EXHIBIT 2
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT, made as of the 21st day of May, 1998 (the "Effective
Date"), by and among the various corporations identified on Exhibit "A"
attached hereto and made part hereof (collectively "Seller"), each having an
address at 2400 E. Devon Avenue, Suite 280, Des Plaines, Illinois 60018, and
PMC COMMERCIAL TRUST, a Texas real estate investment trust, having an address
at 17290 Preston Road, 3rd Floor, Dallas, Texas 75252 ("Purchaser");
WITNESSETH:
ARTICLE ONE
PURCHASE AND SALE OF THE PROPERTY
Seller hereby agrees to assign, transfer, convey and sell to Purchaser,
and Purchaser hereby agrees to purchase from Seller, upon the terms and
conditions set forth in this Agreement, all of Seller's respective right,
title and interest in and to those certain thirty (30) motel/hotels commonly
known respectively by the street addresses set forth on Exhibit "B" attached
hereto and made a part hereof and as more particularly described below
(hereinafter referred to, collectively, as the "Property"). As used herein,
the term "Property" shall also refer to each and every one of the thirty (30)
individual motel/hotels, and the term "Seller" shall also refer to each and
every one of the signatories hereto, depending on the context in which the
defined term is utilized. Capitalized terms not defined in context are
defined in Article Eighteen hereof. Each Property shall include,
respectively:
1.1 those certain parcels of land located in the cities, counties and
states more particularly described on Exhibits "B-1" through "B-30"
(collectively, the "Land");
1.2 all buildings and improvements (the "Improvements") located on,
over or beneath the Land (the Land and Improvements hereinafter referred to,
collectively, as the "Real Estate");
1.3 all Personal Property, and
1.4 all Appurtenances and Appurtenant Easements.
ARTICLE TWO
PURCHASE PRICE
2.1 Purchase Price. The purchase price (the "Purchase Price") for the
Property shall be SEVENTY-THREE MILLION AND NO/100 DOLLARS ($73,000,000.00),
payable as follows:
(A) Five Hundred Thousand and No/100 Dollars ($500,000.00) (the "Deposit"),
by check, subject to collection, payable to the order of Escrow Agent (as
hereinafter defined) upon execution of this Agreement, to be held in escrow
pursuant to the provisions of Article Fifteen hereof; interest accruing
thereon, if any, shall follow the disposition of the principal sum; and;
(B) Seventy-two Million, Five Hundred Thousand and No/100 Dollars
($72,500,000.00), less any interest accrued on the Deposit as of the Closing
(as hereinafter defined), representing the balance of the Purchase Price,
shall be paid at the Closing, payable (1) by wire transfer of immediately
available federal funds to an account designated by Seller, or (2) in the
form of a credit equal to the amount of indebtedness secured by each Existing
Mortgage (as hereinafter defined) and assumed by Purchaser, or both.
Purchaser and Seller shall execute mutually acceptable escrow instructions,
consistent with the provisions of this Agreement, in connection with the
escrow to be created pursuant hereto.
2.2 Allocation of Purchase Price. The Purchase Price shall be
allocated among the Property as set forth on Exhibit "C" attached hereto and
made part hereof, and the values so determined shall be reflected in the
documentary fee or transfer taxes, if any, paid at the Closing. 2.3
Assumption of Mortgages. Various mortgages, deeds of trust or deeds to
secure debt, as the case may be, encumber one or more of the motel/hotels
which comprise the Property (each an "Existing Mortgage"). To the extent
permissible under the terms and provisions of a particular Existing Mortgage,
Purchaser may assume the obligations of the mortgagor or grantor thereunder,
and the borrower under the note(s) secured thereby, and shall receive a
credit against the Purchase Price equal to the amount of indebtedness at the
date of Closing so assumed by Purchaser. Purchaser shall pay Seller at the
Closing, without credit against the Purchase Price, any and all prepayment
premiums or penalties payable upon the prepayment of any Existing Mortgage
not assumed by Purchaser. With respect to any Property encumbered by an
Existing Mortgage which Purchaser desires to assume, Seller and Purchaser
agree to cooperate with each other to effect the sale of such Property
hereunder in a manner, if possible, which would not violate the applicable
provisions of such Existing Mortgage regarding the sale or transfer of such
Property. In the event that Purchaser elects to assume the Existing Mortgage
with respect to any Property located in Marysville, Ohio, Plainfield,
Indiana, Sycamore, Illinois, Macomb, Illinois, or Tupelo, Mississippi but
such assumption cannot be consummated prior to the Closing Date stipulated in
Section 4.1, the Closing Date with respect to any such Property shall be
adjourned for a period ending no later than June 30, 1999; provided, however
that the Purchase Price will be reduced by an amount equal to Thirty-nine
Thousand Eight Hundred Three and No/100 Dollars ($39,803.00) multiplied by
the number of rooms for each such Property with respect to which the Closing
Date has been so adjourned, and the sum of Fifteen Thousand and No/100
Dollars ($15,000.00) shall remain in escrow with the Escrow Agent for each
Property with respect to which the Closing Date has been so adjourned. In
the event that any such assumption ultimately is not allowed by the mortgagee
under such Existing Mortgage, Purchaser or Seller may (i) elect to pay the
prepayment penalty which would be due upon the repayment of the loan secured
by such Existing Mortgage and consummate the transaction contemplated herein
with respect to the Property encumbered by such Existing Mortgage, or (ii)
reject such Property whereupon the Agreement shall terminate with respect to
such Property and the escrow funds attributable to such Property shall be
returned to Purchaser, and neither party hereto shall have any further claim
against the other by reason of this Agreement with respect to such Property.
Notwithstanding anything contained herein to the contrary, all due diligence
rights of Purchaser with respect to any such Property are expressly reserved
upon any such adjournment of the Closing Date with respect to any such
Property.
ARTICLE THREE
SURVEY AND TITLE
3.1 Surveys. As soon as practical after the Effective Date, Seller
shall deliver or cause to be delivered to Purchaser an as-built, ALTA survey
(collectively, the "Surveys") of each Property. The Surveys shall be
sufficient to permit the Title Insurance Company to delete the standard
printed survey exception in the title policy or otherwise obtain the ALTA
survey endorsement. The Surveys shall indicate the location and dimensions
of all of the Improvements.
3.2 Title Commitments. As soon as practical after the Effective Date,
Purchaser shall obtain the title commitment (collectively, the "Title
Commitments") for each property, together with copies of all documents
(collectively, the "Title Documents") constituting exceptions to Seller's
title as reflected in the Title Commitments.
