provided herein.
Section
14.10 Section
Headings; Interpretation.»
The
section headings of this Agreement are for reference only and shall not be
used
to construe or interpret this Agreement. All terms and words used in this
Agreement, regardless of the number or gender in which they are used, shall
be
deemed to include any other number and any other gender as the context may
require. If any term or condition of this Agreement or the application thereof
to any person or circumstance shall, to any extent, be held legally invalid
or
unenforceable, the remainder of this Agreement, and the application of such
terms or conditions to persons or circumstances other than those as to which
it
is held legally invalid or unenforceable, shall not be affected thereby and
each
term and condition of this Agreement shall be valid to the fullest extent
permitted by law.
Section
14.11 Governing
Law.»
This
Agreement shall be governed by the laws of the state of Florida; provided,
however, that with respect to matters that relate to a specific portion of
the
Property, then this Agreement shall be governed by the laws of the state where
such Property is located.
Section
14.12 Disclosure
of Confidential Information/ Public Announcements/ Communication with
Governmental Authorities/ Communication with Employees. »
(a) The
parties hereto acknowledge and agree that the existence of this Agreement,
the
terms of this Agreement and any other information disclosed in the due diligence
materials delivered to or produced by Buyer or any other documents, materials,
data or other information with respect to the Property which is not generally
known to the public (the "Confidential
Information")
shall
in all respects remain confidential and shall not be disclosed by the Buyer
except as provided herein. Buyer may disclose Confidential Information to
officers, directors, employees, attorneys, accountants, consultants, lenders,
financial advisors, partners, investors prospective tenants and purchasers
(collectively, “Representatives”),
who
in the reasonable business judgment of such party, need to know the Confidential
Information for the purpose of evaluating the transactions contemplated by
this
Agreement, or in connection with any litigation between Buyer and Sellers
arising under the transactions contemplated by this Agreement. Buyer will inform
its Representatives of its confidentiality obligations under this Agreement,
and
such Representatives shall agree to be bound by the terms and conditions of
this
Agreement, before Buyer may disclose any Confidential Information to its
Representatives; provided, however, any such prospective tenants and purchasers
shall not have a right or license to access or inspect the Property or to
contact the Manager or any of the Hotel employees. The disclosure of any
Confidential Information by any Representative in breach of this Agreement
will
constitute a breach of this Agreement by Buyer, for which Buyer will be liable.
If Buyer or any of its Representatives is required by any subpoena,
interrogatories, request for production, or other legal process or by any
applicable law or regulation to disclose any Confidential Information, Buyer
will give (to the extent not prohibited by law) Sellers prompt written notice
of
the requirement and will cooperate with the Sellers so that Sellers, at their
expense, may seek an appropriate protective order. In the absence of a
protective order, Buyer and its Representatives may disclose only such
Confidential Information as may in Buyer's reasonable opinion, be necessary
to
avoid any penalty, sanction, or other material adverse consequence, and Buyer
will use commercially reasonable efforts to secure confidential treatment of
any
Confidential Information so disclosed.
(b) Notwithstanding
the foregoing, any party hereto shall have the right to make a public
announcement regarding the transaction described in this Agreement, provided,
however, that, prior to and as a condition precedent to such public
announcement, all other parties hereto shall approve the timing, form and
substance of any such public announcement, except if a party hereto is required
to make a public announcement under any securities law, the party making such
public announcement may do so only after having provided the other party with
a
copy of such public announcement and only as long as such public announcement
is
made in strict accordance with the applicable law requiring such public
announcement be made. Any public announcement made on the Effective Date (or
the
next business day) shall have been agreed to by the parties as to its form
and
content prior to the parties executing this Agreement.
(c) Without
limiting the generality of the provisions in subsection (a) above, Buyer shall
not, through its officers, employees, managers, contractors, consultants,
agents, representatives or any other person (including, without limitation,
Buyer’s third party consultants), directly or indirectly, communicate with any
governmental authority or any official, employee or representative thereof,
involving any matter with respect to the Property without the Sellers’ prior
written consent, which consent shall not be unreasonably withheld, unless such
communication is arranged by the Sellers. Notwithstanding the foregoing, Buyer
and its representatives and consultants shall have the right to review building
department, health department and other local governmental authority records
with respect to the Property and the operation of the Hotels and request written
or verbal confirmation of zoning and any other compliance by the Land or Hotels
with any applicable laws, without any requirement to obtain the consent of
the
Sellers. Notwithstanding the foregoing, Buyer shall have the right to
communicate with the applicable governmental authority in connection with the
issuance of any liquor licenses required for the sale of liquor at the Hotels,
and any and all other permits or licenses required to be transferred or applied
for in connection with the sale of the Hotels, all without the prior consent
of
the Sellers; provided, however, that (i) Buyer shall provide Sellers with
regular updates regarding the progress of any and all such communications;
and
(ii) no inspections of the Hotels by the applicable governmental authorities
shall occur unless a representative of the Sellers is present during such
inspections.
(c) Communication
with Employees. Without limiting the generality of the provisions in subsection
(a) above, Buyer shall not, through its officers, employees, managers,
contractors, consultants, agents, representatives or any other person
(including, without limitation, Buyer’s third party consultants), directly or
indirectly, communicate with any Employees or any person representing any
Employees involving any matter with respect to the Property, the Employees
or
this Agreement, without the prior written consent of Sellers and Managers,
which
consent may be withheld in the sole discretion of Sellers and Managers, unless
such communication is arranged by the Sellers and/or Managers. Buyer shall
not,
through its officers, employees, managers, contractors, consultants, agents,
representatives or any other person (including, without limitation, Buyer’s
third party consultants), cause Sellers to be in violation of any Management
Agreement with respect to contact or communication with any Employees.
Notwithstanding the foregoing, the Sellers shall reasonably cooperate with
Buyer
in order to arrange communications, pursuant to a schedule to be reasonably
agreed upon by the parties in order to allow Buyer to interview the Employees
for possible continued employment, and Buyer shall apprise the Sellers from
time
to time as to its plans for communicating with such Employees, and to complete
such communications in advance of the Closing.
Section
14.13 Manager
Deliverables. Sellers
shall use commercially reasonable efforts to cause the Managers to deliver,
on
or prior to the Closing Date, a complete list of (i) all gift certificates
issued with respect to the Property that are outstanding as of the Closing
Date
and (ii) all bookings and reservations for guest, conference, meeting and
banquet rooms or other facilities at the Property that are outstanding as of
the
Closing Date.
Section
14.14 Non-Solicitation.»
After
the
Closing, Sellers and their affiliates shall not solicit for employment any
employees of any of the Hotels to which Buyer (or its manager(s)) has offered
employment contemporaneously with the Closing; provided, however, a general
solicitation by Sellers or any of their affiliates of any such employees for
employment with Sellers made in connection with a specific market or
industry-wide solicitation for employment shall not be a violation of this
Section 14.13.
Section
14.15 Mutual
Indemnity for Third Party Personal Injury and Property Damage
Claims.
(a) Sellers’
Indemnity.
Sellers
agree to indemnify, defend and hold harmless Buyer of and from all liabilities,
losses, damages, costs or expenses (including, without limitation, court costs
and reasonable attorneys’ fees) which Buyer may suffer or incur by reason of any
act occurring, or cause of action accruing, on or prior to the Closing Date
and
arising from any personal injury or property damage suffered by any third party
at or on the Property on or prior to the Closing Date, including, without
limitation, any claims by employees of any of the Sellers, Operating Tenants
or
Managers.
(b) Buyer’s
Indemnity.
Buyer
agrees to indemnify, defend and hold harmless Sellers of and from all
liabilities, losses, damages, costs or expenses (including, without limitation,
court costs and reasonable attorneys’ fees) which Sellers may suffer or incur by
reason of any act occurring, or cause of action accruing, after the Closing
Date
and arising from any personal injury or property damage suffered by any third
party at or on the Property after the Closing Date, including, without
limitation, any claims by employees of Buyer.
