1
EXHIBIT 2.5
HOTEL PURCHASE AGREEMENT
BY AND BETWEEN
WYNDHAM HOTEL CORPORATION
as Purchaser
AND
VALDOSTA C.I. ASSOCIATES, L.P.
and R.T. LAND VENTURE, INC.
collectively, as Seller
2
TABLE OF CONTENTS
ARTICLE 1
The Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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ARTICLE 2
Hotel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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ARTICLE 3
Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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3.1 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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3.2 Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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3.3 Earnest Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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ARTICLE 4
Title Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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4.1 Deed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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4.2 Bill of Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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4.3 Title Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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4.4 UCC Search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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4.5 Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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ARTICLE 5
Hotel Documents, Inspection and Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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5.1 [DELETED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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5.2 Hotel Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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5.3 [DELETED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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ARTICLE 6
[DELETED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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ARTICLE 7
Leases, Occupancy Agreements, FF&E Leases, and Service Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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7.1 Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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ARTICLE 8
Operation of Hotel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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8.1 [DELETED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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8.2 Mechanics Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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8.3 [DELETED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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8.4 [DELETED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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8.5 [DELETED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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8.6 [DELETED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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ARTICLE 9
Representations and Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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9.1 Representations by Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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9.2 Representations by VCIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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9.3 Representations by RTLV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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9.4 [DELETED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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9.5 [DELETED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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9.6 [DELETED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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9.7 [DELETED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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9.8 [DELETED] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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9.9 Seller's Actual Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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9.10 Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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ARTICLE 10
Conditions Precedent to the Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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10.1 Seller's Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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10.2 Seller's Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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10.3 Title Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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ARTICLE 11
Closing and Closing Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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11.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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11.2 Seller's Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
11.3 Purchaser's Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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11.4 Prorations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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11.5 Document Preparation and Closing Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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11.6 Reconciliation and Final Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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11.7 Accounts Payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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11.8 Accounts Receivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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ARTICLE 12
Casualty and Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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12.1 Risk of Loss; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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12.2 Purchaser's Termination Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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12.3 Procedure for Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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ARTICLE 13
Default and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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13.1 Purchaser's Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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13.2 Seller's Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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13.3 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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ARTICLE 14
Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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14.1 Identity of Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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14.2 Indemnification by Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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14.3 Indemnification by Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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ARTICLE 15
Liquor License . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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15.1 Liquor Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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ARTICLE 16
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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16.1 1031 Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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16.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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16.3 Entire Agreement; Modification and Waivers; Cumulative Remedies . . . . . . . . . . . . . . . . . . 23
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16.4 Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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16.5 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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16.6 Article Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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16.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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16.8 Time Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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16.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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16.10 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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16.11 Further Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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16.12 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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16.13 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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16.14 Qualification on Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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16.15 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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HOTEL PURCHASE AGREEMENT
THIS HOTEL PURCHASE AGREEMENT (this "Agreement") is made as of the
date last below written by and between VALDOSTA C.I. ASSOCIATES, L.P., a Kansas
limited partnership ("VCIA") and R.T. LAND VENTURE, INC., a Kansas corporation
("RTLV") (collectively, "Seller"), and WYNDHAM HOTEL CORPORATION, a Delaware
corporation ("Purchaser").
RECITALS:
A. Seller is the owner of the Hotel (as hereinafter defined)
currently licensed and operated as a Clubhouse Hotel.
B. Seller desires to sell the Hotel to Purchaser, and Purchaser
desires to purchase the Hotel from Seller, on the terms and conditions
hereinafter set forth.
AGREEMENT:
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE 1
THE CONTRACT
For and in consideration of the mutual benefits enjoyed by one another
under this Agreement, Seller agrees to sell and convey the Hotel to Purchaser
and Purchaser agrees to purchase and accept conveyance of the Hotel pursuant to
the terms and conditions set forth in this Agreement.
