SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the Securities Exchange Act
of 1934
Date of Report:
February 11, 1997
Exact name of registrant as specified in its charter:
ALLSTAR INNS INC.
State of Incorporation:
Delaware
Commission File No:
0-22930
IRS Employer Identification No:
77-0323962
Address of principal executive offices:
200 E. Carrillo Street, #300
Santa Barbara, California 93101
Registrant's telephone number:
(805) 730-3383
INFORMATION TO BE INCLUDED IN REPORT
ITEM 2. DISPOSITION OF ASSETS
The Registrant issued the following press release on January 31,
1997:
FOR IMMEDIATE RELEASE:
Contact: Edward J. Gallagher, Vice Chairman /(805) 730-3383
SANTA BARBARA, CALIFORNIA. January 31, 1997. Allstar Inns
Inc. ("Allstar") (OTC Bulletin Board - "ALST") announced today
that Motel 6 Operating L.P., Motel 6 G.P. Inc. and IBL Limited,
Inc. ("Motel 6") has exercised an option to purchase the 71
motels comprising 7,606 rooms from Allstar.
At a closing held in Santa Barbara, California on January
30, 1997 Motel 6 purchased the motels from Allstar at a fixed
price of $40.0 million plus assumption of the debt secured by the
motels of approximately $206 million. The sale of the motel
assets constitutes a sale of substantially all of the assets of
Allstar. Allstar is also in the process of disposing of five
additional parcels of vacant land constituting the balance of
Allstar's real estate holdings.
Allstar is and will be subject to substantial Federal and
State taxes on the gain realized by the sale of their motel
assets and any gain realized on the disposition of the additional
parcels of vacant land.
###
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements: None
(b) Exhibits: Forms of Documents
1. Master Lease Agreement, dated as of January 1, 1995 among
Allstar Inns Inc., Motel 6 Operating L.P., Motel 6 G.P. Inc.
and IBL Limited, Inc., as filed with the S.E.C. on March 30,
1995, incorporated by reference to Exhibit 10.24 to the
Company's 1994 Annual Report on Form 10-K (File No. 0-
22930).
2. Release and Indemnity Agreement, dated January 30, 1997 by
Motel 6 Operating L.P., IBL Limited, Inc., Motel 6 G.P.,
Inc., C 7, Inc. and Glasjar Funding Limited Partnership, in
favor of Allstar Inns Inc. (attached).
3. Indemnity Agreement (Sales Taxes), dated January 30, 1997 by
Motel 6 Operating L.P., IBL Limited, Inc. and Motel 6 G.P.,
Inc. in favor of Allstar Inns Inc. (attached).
4. Mutual Release, dated January 30, 1997 among Motel 6
Operating L.P., IBL Limited, Inc., Motel 6 G.P., Inc., Motel
6 Financial Services, L.P. and Allstar Inns Inc. (attached).
5. General Assignment and Bill of Sale, dated January 30, 1997
by Allstar Inns Inc. in favor of Motel 6 Operating L.P.
(attached).
6. General Assignment and Bill of Sale, dated January 30, 1997
by Allstar Inns Inc. in favor or Glasjar Funding Limited
Partnership (attached).
7. General Assignment and Bill of Sale, dated January 30, 1997
by Allstar Inns Inc. in favor of C 7, Inc. (attached).
8. Assumption Agreement, dated January 30, 1997 by Motel 6
Operating L.P., Motel 6 G.P., Inc. and IBL Limited, Inc. in
favor of Allstar Inns Inc. (attached).
9. Assignment of Assigned Agreements and Permits, dated January
30, 1997 by Allstar Inns Inc. in favor of Motel 6 Operating
L.P. (attached).
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
ALLSTAR INNS INC.
By: Edward J. Gallagher
Edward J. Gallagher
Vice Chairman - Principal
Accounting Officer
Dated: February 11, 1997
Release and Indemnity Agreement
This Release and Indemnity Agreement ("Agreement") is made
this ___ day of
January, 1997, by Motel 6 Operating L.P., a Delaware limited
partnership ("Motel 6"), IBL
Limited, Inc., a Delaware corporation ("IBL"), Motel 6 G.P.,
Inc., a Delaware corporation
("Motel 6 G.P."), C 7, Inc., a Texas corporation ("C7") and
Glasjar Funding Limited
Partnership, a Delaware limited partnership ("Glasjar"), in favor
of Allstar Inns Inc., a
Delaware corporation ("Allstar"), with reference to the following
facts:
R E C I T A L S
A.Motel 6, IBL and Motel 6 G.P., jointly, severally and
collectively (hereinafter
referred to as the "Motel 6 Companies"), are the Lessee under
that certain Master Lease
Agreement dated as of January 1, 1995 ("Master Lease"), under
which Allstar is Lessor. The
Master Lease is attached to this Agreement as Exhibit A. Since
January 1, 1995, the Motel 6
Companies have leased from Allstar seventy-one "Motels", as
defined in, and pursuant to, the
Master Lease. Prior to January 1, 1995, the Motel 6 Companies
operated the Motels pursuant to
a certain Management Contract defined in the Master Lease.
B.In Section 33 of the Master Lease, Allstar granted the
Motel 6 Companies an option
to purchase the "Motel Assets" (as defined in the Master Lease").
On January 27, 1997, the
Motel 6 Companies exercised the option. In connection with its
exercise of the option, the
Motel 6 Companies asked Allstar to convey to Glasjar and/or C7
title to such of the Motel Assets
as Motel 6 shall designate, rather than to the Motel 6 Companies,
as an accommodation to the
Motel 6 Companies' financial arrangements with Glasjar. The
Master Lease does not require such
an accommodation.
C.Allstar has agreed as an accommodation to the Motel 6
Companies to convey title
to certain Motel Assets (to be designated by Motel 6) to Glasjar
and/or C7, with the remainder
of the Motel Assets to be conveyed to Motel 6, provided that the
Motel 6 Companies, C7 and
Glasjar execute and deliver this Agreement.
D.The Motel 6 Companies, Glasjar, C7 and Allstar are
willing to execute and deliver
this Agreement.
Now, therefore, in consideration of the facts recited above,
to induce Allstar to agree
to convey to Glasjar and C7 title to such of the Motel Assets as
Motel 6 shall designate, and for
other good and valuable consideration, the receipt and adequacy
of which are hereby
acknowledged, the Motel 6 Companies, C7 and Glasjar covenant and
agree as follows:
1.Recitals. The recitals to this Agreement are an integral
part of this
Agreement.
2.Conveyances "As Is". Glasjar, C7 and the Motel 6
Companies acknowledge
that the Motel 6 Companies operated the Motels under the
Management Contract prior to the
commencement of the Master Lease, and since the commencement of
the Master Lease, the Motel
6 Companies have operated and leased the Motels under the Master
Lease. Accordingly, Glasjar,
C7 and the Motel 6 Companies have had ample opportunity to make a
complete inspection of the
Motel Assets and all files and information provided to or
obtained by the Motel 6 Companies with
respect to the Motel Assets. Glasjar, C7 and the Motel 6
Companies have also had ample
opportunity to review all documents and information which the
Motel 6 Companies, C7 and
Glasjar deem material to the purchase of the Motel Assets. The
Motel 6 Companies, C7 and
Glasjar further acknowledge, represent and warrant that Allstar
has had no business relationship
nor any prior dealings with Glasjar and C7 and that Glasjar and
C7 have dealt solely with the
Motel 6 Companies. Glasjar and C7 recognize, agree and
acknowledge that due to their
relationship with the Motel 6 Companies, Glasjar and C7 shall be
deemed to have knowledge of
all matters concerning the Motel Assets that any of the Motel 6
Companies have, including any
and all matters disclosed at any time by Allstar to any of the
Motel 6 Companies. The Motel 6
Companies, C7 and Glasjar agree and acknowledge that Allstar has
made no representations or
warranties, express or implied, regarding the Motel Assets or any
matters affecting the Motel
Assets, including, without limitation, the condition of title to
any of the Motel Assets (except only
as set forth in the Deeds pursuant to which the Motels are being
conveyed to Motel 6, C7 and/or
Glasjar), the physical condition of the Motels, or their
suitability or fitness for any particular
purpose; the existence of any patent or latent defects or
conditions therein, pest control matters,
soil conditions, Hazardous or Toxic Materials, hazardous waste,
toxic substance or other
environmental matters; compliance with building, health, safety,
land use and zoning laws,
regulations and orders, structural and other engineering
characteristics, and traffic patterns.