3.3 Review Period. Purchaser shall have the Inspection Period (as
hereinafter defined) in which to review the Title Commitments, Title
Documents, UCC Searches (as hereinafter defined) and Phase I Audits (as
hereinafter defined) and to deliver to Seller in writing such reasonable
objections as Purchaser may have to anything contained or set forth in such
documents. Each item to which Purchaser does not accept in writing within
such period shall not be deemed to be a Permitted Exception. Seller shall
have and be entitled to a reasonable period of time within which to clear
such objection(s) and shall cure title or remove said exceptions or defect
which may be removed by the payment of money at the expense of Seller of up
to (a) $50,000.00 in the aggregate with respect to each property and (b)
$500,000.00 as an aggregate for all of the Property. Notwithstanding
anything to the contrary, Seller shall have no obligation to cure title or
remove said objection(s) which may be removed by the payment of money at an
expense to Seller in excess of (a) $50,000.00 with respect to each Property,
and (b) $500,000.00 in the aggregate for all of the Property. If Seller (I)
is unable or unwilling to remove any such objection and fails to cause the
Title Insurance Company to remove the same from Purchaser's title insurance
policies (collectively, the "Title Policies"), or affirmatively insure
against the same, or (II) is unable to convey the Property as herein agreed
to be conveyed, then Purchaser shall have the option of either (A) waiving
such objection(s) and proceeding with the Closing, accepting title subject to
such objection(s) without any abatement or reduction of the Purchase Price;
or (B) excluding each such Property from the transaction contemplated by this
Agreement, subject to the terms and conditions and with a credit against the
Purchase Price for each Property as set forth in Section 6.6 hereof. Without
limiting the generality of the foregoing, Seller shall not be obligated to
bring any action or proceeding to remove any title objection(s).
3.4 Liens or Encumbrances. Any lien or encumbrance, or apparent lien
or encumbrance, appearing of record against the Property, which can be
discharged by the payment of money, shall not be an objection to title,
provided Seller allows the amount thereof to be credited to Purchaser as an
adjustment to the Purchase Price at the time of the Closing. A lien or
encumbrance dischargeable by satisfaction shall not be deemed an objection to
title, if, at the time of the Closing, Seller shall cause to be delivered to
the Title Insurance Company either (A) a duly executed and acknowledged
satisfaction, along with the filing fee, or (B) a payoff letter and the
appropriate funds to satisfy the lien or encumbrance. Seller shall apply the
proceeds of the sale to the satisfaction of any or all liens or encumbrances.
Notwithstanding anything to the contrary contained within this Article Three,
no matter shall be an objection to title if the Title Insurance Company is
willing to insure the Property without exception therefor or affirmatively
insure against collection out of the Property by reason thereof. The
provisions of this Section 3.4 are subject to the terms and conditions set
forth in Section 2.3 above.
3.5 Title Policy. At the Closing, Seller shall cause the Title
Insurance Company to modify (by interlineation or otherwise) the Title
Commitments so as to then reflect a current commitment by a duly licensed
title insurance company to issue to Purchaser the Title Policies, insuring
good and indefeasible title to the Land and the Improvements in Purchaser,
subject only to the Permitted Exceptions and the standard printed exceptions,
except that:
(a) The exception relating to restrictions against the
Property shall be deleted, except for such restrictions which are Permitted
Exceptions;
(b) the exception relating to ad valorem taxes and assessments
shall except only standby fees, taxes and assessments owing for the current
and subsequent years; and
(c) Purchaser shall receive the ALTA survey endorsement.
3.6 Title Charges. The cost for the Title Policies shall be paid
by Seller at the Closing, and the additional costs for endorsements, if any,
selected by Purchaser (or its lenders) shall be paid by Purchaser.
ARTICLE FOUR
CLOSING DATE
4.1 Closing Date. The closing of title under this Agreement (the
"Closing") shall take place on or about June 30, 1998 (the "Closing Date), at
the offices of the Title Insurance Company, 18333 Preston Road, Suite 410,
Dallas, Texas 75252, or at such other location as may be reasonably agreeable
to the parties.
ARTICLE FIVE
SPECIAL CONDITIONS
5.1 Conditions Precedent. The obligation of Seller to sell the
Property to Purchaser is subject to the satisfaction on or before the Closing
of the following conditions:
(A) Seller shall have received the prior written consent of Seller's Board
of Directors to the sale of the Property to Purchaser upon the terms and
conditions set forth in this Agreement, which consent shall be in the form of
a duly authorized resolution from each member of Seller's Board of Directors,
and shall be provided to Purchaser within seven (7) days after the Effective
Date.
(B) Purchaser, Amerihost Properties, Inc. and AmeriHost Inns, Inc. shall
enter into a master agreement (the "Master Agreement"), and Purchaser and
AmeriHost Inns, Inc. shall enter into a lease for each Property (the
"Property Leases"), on terms and conditions substantially as set forth on
Exhibits "D" and "E", respectively, attached hereto and made part hereof.
(C) Purchaser shall have complied with all of its obligations herein
provided.
(D) Purchaser shall cooperate with Seller in the consummation of tax-free
exchanges with respect to the Property, including, without limitation, the
assignment of this Agreement by Purchaser to a tax-free exchange trust in
order to accomplish the foregoing, provided Purchaser shall receive customary
indemnities from Seller and reimbursement of costs therefor.
5.2 Covenants.
(A) From and after the Effective Date, up to the Closing Date,
Seller may enter into agreements with respect to the Property
which are necessary or desirable in connection with the
operation of the Property in the ordinary course of business,
so long as no such agreements relate to the sale of any
portion of the Personal Property.
(B) Any liquor licenses or permits utilized in the operation of
the business at the Property presently held by Seller or its
affiliates shall continue without assignment or transfer in
Seller's name or its affiliate's name through the Closing
Date.
(C) The repairs and improvements at the Plainfield and Marysville
properties as referenced on Exhibit "F", attached hereto and
made a part hereof, must be either completed or funds must be
placed in escrow for such purpose prior to Closing.
ARTICLE SIX
PURCHASER'S INSPECTIONS AND APPROVALS
6.1 Submittal to Purchaser. Seller agrees that Purchaser shall be
entitled to enter upon the Property and to conduct such inspections, audits
and reviews of any and all information and materials it deems necessary to
effect a complete analysis of the proposed purchase and sale. The Purchaser
shall complete its due diligence before the expiration of the Inspection
Period. The following items (the "Due Diligence Items") will be delivered to
Purchaser prior to the Closing or will be delivered to Purchaser within the
time period after the date hereof as prescribed in Article Three. The cost
and expense of obtaining and delivering the Due Diligence Items to Purchaser
shall be paid by Seller, unless otherwise stated below:
(A) The Surveys;
(B) Any appraisals of the Property in the possession of Seller or its agent
or employees;
(C) The architectural plans and specifications for the Property.
(D) The Books and Records. Subject to the provisions of Section 17.10
hereof, Seller specifically permits Purchaser to disclose information
revealed in the Books and Records to its lenders, if any, and professional
advisors, and in any document (and amendments and supplements thereto) which
Purchaser may be obligated to file with the Securities and Exchange
Commission. Upon reasonable advance notice, Seller shall make available to
the accountants of Purchaser such financial information as Purchaser's
accountants reasonably require for investigation of the financial history of
the operations of the Property. Seller has also provided monthly statements
of operations for fiscal year 1997 and 1998 through the month of the Closing
(the statement of operations for the month of the Closing to be made
available after the Closing);
(E) A UCC secured transactions search (collectively, the "UCC Searches")
from each of the applicable recording offices with respect to the Property,
together with a litigation search related to Seller and the Property for the
county in which the Property is located;
(F) Phase I Audits for each Property. Seller, at its sole cost and
expense, shall provide to Purchaser an update of the Phase I Audit for each
Property listed on Exhibit "G" attached hereto and made a part hereof.
(G) Policies of title insurance for the Property, if any, in the possession
of Seller or its agents or employees, together with the Title Commitments
and the Title Documents, which shall be delivered to Purchaser by the Title
Insurance Company;
(H) A descriptive summary of all pending litigation, if any, affecting the
Property, and of any written notice of violation of any of the Legal
Requirements applicable to the Property;
(I) Copies of all of Seller's insurance policies for the Property or
certificates thereof; and
(J) All other documents and information in the possession of Seller or its
agents or employees, or reasonably available to Seller, relating to the
Property, which Purchaser reasonably requests.