Section
14.16Time
of Essence.»
Time
is
of the essence of this Agreement and each term and provision hereof; provided,
however (unless specifically provided to the contrary elsewhere in this
Agreement), when the date by which any action, event or condition is to occur
or
any notice or other communication is to be given falls on a Saturday, Sunday
or
legal holiday, the date by which such action, event or condition is to occur
or
such notice or other communication is to be given shall be automatically
extended to the business day immediately succeeding such Saturday, Sunday or
legal holiday.
SIGNATURES
ON FOLLOWING PAGES
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered as of
the
date first above written.
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BUYER:
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PYRAMID
HOTEL OPPORTUNITY
VENTURE
LLC,
a
Delaware limited liability company
By:
Pyramid/Contrarian Managing Member LLC, its
Managing Memeber LLC, its
|
|
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By: /s/
Xxxxxxx Xxxxx
|
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Name:
Xxxxxxx X. Xxxxx, Xx.
|
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Its:
Manager
|
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Date
Executed: July 1, 2005
|
|
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SELLERS:
RFS
PARTNERSHIP, L.P.,
a
Tennessee limited partnership
By: CNL
ROSE GP CORP.,
a
Delaware corporation
its
sole general partner
By:
/s/ Marcel
Verbaas____________________________________________________
Name: Xxxxxx
Xxxxxxx
Title:
Senior Vice President
|
|
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Date
Executed: July 5, 2005
|
|
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ROSE
SPE 1, LP,
a
Delaware limited partnership
By: ROSE
SPE 1 GP, LLC,
a
Delaware limited liability company,
its
sole general partner
By:
/s/ Marcel
Verbaas____________________________________________________
Name: Xxxxxx
Xxxxxxx
Title:
Senior Vice President
Date
Executed: July 5, 2005
WHARF
ASSOCIATES,
a
California general partnership,
By: RFS
FINANCING
PARTNERSHIP
II, L.P.,
a
Tennessee limited partnership,
as
managing partner
By: RFS
WHARF
PROPERTY
CORPORATION,
a
Tennessee corporation, as general partner
By:
/s/ Marcel
Verbaas____________________________________________________
Name:
Xxxxxx Xxxxxxx
Title:
Senior Vice President
Date
Executed: July 5, 2005
|
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For
Purposes of Acknowledging and Agreeing only to the provisions of
Section
2.04 of this Agreement:
ESCROW
AGENT:
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THE
TALON GROUP,
a
division of First American Title Insurance Company
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By:
/s/ Xxxxx Xxxx
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Name:
Xxxxx Xxxx
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Title:
Commercial Closing Operations Supervisor
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Date
Executed: July 5, 2005
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EXHIBIT
“A”
Legal
Descriptions of Land
See
X-0,
X-0, X-0, X-0 and A-5 attached.
EXHIBIT
A-1
LEGAL
DESCRIPTION
|
Xxxxxxx
Heritage, Milpitas / San Xxxx
0000
Xxxxxx Xxxx
Xxxxxxxx,
XX 00000
Santa
Xxxxx County
|
Parcel
One:
Parcel
A
as shown on the Parcel Map filed for record July 17, 1979 in Book 445 of Maps,
Pages 47 and 48, Santa Xxxxx County Records.
Parcel
Two:
An
easement for ingress and egress as granted in the Deed recorded July 7, 1981
in
Book G196, Page 5 of Official Records, described as follows:
Said
easement being a portion of that certain 7.806 acre parcel of land labeled
“Parcel B” on the above described Parcel Map and being described as
follows:
A
strip
of land of the uniform width of 15 feet measured at right angles lying
contiguous to and Westerly of the Easterly boundary line of said “Parcel B” and
extending Southerly along the Easterly Boundary line of Parcel B, 256.51 feet
from the Southerly boundary line of Xxxxxx Xxxx (60 feet wide) to the terminus
of common ingress/egress easement benefiting Parcels A, B and C as shown on
the
above mentioned Parcel Map, said point being the terminus of the herein
described easement.
APN:
000-00-000
EXHIBIT
A-2
LEGAL
DESCRIPTION
San
Diego
Del Mar (Doubletree)
00000
Xx
Xxxxxx Xxxx
Xxx
Xxxxx, XX 00000
San
Diego
County
Real
property in the City of San Diego, County of San Diego, State of California,
described as follows:
Parcel
A:
Parcel
1
of Parcel Map No. 18098, in the City of San Diego, County of San Diego, State
of
California, filed in the Office of the County Recorder of San Diego County,
August 25, 1998 as File No. 1998-0541314 of Official Records.
Parcel
B:
A
non-exclusive easement for vehicular and pedestrian ingress, egress and
circulation purposes over, along and across that portion of Parcel 4 of Parcel
Map No. 15957, in the City of San Diego, County of San Diego, State of
California, filed in the Office of the County Recorder of San Diego County,
on
January 17, 1990 as File No. 90-028024 of Official Records, delineated and
designated thereon as “Water and Sewer Easement Granted Hereon”, and that
portion of Parcel 3 of said Parcel Map No. 15957 delineated and designated
thereon as “Water and Drainage Easement Granted Hereon”.
Parcel
C:
A
non-exclusive easement for (a) vehicular parking, in areas other than the area
which may be improved with the office building(s) approximately 40 feet in
height and containing approximately 55,000 square feet of aggregate floor area
contemplated by North City West Planned District Development Plan Permit No.
88-0941, in such number of parking spaces as may be required from time to time
for Parcel 1 of said parcel Map No. 15957 to be in compliance with said Permit
No. 88-0941 and any other applicable requirements, and (b) vehicular and
pedestrian ingress, egress and circulation purposes on, over, along and across
that portion of Parcel 4 of said Parcel Map No. 15957, other than such improved
area and other than that portion of said Parcel 4 delineated and designated
on
said Parcel Map No. 15957 as “Water and Sewer Easement Granted
Hereon”.
EXHIBIT
A-2 - CONTINUED
LEGAL
DESCRIPTION
San
Diego
Del Mar (Doubletree)
00000
Xx
Xxxxxx Xxxx
Xxx
Xxxxx, XX 00000
San
Diego
County
Parcel
D:
Non-exclusive
easements over and across the common area, as conveyed, set forth and described
in that certain “Agreement Between Landowners Including Easements with Covenants
and Restrictions” dated September 26, 1994, executed by and between Tiger
Development One, a California limited partnership; Kmart Corporation, a Michigan
corporation and Carmel Valley Partners I, a California general partnership,
recorded September 29, 1994 as instrument no. 1994-0579026 of Official Records,
in the Office of the County Recorder of San Diego County,
California.
APN:
000-000-00-00
EXHIBIT
A-3
LEGAL
DESCRIPTION
|
Hotel
Xxx -- San Francisco
000
Xxxxxx Xxxxxx
Xxx
Xxxxxxxxx, XX 00000
San
Francisco County
|
All
that
certain tract, piece or parcel of land situate in the City of San Francisco,
County of San Francisco, State of California, described as follows:
BEGINNING
AT A POINT ON THE NORTHERLY LINE OF XXXXXX STREET DISTANT THEREON 87 FEET 9-¼
INCHES EASTERLY FROM THE EASTERLY LINE OF XXXXX STREET; THENCE EASTERLY ALONG
SAID LINE OF XXXXXX STREET 49 FEET 8-¾ INCHES; THENCE AT A RIGHT ANGLE NORTHERLY
137 FEET 6 INCHES; THENCE AT A RIGHT ANGLE WESTERLY 50 FEET; THENCE AT A RIGHT
ANGLE SOUTHERLY 50 FEET; THENCE AT A RIGHT ANGLE EASTERLY 3-¼ INCHES; THENCE AT
A RIGHT ANGLE SOUTHERLY 87 FEET 6 INCHES TO THE POINT OF BEGINNING.