Because Motel 6 operates and leases the Motel Assets pursuant to
the Master Lease, Allstar is not
in a position to and shall not be responsible for and makes no
representations or warranties about
the accuracy or completeness of any documents or information
concerning the Motel Assets
obtained by the Motel 6 Companies, C7 or Glasjar from any source,
including, without limitation,
information contained in or disclosed by any surveys or
environmental studies, whether prepared
for Allstar, the Motel 6 Companies, C7 or Glasjar or by or for
any other person. The Motel 6
Companies, C7 and Glasjar have not relied and shall not rely on
Allstar in any manner whatsoever
with respect to any such documents or information or anything
else relating to the Motel Assets,
except only as set forth in the Deeds pursuant to which the
Motels are being conveyed to Motel
6, C7 and/or Glasjar. The Motel 6 Companies, C7 and Glasjar
shall have no rights against Allstar
as a consequence of any information or misinformation obtained,
completeness or incompleteness
of documents, inaccuracies in any information or documents,
failure of any person to make any
disclosure, or for any other reason pertaining to the Motel
Assets. Allstar shall have no obligation
to provide to, or make available to the Motel 6 Companies, C7 or
Glasjar any documents or
information, except as expressly required by the terms of the
Master Lease. The Motel 6
Companies, C7 and Glasjar acknowledge and agree that they are
purchasing the Motel Assets in
their "AS IS" condition, WITH ALL FAULTS and defects, patent or
latent, known and unknown.
Glasjar, C7 and the Motel 6 Companies expressly assume all risk
with respect to the Motel Assets,
including without limitation the risks that adverse conditions
may not have been revealed by the
Motel 6 Companies', C7's or Glasjar's investigations. This
Section 2 and the other terms of this
Agreement shall not waive or alter any rights Glasjar or C7 may
have against any of the Motel
6 Companies in any other agreement.
3.No Side Agreements or Representations. No person acting
on behalf of
Allstar is authorized to make, and by execution hereof, the Motel
6 Companies, C7 and Glasjar
acknowledge that no person has made any representation,
agreement, statement, warranty,
guarantee or promise regarding the Motel Assets or the
transaction contemplated herein or the
zoning, construction, physical condition or other status of the
Motel Assets.
4.Release. The Motel 6 Companies, C7 and Glasjar, each for
itself and its
Affiliates (as defined in the Master Lease), officers, directors,
agents, successors and assigns
(collectively, "Releasing Parties"), hereby release Allstar and
its Affiliates, Associates (all as
defined in the Master Lease), agents, officers, directors,
employees, successors and assigns
(collectively, "Released Persons") from and against any claim,
cause of action, damage, expense,
obligation, loss or liability held, suffered or incurred at any
time in the past, present or future by
any of the Releasing Parties in any way and at any time relating
to or arising from the Motel
Assets, including, without limitation, any claims relating to
patent or latent defects within any of
the Motel Assets, any claims of negligent misrepresentation or
active or passive negligence on the
part of any of the Released Persons, and any claims of
non-disclosure of any material fact
concerning the Motel Assets, any claims related to personal
injury or property damage, or any
condition on or in any of the Motel Assets, whether occurring or
arising before or after the
conveyance of title to Glasjar, C7 and/or the Motel 6 Companies,
whether or not known or
suspected by any of the Releasing Parties (collectively,
"Released Claims"); and in connection
with such release, specifically waive the provisions of Section
1542 of the California Civil Code
and any similar law of any other state, territory or jurisdiction
as they relate to this release, which
Section 1542 provides:
A general release does not extend to claims which the
creditor
does not know or suspect to exist in his favor at the
time of
executing the release, which if known by him must have
materially
affected his settlement with the debtor.
Initials of Motel 6 Companies Initials of
Glasjar
Initials of C7
This release by the Motel 6 Companies, C7 and Glasjar on behalf
of themselves and the other
Releasing Parties shall constitute a complete defense to any
claim, cause of action, defense,
contract, liability, indebtedness or obligation released pursuant
to this release. Nothing in this
release shall be construed as (or shall be admissible in any
legal action or proceeding as) an
admission by Allstar or any other Released Person that any
defense, indebtedness, obligation,
liability, claim or cause of action exists which is within the
scope of those hereby released. Each
of the Motel 6 Companies, C7 and Glasjar agrees, represents and
warrants that the foregoing
release has been negotiated and agreed upon in light of the
realization that factual matters now
unknown to it may have given or may hereafter give rise to
Released Claims, and that each
nevertheless hereby intends to release and discharge any such
unknown Released Claims. Each
of the Motel 6 Companies, C7 and Glasjar represents and warrants
that it has not assigned or
transferred in any manner all or any portion of the Released
Claims and that it has full authority
to release the Released Claims.
5.Covenant Not to Sue. Each of the Motel 6 Companies, C7
and Glasjar
covenants and agrees not to file, institute, support or join in
any claims, actions, demands,
proceedings, lawsuits, litigation or arbitrations against Allstar
or any of the other Released Persons
with respect to any of the Released Claims. Each of the Motel 6
Companies, C7 and Glasjar
agrees, represents and warrants that it realizes and acknowledges
that the foregoing covenant has
been negotiated and agreed upon in light of the realization that
factual matters now unknown to
it may have given or may hereafter give rise to claims, and that
it nevertheless hereby intends to
covenant and agree not to sue or take other action against the
Released Parties for any such
unknown Released Claims. It is hereby further understood and
agreed that the acceptance of this
Agreement and the foregoing covenant by the Releasing Parties or
any of them shall not be
deemed or construed as an admission of liability by any of the
Released Parties and, except as
herein expressly otherwise provided, each of the Released Parties
hereby expressly denies liability
of any nature whatsoever arising from or related to the subject
of the foregoing covenant. Each
of the Motel 6 Companies, C7 and Glasjar represents and warrants
that it has full authority to
enter into the foregoing covenant.
6.Indemnity. As a material part of the consideration to
Allstar for its
agreements to convey Motel Assets to Glasjar and/or C7 as an
accommodation to the Motel 6
Companies, and to the maximum extent permitted by law, the Motel
6 Companies ("Indemnitor")
(but not Glasjar or C7, which shall have no indemnity obligations
hereunder) hereby agree to
indemnify, protect, defend (subject to Section 7 of this
Agreement, with counsel reasonably
acceptable to Allstar) and hold harmless Allstar, its Affiliates,
Associates, officers, directors,
agents, employees, successors and assigns (collectively, the
"Indemnified Persons"), from and
against any and all loss, liability, damage, claim, cost and
expense (including attorneys' fees,
court costs and fees of expert witnesses) ("Claim") resulting or
arising in any way from (a) a
breach by Glasjar, C7 or any of the Motel 6 Companies of any
covenant or agreement hereunder,
including without limitation the covenants contained in Section 5
of this Agreement; (b) Glasjar's,
C7's and the Motel 6 Companies' use of the Motel Assets; (c) any
of the Released Claims; (d) any
event, occurrence, damage, or injury to person or property
occurring on, in or about any of the
Motels at any time, however and whenever occurring (including
without limitation any claims
arising under any statute, regulation or common law pertaining to
the presence, existence or
release of any hazardous or toxic substances, wastes, or
materials, or petroleum products or by-
products or radioactive substances or asbestos-containing
materials).
7.Indemnification Procedures.
(a) Promptly after receipt by an Indemnified
Person of notice of any
Claim, the Indemnified Person shall notify Indemnitor of the
commencement thereof; provided,
however, that the failure to give such notice promptly shall not
affect or limit Indemnitor's
obligations with respect to the matters described in the notice
of such Claim, except to the extent
that Indemnitor is prejudiced thereby. Indemnitor waives,
disclaims and renounces any and all
rights, privileges and defenses under Section 2778(6) of the
California Civil Code.