6.2 Authorization for Inspection. Upon reasonable request by
Purchaser, Seller will grant authority to Purchaser and any of Purchaser's
representatives to obtain information provided for or contemplated in
Section 6.1 hereof from any third parties. Said authorization will be
provided in writing if requested by Purchaser. All such information shall be
subject to the provisions of Section 17.10.
6.3 Adverse Phase I Audit. If any Phase I Audit states that Hazardous
Materials may be in or under the Land or within the Improvements, or
otherwise evidences any adverse environmental matter at the Property,
Purchaser shall have the right to reject such Property pursuant to Section
6.4 by giving written notice to Seller of its intention to do so prior to the
end of the Inspection Period. If, notwithstanding such adverse Phase I
Audit, Purchaser desires to proceed with the transaction contemplated hereby
with respect to such Property, then Purchaser shall have the right to order
promptly, at its expense, a Phase II Site Assessment of the Land and the
Improvements directed and certified to Purchaser and its lender, including
materials samplings on and adjacent to the Land, to determine the extent and
nature of any contamination by Hazardous Materials. If such Phase II Site
Assessment reveals the necessity for material environmental clean-up of for
the Property, then Purchaser may reject such Property pursuant to Section 6.4
by giving written notice to Seller of its intention to do so within five (5)
business days after receipt by Purchaser of such Phase II Site Assessment.
6.4 Purchaser's Acceptance or Rejection; Cure or Waiver. If Purchaser
disapproves of any matter relating to any Property arising from Purchaser's
review of the Surveys, the Title Commitments, the UCC Searches or the Phase I
Audits, it shall give Seller written notice of such disapproval not later
than the expiration of the Inspection Period, or such later date as
referenced in Section 6.3, Section 11.1 or Section 11.2. If any matter is
disapproved upon the foregoing notice, then Purchaser may elect in such
notice either to (a) request that Seller cure specific matters disapproved;
or (b) reject such Property from the terms and conditions of this Agreement
subject to Section 6.6. If Purchaser requests Seller to cure any such
matter, Seller shall, within four (4) business days, indicate in writing to
Purchaser whether it shall elect to cure any such matter disproved under
clause (a) above. If Seller is unwilling to cure such matter prior to the
Closing, then Purchaser may, in its sole discretion, within four (4) business
days of written notice of Seller's refusal to cure, elect, by written notice
to Seller of its intention to do so, to (i) waive all matters disapproved and
not cured, accept all matters relating to the Property which have been cured,
and proceed with the acquisition of the Property; or (ii) reject such
Property from the terms and conditions of this Agreement subject to Section
6.6.
6.5 Effect of Termination. If this Agreement shall be terminated by
Purchaser in the exercise of its rights of termination as provided hereunder,
the Deposit, and all interest earned thereon, if any, shall be promptly
returned to Purchaser by Escrow Agent, this Agreement shall be null and void,
and neither party shall have any further obligation or liability to the other
party, except as expressly herein provided.
6.6 Partial Exclusion. Seller agrees to close the sale of the Property
on the terms and conditions herein contemplated, provided that not more than
six (6) motel/hotels shall have been rejected by Purchaser pursuant to the
provisions of Section 6.4., other than any Property rejected as allowed
pursuant to Section 11.1 and Section 11.2 hereof. Notwithstanding the
foregoing, Seller may, at its sole discretion, elect to close the sale of the
Property on the terms and conditions herein contemplated if more than six (6)
motels/hotels have been rejected by Purchaser pursuant to the provisions of
Section 6.4. In any event, however, the Purchase Price shall be reduced by
an amount equal to Thirty-nine Thousand Eight Hundred Three and No/100
Dollars ($39,803.00) multiplied by the number of rooms for each such Property
rejected. Upon rejection in accordance with the provisions of this Article
Six, such Property shall be deemed deleted from the terms and conditions of
this Agreement and this Agreement shall be deemed so modified and amended as
to give effect to such rejection.
ARTICLE SEVEN
SELLER'S REPRESENTATIONS, WARRANTIES AND AGREEMENTS
Seller represents, warrants and agrees that the following facts and
conditions exist on the date of execution hereof by Seller and shall exist as
of the Closing Date, subject to updating by Seller to the Closing Date and to
limitations otherwise set forth in this Article Seven:
7.1 Title. Seller owns fee simple title to the Real Estate, including
the Land described in Exhibit "A", which, as of the Closing, shall be free
and clear of all mortgages, except those Existing Mortgages which are assumed
by Purchaser, certain of which Existing Mortgages contain the assumption fees
as set forth on Exhibit "H"attached hereto and made a part hereof (those
Properties being the only Properties whose mortgages or related promissory
notes contain prepayment penalties upon prepayment of the respective notes),
and all liens, encumbrances, subleases, tenancies, security interests,
covenants, conditions, restrictions, rights-of-way, easements, judgments, and
title defects, other than the Permitted Exceptions. To the Knowledge of
Seller, there are no pending or deferred Impositions of Governmental
Authorities affecting the Property, except for real property and personal
property taxes for the year of the Closing. To the Knowledge of Seller, no
easements materially burdening the Property interfere with the use,
maintenance, repair, or operation of the Property, and all easements
necessary for the lawful operation of the Property, including all access,
ingress, support and mechanical easements necessary or incident thereto, are
in full force and effect and are not subject to termination, cancellation or
rescission. Seller will assist in obtaining lender estoppel letters in a
form reasonably satisfactory to Purchaser.
7.2 Zoning and Land Use Matters. To the Knowledge of Seller, all
permanent certificates of occupancy for the Real Estate have been issued, and
all conditions thereof, if any, have been fully complied with and require no
further action. Seller has received no written notice of any requirements
for obtaining necessary licenses, permits, authorizations or approvals with
respect to the Property which Seller does not now possess or maintain, and
Seller has received no written notice of any unwillingness of Governmental
Authorities to renew any Permits and Licenses. To the Knowledge of Seller,
the Property, as constructed and operated, is substantially in compliance
with the terms, conditions and requirements imposed upon the Property by the
Permitted Exceptions. To the Knowledge of Seller, the acquisition of the
Property by Purchaser will not cause a violation, default or breach of any
such Permitted Exceptions and there is no event of default currently in
existence under any such instrument which constitutes, and there is no event
which, but for the giving of notice or the passage of time, or both, will
constitute, an event of default thereunder.
7.3 Health, Environmental and Fire Codes. To the Knowledge of Seller,
there are no Hazardous Materials in, on or under the Property, except for
Permitted Hazardous Materials, and Seller has received no written notice that
the Property is not substantially in compliance with applicable fire codes,
building codes, health codes or other Legal Requirements which presently
apply to the Property or the operation of all businesses thereon which remain
unresolved.