BEING
A
PORTION OF 50 VARA XXX XX. 000 XX XXXXX XX. 000.
Assessor’s
Xxx 000, Xxxxx 0000
XXXXXXX
X-0
XXXXX
DESCRIPTION
|
Hilton
Hotel - San Francisco - Fisherman’s Wharf
000
Xxx Xxxxxx
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
San
Francisco County
|
REAL
PROPERTY IN THE CITY OF SAN FRANCISCO, COUNTY OF SAN FRANCISCO, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING
AT THE POINT OF INTERSECTION IF THE NORTHERLY LINE OF BAY STREET WITH THE
EASTERLY LINE OF XXXXX STREET; RUNNING THENCE NORTHERLY ALONG SAID LINE OF
XXXXX
STREET 275 FEET TO THE SOUTHERLY LINE ON NORTH POINT STREET; THENCE AT A RIGHT
ANGLE EASTERLY ALONG SAID LINE OF NORTH POINT STREET 77 FEET; THENCE AT A RIGHT
ANGLE SOUTHERLY 137 FEET AND 6 INCHES; THENCE AT A RIGHT ANGLE EASTERLY 198
FEET; THENCE AT A RIGHT ANGLE SOUTHERLY 137 FEET AND 6 INCHES TO THE NORTHERLY
LINE OF BAY STREET; THENCE AT A RIGHT ANGLE WESTERLY ALONG SAID LINE OF BAY
STREET 275 FEET TO THE POINT OF BEGINNING.
BEING
PART OF 00 XXXX XXXXX XX. 000.
APN:
Lot:
003 Blk: 0029
EXHIBIT
A-5
LEGAL
DESCRIPTION
|
Holiday
Inn Columbia - Coliseum USC
000
Xxxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
|
Parcel
I
All
that
tract, piece, parcel of land containing 43722.81 sq. ft. or 1.0037 acres as
delineated and shown on plat prepared for Realty & Financial Services, Inc.,
dated August 6, 1993; said plat having been prepared by Hussey, Gay, Xxxx &
Xxxxx, Inc., Columbia, S.C.; said parcel being located in the City of Columbia,
Richland County, S.C., to the North of Blossom Street and to the East of
Assembly Street as shown on said plat and commencing at the intersection of
the
road right of way of Xxxxxx Street and Assembly Street; said intersection being
the Southeastern corner of Assembly Street and Xxxxxx Street and designated
as
P.O.B. Parcel 1 on said plat, thence going from commencement or beginning point
N 68°00’40” E for a distance of 208.68’ feet to an iron marker; thence turning
and running S 22°01’12”E for a distance of 209.14 feet to an iron marker; thence
turning and running S 67°55’44” W for a distance of 103.70 feet to an “X’ in the
top of a concrete retaining wall, thence turning and running S 67°55’44”W for a
distance of 105.41 feet to an. iron marker; thence turning and running N
21°53’00” W for a distance of 209.35 feet to the point of beginning or
commencement; said property being bounded generally on the North by Xxxxxx
Street, on the East by lands of N/F Xxxx X. Xxxxxxxxxxx and N/F Xxxxxx Xxxxxxx
et al, on the South by lands of N/F Realty & Financial Service, Inc. (Parcel
II and lands of N/F Church of Xxxxx Xxxxxx of Latter Day Saints, and on the
West
by Assembly Street.
TMS
No.
00000-00-00
AND
CONTINUED
ON NEXT PAGE
EXHIBIT
A-5
LEGAL
DESCRIPTION CONTINUED
|
Holiday
Inn Columbia - Coliseum USC
000
Xxxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
|
Parcel
II:
All
that
tract, piece or parcel of land containing 22066.03 sq. ft. or .5066 acres as
delineated and shown on a plat prepared for Realty & Financial Services,
Inc., dated August 6, 1993; said plat having been prepared by Hussey, Gay,
Xxxx
& Young, Inc., Columbia, S.C.; said parcel being located in the City of
Columbia, Richland County, S.C. to the North of Blossom Street and to the East
of Assembly Street as shown on said plat and commencing at the intersection
of
the road right of way of Xxxxxx Street and Assembly Street; said intersection
being the Southwestern corner of Assembly Street and Xxxxxx Street and being
designated as P.O.B. Parcel 1 on said plat, thence going from said point N
68°00’40” E for a distance of 208.68’ feet to a point; thence S 22°01’12”E for a
distance of 209.14 feet to an iron marker designated as P.O.B. Parcel II as
shown on said plat; thence turning and running S 22°51’33”E for a distance of
207.89 feet to an iron marker; thence turning and running S 67°28’47” W for a
distance of 108.20 feet to an iron marker; thence turning and running N
21°37’17”W for a distance of 208.70 feet to an “X” xxxx in the top of a concrete
retaining wall; thence turning and running N 67°55’44”E for a distance of 103.70
feet to a point of beginning or commencement; said property being bounded
generally on the North by lands N/F Realty & Financial Services, Inc.
(Parcel I) on the East by lands N/F J. Mac Pizza Hut, Inc., lands of N/F Xxxx
and Xxxxx Xxxxxxxx, and lands of N/F Xxx X. Xxxxxxxxx, on the South of Blossom
Street, and on the West by lands of N/F Xxxxx X. Xxxxxxxx/Xxxxx X. Xxxxxxx,
III,
and lands of N/F Church of Xxxxx Xxxxxx of Latter Day Saints.
TMS
No.
00000-00-00
EXHIBIT
“B”
ASSIGNMENT
AND ASSUMPTION OF INTANGIBLE PROPERTY
THIS
ASSIGNMENT AND ASSUMPTION OF INTANGIBLE PROPERTY (this “Assignment”)
is
made and entered into as of the ___day of ______, 2005, by and between
_____________________________, a ____________________having a mailing address
at
c/o CNL Hotels & Resorts, Inc., CNL Center at City Commons, 000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (“Assignor”),
and
________________________________, a Delaware limited liability company having
a
mailing address at c/o Pyramid/Contrarian Investment LLC, 0000 Xxxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 (“Assignee”).
W
I T
N E S S E T H:
WHEREAS,
Assignor and Assignee are parties to that certain Agreement of Purchase and
Sale
dated _________ __, 2005 (the “Agreement”),
pursuant to which Assignor has agreed, among other things, to sell, assign,
transfer and convey to Assignee the hotel property known as “______________”
(the “Hotel”);
and
WHEREAS,
in connection with the sale and purchase of the Property, Assignor has agreed
to
assign to Assignee all of Assignor’s right, title and interest in and to, and
Assignee has agreed to assume from Assignor all of Assignor’s obligations and
liabilities under, the Intangible Property with respect to the Hotel (the
“Hotel
Intangible Property”).
Unless otherwise defined herein, all capitalized terms used in this Assignment
shall have the meaning given to such term in the Agreement.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, and intending to be legally bound, the parties
agree as follows:
1. Assignment.
Assignor hereby assigns, transfers, and conveys to Assignee all of Assignor’s
right, title and interest in and to the Hotel Intangible Property, to the extent
that such assignments are legally and contractually permitted.
2. Assumption.
Assignee hereby assumes all of the Assignor’s right, title and interest in and
to, and all liabilities and obligations of Assignor under the Hotel Intangible
Property which arise on or after the Transfer Time and agrees to perform all
obligations of Assignor under the Hotel Intangible Property which are to be
performed or which become due on or after the Transfer Time.
3. Indemnity
by Assignee.
Assignee shall indemnify, defend and hold Assignor harmless from any claim,
liability, cost or expense (including without limitation reasonable attorneys’
fees) arising out of any Hotel Intangible Property from and after the Transfer
Time.