(b) The Indemnified Person shall have the right
(but not the obligation)
to conduct and control, through counsel of its choosing, the
defense, compromise or settlement
of any Claim against such Indemnified Person. In any such case
Indemnitor shall cooperate in
connection therewith and shall furnish such records, information
and testimony and attend such
conferences, discovery proceedings, hearings, trials and appeals
as may be reasonably requested
by the Indemnified Person in connection therewith; provided, that
Indemnitor may participate,
through counsel chosen by it and at its own expense, in the
defense of any such claim, action or
suit as to which the Indemnified Person has so elected to conduct
and control the defense thereof.
(c) Indemnitor shall be obligated to pay the
expenses of the Indemnified
Person arising from any Claim in advance of the final disposition
thereof and in advance of the
payment of expenses by such Indemnified Person. Such expenses
shall include, but not be limited
to, the fees and costs of the Indemnified Person's attorneys.
Indemnitor waives any defense
hereunder under Section 2778(2) of the California Civil Code.
(d) All payments on account of Indemnitor's'
indemnification obligations
under this Agreement shall be made within sixty (60) days after
the Indemnified Person's written
request therefor.
(e) In connection with any determination as to
whether an Indemnified
Person is entitled to be indemnified hereunder, the burden of
proof shall be on Indemnitor to
establish that the Indemnified Person is not so entitled.
(f)Indemnitor waives and disclaims any defense hereunder
which
defense arises under Section 2778(7) or Section 2855 of the
California Civil Code, and
Indemnitor's hereby agree that notwithstanding the provisions of
Section 2778(7) or Section 2855
of the California Civil Code, any judgment obtained on a Claim
against an Indemnified Person,
by arbitration or otherwise, shall be conclusive as against
Indemnitor.
8. Settlement. Indemnitor shall have no obligation to
indemnify an Indemnified
Person under this Agreement for any amounts paid in settlement of
any Claim effected without
Indemnitor's prior written consent. Indemnitor shall not under
any circumstances settle any Claim
in which Indemnitor or any other party agrees or takes the
position that any Indemnified Person
is not entitled to indemnification in connection with such
settlement, nor shall Indemnitor settle
any Claim in any manner which would impose any fine or any
obligation on the Indemnified
Person, or admit any liability of any Indemnified Person, without
the Indemnified Person's written
consent. Neither Indemnitor nor any Indemnified Person shall
unreasonably withhold its or his
consent to any proposed settlement.
9.Surety. Indemnitor understands and acknowledges that
pursuant to
Section 2779 of the California Civil Code, without the waiver set
forth below, Indemnitor may
be entitled to be reimbursed as sureties. Indemnitor hereby
jointly and severally irrevocably
waives, renounces and disclaims any and all rights to
reimbursement or contribution under or with
respect to any Claim or any payment hereunder, under Section 2779
of the California Civil Code
or otherwise, it being understood and agreed that any and all
payments by Indemnitor hereunder
shall be the sole obligation of Indemnitor, without the right of
indemnification, reimbursement,
contribution or other payment from any other party, including
without limitation, any Indemnified
Person.
Initials: __________
Without limitation of the foregoing, to the extent that
Indemnitor is found or construed to be a
surety, Indemnitor hereby irrevocably waives and disclaims any
right or privilege to
reimbursement under Section 2847 of the California Civil Code,
and any right against any
Indemnified Person under Section 2846 or 2848 of the California
Civil Code. Further, without
limitation of the foregoing, pursuant to Section 2856 of the
California Civil Code, Indemnitor
irrevocably waives and disclaims any and all rights of
subrogation and reimbursement and any
other right, defense or privilege it may have with respect to its
obligations hereunder by reason
of Sections 2787 to 2855, inclusive, of the California Civil
Code.
Initials: __________
10.Adequacy of Consideration. The Motel 6 Companies, C7
and Glasjar
acknowledge to Allstar that they has been advised by legal
counsel in connection with the
negotiation and execution of this Agreement, and that this
Agreement is fair and freely entered
into by each party after substantial negotiations.
11.Representations and Warranties. The following
constitute representations
and warranties of the parties, in each case as to themselves, to
Allstar:
(a)Each of the Motel 6 Companies, C7 and Glasjar has the
legal power,
right and authority to enter into this Agreement and the
instruments referenced herein, and to
consummate this transaction.
(b)All requisite action (corporate, trust, partnership or
otherwise) has
been taken by each party in connection with the entering into of
this Agreement, the instruments
referenced herein, and the consummation of this transaction. No
further consent of any partner,
shareholder, creditor, investor, judicial or administrative body,
governmental authority or other
party is required.
(c)The individuals executing this Agreement and the
instruments
referenced herein on behalf of each party and the partners,
officers or trustees of each party, if
any, have the legal power, right, and actual authority to bind
each party to the terms and
conditions of those documents.
(d)This Agreement and all other documents required to close
this
transaction are and will be valid, legally binding obligations of
and enforceable against each party
in accordance with their terms, subject only to applicable
bankruptcy, insolvency, reorganization,
moratorium laws or similar laws or equitable principles affecting
or limiting the rights of
contracting parties generally.
12. Miscellaneous.
(a)Assignment. The duties of the Motel 6
Companies hereunder are
personal and may not be delegated to any other person without the
prior written consent of Allstar,
which consent Allstar may withhold in its sole and absolute
discretion. The foregoing shall not
prohibit the Motel 6 Companies from engaging in a merger or
consolidation or sale of shares to
the public provided that the resulting entity has a net worth not
less than $350,000,000.
(b)No Modifications. No addition to or
modification of any term or
provision of this Agreement shall be effective unless set forth
in writing and signed by the Motel
6 Companies, Glasjar, C7 and Allstar.
(c)Construction of Agreement. The provisions of
this Agreement shall
not be construed in favor of or against any person on the basis
of which person drafted this
Agreement, but shall be construed as if the Motel 6 Companies,
Glasjar, C7 and Allstar
participated equally in preparing this Agreement.
(d)Headings. The paragraph headings herein are used
only for the
purpose of convenience only and shall not be deemed to limit the
subject of the paragraphs of this
Agreement or to be considered in their construction.
(e)Governing Law. This Agreement shall be
governed by and
construed in accordance with the laws of the State of California.
The Superior Court of Santa
Barbara County, California, shall be the exclusive venue for and
shall have exclusive jurisdiction
over any action to construe or enforce the provisions of this
Agreement. Glasjar, C7 and the
Motel 6 Companies for themselves and for their Affiliates and
Associates submit and consent
irrevocably to the jurisdiction of such court and to the
foregoing choice of venue.
(f)Successors and Assigns. Subject to the
provisions of Section 12(a)
of this Agreement, all of the provisions of this Agreement shall
inure to the benefit of and shall
be binding upon the successors and assigns of the parties.
(g)No Waiver. The waiver by Allstar of the
performance of any
covenant, condition or promise, or of the time for performing any
act, under this Agreement shall
not invalidate this Agreement nor shall it be considered a waiver
by Allstar of any other covenant,
condition or promise, or of the time for performing any other act
required, under this Agreement.
The exercise of any remedy provided in this Agreement shall not
be a waiver of any remedy
provided by law, and the provisions of this Agreement for any
remedy shall not exclude any other
remedies unless they are expressly excluded.
(h)Severability. If any portion of this Agreement
shall become illegal,
null or void or against public policy, for any reason, or shall
be held by any court of competent
jurisdiction to be illegal, null or void or against public
policy, the remaining portions of this
Agreement shall not be affected thereby and shall remain in force
and effect to the full extent
permissible by law.
(i)Gender and Number. In this Agreement the
masculine, feminine and
neuter genders and the singular and the plural include one
another, unless the context requires
otherwise.
(j)Incorporation of Exhibits. All exhibits to
this Agreement are
incorporated herein by this reference.
(k)Counterparts. This Agreement may be executed
in counterparts,
each of which shall constitute an original, but all of which
together shall constitute one (1) and
the same instrument. The signature page of any counterpart may
be detached therefrom without
impairing the legal effect of the signature(s) thereon provided
such signature page is attached to
any other counterpart identical thereto except having additional
signature pages executed by the
other party.