7.4 No Adverse Action. There are no pending (and Seller has received
no written notice from Governmental Authorities threatening) condemnation or
other similar proceedings affecting the Property or any portion thereof, or
pending public improvements in, about or outside the Property, which will
affect access or create additional cost to Seller. There is no claim, legal
action, tax audit, or other proceeding of any type, including, without
limitation, any action of a civil or criminal nature, or any action or
proceeding before any arbitration board or tribunal, pending against or
affecting the Property which will materially adversely affect Purchaser upon
the consummation of this acquisition. To the Knowledge of Seller, there are
no pending claims against Seller arising out of injury to persons or property
occurring in or on the Property as a result of any accident or occurrence on
the Property thereon during the period of ownership of the Property by Seller
which will materially adversely affect Purchaser upon consummation of this
acquisition or are not covered by insurance. There is no pending claim or
legal action of any type related to any employment matter related to the
operation of the Property which will materially adversely affect Purchaser
upon consummation of this acquisition or is not covered by insurance.
7.5 Authorization. Seller has all requisite corporate power and
authority to perform its obligations under this Agreement, and the execution,
delivery and performance of this Agreement by Seller has been duly and
validly authorized by all officers and directors whose approval is required
under the corporate documentation of Seller. Each person executing and
delivering this Agreement, and all documents to be executed and delivered in
regard to the consummation of the transaction herein, has due and proper
authority to execute and deliver those documents. This Agreement, and all
documents executed and delivered by Seller in connection with the transaction
herein, shall constitute valid and binding obligations of Seller, enforceable
against Seller in accordance with their terms.
7.6 Organization. Each Seller is a duly organized and validly existing
corporation under the laws of the state of its formation, authorized to
transact business in each state where the Property owned by such Seller is
situated, with full power to enter into and perform this Agreement and to
convey, assign, transfer and lease the Property.
7.7 Legal Requirements. To the Knowledge of Seller, there are no
outstanding citations or violations of Legal Requirements in connection with
the operation of the Property or the sale or provision of food or beverages
thereon.
7.8 Business Records. All documents, items and information, including,
without limitation, the Books and Records, which have been or will be made
available by Seller to Purchaser as Review Items in accordance with the terms
of this Agreement, have been maintained in the ordinary course of business,
fairly reflect the financial condition of the applicable Property in all
material respects, and are true and accurate.
7.9 No Breach of Prohibition. The transactions contemplated by this
Agreement are not restrained or prohibited by any injunction, order or
judgment rendered by any court or other governmental agency of competent
jurisdiction. To the Knowledge of Seller, no proceedings have been initiated
or are pending in which any creditor of Seller or any other person seeks to
restrain such transactions or otherwise attach the applicable Property.
Neither the execution and delivery of this Agreement, nor the consummation
of the transactions contemplated hereby, will (a) be in material violation of
any agreements, or (b) conflict with or result in the material breach or
violation of any law, regulation, writ, injunction, decree of any court or
governmental body or agreement of any nature, applicable to Seller and the
Property.
7.10 No Adverse Notices. Seller has received, within the past year, no
notice from any insurance company which has issued a policy with respect to
any portion of the Property, from any board of fire underwriters, or from any
Governmental Authority, requesting or requiring the performance of any
repairs, alterations, renovations or other physical work on the Property,
which has not been substantially completed.
7.11 No Union Contracts; Other Employee Matters. Seller warrants that
there are no union contracts in effect with respect to the Employees, and
that Purchaser shall incur no liability to the Employees arising out of
Purchaser's acquisition of the Property.
7.12 Easements. Seller will cooperate fully with Purchaser, but at no
expense to Seller, in seeking any corrective documents reasonably deemed
necessary by Purchaser to clarify the location and validity of any
Appurtenant Easement benefiting the Property.
7.13 Tax Matters. Seller has duly filed all federal, state, county and
municipal, excise, sales, hotel occupancy and other tax returns and reports,
or timely extensions thereof, required to be filed up to the date hereof with
respect to the Property. To the Knowledge of Seller, all such returns are
true and correct in all material respects, and Seller has paid all taxes,
interest and penalties shown on such returns or reports, or claimed to be due
to any federal, state, county and municipal or other taxing authority.
7.14 Property Condition. Seller warrants that each Property not yet
inspected by Purchaser is in substantially the same general condition, normal
wear and tear excepted, as those motel/hotels previously inspected by
Purchaser, and Seller will maintain each Property in such same general
condition until the Closing.
7.15 Bulk Transfers. Seller will take all actions necessary to comply
with any bulk transfer laws applicable to this transaction and Purchaser will
cooperate with any such actions at no cost to Purchaser..
7.16 Representations and Warranties of Seller. All of the
representations and warranties of Seller are true and correct in all material
respects, to the Knowledge of Seller, and do not contain untrue statements of
a material fact or omit any material fact that would make the representations
and warranties misleading. All representations and warranties of Seller
shall survive the Closing and continue in full force and effect for a period
of two (2) years after the Closing.
ARTICLE EIGHT
PURCHASER'S REPRESENTATIONS AND WARRANTIES
8.1 Purchaser's Duty of Review. Purchaser is entering into this
Agreement in reliance on its own knowledge and familiarity with the
motel/hotel industry and its inspection of the Property. Purchaser is not
relying on any representation of Seller, or its officers, shareholders or
agents, except as expressly set forth in this Agreement or the Exhibits
attached to this Agreement.
8.2 Warranties and Representations. Purchaser represents, warrants and
agrees that the following facts and conditions exist on the date of execution
hereof and shall exist as of the Closing Date:
(A) Organization. Purchaser is a Texas real estate investment trust duly
organized and validly existing and in good standing under the laws of the
State of Texas, and has power and authority to own its properties and to
transact the business in which it is engaged. Purchaser has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement and all of the documents executed and delivered by Purchaser in
connection with the transaction described herein, all of which constitute
valid and binding obligations of Purchaser enforceable against Purchaser in
accordance with their terms.
(B) Authority. Purchaser has the right, power, legal capacity and
authority to enter into and perform its obligations under this Agreement,
and no approvals or consents of any persons other than Purchaser are
required in connection with this Agreement. The execution of this
Agreement and the consummation of the transactions contemplated hereby will
not result in or continue any default or event that, with the giving of
notice or lapse of time, or both, would be a default, breach or violation
of the organizational instruments or laws governing Purchaser or any lease,
license, promissory note, conditional sales contract, commitment,
indenture, mortgage, deed of trust, or other agreement, instrument, or
arrangement to which Purchaser is a party or by which Purchaser is bound.
8.3 Representations and Warranties of Purchaser. All of the
representations and warranties of Purchaser are true and correct in all
material respects and do not contain untrue statements of a material fact or
omit any material fact that would make any of the representations and
warranties misleading. The representations and warranties herein contained
shall survive the Closing and shall continue in full force and effect for a
period of two (2) years.
ARTICLE NINE
DEFAULTS; FAILURE TO PERFORM; LIQUIDATED DAMAGES
9.1 Default of Purchaser. IN THE EVENT (A) ALL OF THE CONDITIONS TO
THIS AGREEMENT SHALL HAVE BEEN SATISFIED OR WAIVED; (B) SELLER SHALL HAVE
FULLY PERFORMED OR TENDERED PERFORMANCE OF ITS OBLIGATIONS HEREUNDER: (C)
PURCHASER SHALL FAIL TO PERFORM ITS OBLIGATION HEREUNDER; AND (D) THE CLOSING
SHALL FAIL TO OCCUR SOLELY AS A RESULT OF PURCHASER'S DEFAULT HEREUNDER,
THEN, AS SELLER'S SOLE AND EXCLUSIVE REMEDY FOR PURCHASER'S FAILURE TO CLOSE,
THE ENTIRE AMOUNT OF THE DEPOSIT (PLUS ALL INTEREST ACCRUED THEREON, IF ANY)
SHALL BE IMMEDIATELY PAID TO SELLER. PURCHASER AND SELLER HEREBY ACKNOWLEDGE
AND AGREE THAT SELLER'S DAMAGES WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE
AND THE AMOUNT OF THE DEPOSIT (PLUS ALL INTEREST ACCRUED THEREON, IF ANY) IS
THE PARTIES' BEST AND MOST ACCURATE ESTIMATE OF DAMAGES SELLER WOULD SUFFER
IN THE EVENT THE TRANSACTION PROVIDED FOR IN THIS AGREEMENT FAILS TO CLOSE.