4. Indemnity
by Assignor.
Assignor shall indemnify, defend and hold Assignee harmless from any claim,
liability, cost or expense (including without limitation reasonable attorneys’
fees) arising out of any Hotel Intangible Property prior to the Transfer
Time.
5. Further
Assurances.
Assignor covenants with Assignee and Assignee covenants with Assignor that
each
will execute or procure any additional documents necessary to establish the
rights of the other hereunder.
6. Counterparts.
This
Assignment may be executed by the parties in counterparts, in which event the
signature pages thereof shall be combined in order to constitute a single
original document.
7. Binding
Effect.
This
Assignment shall be binding upon and inure to the benefit of Assignor, Assignee
and their respective successors and assigns.
IN
WITNESS WHEREOF, the parties have executed this Assignment as of the date set
forth above.
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ASSIGNOR:
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a
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By:
|
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Name:
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|
Title:
|
|
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ASSIGNEE:
|
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|
____________________________________
|
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|
a
___________________________________
|
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By:
|
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Name:
|
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Title:
|
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EXHIBIT
“C”
ASSIGNMENT
AND ASSUMPTION OF MANAGEMENT AGREEMENT
THIS
ASSIGNMENT
AND ASSUMPTION OF MANAGEMENT AGREEMENT (this
“Assignment”)
is
made and entered into as of the ___day of ______, 2005, by and among
RFS
PARTNERSHIP, L.P.,
a
Tennessee limited partnership having a mailing address at c/o CNL Hotels &
Resorts, Inc., CNL Center at City Commons, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000 (“Owner”),
RFS
LEASING VII, INC., a Tennessee corporation having a mailing address at c/o
CNL
Hotels & Resorts, Inc., CNL Center at City Commons, 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000 (“Tenant”
and,
collectively with Owner, “Assignor”),
and
[PYRAMID
HOTEL OPPORTUNITY VENTURE LLC],
a
Delaware limited liability company having a mailing address at c/o
Pyramid/Contrarian Investment LLC, 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000 (“Assignee”),
and
consented to by JOIE
DE VIVRE HOSPITALITY, INC.,
a
California corporation having a mailing address at 000 Xxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 (“Manager”).
W
I T
N E S S E T H:
WHEREAS,
Owner and Tenant entered into that certain Amended and Restated Master Lease
Agreement dated January 1, 2001; as amended by that certain Letter Agreement,
dated January 1, 2001; as amended by that certain Second Amendment to Amended
and Restated Master Lease Agreement, dated May 1, 2001; as amended by that
certain Third Amendment to Amended and Restated Master Lease Agreement, dated
October 1, 2003; as amended by that certain Fourth Amendment to Amended and
Restated Master Lease Agreement, dated October 10, 2003; as amended by that
certain Fifth Amendment to Amended and Restated Master Lease Agreement, dated
December 4, 2003 (collectively, the “Lease”),
whereby Owner leased to Tenant and Tenant leased from Owner certain real
property and improvements commonly known as the “Hotel Xxx” located in San
Francisco, California and as more particularly described on Exhibit
A
attached
hereto (the “Hotel”);
WHEREAS,
the Hotel is managed by Manager pursuant to that certain Management Agreement
between Assignor and Manager dated as of April 28, 2003 (the “Management
Agreement”);
WHEREAS,
concurrently with the execution of this Assignment, Owner shall sell and convey
to Assignee all of Owner’s right, title and interest in and to the Hotel (the
“Sale
Transaction”),
and
Owner and Tenant shall terminate the Lease, so that upon consummation of such
Sale Transaction, Owner and Tenant shall have no right, title and interest
in or
to the Hotel; and
WHEREAS,
in connection with the Sale Transaction, (i) Assignor has agreed to assign
all
of its rights, privileges, duties and obligations under the Management Agreement
to Assignee and Assignee has agreed to assume all of Assignor’s rights,
privileges, duties and obligations thereunder which arise on or after the
Transfer Time, all of the foregoing pursuant to the terms and provisions of
this
Assignment.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, and intending to be legally bound, the parties
agree as follows:
1. Assignment.
Assignor hereby assigns all of its right, title and interest in and to the
Management Agreement that arise on or after the Transfer Time to
Assignee.
2. Assumption.
Assignee hereby assumes all of Assignor’s right, title and interest in and to,
and all liabilities and obligations of Assignor under, the Management Agreement
that arise on or after the Transfer Time.
3.
Indemnity
by Assignee.
Assignee shall indemnify, defend and hold Assignor harmless from any claim,
liability, cost or expense (including, without limitation, reasonable attorneys’
fees) arising out of the Management Agreement from and after the Transfer
Time.
4. Indemnity
by Assignor.
Assignor shall indemnify, defend and hold Assignee harmless from any claim,
liability, cost or expense (including, without limitation, reasonable attorneys’
fees) arising out of the Management Agreement prior to the Transfer
Time.
[ADD
INDEMNITY FROM ASSIGNEE IN EVENT MANAGER DOES NOT JOIN IN AN CONSENT TO
ASSIGNMENT]
3. Further
Assurances.
Each of
Assignor and Assignee agrees that each will execute or procure any additional
documents necessary to establish the rights of the others
hereunder.
4. Counterparts.
This
Assignment may be executed by the parties in counterparts, in which event the
signature pages thereof shall be combined in order to constitute a single
original document.
5. Binding
Effect.
This
Assignment shall be binding upon and inure to the benefit of Assignor and
Assignee, and their respective successors and xxxxxxx.XX
WITNESS WHEREOF, the parties have executed this Assignment as of the date set
forth above.
ASSIGNOR:
RFS
PARTNERSHIP, L.P.,
a
Tennessee limited partnership
By: CNL
ROSE GP CORP.,
a
Delaware corporation,
its
General Partner
By:
_______________________
Name: Xxxxxx
Xxxxxxx
Title: Senior
Vice President
RFS
LEASING VII, INC.,
a
Tennessee corporation
By:
_______________________
Name: Xxxxxx
Xxxxxxx
Title: Senior
Vice President
ASSIGNEE:
PYRAMID
HOTEL OPPORTUNITY LLC,
a
Delaware limited liability company
By:
_______________________
Name:
Title:
EXHIBIT
“D”
ASSIGNMENT
AND ASSUMPTION OF OPERATING AGREEMENTS
THIS
ASSIGNMENT AND ASSUMPTION OF OPERATING AGREEMENTS (this “Assignment”)
is
made and entered into as of the ___day of ______, 2005, by and between
_____________________________, a ____________________having a mailing address
c/o CNL Hotels & Resorts, Inc., CNL Center at City Commons, 000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (“Assignor”),
and
_______________________, a Delaware limited liability company having a mailing
address at c/o Pyramid/Contrarian Investment LLC, 0000 Xxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 (“Assignee”).
W
I T
N E S S E T H:
WHEREAS,
Assignor and Assignee are parties to that certain Agreement of Purchase and
Sale
dated _________ __, 2005 (the “Agreement”),
pursuant to which Assignor has agreed, among other things, to sell, assign,
transfer and convey to Assignee the hotel property known as “______________”
(the “Hotel”);
and
WHEREAS,
in connection with the sale and purchase of the Property, Assignor has agreed
to
assign to Assignee all of Assignor’s right, title and interest in and to, and
Assignee has agreed to assume from Assignor all of Assignor’s obligations and
liabilities under, the Operating Agreements with respect to the Hotel (the
“Hotel
Operating Agreements”).
Unless otherwise defined herein, all capitalized terms used in this Assignment
shall have the meaning given to such term in the Agreement.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, and intending to be legally bound, the parties
agree as follows:
1. Assignment.
Assignor hereby assigns, transfers, and conveys to Assignee all of Assignor’s
right, title and interest in and to the Hotel Operating Agreements, to the
extent that such assignments are legally and contractually
permitted.