(l)Attorneys' Fees. If any action or proceeding is
instituted to enforce
or interpret any provision of this Agreement, the prevailing
party therein shall be entitled to
recover its attorneys' fees and costs from the losing party.
(m) Notices. Any notice to be given hereunder to any
party shall be in
writing and shall be given either by personal delivery (including
express or courier service), or
by registered or certified mail, with return receipt requested,
postage prepaid and addressed as
follows:
To Allstar:
Allstar Inns Inc.
200 East Carrillo St., Suite 300
Santa Barbara, California 93101
Attention: Edward J. Gallagher
with a copy to:
Cappello & McCann LLP
831 State Street
Santa Barbara, California 93101
Attention: A. Barry Cappello, Esq.
To any of the Motel 6 Companies, c/o:
Motel 6 Operating L.P.
14651 Dallas Parkway, Suite 500
Dallas, Texas 75240
Attention: Alan J. Rabinowitz, Esq.
To Glasjar:
Glasjar Funding Limited Partnership
c/o Glasjar Capital Inc.
c/o ML Leasing Equipment Corp.
North Tower
27th Floor
World Financial Center
250 Vessey Street
New York, NY 10281-1327
To C7:
_________________________
_________________________
_________________________
_________________________
Any party may, by written notice to the others, designate a
different address which shall be
substituted for the one specified above. Any such notice shall
be deemed to have been delivered
upon its receipt or upon the second (2nd) attempt at delivery, as
evidenced by the regular records
of the person or entity attempting delivery.
(n)Survival. The agreements, representations, covenants
and warranties
herein shall survive the conveyance of any of the Motel Assets to
any of the Motel 6 Companies,
C7 or Glasjar.
In witness whereof, the Motel 6 Companies, C7 and Glasjar
have executed this
Agreement in favor of Allstar as of the date first written above.
Motel 6 Operating L.P., a Delaware
limited partnership
By:Motel 6 G.P. Inc., Managing General
Partner
By: _________________________________
Name: Georges LeMener
Title: Chairman and CEO
Motel 6 G.P. Inc., a Delaware corporation
By:__________________________________________
Name: Georges LeMener
Title: Chairman and CEO
IBL Limited, Inc., a Delaware corporation
By:___________________________________
Name: ________________________________
Title: President and CEO
Glasjar Funding Limited Partnership,
a Delaware limited partnership
By Glasjar Capital, Inc.,
a Delaware corporation, general partner
By:___________________________________
Name: ________________________________
Title:
C 7, Inc.,
a Texas corporation
By:___________________________________
Name: ________________________________
Title:
Acknowledged and agreed:
Allstar Inns Inc.,
a Delaware corporation
By:___________________________
Edward J. Gallagher
Indemnity Agreement
(Sales Taxes)
This Indemnity Agreement (Sales Taxes) ("Agreement") is made
this ___ day of
January, 1997, by Motel 6 Operating L.P., a Delaware limited
partnership ("Motel 6"), IBL
Limited, Inc., a Delaware corporation ("IBL"), and Motel 6 G.P.,
Inc., a Delaware
corporation ("Motel 6 G.P."), in favor of Allstar Inns Inc., a
Delaware corporation ("Allstar"),
with reference to the following facts:
R E C I T A L S
A.Motel 6, IBL and Motel 6 G.P., jointly, severally and
collectively (hereinafter
referred to as the "Motel 6 Companies"), are the Lessee under
that certain Master Lease
Agreement dated as of January 1, 1995 ("Master Lease"), under
which Allstar is Lessor. The
Master Lease is attached to this Agreement as Exhibit A. Since
January 1, 1995, the Motel 6
Companies have leased from Allstar seventy-one "Motels", as
defined in, and pursuant to, the
Master Lease. Prior to January 1, 1995, the Motel 6 Companies
operated the Motels pursuant to
a certain Management Contract defined in the Master Lease.
B.In Section 33 of the Master Lease, Allstar granted the
Motel 6 Companies an option
to purchase the "Motel Assets" (as defined in the Master Lease").
On January 27, 1997, the
Motel 6 Companies exercised the option.
C.Section 33.12 of the Master Lease obligates the Motel 6
Companies to pay at the
Closing (as defined in the Master Lease), among other things, all
sales, use and similar personal
property taxes required to be paid as a result of the sale and
transfer of the Motel Assets. The
Motel 6 Companies and their accountants, Deloitte & Touche, have
advised Allstar that no such
taxes are due and payable upon Closing with respect to the Motel
Assets listed on Schedule 1
hereto, and that the Motel 6 Companies are paying such taxes upon
Closing with respect to the
Motel Assets listed on Schedule 2 hereto.
Now, therefore, in consideration of the facts recited above
and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Motel 6
Companies covenant and agree as follows:
1.Indemnity. To the maximum extent permitted by law, the
Motel 6
Companies (collectively, "Indemnitor") hereby agree to indemnify,
protect, defend (with counsel
reasonably acceptable to Allstar) and hold harmless Allstar, its
Affiliates, Associates, officers,
directors, agents, employees, successors and assigns (for
purposes of this Agreement, collectively
the "Indemnified Persons") from and against any and all loss,
liability, damage, claim, cost,
penalties, and expense (including attorneys' fees, court costs
and fees of expert witnesses)
("Claim") resulting or arising in any way from (a) any breach by
the Motel 6 Companies of their
obligations under Section 33.12 of the Master Lease or (b) any
claim, by any governmental
authority, of underpayment or nonpayment of sales, use or other
personal property taxes in
connection with the sale of the Motel Assets pursuant to Section
33 of the Master Lease.
2.Indemnification Procedures.
(a) Promptly after receipt by an Indemnified
Person of notice of any
Claim, the Indemnified Person shall notify Indemnitor of the
commencement thereof; provided,
however, that the failure to give such notice promptly shall not
affect or limit Indemnitor's
obligations with respect to the matters described in the notice
of such Claim, except to the extent
that Indemnitor is prejudiced thereby. Indemnitor waives,
disclaims and renounces any and all
rights, privileges and defenses under Section 2778(6) of the
California Civil Code.
(b) The Indemnified Person shall have the right
(but not the obligation)
to conduct and control, through counsel of its choosing, the
defense, compromise or settlement
of any Claim against such Indemnified Person. In any such case
Indemnitor shall cooperate in
connection therewith and shall furnish such records, information
and testimony and attend such
conferences, discovery proceedings, hearings, trials and appeals
as may be reasonably requested
by the Indemnified Person in connection therewith; provided, that
Indemnitor may participate,
through counsel chosen by it and at its own expense, in the
defense of any such claim, action or
suit as to which the Indemnified Person has so elected to conduct
and control the defense thereof.
(c) Indemnitor shall be obligated to pay the
expenses of the Indemnified
Person arising from any Claim in advance of the final disposition
thereof and in advance of the
payment of expenses by such Indemnified Person. Such expenses
shall include, but not be limited
to, the fees and costs of the Indemnified Person's attorneys.
Indemnitor waives any defense
hereunder under Section 2778(2) of the California Civil Code.
(d) All payments on account of Indemnitor's'
indemnification obligations
under this Agreement shall be made within sixty (60) days after
the Indemnified Person's written
request therefor.
(e) In connection with any determination as to
whether an Indemnified
Person is entitled to be indemnified hereunder, the burden of
proof shall be on Indemnitor to
establish that the Indemnified Person is not so entitled.
(f)Indemnitor waives and disclaims any defense hereunder
which
defense arises under Section 2778(7) or Section 2855 of the
California Civil Code, and
Indemnitor's hereby agree that notwithstanding the provisions of
Section 2778(7) or Section 2855
of the California Civil Code, any judgment obtained on a Claim
against an Indemnified Person,
by arbitration or otherwise, shall be conclusive as against
Indemnitor.