PURCHASER AND SELLER AGREE THAT SELLER'S RIGHT TO RETAIN THE DEPOSIT (PLUS
ALL INTEREST ACCRUED THEREON IF ANY) SHALL BE THE SOLE AND EXCLUSIVE REMEDY
OF SELLER IN THE EVENT OF A BREACH OF THIS AGREEMENT BY PURCHASER AS
PROVIDED ABOVE.
9.2 Default of Seller. If Seller defaults in its obligations hereunder
after the expiration of any notice and cure periods, if applicable,
Purchaser may, as its sole remedy, at its option, either: (A) terminate this
Agreement and receive a refund of the Deposit, whereupon the obligations of
the parties hereto, other than those expressly set forth to survive
termination hereof, shall terminate, and neither shall have any further claim
against the other by reason of this Agreement or (B) seek an action for
specific performance under this Agreement. Purchaser agrees that it shall
not record this Agreement or any memorandum hereof unless Seller has
defaulted in its obligations hereunder. This Section 9.2 shall survive
Closing or other termination of this Agreement.
9.3 Failed Funds. If a payment made on account of the Purchase
Price, whether the Deposit or otherwise, is by check, and if said check fails
due collection, Purchaser shall be deemed in default hereunder, and Seller,
at its sole option, may declare this Agreement terminated pursuant to Section
9.1 hereof and may pursue its remedies against Purchaser upon said check
and/or this Agreement or in any other manner permitted by law, such remedies
being cumulative, but in no event shall Seller have any obligations to
Purchaser hereunder.
ARTICLE TEN
CLOSING DOCUMENTS
10.1 Closing Documents of Seller. At the Closing, Seller shall
deliver or cause to be delivered to Purchaser the following:
(A) A special, limited warranty deed, as customarily provided on a
state-by-state basis, conveying good and indefeasible title in the Property
(the "Deed") to Purchaser, duly executed and acknowledged by Seller subject
only to the Permitted Exceptions.
(B) A bill of sale, duly executed and acknowledged by Seller, conveying
title to the Personal Property to Purchaser.
(C) A certificate stating that Seller is not a "Foreign Person" within the
meaning of IRC Section 1445(f)(3).
(D) The Title Policies, issued at Seller's sole cost and expense, by the
Title Insurance Company, insuring Purchaser as owner of the Property, subject
only to the Permitted Exceptions.
(E) An Indemnity Agreement, duly executed and acknowledged by Seller,
pursuant to which Seller agrees to indemnify, defend and hold harmless
Purchaser, and its shareholders, directors and officers, from any and all
claims, losses, damages and expenses which shall have arisen from any
violation of the Americans for Disabilities Act at the Property prior to the
Closing.
(F) An Indemnity Agreement duly executed and acknowledged by Seller,
pursuant to which Seller agrees to indemnify, defend and hold harmless
Purchaser, and its shareholders, directors and officers, from any and all
claims, losses, damages and expenses which shall have arisen from an
"Environmental Problem" (as hereinafter defined) before the Closing.
"Environmental Problem" shall mean the presence or release of any Hazardous
Materials from, onto, on or under any portion of the Property, or the
violation of any environmental law with respect to the Property or any part
thereof, or the failure to abide by the terms of any permit or approval
required under any environmental law with respect to the Property or any part
thereof.
(G) Such other instruments and documents as may be reasonably required to
consummate the transaction herein contemplated, including but not limited to,
the Property Lease, the Master Agreement and related guaranty of Amerihost
Properties, Inc.
10.2 Closing Documents of Purchaser. At the Closing, Purchaser shall
deliver or cause to be delivered to Seller the following:
(A) The balance of the cash portion of the Purchase Price provided in
Article One hereof, less any interest accrued on the Deposit.
(B) The Property Leases, executed by Purchaser, as lessor, in each
instance.
(C) The Master Agreement, executed by Purchaser.
(D) Evidence of Purchaser's power and authority to enter into the subject
transaction, and evidence of the signatories' authority to sign on behalf of
Purchaser.
(E) A letter addressed to Escrow Agent directing Escrow Agent to deliver
the Deposit and any interest thereon, if any, to Seller, and releasing Escrow
Agent from any and all liability in connection with the subject transaction.
(F) An Indemnity Agreement duly executed and acknowledged by Purchaser,
pursuant to which Purchaser agrees to indemnify, defend and hold harmless
Seller, and its shareholders, directors and officers, from any and all
claims, losses, damages and expenses which shall have arisen from an
"Environmental Problem" (as hereinafter defined) after the Closing, where the
Environmental Problem is caused by Purchaser. "Environmental Problem" shall
mean the presence or release of any Hazardous Materials from, onto, on or
under any portion of the Property, or the violation of any environmental law
with respect to the Property or any part thereof, or the failure to abide by
the terms of any permit or approval required under any environmental law with
respect to the Property or any part thereof.
(G) Such other instruments and documents as may be reasonably required to
consummate the transaction herein contemplated.
ARTICLE ELEVEN
RISK OF LOSS
11.1 Casualty Loss. The risk of loss or damage to the Property by fire
or other casualty, until the Closing, is assumed by Seller, but without any
liability or obligation of Seller to repair same, except Seller, at Seller's
sole option, shall have the right to repair or replace such loss or damage to
the Property. If Seller elects (such election to be made within twenty (20)
days after Seller shall have actual knowledge of such damage) to make such
repair or replacement, and such repair or replacement can be fully complete
prior to the Closing, this Agreement shall continue in full force and effect.
If Seller does not elect to repair or replace any such loss or damage or such
repair or replacement damage cannot be completed prior to the Closing, the
following shall control:
If the Improvements on any motel/hotels comprising the Property shall be
materially damaged or destroyed by fire, storm or other casualty before the
Closing, Purchaser shall have the right to reject any such Property pursuant
to Section 6.4 by giving written notice thereof to Seller within fourteen
(14) days after receiving written notice of such material destruction and
Purchaser shall receive a reduction in the Purchase Price as set forth in
Section 6.6. If Purchaser shall not elect to reject such Property, or if
said destruction is immaterial, this Agreement shall continue in full force
and effect without any modification or abatement of the Purchase Price, and
Purchaser shall be entitled to receive an absolute assignment (without
representation or warranty by or recourse against Seller) from Seller of any
interest Seller may have otherwise had in the proceeds of any insurance on
the Property (including any rent loss or business interruption insurance
proceeds allocable to the period from and after the Closing), except for any
expense theretofore incurred by Seller for restoration or safety in
connection therewith, which sum shall be reimbursed by Purchaser to Seller at
the Closing.