2. Assumption.
Assignee hereby assumes all of Assignor’s right, title and interest in and to,
and all liabilities and obligations of Assignor under the Hotel Operating
Agreements which arise on or after the Transfer Time and agrees to perform
all
obligations of Assignor under the Hotel Operating Agreements which are to be
performed or which become due on or after the Transfer Time.
3. Indemnity
by Assignee.
Assignee shall indemnify, defend and hold Assignor harmless from any claim,
liability, cost or expense (including without limitation reasonable attorneys’
fees) arising out of any Hotel Operating Agreement from and after the Transfer
Time.
4. Indemnity
by Assignor.
Assignor shall indemnify, defend and hold Assignee harmless from any claim,
liability, cost or expense (including without limitation reasonable attorneys’
fees and costs) arising out of any Hotel Operating Agreement for the period
prior to the Transfer Time.
5. Further
Assurances.
Assignor covenants with Assignee and Assignee covenants with Assignor that
each
will execute or procure any additional documents necessary to establish the
rights of the other hereunder.
6. Counterparts.
This
Assignment may be executed by the parties in counterparts, in which event the
signature pages thereof shall be combined in order to constitute a single
original document.
7. Binding
Effect.
This
Assignment shall be binding upon and inure to the benefit of Assignor, Assignee
and their respective successors and assigns.
IN
WITNESS WHEREOF, the parties have executed this Assignment as of the date set
forth above.
|
ASSIGNOR:
|
|
|
a
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
ASSIGNEE:
|
|
|
a
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
“E”
Schedule
of Franchise Agreements and Franchise Guaranty
Agreements
1. Xxxxxxx
Heritage:
none
2. Hotel
Xxx:
none
3. Holiday
Inn Columbia:
(a) Holiday
Inn Change of Ownership License Agreement, dated January 31, 2004, by and
between RFS Leasing VII, Inc. and Holiday Hospitality Franchising,
Inc.
(b) Guaranty
Agreement attached to License Agreement executed by RFS Partnership,
L.P.
(c) Master
Technology Agreement, dated January 31, 2004, by and between Six Continents
Hotels, Inc. and RFS Leasing, VII, Inc.
4. Doubletree
Del Mar:
(a) Franchise
License Agreement, dated October 10, 2003, by and between Doubletree Hotel
Systems, Inc. and CNL Rose SPE Tenant Corp.
(b) Guarantee
of Franchise License Agreement, dated October 10, 2003, executed by RFS
Partnership, L.P.
5. San
Francisco Wharf:
(a) License
Agreement, Supplemental Agreement and License Fee Rider, each dated April 20,
1999, between Hilton Inns, Inc. and Embarcadero Hospitality
Corporation.
(b) Assignment
and Assumption of and Amendment to License Agreement, dated December __, 2000,
between Embarcadero Hospitality Corporation and RFS Leasing VII, Inc.
(c) Amendment
to License Agreement, dated July 10, 2003, between Embarcadero Hospitality
Corporation and RFS Leasing VII, Inc.
(d) License
Agreement, dated March 10, 2000, between Hilton Hotels Corporation, as licensor,
and Hilton San Francisco Fisherman’s Wharf, as licensee, with respect to the
licensing of certain programs.
(e) Guarantee
of License Agreement, dated April 20, 1999, executed by Wharf
Associates.
(f) Guarantee
of Franchise License Agreement executed by RFS Leasing VII, Inc. (undated)
in
connection with Franchise License Agreement.
EXHIBIT
“F”
LIMITED
WARRANTY XXXX OF SALE
THIS
LIMITED WARRANTY XXXX OF SALE
(the
“Xxxx
of Sale”)
is
made and entered into as of the __ day of ____________, 2005, by and between
___________________________, a __________________ (“Seller”)
and
______________________________,
a
____________________ (“Buyer”).
W
I T
N E S S E T H:
WHEREAS,
Seller and Buyer are parties to that certain Agreement of Purchase and Sale
dated _________ __, 2005 (the “Agreement”),
pursuant to which Seller has agreed, among other things, to sell, assign,
transfer and convey to Buyer the portion of the Property (as defined in the
Agreement) attributable to the hotel property known as the “Fisherman’s Wharf”
located in San Francisco, California (the “Subject
Property”);
and
WHEREAS,
in connection with the sale and purchase of the Subject Property, Seller has
agreed to sell, transfer and convey to Buyer all of Seller’s right, title and
interest in and to the Personal Property with respect to the Subject Property
(the “Subject
Personal Property”).
Unless otherwise defined herein, all capitalized terms used in this Assignment
shall have the meaning given to such term in the Agreement.
NOW,
THEREFORE, in consideration of the foregoing and Ten Dollars ($10.00) and other
good and valuable consideration in hand paid by Buyer to Seller, the receipt
and
sufficiency of which are hereby acknowledged, Seller and Buyer do hereby agree
as follows:
1. Seller
does hereby sell, transfer and convey to Buyer the Subject Personal Property
and
Buyer hereby purchases and accepts all of the Subject Personal
Property.
2. EXCEPT
AS
OTHERWISE PROVIDED IN THIS PARAGRAPH 2 BELOW, ALL OF THE SUBJECT PERSONAL
PROPERTY IS HEREBY SOLD, TRANSFERRED AND CONVEYED TO BUYER ON AN “AS IS”, “WHERE
IS”, “WITHOUT ALL FAULTS” BASIS, WITHOUT RECOURSE, REPRESENTATION, IMPLIED OR
EXPRESS WARRANTY, GUARANTY, PROMISE, PROJECTION OR PREDICTION WHATSOEVER WITH
RESPECT TO THE SUBJECT PERSONAL PROPERTY, WHETHER WRITTEN OR ORAL, EXPRESS
OR
IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING WITHOUT LIMITATION ANY
WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Notwithstanding
the foregoing to the contrary, Seller does hereby warrant to Buyer that the
Subject Personal Property is owned by Seller free and clear of all encumbrances
of whatsoever nature; EXCEPTING ONLY the liens or mortgages assumed or entered
into by Buyer, if any, and any personal property sales tax or other tax arising
from the transactions contemplated by the Agreement.
3. This
Xxxx
of Sale may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instruments and any of the parties
hereto may execute this Xxxx of Sale by signing any such
counterpart.
IN
WITNESS WHEREOF, the undersigned has executed this Xxxx of Sale as of the date
first above written.
|
SELLER:
|
|
|
a
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
BUYER:
|
|
|
a
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
“G”
Schedule
of Management Agreements
1. Xxxxxxx
Heritage:
Management Agreement, dated January 31, 2004, by and between
RFS Leasing VII, Inc. and Interstate Management Company, L.L.C.
2. Hotel
Xxx:
Management Agreement, dated April 28, 2003, by and between RFS Partnership,
L.P., RFS Leasing VII, Inc., and Joie De Vivre Hospitality, Inc.
3. Holiday
Inn Columbia:
Management Agreement, dated October 1, 2003, by and between
RFS Leasing VII, Inc. and Interstate Management Company, L.L.C.; and
First
Amendment to Management Agreement, dated January 31, 2004, by and between
RFS Leasing
VII, Inc. and Interstate Management Company, L.L.C.
4. Doubletree
Del Mar:
Management Agreement, dated October 1, 2003, by and between
CNL Rose SPE Tenant Corp. and DT Management, Inc.
5. San
Francisco Wharf:
Management Agreement, dated November 17, 2003 by and between
RFS Leasing VII, Inc. and Hilton Hotels Corporation.