3. Settlement. Indemnitor shall have no obligation to
indemnify an Indemnified
Person under this Agreement for any amounts paid in settlement of
any Claim effected without
Indemnitor's prior written consent. Indemnitor shall not under
any circumstances settle any Claim
in which Indemnitor or any other party agrees or takes the
position that any Indemnified Person
is not entitled to indemnification in connection with such
settlement, nor shall Indemnitor settle
any Claim in any manner which would impose any fine or any
obligation on the Indemnified
Person, or admit any liability of any Indemnified Person, without
the Indemnified Person's written
consent. Neither Indemnitor nor any Indemnified Person shall
unreasonably withhold its or his
consent to any proposed settlement.
4.Surety. Indemnitor understands and acknowledges that
pursuant to
Section 2779 of the California Civil Code, without the waiver set
forth below, Indemnitor may
be entitled to be reimbursed as sureties. Indemnitor hereby
jointly and severally irrevocably
waives, renounces and disclaims any and all rights to
reimbursement or contribution under or with
respect to any Claim or any payment hereunder, under Section 2779
of the California Civil Code
or otherwise, it being understood and agreed that any and all
payments by Indemnitor hereunder
shall be the sole obligation of Indemnitor, without the right of
indemnification, reimbursement,
contribution or other payment from any other party, including
without limitation, any Indemnified
Person.
Initials: __________
Without limitation of the foregoing, to the extent that
Indemnitor is found or construed to be a
surety, Indemnitor hereby irrevocably waives and disclaims any
right or privilege to
reimbursement under Section 2847 of the California Civil Code,
and any right against any
Indemnified Person under Section 2846 or 2848 of the California
Civil Code. Further, without
limitation of the foregoing, pursuant to Section 2856 of the
California Civil Code, Indemnitor
irrevocably waives and disclaims any and all rights of
subrogation and reimbursement and any
other right, defense or privilege it may have with respect to its
obligations hereunder by reason
of Sections 2787 to 2855, inclusive, of the California Civil
Code.
Initials: __________
5.Adequacy of Consideration. The Motel 6 Companies
acknowledge to
Allstar that they has been advised by legal counsel in connection
with the negotiation and
execution of this Agreement, and that this Agreement is fair and
freely entered into by each party
after substantial negotiations.
6.Representations and Warranties. The following constitute
representations
and warranties of the Motel 6 Companies to Allstar:
(a)Each of the Motel 6 Companies has the legal power, right
and
authority to enter into this Agreement and the instruments
referenced herein, and to consummate
this transaction.
(b)All requisite action (corporate, trust, partnership or
otherwise) has
been taken by each party in connection with the entering into of
this Agreement, the instruments
referenced herein, and the consummation of this transaction. No
further consent of any partner,
shareholder, creditor, investor, judicial or administrative body,
governmental authority or other
party is required.
(c)The individuals executing this Agreement and the
instruments
referenced herein on behalf of each party and the partners,
officers or trustees of each party, if
any, have the legal power, right, and actual authority to bind
each party to the terms and
conditions of those documents.
(d)This Agreement and all other documents required to close
this
transaction are and will be valid, legally binding obligations of
and enforceable against each party
in accordance with their terms, subject only to applicable
bankruptcy, insolvency, reorganization,
moratorium laws or similar laws or equitable principles affecting
or limiting the rights of
contracting parties generally.
7. Miscellaneous.
(a)Assignment. The duties of the Motel 6
Companies hereunder are
personal and may not be delegated to any other person without the
prior written consent of Allstar,
which consent Allstar may withhold in its sole and absolute
discretion. The foregoing shall not
prohibit the Motel 6 Companies from engaging in a merger or
consolidation or sale of shares to
the public provided that the resulting entity has a net worth not
less than $350,000,000.
(b)No Modifications. No addition to or
modification of any term or
provision of this Agreement shall be effective unless set forth
in writing and signed by the Motel 6
Companies and Allstar.
(c)Construction of Agreement. The provisions of
this Agreement shall
not be construed in favor of or against any person on the basis
of which person drafted this
Agreement, but shall be construed as if the Motel 6 Companies and
Allstar participated equally
in preparing this Agreement.
(d)Headings. The paragraph headings herein are used
only for the
purpose of convenience only and shall not be deemed to limit the
subject of the paragraphs of this
Agreement or to be considered in their construction.
(e)Governing Law. This Agreement shall be
governed by and
construed in accordance with the laws of the State of California.
The Superior Court of Santa
Barbara County, California, shall be the exclusive venue for and
shall have exclusive jurisdiction
over any action to construe or enforce the provisions of this
Agreement. The Motel 6 Companies
for themselves and for their Affiliates and Associates submit and
consent irrevocably to the
jurisdiction of such court and to the foregoing choice of venue.
(f)Successors and Assigns. Subject to the
provisions of Section 7(a)
of this Agreement, all of the provisions of this Agreement shall
inure to the benefit of and shall
be binding upon the successors and assigns of the Parties.
(g)No Waiver. The waiver by Allstar of the
performance of any
covenant, condition or promise, or of the time for performing any
act, under this Agreement shall
not invalidate this Agreement nor shall it be considered a waiver
by Allstar of any other covenant,
condition or promise, or of the time for performing any other act
required, under this Agreement.
The exercise of any remedy provided in this Agreement shall not
be a waiver of any remedy
provided by law, and the provisions of this Agreement for any
remedy shall not exclude any other
remedies unless they are expressly excluded.
(h)Severability. If any portion of this Agreement
shall become illegal,
null or void or against public policy, for any reason, or shall
be held by any court of competent
jurisdiction to be illegal, null or void or against public
policy, the remaining portions of this
Agreement shall not be affected thereby and shall remain in force
and effect to the full extent
permissible by law.
(i)Gender and Number. In this Agreement the
masculine, feminine and
neuter genders and the singular and the plural include one
another, unless the context requires
otherwise.
(j)Incorporation of Exhibits. All exhibits to
this Agreement are
incorporated herein by this reference.
(k)Counterparts. This Agreement may be executed
in counterparts,
each of which shall constitute an original, but all of which
together shall constitute one (1) and
the same instrument. The signature page of any counterpart may
be detached therefrom without
impairing the legal effect of the signature(s) thereon provided
such signature page is attached to
any other counterpart identical thereto except having additional
signature pages executed by the
other party.
(l)Attorneys' Fees. If any action or proceeding is
instituted to enforce
or interpret any provision of this Agreement, the prevailing
party therein shall be entitled to
recover its attorneys' fees and costs from the losing party.
(m) Notices. Any notice to be given hereunder to any
party shall be in
writing and shall be given either by personal delivery (including
express or courier service), or
by registered or certified mail, with return receipt requested,
postage prepaid and addressed as
follows:
To Allstar:
Allstar Inns Inc.
200 East Carrillo St., Suite 300
Santa Barbara, California 93101
Attention: Edward J. Gallagher
with a copy to:
Cappello & McCann LLP
831 State Street
Santa Barbara, California 93101
Attention: A. Barry Cappello, Esq.
To any of the Motel 6 Companies, c/o:
Motel 6 Operating L.P.
14651 Dallas Parkway, Suite 500
Dallas, Texas 75240
Attention: Alan J. Rabinowitz, Esq.
Any party may, by written notice to the others, designate a
different address which shall be
substituted for the one specified above. Any such notice shall
be deemed to have been delivered
upon its receipt or upon the second (2nd) attempt at delivery, as
evidenced by the regular records
of the person or entity attempting delivery.
(n)Survival. The agreements, representations, covenants
and warranties
herein shall survive the conveyance of any of the Motel Assets to
any of the Motel 6 Companies
or any third party.
In witness whereof, the Motel 6 Companies have executed this
Agreement in
favor of Allstar as of the date first written above.