11.2 Eminent Domain. If notice of any action, suit or proceeding shall
be given after the date hereof, but prior to the Closing, for the purpose of
taking by eminent domain or condemning any material part of the Property,
then Purchaser and Seller shall each have the right to reject any such
Property pursuant to Section 6.4 by written notice to the other party given
within fourteen (14) days after receiving notice of such condemnation or
taking and Purchaser shall receive a reduction in the Purchase Price as set
forth in Section 6.6. If neither Purchaser nor Seller elects to reject such
Property as above provided, or if the taking or condemnation is of an
immaterial part of the Property, or in the event of a change of legal grade,
the award with respect to such condemnation, taking or change, except for any
expense theretofore incurred by Seller for restoration or safety in
connection therewith, which sum shall be reimbursed by Purchaser to Seller at
the Closing, shall be assigned (without representation or warranty by or
recourse against Seller) to Purchaser without further consideration, and this
Agreement shall continue in full force and effect without any modification or
abatement of the Purchase Price or any liability or obligation on the part of
Seller by reason of such taking, and the definition of "Property" shall be
accordingly amended. Any taking of any portion of an Improvement shall be
considered "material" for purposes of this Section 11.2.
ARTICLE TWELVE
CONDITION "AS IS"; NO FURTHER REPRESENTATIONS
12.1 Condition of Property. Purchaser represents that it has inspected
the Property and is thoroughly acquainted with its condition, and it is
agreed and understood that neither Seller nor any person purporting to act
for Seller has made or now makes any representations as to the physical
condition (including, without limitation, the presence of any Hazardous
Materials, or any condition which would violate any laws regarding
environmental matters), layout, leases, footage, rent, income, expense,
operation or any other matter or thing affecting or relating to the Property
or to this Agreement, except as specifically set forth in this Agreement, and
that no party hereto is relying on any statement or representation made by
any other which is not embodied in this Agreement. Purchaser hereby
expressly acknowledges that no representation has been made which is not
expressly set forth in this Agreement, and Purchaser further agrees to take
and accept the Property "as is" and in its condition at the Closing. This
Article shall survive the Closing and delivery of the Deed or other
termination of this Agreement.
ARTICLE THIRTEEN
FINANCIAL MATTERS; COSTS
13.1 Sales Tax. Although it is not anticipated that any sales tax shall
be due and payable in connection with this transaction, Purchaser agrees that
Purchaser shall indemnify, defend and hold Seller harmless from and against
any and all liability for any sales tax regardless of jurisdiction which may
now or hereafter be imposed upon Seller with respect to this transaction.
This provision shall survive the Closing and delivery of the Deed.
13.2 Other Changes. Purchaser and Seller shall each pay one-half of all
escrow charges. The parties shall be responsible for all transfer taxes or
documentary taxes which are payable upon the delivery and/or recording of the
Deed or of any document contemplated by this Agreement, and the charges
incurred in connection with the recording of any instrument contemplated
hereby on the basis of custom in the jurisdiction in which the Property is
situated. Notwithstanding the foregoing, costs related to endorsements to
the Title Policies or to Surveys shall be borne by Purchaser.
13.3 Closing Statements. The Title Insurance Company shall prepare
customary settlement or closing statements (the "Closing Statements") which
shall include the items set forth in Section 13.2, at least two (2) days
before the Closing Date, and each party shall cause its designated
representatives to assist the Title Insurance Company in doing so. All ad
valorem, personal property and hotel occupancy taxes, if applicable, shall
be pro rated as of the Closing Date.
ARTICLE FOURTEEN
BROKERAGE
14.1 Broker. Seller and Purchaser represent and warrant to each other
that they have not dealt with any broker in connection with this transaction.
Seller agrees to indemnify and hold Purchaser harmless from all loss, damage,
cost and expense (including reasonable attorney's fees and disbursements)
that Purchaser may suffer as a result of any claim for a fee, commission or
payment of any description brought by any person with whom Seller may have
dealt in connection with this transaction. Purchaser agrees to indemnify and
hold Seller harmless from all loss, damage, cost and expense (including
reasonable attorneys' fees and disbursements) that Seller may suffer as a
result of any claim for a fee, commission or payment of any description
brought by any person with whom Purchaser may have dealt in connection with
this transaction. The representations and covenants set forth in this
Section 14.1 shall survive delivery of the Deed and the Closing or other
termination of this Agreement.
ARTICLE FIFTEEN
THE DEPOSIT - ESCROW
15.1 Deposit.
(A) The Deposit shall be delivered to the Title Insurance Company
("Escrow Agent"), and Escrow Agent shall hold the proceeds thereof in
escrow and dispose of such sums only in accordance with the provisions
of this Agreement.
(B) Escrow Agent shall place the Deposit in (I) certificates of
deposit issued by a bank with a Texas office, (II) money market funds in
a bank with a Texas office, or a company such as Dreyfus Liquid Assets,
Inc., or as otherwise approved in writing by Purchaser and Seller, (III)
U.S. Treasury bills or other similar securities, or (IV) a segregated,
interest bearing bank account. Any interest earned thereon shall be
paid to the party entitled to receive the Deposit simultaneously with
disbursement of the Deposit. The party receiving such interest shall
pay any income taxes thereon. At the Closing, the Deposit and the
interest thereon, if any, shall be paid by Escrow Agent to Seller. If
for any reason the Closing has not occurred, and either party makes a
written demand upon Escrow Agent for payment of such amount stating the
basis for such demand, Escrow Agent shall give written notice to the
other party of such demand along with a copy thereof. If Escrow Agent
does not receive a written objection from the other party to the
proposed payment within 15 days after the giving of such notice by
Escrow Agent, which objection states the basis therefor, Escrow Agent is
hereby authorized to make such payment to the demanding party. If
Escrow Agent does receive such written objection within such 15-day
period, or, if for any other reason, Escrow Agent in good faith shall
elect not to make such payment, Escrow Agent shall continue to hold such
amount until otherwise directed by written instructions from the parties
to this Agreement or a final judgment of a court, and shall disburse
said funds accordingly. Escrow Agent shall send a copy of any objection
to the original demanding party. However, Escrow Agent shall have the
right at any time to deposit the escrowed proceeds and interest thereon,
if any, with the clerk of the court of the county in which any Property
is located, or with the clerk of the court in which any litigation
between Seller and Purchaser is pending, or in any other court which
Escrow Agent may select in the Chicago metropolitan area, in an action
for interpleader, all costs thereof to be borne by whichever of Seller
or Purchaser is the losing party. Escrow Agent shall give written
notice of such deposit to Seller and Purchaser. Upon such deposit or
payment pursuant to this Agreement, Escrow Agent shall be relieved and
discharged of all obligations and responsibilities hereunder.
(C) The parties acknowledge that Escrow Agent is acting solely as a
stakeholder at their request and for their convenience; that Escrow
Agent shall not be deemed to be the agent of either of the parties; and
that Escrow Agent shall not be liable to either party for any act or
omission on its part unless taken or suffered in willful disregard of
this Agreement. Escrow Agent may act upon any instrument or writing
believed by Escrow Agent to be genuine and to be signed and presented by
the proper party. Seller and Purchaser shall jointly and severally
indemnify and hold Escrow Agent harmless from and against all costs,
claims and expenses, including reasonable attorneys' fees (including
the value of same if Escrow Agent represents itself), incurred in
connection with the performance of Escrow Agent's duties hereunder.