EXHIBIT
“H”
Schedule
of Operating Agreements
EXHIBIT
“I”
Schedule
of Operating Leases
1
&
2. Xxxxxxx
Heritage
and
Holiday
Inn SC:
Amended
and Restated Master Lease Agreement,
dated October 13, 2004, between RFS Partnership, L.P. and RFS Leasing
VII, Inc., as amended by (i) Partial Termination of and Amendment to
Amended
and Restated Master Lease Agreement dated as of March 10, 2005.
|
3.
|
Hotel
Xxx:
Amended and Restated Master Lease Agreement, dated January 1, 2001,
between RFS Partnership, L.P., as lessor, and RFS Leasing VII, Inc.,
as
lessee (as amended by that certain Letter Agreement, dated January
1,
2001; as amended by that certain Second Amendment to Amended and
Restated
Master Lease Agreement, dated May 1, 2001; as amended by that certain
Third Amendment to Amended and Restated Master Lease Agreement, dated
October 1, 2003; as amended by that certain Fourth Amendment to Amended
and Restated Master Lease Agreement, dated October 10, 2003; as amended
by
that certain Fifth Amendment to Amended and Restated Master Lease
Agreement, dated December 4, 2003).
|
4. DoubleTree
Del Mar:
Consolidated, Amended and Restated Master Lease Agreement,
dated December 4, 2003, between Rose SPE 1, LP and CNL Rose SPE Tenant
Corp.
5. SF
Wharf:
Amended
and Restated Master Lease Agreement, dated January 1,2001, between Wharf
Associates and RFS Leasing VII, Inc., as amended by Letter Agreement, dated
January 1, 2001, and as further amended by a Second Amendment
to Amended and Restated Master Lease Agreement dated July 10, 2003.
EXHIBIT
“J”
Purchase
Price Allocation Schedule
1. Hotel
Xxx: $14,000,000
2. Fisherman's
Wharf: $35,000,000
3. Xxxxxxx
Heritage: $17,250,000
4. Doubletree
Del Mar $34,500,000
5. Columbia:
$8,250,000
EXHIBIT
“K”
Schedule
of Sellers
Brand Property
Name City,
State Seller
-- Xxxxxxx
Heritage Milpitas
CA RFS
Partnership, L.P.
-- Hotel
Xxx-San Francisco San
Francisco CA RFS
Partnership, L.P.
HOL Columbia
Coliseum Columbia
SC RFS
Partnership, L.P.
DT Doubletree
Del Mar San
Diego
CA Rose
SPE
1, LP
HH Fisherman’s
Wharf San
Francisco CA Wharf
Associates
EXHIBIT
“L”
Litigation
Schedule
|
CLAIMANT
|
OWNER/DEFENDANT
|
DESCRIPTION
OF
CLAIM
|
AMOUNT
OF CLAIM
|
INSURANCE
|
LITIGATION
|
|
Carmel
Valley, LLC
|
RFS
Partnership, LP/RFS Hotel Investors
current
owner: Rose SPE 1, LP
Doubletree
Hotel
San
Diego / Del Mar
San
Diego, CA
|
Breach
of lot transfer agreement
|
Unspecified
|
No
|
Yes
|
|
Minarovich,
R
|
current
owner: Rose SPE 1, LP
Doubletree
Hotel
San
Diego/Del Mar
San
Diego, CA
|
Personal
injury
|
Unspecified
|
Yes
|
No
|
|
Re:
Hilton
Fisherman’s Wharf
Outside
of a possible EEOC charge filed by the previous Sales Administrator
for
discrimination (property was told that the information was filed,
but it
would be sent to the proper State/Federal Office for review and
determination as to whether it would go any further), and the two
grievances the property has with the Servers that were let go due
to
theft, there are no further legal matters.
|
NONE
|
||||
|
NONE
|
re:
Holiday Inn Columbia
|
NONE
|
|||
|
NONE
|
re:
Hotel Xxx
|
NONE
|
|||
|
NONE
|
re:
Xxxxxxx Heritage
|
NONE
|
|||
EXHIBIT
“M”
Title
and Survey Defects
[NOTE:
ITEM
NOS. CORRESPOND TO ITEM NOS. IN
SCHEDULE
B, SECTION 2 OF THE RESPECTIVE TITLE COMMITMENTS]
SAN
DIEGO, CA
| 12. |
Sellers
shall provide an estoppel certificate from the appropriate third
party
under that certain Covenants, Conditions, Restrictions and Easements
recorded September 29, 1994 as instrument no. 1994-0579026 of Official
Records, which such third-party is required to provide pursuant to
the
terms thereof. Such certificate will be in the form and content required
under such instrument. Sellers shall use good faith efforts to obtain
an
estoppel certificate from such party with respect to other matters
reasonably requested by Buyer. Seller will also give notice of sale
to the
appropriate third party as required under such
instrument.
|
| 13. |
Sellers
shall satisfy and release, or otherwise cause Title Company to remove
as
an exception, all of the following:
|
An
unrecorded lease dated November 21, 1996, executed by RFS Financing Partnership,
L.P. as lessor and RFS Leasing, Inc. as lessee, as disclosed by a Memorandum
of
Lease recorded November 21, 1996 as instrument no. 1996-0591903 of Official
Records.
An
Amendment to said Lease was recorded November 16, 1999 as instrument no.
1999-0760459 of Official Records.
A
document entitled "Assignment of Lease Agreement and Assumption Agreement,
in
favor of RFS Leasing II, Inc., a Tennessee corporation, recorded January 23,
2001 as instrument no. 2001-0039012 of Official Records.
| 13. |
Sellers
shall satisfy and release, or otherwise cause Title Company to remove
as
an exception, all of the following:
|
A
Deed of
Trust to secure an original indebtedness of $(Not shown) recorded July
17,
2003 as instrument no. 2003-0851943 of Official
Records.
|
Dated:
|
July
10, 2003
|
|
Trustor:
|
RFS
Partnership, L.P. and RFS Financing Partnership, L.P.
|
|
Trustee:
|
PRLAP,
Inc.
|
|
Beneficiary:
|
Mortgage
Electronic Registration Systems,
Inc.
|
A
document recorded February 12, 2004 as instrument no. 2004-0113344 of Official
Records provides that the deed of trust or the obligation secured thereby has
been modified.
| 14. |
Sellers
shall satisfy and release, or otherwise cause Title Company to remove
as
an exception, all of the following:
|
A
financing statement recorded July 17, 2003 as
instrument no. 2003-0851944 of Official Records.
|
Debtor:
|
RFS
Financing Partnership, L.P.
|
|
Secured
party:
|
Mortgage
Electronic Registration Systems,
Inc.
|
An
amendment to the financing statement was recorded February 12, 2004 as
instrument no. 2004-0113345 of Official Records.
| 15. |
Sellers
shall satisfy and release, or otherwise cause Title Company to remove
as
an exception, a financing statement recorded February 12, 2004 as
instrument no. 2004-0113346 of Official
Records.
|
|
Debtor:
|
Rose
SPE I, LP
|
|
Secured
party:
|
Mortgage
Electronic Registration Systems,
Inc.
|
| 16. |
Sellers
shall satisfy and release, or otherwise cause Title Company to remove
as
an exception, a financing statement recorded February 12, 2004 as
instrument no. 2004-0113347 of Official
Records.
|
|
Debtor:
|
CNL
Rose SPE Tenant Corp.
|
|
Secured
party:
|
Mortgage
Electronic Registration Systems,
Inc.
|
SAN
FRANCISCO -- HOTEL XXX
| 2. |
Supplemental
taxes for the fiscal year 2000-2001 assessed pursuant
to Chapter
3.5 commencing with Section 75 of the California Revenue and Taxation
Code. Sellers to pay outstanding
assessments.
|
|
First
Installment:
|
$14,417.74,
PAID
|
|
Penalty:
|
$1,441.77
|
|
Second
Installment:
|
$14,417.74,
DELINQUENT
|
|
Penalty:
|
$1,451.77
|
|
Tax
Rate Area:
|
01-000
|
|
Lot:
|
010
|
|
Block:
|
0284
|
| 7. |
The
terms and provisions contained in the document entitled "Notice-Seismic
Building Hazard (Health & Safety Code 17980.1; Government Code Section
8875.2)" recorded January 5, 1995 as Instrument No.