Motel 6 Operating L.P., a Delaware
limited partnership
By:Motel 6 G.P. Inc.,
Managing General Partner
By: ______________________________
Name:Georges LeMener
Title:Chairman and CEO
Motel 6 G.P. Inc.,
a Delaware corporation
By:____________________________________
Name:Georges LeMener
Title:Chairman and CEO
IBL Limited, Inc.,
a Delaware corporation
By:____________________________________
Name:____________________________________
Title:President and CEO
Acknowledged and agreed:
Allstar Inns Inc.,
a Delaware corporation
By:__________________________________
Name:__________________________________
Title:__________________________________
Mutual Release
This Mutual Release ("Release") is made this ___ day of
January, 1997, by Motel 6
Operating L.P., a Delaware limited partnership ("Motel 6"), IBL
Limited, Inc., a Delaware
corporation ("IBL"), Motel 6 G.P., Inc., a Delaware corporation
("Motel 6 G.P."), Motel 6
Financial Services, L.P., a Delaware limited partnership ("Motel
6 Financial"), and Allstar
Inns Inc., a Delaware corporation ("Allstar"), with reference to
the following facts:
R E C I T A L S
A.Motel 6, IBL and Motel 6 G.P., jointly, severally and
collectively (hereinafter referred
to, together with Motel 6 Financial, collectively as the "Motel 6
Companies"), are the Lessee
under that certain Master Lease Agreement dated as of January 1,
1995 ("Master Lease"), under
which Allstar is Lessor. Since January 1, 1995, the Motel 6
Companies have leased from Allstar
seventy-one "Motels", as defined in, and pursuant to, the Master
Lease. Prior to January 1, 1995,
the Motel 6 Companies operated the Motels pursuant to a certain
Management Contract defined
in the Master Lease. This Release concerns only a breach or
default under the Master Lease and
the Motel 6 Indebtedness (as defined in the Master Lease) during
the time period between January
1, 1995 and the Closing Effective Time (as defined in the Master
Lease).
B.In Section 33 of the Master Lease, Allstar granted the
Motel 6 Companies an option
to purchase the "Motel Assets" (as defined in the Master Lease").
On January 27, 1997, the
Motel 6 Companies exercised the option.
C.The Motel 6 Companies and Allstar have agreed to execute
and deliver this
Release. Concurrently herewith, the parties are entering into a
separate agreement entitled
"Release and Indemnity Agreement," along with other persons. The
parties to this Release intend
that the Release and Indemnity Agreement shall govern and control
if there is any ambiguity or
conflicting provision in this Release.
Now, therefore, in consideration of the facts recited above,
for good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the Motel 6
Companies and Allstar agree as follows:
1. The Motel 6 Companies, each for itself and its
Affiliates (as defined in the
Master Lease), officers, directors, agents, successors and
assigns (collectively, "Motel 6 Releasing
Parties"), hereby release Allstar and its Affiliates, Associates
(all as defined in the Master Lease),
agents, officers, directors, employees, successors and assigns
(collectively, "Allstar Released
Persons") from and against any claim, cause of action, damage,
expense, obligation, loss or
liability relating to or arising from any breach or default by
Allstar or any of the Allstar Released
Persons under the Master Lease or any of the Motel 6 Indebtedness
(as defined in the Master
Lease) and occurring prior to the Closing Effective Time,
whether or not known or suspected by
any of the Motel 6 Releasing Parties (collectively, "Allstar
Released Claims"); and in connection
with such release, specifically waive the provisions of Section
1542 of the California Civil Code
and any similar law of any other state, territory or jurisdiction
as they relate to this release, which
Section 1542 provides:
A general release does not extend to claims which the
creditor
does not know or suspect to exist in his favor at the
time of
executing the release, which if known by him must have
materially
affected his settlement with the debtor.
Initials of Motel 6 Companies
This release by the Motel 6 Companies shall constitute a complete
defense to any claim, cause of
action, defense, contract, liability, indebtedness or obligation
released pursuant to this release.
Nothing in this release shall be construed as (or shall be
admissible in any legal action or
proceeding as) an admission by Allstar or any other Allstar
Released Person that any defense,
indebtedness, obligation, liability, claim or cause of action
exists which is within the scope of
those hereby released. Each of the Motel 6 Companies agrees,
represents and warrants that the
foregoing release has been negotiated and agreed upon in light of
the realization that factual
matters now unknown to it may have given rise to Allstar Released
Claims, and that each
nevertheless hereby intends to release and discharge any such
unknown Allstar Released Claims.
Each of the Motel 6 Companies represents and warrants that it has
not assigned or transferred in
any manner all or any portion of the Allstar Released Claims and
that it has full authority to
release the Allstar Released Claims.
2.(a). Except as expressly provided in subsection
2.(b). below, Allstar, for itself
and its Affiliates, officers, directors, agents, successors and
assigns (collectively, "Allstar
Releasing Parties"), hereby releases the Motel 6 Companies and
their Affiliates, Associates,
agents, officers, directors, employees, successors and assigns
(collectively, "Motel 6 Released
Persons") from and against any claim, cause of action, damage,
expense, obligation, loss or
liability relating to or arising from any breach or default by
any of the Motel 6 Companies or any
of the Motel 6 Released Persons under the Master Lease or any of
the Motel 6 Loan Agreement
(as defined in the Master Lease) and occurring prior to the
Closing Effective Time, whether or
not known or suspected by any of the Allstar Releasing Parties
("Motel 6 Released Claims"); and
in connection with such release, Allstar specifically waives the
provisions of Section 1542 of the
California Civil Code and any similar law of any other state,
territory or jurisdiction as they relate
to this release, which Section 1542 provides:
A general release does not extend to claims which the
creditor
does not know or suspect to exist in his favor at the
time of
executing the release, which if known by him must have
materially
affected his settlement with the debtor.
Initials of Allstar
This release by Allstar shall constitute a complete defense to
any claim, cause of action, defense,
contract, liability, indebtedness or obligation released pursuant
to this release. Nothing in this
release shall be construed as (or shall be admissible in any
legal action or proceeding as) an
admission by the Motel 6 Companies or any other Motel 6 Released
Person that any defense,
indebtedness, obligation, liability, claim or cause of action
exists which is within the scope of
those hereby released. Allstar agrees, represents and warrants
that the foregoing release has been
negotiated and agreed upon in light of the realization that
factual matters now unknown to it may
have given to Motel 6 Released Claims, and Allstar nevertheless
hereby intends to release and
discharge any such unknown Motel 6 Released Claims. Allstar
represents and warrants that it
has not assigned or transferred in any manner all or any portion
of the Motel 6 Released Claims
and that it has full authority to release the Motel 6 Released
Claims.
2.(b).The foregoing shall not be a release by Allstar of
any of the Motel 6
Released Persons from any claim, cause of action, damage,
expense, obligation, loss or liability
arising from or related to any claim by any third party
("Retained Claims") which are or would
be covered by any indemnification, defense or hold harmless
agreement between any of the Motel
6 Companies, on the one hand, and any of the Allstar Releasing
Parties, on the other hand,
whether in the Master Lease or otherwise, and of which the
Allstar Releasing Parties have no
actual knowledge at the Closing Effective Time, or any Retained
Claims which are asserted,
alleged or claimed after the Closing Effective Time with respect
to or arising from any breach,
default or alleged breach or default under the Master Lease or
the Motel 6 Loan Agreement by
any of the Motel 6 Companies or Motel 6 Released Persons prior to
the Effective Time. Allstar
also represents and warrants that it has no actual knowledge as
of the date hereof that any Retained
Claims are pending or have been threatened against Allstar or any
of the Allstar Released Persons.
3.Adequacy of Consideration. The Motel 6 Companies and
Allstar each
acknowledge that it has been advised by legal counsel in
connection with the negotiation and
execution of this Release, and that this Release is fair and
freely entered into by each party after
substantial negotiations.
4. Miscellaneous.
a.Governing Law. This Release shall be governed
by and construed
in accordance with the laws of the State of California. The
Superior Court of Santa Barbara
County, California, shall be the exclusive venue for and shall
have exclusive jurisdiction over any
action to construe or enforce the provisions of this Release.
The parties hereto, for themselves
and for their Affiliates and Associates, submit and consent
irrevocably to the jurisdiction of such
court and to the foregoing choice of venue.
b.Successors and Assigns. All of the provisions
of this Release shall
inure to the benefit of and shall be binding upon the successors
and assigns of the Parties.
c.Counterparts. This Release may be executed in
counterparts, each
of which shall constitute an original, but all of which together
shall constitute one (1) and the same
instrument. The signature page of any counterpart may be
detached therefrom without impairing
the legal effect of the signature(s) thereon provided such
signature page is attached to any other
counterpart identical thereto except having additional signature
pages executed by the other party.
d.Attorneys' Fees. If any action or proceeding is
instituted to enforce
or interpret any provision of this Release, the prevailing party
therein shall be entitled to recover
its attorneys' fees and costs from the losing party.