Escrow Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement. Escrow Agent shall not be bound
by any modification of this Agreement, unless the Same is in writing,
signed by Seller and Purchaser and delivered to Escrow Agent, and if
Escrow Agent's duties are affected thereby, unless Escrow Agent shall
have given prior written consent thereto. If Escrow Agent shall be
uncertain as to its duties or rights hereunder, or shall receive
instructions from Purchaser or Seller, which, in Escrow Agent's opinion,
are in conflict with any of the provisions hereof, Escrow Agent shall be
hold or apply the Deposit pursuant to subparagraph (b) hereof and may
decline to take any other action.
ARTICLE SIXTEEN
MERGER OF UNDERSTANDINGS
16.1 Merger. It is understood and agreed that all understandings and
agreements heretofore had between the parties hereto are hereby merged into
this Agreement, which alone fully and completely expresses their agreement,
and that this Agreement is entered into after full investigation, neither
party relying upon any statement or representation made by Seller or
Purchaser or anyone else not embodied in this Agreement. This paragraph
shall survive the Closing and delivery of the Deed or other termination of
this Agreement.
ARTICLE SEVENTEEN
MISCELLANEOUS
17.1 Entire Agreement. This Agreement and the exhibits attached hereto
embody the entire agreement between the parties in connection with this
transaction, and there are no oral agreements existing between the parties
relating to this transaction which are not expressly set forth herein. This
Agreement may not be modified or, except as expressly provided to the
contrary herein, canceled or terminated, except in a writing signed by all
parties hereto. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
17.2 Waiver. Failure of either party to object to any act or omission
on the part of the other party, no matter how long the same may continue,
shall not be deemed to be a waiver by such party of any of its rights
hereunder, unless expressly provided to the contrary herein. No waiver by
any party at any time, express or implied, of any breach of any provision of
this Agreement, shall be deemed a waiver of a breach of any other provision
of this Agreement or a consent to any subsequent breach of the same or any
other provision. If any action by any party shall require the consent or
approval of another party, such consent or approval of such action on any one
occasion shall not be deemed a consent to or approval of said action on any
subsequent occasion.
17.3 Assignment. Purchaser may not assign any of its right, title or
interest in this Agreement, or its right to the Deposit and any interest
thereon, without the prior written consent of Seller, which consent shall be
at Seller's sole discretion.
17.4 Headings. The captions, section numbers and article numbers
appearing in this Agreement are inserted only as a matter of convenience, and
do not define, limit, construe or describe the scope or intent of such
sections or articles of this Agreement. Furthermore, as used in this
Agreement, any gender shall include any other gender, the singular shall
include the plural, and the plural shall include the singular, wherever
applicable.
17.5 Third Parties. No party other than Seller, Purchaser and their
respective successors and permitted assigns, shall have any rights to enforce
or rely upon this Agreement. This Agreement is binding upon and made solely
for the benefit of Seller, Purchaser and their respective heirs, personal
representatives, successors and permitted assigns.
17.6 Notices.
(A) Except as expressly provided to the contrary in this
Agreement, notices which must or may be given by any party hereto must be in
writing and shall be deemed as given hereunder upon actual receipt, if by
personal delivery to the addresses set forth below, or, if properly
addressed, if sent by certified or registered mail, return receipt requested,
four (4) days after depositing such notice with postage prepaid at the rates
and with the status certified or registered in a United States mailbox, or
one (1) day after depositing such notice, with proper payment or credit
arrangement, in the custody of a nationally recognized overnight delivery
service. Notice shall be deemed properly addressed if sent to the following
addresses:
If to Seller: Amerihost Properties, Inc.
2400 E. Devon Street
Suite 280
Des Plaines, IL 60018
Attn: Michael P. Holtz,
President and Chief Executive
Officer
With copies to: Helen R. Friedli, P.C.
c/o McDermott Will & Emery
227 West Monroe Street
Chicago, IL 60606-5096
Attn: Helen R. Friedli, Esq.
If to Escrow Agent: Stewart Title Guaranty Corporation
18333 Preston Road, Suite 410
Dallas, TX 75252
Attn: Tom Irons, Esq.
If to Purchaser: PMC Commercial Trust
17290 Preston Road
Dept. 101
3rd Floor
Dallas, TX 75252
Attn: Jan F. Salit,
Executive Vice President and
Chief Investment Officer, and
Andrew S. Rosemore, Executive
Vice President
With a copy to: PMC Commercial Trust
17290 Preston Road
3rd Floor
Dallas, TX 75252
Attn: Cheryl T. Murray, Esq.
General Counsel
(B) Except as set forth to the contrary herein, any party may
designate, by notice in writing as above provided, a new or other address to
which such notice or demand shall thereafter be so given, made or mailed.
(C) The respective attorneys for the parties are hereby
authorized (i) to give any notice which the party is required to give or
may give under this Agreement; and (ii) to agree to adjournments of the
Closing. It is understood that Seller's attorney is McDermott, Will &
Emery, and Purchaser's attorney is Cheryl T. Murray, Esq.
17.7 Governing Law. This Agreement shall be governed by the laws of the
State of Illinois, without cognizance to conflicts of laws rules.
17.8 Survival. The provisions, representations, warranties, covenants
and agreements of this Agreement shall survive the Closing of the transaction
contemplated hereby, unless expressly provided herein to the contrary.
17.9 Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof, this being in addition
to any other remedy to which they are entitled at law or in equity.
17.10 Satisfaction. The acceptance of a Deed by Purchaser for each
Property shall be deemed to be a full performance of and discharge of any and
all agreements and obligations on the part of Seller to be performed pursuant
to the provisions of this Agreement, except those, if any, which are herein
specifically stated to survive delivery of such Deed.
17.11 Confidentiality. All of the information heretofore or
hereafter supplied by Seller to Purchaser shall be deemed confidential and
shall not be revealed by Purchaser other than to a bank or other financial
institution or investment banker or rating agency which shall provide
Purchaser with financing in connection with the purchase of the Property,
provided that this provision shall not apply to disclosure or utilization
necessary or appropriate under applicable securities laws. In the event that
the transaction herein shall not close, all such information shall be
returned to Seller, and copies thereof shall not be retained by Purchaser or
any lending institution. This Section shall survive the Closing and
delivery of the Deed or other termination of this Agreement.
17.12 Mutuality. This Agreement has been executed after negotiation
and the opportunity by both parties to have this Agreement reviewed and
revised by legal counsel of their choice.
17.13 Marketing. Seller agrees not to market the Property or
solicit or accept any offer for the purchase and sale of the Property from
the date hereof through the earlier to occur of (a) the Closing Date, and
(b) the earlier termination of this Agreement.
ARTICLE EIGHTEEN
DEFINITIONS
Wherever used in this Agreement, the following terms have the meanings
set forth in this Article Eighteen:
"Appurtenances" shall mean all of Seller's right, title and interest in
all rights of way, drives, rights in adjoining streets, sidewalks, alleyways,
passages, curbs, berms and similar rights and areas used in connection with
the Property; all development rights for the Land or Improvements, whether
vested or not; all planned unit development (PUD) plans and other development
approvals for the Land and the Improvements; all appurtenant rights of
lateral support and encroachment rights; and all leases of property situated
off-site, but used in connection with the operation of the Improvements.
"Appurtenant Easements" shall mean all easements and licenses on or over
land or improvements, other than the Land and Improvements, which benefit the
Land or Improvements, including, but not limited to, all easements providing
access to the Land from public streets, roads and ways, all easements,
licenses and agreements for location, maintenance and replacement of off-
premises signs of the business and utility service lines, and all easements
for parking and storage on adjoining property.