F-738564 in
Book G291, Page 625 of Official Records. Seller shall provide
evidence that the required seismic strengthening has occurred and
remove
this notice of record or provide documentation sufficient for the
title
company to remove this exception.
|
| 8. |
Sellers
shall satisfy and release, or otherwise cause Title Company to remove
as
an exception, a deed of trust to secure the performance of an agreement
or
other obligation, recorded December
28, 2000 as Instrument
No. 2000-G883343-00 in Book H791, Page 159 of Official
Records.
|
|
Dated:
|
August
1, 2000
|
|
Trustor:
|
Ridgelake
General Partner, Inc., a Tennessee corporation
|
|
Trustee:
|
Commonwealth
Land Title Company
|
|
Beneficiary:
|
Bank
of America, N.A., a national banking
association
|
A
document recorded August 16, 2001 as Document No. 2001-G998316-00 in Book H953,
Page 401 of Official Records provides that the Deed of Trust or the obligation
secured thereby has been modified.
| 9. |
Sellers
shall satisfy and release, or otherwise cause Title Company to remove
as
an exception, a document entitled "Assignment of Leases, Rents and
Profits" recorded February 18, 2001 as
Instrument No. 2001-G904531-00 in Book H827, Page 508 of Official
Records,
as additional security for the payment of the indebtedness secured
by the
deed of trust recorded December 28, 2000 as
Instrument No. 0000-000000-00 in Book H791, Page 159 of Official
Records.
|
| 11. |
Sellers
shall satisfy and release, or otherwise cause Title Company to remove
as
an exception, a Deed of Trust to secure an original indebtedness
of
$353,475,000.00 recorded November 8, 2004 as Instrument
No.
2004-H846981-00 in Reel I760, Image 0047 of Official
Records.
|
|
Dated:
|
October
13, 2004
|
|
Trustor:
|
RFS
Partnership, L.P.
|
|
Trustee:
|
Lawyers
Title Company, a California corporation
|
|
Beneficiary:
|
Deutsche
Bank Trust Company Americas, as administrative
agent
|
| 12. |
Sellers
shall satisfy and release, or otherwise cause Title Company to remove
as
an exception, a document entitled "Subordination, Attornment, Security
Agreement and Assignments of Leases and Rents" recorded November
8,
2004 as
Instrument No. 2004-H846982-00 in Reel I760, Image 0048 of Official
Records, as additional security for the payment of the indebtedness
secured by the deed of trust recorded November 8, 2004 as
Instrument No. 2004-H846981-00 in Reel I760, Image 0047 of Official
Records.
|
SAN
FRANCISCO -- FISHERMAN’S WHARF
| 4. |
Sellers
shall satisfy and release, or otherwise cause Title Company to remove
as
an exception, the following:
|
A
Deed of
Trust to secure an original indebtedness of $19,300,000.00 recorded October
28, 1997 as Instrument No. 97-G251290-00 in Book G997, Page
383 of Official Records.
|
Dated:
|
October
23, 1997
|
|
Trustor:
|
Wharf
Associates, a General Partnership
|
|
Trustee:
|
Old
Republic Title Company
|
|
Beneficiary:
|
Citicorp
USA, Inc., a Corporation
|
According
to the public records, the beneficial interest under the deed of trust has
been
assigned to LaSalle National Bank/ABN AMRO Bank, N.V. (as Trustee for the
registered holders of Mortgage Capital Funding, Inc., Multifamily/Commercial
Mortgage Pass-Through Certificates, Series No. 1997-MC2) by various
assignments.
A
document entitled "Assignment of Leases and Rents" recorded October 28,
1997 as
Instrument No. 97-G251291-00 in Book G997, Page 384 of Official Records, as
additional security for the payment of the indebtedness secured by the deed
of
trust.
By
mesne
assignments of record (last
recorded Assignment: December 3, 1997, Instrument No. 97-G267668-00 in Book
H21,
Page 546), the interest under said assignment was assigned to:
Assignee:
LaSalle National Bank/ABN AMRO Bank, N.V. (as Trustee for the registered holders
of Mortgage Capital Funding, Inc., Multifamily/Commercial Mortgage Pass-Through
Certificates, Series No. 1997-MC21, its successors and assigns.
A
"Subordination and Non-Disturbance Notice" recorded October 28, 1997
as Instrument No. 97-G251318-00 in Book G997, Page 403 of Official
Records.
A
"Subordination and Non-Disturbance Notice" recorded October 28, 1997
as Instrument No. 97-G251311-00 in Book G997, Page 404 of Official
Records.
| 5. |
Sellers
shall satisfy and release, or otherwise cause Title Company to remove
as
an exception, a financing statement recorded October 28, 1997 as
Instrument No. 97-G251292-00 in Book G997, Page 385 of Official
Records.
|
|
Debtor:
|
Wharf
Associates
|
|
Secured
party:
|
Citicorp
USA, Inc.
|
The
secured party's interest under the foregoing Financing Statement has since
passed to LaSalle National Bank, as Trustee by mesne assignments of record,
the
last of which was recorded December 1, 1997 as Instrument No. 97-G266179-00
in
Book H019, Page 208 of Official Records.
A
Continuation Statement was recorded November 6, 2002 as Instrument No.
2002-H285527-00 i Book I259, Page 574 of Official Records.
| 6. |
Sellers
shall provide copy of an unrecorded lease dated (not set forth),
executed
by Wharf Associates, a California General Partnership as lessor and
Grosvenor Bus Lines, Inc. as lessee, as disclosed by a Subordination
and
Non-Disturbance Notice recorded October 28, 1997 as Instrument No.
97-G251310-00 in Book G997, Page 403 of Official Records.
|
| 7. |
Sellers
shall provide copy of an unrecorded lease dated (not set forth),
executed
by Wharf Associates, a California General Partnership as lessor and
California Parking Company as lessee, as disclosed by a Subordination
and
Non-Disturbance Notice recorded October 28, 1997 as Instrument No.
97-G251311-00 in Book G997, Page 404 of Official Records.
|
| 9. |
Sellers
shall discharge, or otherwise cause Title Company to remove as an
exception, a financing statement recorded December 20, 2002 as
Instrument No. 2002-H318612-00 in Book I288, Page 1388 of Official
Records.
|
|
Debtor:
|
Wharf
Associates
|
|
Secured
party:
|
LaSalle
Bank, NA, as Trustee
|
MILPITAS,
CA
| 9. |
Sellers
shall provide a certificate of compliance from the appropriate third
party
under that certain Declaration of Covenants, Conditions, Restrictions
and
Easements recorded June 5, 1979 as Book E545, Page
189 of
Official Records, and document(s) declaring modifications thereof
recorded
June 15, 1979 as Book E571, Page 359 of Official Records, which such
third-party is required to provide pursuant to the terms thereof.
Such
certificate will be in the form and content required under such
instrument. Sellers shall use good faith efforts to obtain an estoppel
certificate from such party with respect to other matters reasonably
requested by Buyer.
|
| 13. |
Sellers
shall satisfy and release, or otherwise cause Title Company to remove
as
an exception, the following:
|
A
Deed of
Trust to secure an original indebtedness of $353,475,000.00
recorded November 03, 2004 as Document No. 18078361 of
Official Records.
|
Dated:
|
October
13, 2004
|
|
Trustor:
|
RFS
Financing Partnership, L.P., a Tennessee limited
partnership
|
|
Trustee:
|
Lawyers
Title Company, a California corporation
|
|
Beneficiary:
|
Deutsche
Bank Trust Company Americas, as Administrative
Agent
|
A
"Subordination, Attornment, Security Agreement, and Assignment of Leases and
Rents" recorded November 03, 2004 as Document No. 18078362 of
Official
Records.