In witness whereof, the Motel 6 Companies and Allstar have
executed this
Release as of the date first written above.
Motel 6 Operating L.P., a Delaware
limited partnership
By:Motel 6 G.P. Inc., Managing General
Partner
By: _________________________________
Name: Alan J. Rabinowitz
Title:Vice President, General Counsel
and Secretary
Motel 6 G.P. Inc., a Delaware corporation
By:__________________________________________
Name: Alan J. Rabinowitz
Title:Vice President, General Counsel
and Secretary
(Signatures continue on the following page.)
IBL Limited, Inc., a Delaware corporation
By:___________________________________
Name: ________________________________
Title: President and CEO
Motel 6 Financial Services, L.P., a Delaware
limited partnership
By Motel 6 G.P., Inc., its general partner
By:___________________________________
Name: ________________________________
Title: _______________________________
Allstar Inns Inc.,
a Delaware corporation
By:___________________________
Edward J. Gallagher
Vice Chairman
General Assignment and Bill of Sale
This General Assignment and Bill of Sale ("Assignment")
dated as of January __,
1997, by Allstar Inns Inc., a Delaware corporation ("Allstar"),
in favor of Motel 6
Operating L.P., a Delaware limited partnership ("Motel 6"),
relates to that certain Master Lease
Agreement dated as of January 1, 1995 (the "Lease"), by and among
Motel 6, Motel 6 G.P.,
Inc., a Delaware corporation and IBL Limited, Inc., a Delaware
corporation, collectively as
Lessee, and Allstar. This Assignment is being executed and
delivered pursuant to Section 33.9(d)
of the Lease. Unless otherwise defined herein, capitalized terms
used herein shall have the
respective meanings assigned to them in the Lease. A copy of the
Lease is attached hereto as
Exhibit A.
For good and valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged:
1.Allstar hereby sells, transfers, assigns, conveys, and
delivers to Motel 6, without
representation or warranty of any kind, whatever right, title and
interest Assignor may have in and
to any fixtures, furnishings and equipment located on or in any
of the real property described on
Schedule 1 attached hereto, to the extent such right, title and
interest may exist and is assignable
by Assignor (collectively, the "Assigned Assets"). The Assigned
Assets do not include the
Excluded Assets.
2.From and after the date hereof, Allstar shall cause to be
furnished to Motel 6 such
instruments and other documents as may be reasonably requested by
Motel 6 for the purpose of
carrying out or evidencing the transactions contemplated by this
Assignment, and Allstar shall
cooperate with Motel 6 to the extent reasonably required to
accomplish the transactions
contemplated by this Assignment.
3.This Assignment shall be binding upon Allstar and its
successors and assigns, and
shall inure to the benefit of Motel 6 and its successors and
assigns.
4.This Assignment is being executed in connection with the
Lease, is subject to the
provisions of the Lease and does not give rise to any independent
rights except that it conveys the
Assigned Assets as contemplated by the Lease. This Assignment
shall not limit or otherwise affect
the provisions or interpretation of the Lease, reference to which
is hereby made.
5.This Assignment shall be construed in accordance with and
governed by the State
of California applicable to contracts to be performed in such
State.
In witness whereof, the parties hereto have duly executed
this Assignment on the date
first above written.
Allstar:
Allstar Inns, Inc.,
a Delaware corporation
By:____________________________________
Its:____________________________________
Motel 6:
Motel 6 Operating L.P.,
a Delaware corporation
By:Motel 6 G.P., Inc.,
a Delaware corporation,
General Partner
By:____________________________________
Its: ____________________________________
General Assignment and Bill of Sale
This General Assignment and Bill of Sale ("Assignment")
dated as of January __,
1997, by Allstar Inns Inc., a Delaware corporation ("Allstar"),
in favor of Glasjar Funding
Limited Partnership, a Delaware limited partnership ("Glasjar"),
relates to that certain Master
Lease Agreement dated as of January 1, 1995 (the "Lease"), by and
among Motel 6 Operating
L.P., a Delaware limited partnership, Motel 6 G.P., Inc., a
Delaware corporation and IBL
Limited, Inc., a Delaware corporation, collectively as Lessee,
and Allstar. This Assignment is
being executed and delivered pursuant to Section 33.9(d) of the
Lease. Unless otherwise defined
herein, capitalized terms used herein shall have the respective
meanings assigned to them in the
Lease. A copy of the Lease is attached hereto as Exhibit A.
For good and valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged:
1.Allstar hereby sells, transfers, assigns, conveys, and
delivers to Glasjar, without
representation or warranty of any kind, whatever right, title and
interest Allstar may have in and
to any fixtures, furnishings and equipment located on or in any
of the real property described on
Schedule 1 attached hereto, to the extent such right, title and
interest may exist and is assignable
by Allstar (collectively, the "Assigned Assets"). The Assigned
Assets do not include the Excluded
Assets. The foregoing is an assignment only and not an
assumption by Glasjar of any obligations.
2.From and after the date hereof, Allstar shall cause to be
furnished to Glasjar such
instruments and other documents as may be reasonably requested by
Glasjar for the purpose of
carrying out or evidencing the transactions contemplated by this
Assignment, and Allstar shall
cooperate with Glasjar to the extent reasonably required to
accomplish the transactions
contemplated by this Assignment.
3.This Assignment shall be binding upon Allstar and its
successors and assigns, and
shall inure to the benefit of Glasjar and its successors and
assigns.
4.This Assignment is being executed in connection with the
Lease, is subject to the
provisions of the Lease and does not give rise to any independent
rights except that it conveys the
Assigned Assets as contemplated by the Lease. This Assignment
shall not limit or otherwise affect
the provisions or interpretation of the Lease, reference to which
is hereby made.
5.This Assignment shall be construed in accordance with and
governed by the State
of California applicable to contracts to be performed in such
State.
In witness whereof, the parties hereto have duly executed
this Assignment on the date
first above written.
Allstar:
Allstar Inns Inc.,
a Delaware corporation
By________________________________
Its: ________________________________
Glasjar:
Glasjar Funding Limited Partnership,
a Delaware limited partnership
By:Glasjar Capital, Inc.,
a Delaware corporation, general
partner
By:______________________________
Name:______________________________
Title:______________________________
General Assignment and Bill of Sale
This General Assignment and Bill of Sale ("Assignment")
dated as of January __,
1997, by Allstar Inns Inc., a Delaware corporation ("Allstar"),
in favor of C 7, Inc., a Texas
corporation ("C 7"), relates to that certain Master Lease
Agreement dated as of January 1, 1995
(the "Lease"), by and among Motel 6 Operating L.P., a Delaware
limited partnership, Motel 6
G.P., Inc., a Delaware corporation and IBL Limited, Inc., a
Delaware corporation, collectively
as Lessee, and Allstar. This Assignment is being executed and
delivered pursuant to Section
33.9(d) of the Lease. Unless otherwise defined herein,
capitalized terms used herein shall have
the respective meanings assigned to them in the Lease. A copy of
the Lease is attached hereto as
Exhibit A.
For good and valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged:
1.Allstar hereby sells, transfers, assigns, conveys, and
delivers to C 7, without
representation or warranty of any kind, whatever right, title and
interest Allstar may have in and
to any fixtures, furnishings and equipment located on or in any
of the real property described on
Schedule 1 attached hereto, to the extent such right, title and
interest may exist and is assignable
by Allstar (collectively, the "Assigned Assets"). The Assigned
Assets do not include the Excluded
Assets. The foregoing is an assignment only and not an
assumption by C 7 of any obligations.
2.From and after the date hereof, Allstar shall cause to be
furnished to C 7 such
instruments and other documents as may be reasonably requested by
C 7 for the purpose of
carrying out or evidencing the transactions contemplated by this
Assignment, and Allstar shall
cooperate with C 7 to the extent reasonably required to
accomplish the transactions contemplated
by this Assignment.