"Books and Records" shall mean all books of account and annual
statements of operations for 1996 and 1997 with respect to the Property
(including audited statements to the extent the same have been audited); the
1998 budgets and all books of account and preliminary statements of the
operations for the current 1998 fiscal year for the Property to date, which
are kept by Seller in the ordinary course of business of operating the
Property, and monthly statements of operations of the Property for 1997 and
1998 through the month of the Closing (the statement of operations for the
month of the Closing to be provided after the Closing).
"Employees" shall mean all persons employed by Seller in connection with
the management and operation or possession of the Property during the
pendency of this Agreement.
"Excepted Items" shall mean the following property which is excluded
from the definition of "Personal Property" hereunder: (a) items owned by
independent contractors and business entities and not used in the operation
of the Property; (b) all items (prepaid or otherwise) stored, maintained, or
operated at the Property and consumed in the ordinary course of business,
(c) cash in bank accounts and petty cash maintained at the Property, checks
and money orders; (d) room reservation deposits of any kind or nature, (e)
receivables, if any, (f) utility deposits, if any, of every type and nature,
including any interest accrued thereon, and (g) all accounts payable with
respect to the Property, whether owing or accruing prior to, on or after the
Closing Date.
"Governmental Authorities" shall mean all federal, state, county,
municipal and local governments, administrative agencies and quasi-
governmental authorities having jurisdiction over the Property.
"Hazardous Materials" shall mean any and all substances which are or
become defined as a "hazardous waste," "hazardous substance" pollutant or
contaminant under any Legal Requirements, including, without limitation, the
Comprehensive Environmental Response Compensation and Liability Act (42
U.S.C. Section 9601 et seq.), as amended, and/or the Resource Conservation
and Recovery Act (42 U.S.C. Section 6901 et seq.), as amended, and/or the
federal regulations implementing such Acts; "Hazardous Materials" shall
include, but are not limited to, petroleum products and asbestos.
"Impositions" shall mean all real estate, personal property and hotel
occupancy taxes, general and special assessments imposed by Governmental
Authorities, water and sewer charges, and fees and charges assessed or
imposed by Governmental Authorities upon all or part of the Property and
which are or may become a lien on the Property.
"Improvements" shall mean all buildings and structures erected or
located on the Land and Appurtenant Easements at the date of this Agreement,
or at any time between the date of this Agreement and the Closing Date,
including all machinery, equipment and fixtures owned by Seller and attached
to such buildings and structures and used for operation or maintenance of the
buildings and structures, all parking area and driveway surfaces, and curbs
and drainage features, all landscaping, pool areas, all utility lines and
appurtenances and all signs and structural supports for signs.
"Inspection Period" shall mean the period of time beginning on the date
of receipt of the last Survey, Title Commitment (including Title Documents),
UCC Search or Phase I Audit, and/or updates thereto, and ending thirty (30)
days thereafter, however, in no event shall this Inspection Period extend
beyond the Closing Date.
"Knowledge of Seller" shall mean the actual knowledge of Seller.
"Legal Requirements" shall mean all laws, codes, ordinances, rules,
regulations, and requirements of all Governmental Authorities existing at the
date of this Agreement or at any time between the date of this Agreement and
the Closing Date applicable to all or part of the Property or the ownership,
operation, management, maintenance, development, improvements, repair,
renovation, lease, sale, encumbering, transfer, use or manner of use of all
or part of the property (including, without limitation, any law, code,
ordinance, rule, regulation or requirement relating to Hazardous Materials).
"Permits and Licenses" shall mean all permits, licenses, certificates of
occupancy, sales tax permits, and renewals thereof, which are material to the
normal operation of the Property.
"Permitted Exceptions" shall mean any defects, liens, encumbrances,
covenants, restrictions, easements, reservations, agreements and other
matters affecting title to the Property to which Purchaser does not object
prior to the expiration of the Inspection Period.
"Permitted Hazardous Materials" shall mean Hazardous Materials in
ordinary quantities which are customarily used in the operation, maintenance
and repair of hotels and lodging facilities similar to the Property and which
are stored and handled according to manufacturers' standards and guidelines
and in compliance with all applicable Legal Requirements, and prepackaged
office supplies, cleaning materials, personal grooming items and other
similar items sold for consumer use.
"Personal Property" excludes the Excepted Items and shall mean all
fixtures, furnishings and equipment located at the Property and required for
the operation of the Improvements as a motel/hotel, including, without
limitation, office furnishings and equipment (exclusive of all of the
vehicles used in the operation of the Improvements); fittings, machinery,
heating and cooling systems, tools, maintenance equipment, appliances, wires
and installed telephones, televisions, pictures, rugs, kitchen equipment, and
all other fixtures and personal property of every kind and nature, other than
the Excepted Items, which are located on, attached to, appurtenant to or used
in the operation, maintenance, management or security of the Property or any
portion of the Property, and which are owned by Seller, including Personal
Property (other than Excepted Items) acquired by Seller between the date of
this Agreement and the Closing Date, and all replacements, substitutions and
additions of and to all of the foregoing. Personal Property does not include
assignable trade names and goodwill. Seller does not lease any Personal
Property, but rather, owns all Personal Property used in operation of the
Property.
"Phase I Audit" shall mean a Phase I environmental site assessment
of the Property with respect to Hazardous Materials from a qualified
environmental audit firm experienced in Phase I environmental site
assessments, as selected by Purchaser, to be made within the Inspection
Contingency Period and pursuant to the ASTM Standard Practice for
Environmental Site Assessments.
"Phase II Site Assessment" shall mean a phase II environmental site
assessment of the Property with respect to Hazardous Materials from a
qualified environmental audit firm experienced with Phase II environmental
site assessments, as selected by Purchaser, to be made pursuant to ASTM
Standard Practice for Environmental Site Assessments.
"Title Insurance Company" shall mean Stewart Title Guaranty Corporation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
SELLER:
[AMERIHOST PROPERTIES SUBSIDIARIES
to be listed as signatories]
By: /s/ Michael P. Holtz
Michael P. Holtz
President and Chief Executive Officer
PURCHASER:
PMC COMMERCIAL TRUST,
a Texas Real Estate Investment Trust
By: /s/ Lance B. Rosemore
Name: Lance B. Rosemore
Title: President
The undersigned, Amerihost Properties, Inc., a Delaware corporation, and the
sole shareholder of Seller, hereby joins this Agreement solely for the
purpose of performing its duties and obligations as set forth in Section 5.1
(b) and Section 6.6, if applicable.
AMERIHOST PROPERTIES, INC.
By: /s/ Michael P. Holtz
Michael P. Holtz, President
The undersigned, AmeriHost Inns, Inc., a Delaware corporation, hereby joins
this Agreement solely for the purpose of performing its duties and
obligations as set forth in Section 5.1 (b).
AMERIHOST INNS, INC.
By: /s/ Michael P. Holtz
Michael P. Holtz, President
SCHEDULE OF EXHIBITS
A . . . . . . . . Property-Owning Subsidiaries
B . . . . . . . . Street Addresses
B-1 to B-30 . . . Land
C . . . . . . . . Price Allocation per Property
D . . . . . . . . Form of Master Agreement
E . . . . . . . . Form of Property Lease
F . . . . . . . . Repairs for Marysville, Ohio and Plainfield, Indiana
G . . . . . . . . Phase I Audit Update Property
H . . . . . . . . Assumption Fees