COLUMBIA,
SC
|
7.
|
Sellers
shall satisfy and release, or otherwise cause Title Company to remove
as
an exception, a Mortgage from RFS Partnership, L.P. to Deutsche Bank
Trust
Company Americas dated 10/13/2004, recorded 11/15/2004, in the Office
of
the Register of Deeds for Richland County in Record Book 996, Page
3903 in
the amount of $353,475.000.00.
|
UCC
FILINGS GENERALLY
|
Debtor
|
Secured
Party
|
Jurisdiction
|
File
Date/No.
|
Description
of Collateral
|
Comments
|
|
TENNESSEE
DEPT. OF STATE
|
|||||
|
RFS
Partnership, L.P.
|
Deutsche
Bank Trust Company Americas as Administrative Agent
|
Tennessee
SOS
|
11/05/04
#104060757
|
Fixture
filing: Real property located in:
Alabama
Milpitas,
CA
Xxxxxx
St., San Francisco, CA
Denver,
CO
Coral
Gables, FL
Orlando,
FL
W.
Palm Beach, FL
Lafayette,
LA
Billerica,
MA
Bloomington,
MN
Columbia,
SC
|
Seller
shall file termination or amendment to remove property in Milpitas
and San
Francisco, CA and in Columbia, SC.
|
|
RFS
Financing Partnership, L.P.
|
Mortgage
Electronic Registration Systems, Inc.
|
Tennessee
SOS
|
8/27/2002
#103034412
|
Fixture
filing: Real property located in:
Orlando,
FL
Sacramento,
CA
San
Diego, CA
Lakewood,
CO
Marietta,
GA
Crystal
Lake, IL
Ann
Arbor, MI
Hattiesburg,
MS
Charlotte,
NC
Omaha,
NE
Oklahoma
City, OK
Warwick,
RI
Austin,
TX
Ft.
Worth, TX
|
Seller
shall file termination or amendment to remove property in San Diego,
CA.
|
|
RFS
Leasing VII, Inc.
|
Deutsche
Bank Trust Company Americas, as Administrative Agent
|
Tennessee
|
11/05/04
#104060758
|
Fixture
Filing: May affect the Land, subject to review of legal description,
if
any.
|
If
property description includes any of the Land, Seller shall file
termination or amendment to remove any such Land.
|
|
Rose
SPE 1, LP
|
Mortgage
Electronic Registration Systems, Inc.
|
Tennessee
|
04/12/04,
#304024983
|
Debtor’s
name changed to Rose SPE 1, LP by Amendment
|
See
#103034412 @ RSF Financing Partnership LP, above.
|
|
DELAWARE
SECRETARY OF STATE
|
|||||
|
Rose
SPE I, LP
|
Mortgage
Electronic Registration Systems, Inc.
|
Delaware
|
04/07/04
#4113309
1
|
To
continue TN SOS filings #10334412 (see RFS Financing Partnership,
LP,
above), and #203037551.
|
Seller
shall file termination or amendment to remove property in San Diego,
CA.
|
|
Rose
SPE I, LP
|
Mortgage
Electronic Registration Systems, Inc.
|
Delaware
|
04/07/04
#4113312
5
|
Fixture
filing. Real property located in:
Chandler,
AZ
Sedona,
AZ
Sacramento,
CA
San
Diego, CA
Lakewood,
CO
New
Castle, DE
Ft.
Lauderdale, FL
Miami,
FL
Miami
Lakes, FL
Orlando,
FL
Crystal
Lake, IL
Louisville,
KY
Ann
Arbor, MI
Flint,
MI
Minnetonka,
MN
Hattiesburg,
MS
Lincoln,
NE
Fishkill,
NY
Oklahoma
City, OK
Tulsa,
OK
Warwick,
RI
Ft.
Worth, TX
Laredo,
TX
Tyler,
TX
|
Seller
shall file termination or amendment to remove property in San Diego,
CA.
|
6
|
Debtor
|
Secured
Party
|
Jurisdiction
|
File
Date/No.
|
Description
of Collateral
|
Comments
|
|
CNL
Rose SPE Tenant Corp.
|
Mortgage
Electronic Registration Systems, Inc.
|
Delaware
|
04/07/04
#4113318
2
|
Fixture
file. Real property located in:
Chandler,
AZ
Sedona,
AZ
Sacramento,
CA
San
Diego, CA
Lakewood,
CO
New
Castle, DE
Ft.
Lauderdale, FL
Orlando,
FL
Crystal
Lake, IL
Louisville,
KY
Ann
Arbor, MI
Flint,
MI
Minnetonka,
MN
Hattiesburg,
MS
Lincoln,
NE
Fishkill,
NY
Oklahoma
City, OK
Tulsa,
OK
Warwick,
RI
Ft.
Worth, TX
Laredo,
TX
Tyler,
TX
|
Seller
shall file termination or amendment to remove property in San Diego,
CA.
|
|
Rose
SPE I, LP
|
Mortgage
Electronic Registration Systems, Inc.
|
Delaware
|
6/22/05
#51923235
|
To
continue effectiveness of TN original filing #203-037550 (see also
DE
filing #4113309-1 referenced herein), and TN original filing #103-034412
(see also TN filing #304024983, also referenced herein)
|
Seller
shall file termination or amendment to remove property in San Diego,
CA.
|
|
Debtor
|
Secured
Party
|
Jurisdiction
|
File
Date/No.
|
Description
of Collateral
|
Comments
|
|
Rose
SPE I, LP
|
Mortgage
Electronic Registration Systems, Inc.
|
Delaware
|
6/22/05
#51923243
|
Fixture
file. Real property located in:
Chandler,
AZ
Sedona,
AZ
Sacramento,
CA
San
Diego, CA
Lakewood,
CO
New
Castle, DE
Ft.
Lauderdale, FL
Orlando,
FL
Crystal
Lake, IL
Louisville,
KY
Ann
Arbor, MI
Flint,
MI
Minnetonka,
MN
Hattiesburg,
MS
Lincoln,
NE
Fishkill,
NY
Oklahoma
City, OK
Tulsa,
OK
Warwick,
RI
Ft.
Worth, TX
Laredo,
TX
Tyler,
TX
|
Seller
shall file termination or amendment to remove property in San Diego,
CA.
|
|
CALIFORNIA
SECRETARY OF STATE
|
|||||
|
RSF
Leasing VII, Inc.
|
Safemark
Systems, L.P.
|
California
|
06/24/02
#0217660449
|
235
Safes with Pedestals (Leased)
|
Termination
or assignment should be filed.
|
EXHIBIT
“N”
Schedule
of Operating Agreements to be Terminated by Sellers
NONE
2
EXHIBIT
“O”
ENVIRONMENTAL
REPORTS
|
Report
|
Date
|
Firm
|
|
|
Xxxxxxx
Heritage
|
|||
|
ESA
Phase I
|
8/1/2003
|
Professional
Service Industries, Inc
|
|
|
Doubletree
Del Mar
|
|||
|
ESA
Phase I
|
6/20/2003
|
Professional
Service Industries, Inc
|
|
|
Hilton
Fisherman's Wharf
|
|||
|
ESA
Phase I
|
6/20/2003
|
Professional
Service Industries, Inc
|
|
|
Holiday
Inn Columbia
|
|||
|
ESA
Phase I
|
8/1/2003
|
Professional
Service Industries, Inc
|
|
|
Hotel
Xxx
|
|||
|
ESA
Phase I
|
8/1/2003
|
Professional
Service Industries, Inc
|