3.This Assignment shall be binding upon Allstar and its
successors and assigns, and
shall inure to the benefit of C 7 and its successors and assigns.
4.This Assignment is being executed in connection with the
Lease, is subject to the
provisions of the Lease and does not give rise to any independent
rights except that it conveys the
Assigned Assets as contemplated by the Lease. This Assignment
shall not limit or otherwise affect
the provisions or interpretation of the Lease, reference to which
is hereby made.
5.This Assignment shall be construed in accordance with and
governed by the State
of California applicable to contracts to be performed in such
State.
In witness whereof, the parties hereto have duly executed
this Assignment on the date
first above written.
Allstar:
Allstar Inns Inc.,
a Delaware corporation
By________________________________
Its: ________________________________
C 7:
C 7, Inc.,
a Texas corporation
By________________________________
Its: ________________________________
Assumption Agreement
This Assumption Agreement ("Assumption Agreement") dated as
of
January __, 1997, by Motel 6 Operating L.P., a Delaware limited
partnership, Motel 6 G.P., Inc., a Delaware corporation, and IBL
Limited, Inc., a Delaware Corporation, jointly and severally
(collectively, "Motel 6"), in favor of Allstar Inns, Inc., a
Delaware corporation ("Allstar"), relates to that certain Master
Lease Agreement dated as of January 1, 1995 (the "Lease"), by and
between Motel 6 and Allstar. This Assumption Agreement is being
executed and delivered pursuant to Section 33.9(c) of the Lease.
Unless otherwise defined herein, capitalized terms used herein
shall have the respective meanings assigned to them in the Lease.
A copy of the Lease is attached hereto as Exhibit A.
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged:
1. Motel 6 hereby assumes and agrees to pay, discharge and
perform in full when due, the Assumed Liabilities.
2. Motel 6 acknowledges that Motel 6 Operating L.P. is
acquiring a portion of the Motel Assets and Glasjar Funding
Limited
Partnership, a Delaware limited partnership ("Glasjar"), and/or C
7, Inc., a Texas corporation ("C7"), are acquiring the balance of
the Motel Assets, subject in each instance to the Permitted Title
Conditions and Exceptions, which Permitted Title Conditions and
Exceptions may include, in the case of personal property,
security
interests arising under the Personal Property Contracts.
3. Motel 6 understands and acknowledges that because it is
assuming the Assumed Liabilities with respect to Motel Assets
that
are being conveyed to Glasjar and/or C7, such assumption may be
considered (although the parties agree it is in no way intended
to
be) in the nature of a suretyship contract. Therefore, to the
extent this Agreement is construed to be a suretyship contract or
guarantee, pursuant to Section 2779 of the California Civil Code,
Motel 6 hereby irrevocably waives, renounces and disclaims any
and
all rights to reimbursement or contribution under or with respect
to any claim or any payment made hereunder, under Section 2779 of
the California Civil Code or otherwise, it being understood and
agreed that any and all payments by Motel 6 hereunder shall be
the
sole obligation of Motel 6, without the right of indemnification,
reimbursement, contribution or other payment from any other
party,
including without limitation, Allstar.
Initials: __________
Without limitation of the foregoing, to the extent that Motel 6
is
found or construed to be a surety, Motel 6 hereby irrevocably
waives and disclaims any right or privilege to reimbursement
under
Section 2847 of the California Civil Code, and any right against
any Indemnified Person under Section 2846 or 2848 of the
California
Civil Code. Further, without limitation of the foregoing,
pursuant
to Section 2856 of the California Civil Code, Motel 6 irrevocably
waives and disclaims any and all rights of subrogation and
reimbursement and any other right, defense or privilege it may
have
with respect to its obligations hereunder by reason of
Sections 2787 to 2855, inclusive, of the California Civil Code.
4. Allstar acknowledges that the Assumed Liabilities shall
not include, and Allstar shall retain liability and
responsibility
for, the Excluded Liabilities.
5. From and after the date hereof, Motel 6 shall cause to
be
furnished to Allstar such instruments and other documents as may
be
reasonably requested by Allstar for the purpose of carrying out
or
evidencing the transactions contemplated by this Assumption
Agreement, and Motel 6 shall cooperate with Allstar to the extent
required to accomplish the transactions contemplated by this
Assumption Agreement.
6. This Assumption Agreement shall be binding upon Motel 6
and its successors and assigns, and shall inure to the benefit of
Allstar and its successors and assigns.
7. This Assumption Agreement is being executed in
connection
with the Option and is subject to the provisions of the Lease.
This Assumption Agreement shall not limit or otherwise affect the
provisions or interpretation of the Lease, reference to which is
hereby made.
8. This Assumption Agreement shall be construed in
accordance with and governed by the laws of the State of
California
applicable to contracts to be performed in such State.
9. The obligations of Motel 6 hereunder are and shall be
the
joint and several obligations of Motel 6 Operating L.P., a
Delaware
limited partnership; Motel 6 G.P., Inc., a Delaware corporation;
and IBL Limited, Inc., a Delaware corporation.
No defense of any of them (including bankruptcy of any of
them and any action taken in such bankruptcy) shall affect or
hinder the enforceability of this Assumption Agreement against
any
of the others. Further, no failure of consideration or other
defense between or among them shall give rise to a defense
against
Allstar.
In witness whereof, the parties hereto have duly
executed
this Assumption Agreement on the date first above written.
Allstar:
Allstar Inns Inc.,
a Delaware corporation
By:
Its:
Motel 6:
Motel 6 Operating L.P.,
a Delaware limited partnership
By: Motel 6 G.P., Inc., a
Delaware corporation,
General Partner
By:
Its:
Motel 6 G.P., Inc.
a Delaware corporation
By:
Its:
IBL Limited, Inc.,
a Delaware corporation
By:
Its:
Assignment of Assigned Agreements and Permits
This Assignment of Assigned Agreements and Permits
("Assignment")
dated as of January ___, 1997 by Allstar Inns Inc., a Delaware
corporation (herein referred
to as "Assignor"), in favor of Motel 6 Operating L.P., a Delaware
Limited partnership,
(herein referred to as "Assignee"), relates to that certain
Master Lease Agreement dated as of
January 1, 1995 (the "Lease") by and between Assignor and
Assignee. This Assignment is
being executed and delivered pursuant to Section 33.9(c) of the
Lease. Unless otherwise
defined herein, capitalized terms shall have the respective
meanings assigned to them in the
Lease.
For Valuable Consideration, receipt of which is hereby
acknowledged:
1.Assignor hereby assigns and transfers to Assignee,
without
representation or warranty of any kind, whatever right, title and
interest Assignor may have in
and to the Assigned Agreements and the Permits, to the extent
such right, title and interest
may exist and is assignable by Assignor.
2.Assignee hereby accepts the foregoing assignment and
assumes and
agrees to keep, perform and fulfill all of Assignor's obligations
under the Assigned
Agreements and the Permits which are required to be kept,
performed and fulfilled by
Assignor thereunder.
3.The covenants and warranties of Assignee contained herein
will survive
the closing of the purchase and sale of the Motel Assets
contemplated by Section 33 of the
Lease and such covenants and warranties will not be deemed merged
in any instruments of
conveyance delivered by Assignor pursuant to said Section 33.
Notwithstanding anything to
the contrary contained herein, concurrently herewith Assignee
has, together with its affiliates
Motel 6 G.P., Inc., a Delaware corporation and IBL Limited, Inc.,
executed that certain
Assumption Agreement in favor of Assignee and in the event of any
conflict between the terms
of the Sections 2 or 3 hereof and the terms of the Assumption
Agreement, the terms of said
Assumption Agreement shall control.
4.This Assignment will be binding on and inure to the
benefit of the
parties hereto, their heirs, executors, administrators,
successors in interest and assigns.
In Witness Whereof, the undersigned have executed the within
instrument as
of January ____, 1997.
Assignor:Allstar Inns Inc.
By:_______________________________________
Title:_______________________________
By:_______________________________________
Title:_______________________________
Assignee:Motel 6 Operating L.P.,
a Delaware limited partnership
By: Motel 6 G.P. Inc.,
Managing Partner
By:_______________________________________
Name:______________________________
Title:_______________________________