ARTICLE 2
HOTEL
As used in this Agreement, the term "Hotel" shall mean and refer to
the following and Seller's businesses operated with respect thereto:
(a) The real property more particularly described on
Exhibit A attached hereto, together with all rights, alleys, streets, strips,
gores, waters, privileges, appurtenances, advantages and easements belonging
thereto or in any-wise appertaining thereto (collectively the "Land");
(b) The hotel and all other buildings, structures,
fixtures, parking areas, and other improvements presently located upon the Land
(collectively, the "Improvements");
HOTEL PURCHASE AGREEMENT - Page 1
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(c) All tangible personal property and fixtures (which
are not part of the improvements of any kind attached to, or located upon and
used in connection with the ownership, maintenance, use or operation of the
Land or Improvements as of the date hereof (or acquired by Seller and so
employed prior to Closing, as defined below), including, but not limited to,
all furniture, furnishings, fixtures, equipment, signs; all heating, lighting,
plumbing, drainage, electrical, air conditioning, and other mechanical fixtures
and equipment and systems; all elevators, escalators, and related motors and
electrical equipment and systems; all hot water heaters, furnaces, heating
controls, motors and boiler pressure systems and equipment, all shelving and
partitions, all ventilating equipment, and all incinerating and disposal
equipment; all tennis, pool and health club and fitness equipment and
furnishings; all vans, automobiles and other motor vehicles; all carpet,
drapes, beds, furniture, televisions, telephones and other furnishings; and all
stoves, ovens, freezers, refrigerators, dishwashers, disposals, kitchen
equipment and utensils, tables, chairs, plates and other dishes, glasses,
silverware, serving pieces and other restaurant and bar equipment, apparatus
and utensils (collectively, the "FF&E");
(d) All merchandise, supplies, inventory and other items
used for the operation and maintenance of guest rooms, guest services,
restaurants, lounges, swimming pools, health clubs, and other common areas and
recreational areas located within or relating to the Improvements, including,
without limitation, all food and beverage (alcoholic and non-alcoholic)
inventory except to the extent any applicable law prohibits the transfer of
unopened alcoholic beverages, office supplies and stationery, advertising and
promotional materials, towels, washcloths, mattresses, pillows, linens and
bedding, cleaning, paper and other supplies, napkins and tablecloths,
upholstery material, carpets, rugs, furniture, engineers' supplies, paint and
painters' supplies, employee uniforms, and pool, tennis court and other
recreational area cleaning and maintenance supplies (collectively, the
"Supplies");
(e) To the extent assignable, (i) all leases, licenses,
and other agreements with respect to tenancies of the nature of space leases in
the Land or Improvements, together with all amendments, modifications, renewals
and extensions thereof and all guaranties by third parties of the obligations
of tenants, licensees, and similarly situated parties thereunder (the
"Leases"), and (ii) all occupancy agreements, "trade-out" agreements, advance
booking agreements, convention reservation agreements, or other similar
agreements, other than Leases and other than guest or room bookings, demising
space in, providing for the use or occupancy of, or otherwise similarly
affecting or relating to the use or occupancy of the Improvements or Land
together with all amendments, modifications, renewals and extensions thereof,
and all guaranties by third parties of the obligations of the holder of the
occupancy right and similarly situated parties thereunder (the "Occupancy
Agreements");
(f) To the extent assignable, all prepaid rents and
deposits, including, but not limited to, refundable security deposits and
rental deposits, and all other deposits for advance reservations, banquets or
future services, made in connection with the use or occupancy of the
Improvements (collectively the "Deposits"); provided, however, that to the
extent Purchaser does not receive the Deposits at Closing, Purchaser shall be
entitled to a credit against the cash portion of the Purchase Price (as defined
below) in an amount equal to the Deposits, and Purchaser agrees to assume all
of Seller's liability and obligations, if any, with regard to the Deposits so
received or credited;
HOTEL PURCHASE AGREEMENT - Page 2
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(g) Any and all of the following to the extent assignable
that relate to or affect in any way, the design, construction, ownership, use,
occupancy, leasing, maintenance, service, or operation of the Land,
Improvements, Leases, Deposits, Supplies, or FF&E:
(i) Contracts and agreements, such as labor,
collective bargaining, service, or maintenance contracts, employment
agreements, utility contracts, contracts for the purchase of supplies,
insurance contracts, airline agreements, corporate account agreements,
travel agency agreements, telephone service agreements, and yellow
pages or other advertising agreements, excluding however the franchise
agreement with respect to the use of the "Clubhouse" tradename
(collectively, the "Service Contracts");
(ii) Warranties, guaranties, indemnities, and
claims for the benefit of Seller (collectively the "Warranties");
(iii) Licenses (including without limitation
liquor, beer, wine, bar and similar licenses, unless otherwise herein
provided), permits, franchises (including without limitation hotel
franchise license agreements), utility reservations, certificates of
occupancy, and similar documents issued by any federal, state, or
municipal authority or by any private party so long as assignment can
be made without material cost to Seller, excluding however any
licensing agreements with respect to the "Clubhouse" tradename and
trademark (collectively the "Licenses");
(iv) Trade names, trade styles, trade marks,
service marks, and other identifying material, and all variations
thereof, together with all related goodwill, excluding however the
"Clubhouse" name and related service marks (collectively, the
"Tradenames");
(v) Plans, drawings, specifications, surveys,
soil reports, engineering reports, inspection reports, environmental
audits and other technical descriptions and reports to the extent in
Seller's possession or control (collectively, the "Plans and Specs");
(vi) Leases of any FF&E and other contracts
permitting the use of any FF&E at the Improvements (collectively, the
"FF&E Leases");
(h) To the extent assignable, Seller's interest in the
right to receive immediately on and after Closing and continuously consume
thereafter water service, sanitary and storm sewer service, electrical service,
gas service, and telephone service on and for the Land and Improvements, and
the foregoing right shall include, but not be limited to the following, to the
extent assignable by Seller, (i) the right to the present and future use of
wastewater, drainage, water and other utility facilities to the extent such use
benefits the Land or Improvements, (ii) all reservations of or commitments
covering any such use in the future, and (iii) all wastewater capacity
reservations ever issued and relating to the Land or Improvements (all of the
foregoing are referred to in this Agreement collectively as the "Utility
Reservations");
(i) All rights, titles, and interests of Seller
appurtenant to the Land and Improvements, including, but not limited to, (i)
all easements, rights of way, rights of ingress and
HOTEL PURCHASE AGREEMENT - Page 3
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egress, tenements, hereditaments, privileges, and appurtenances in any way
belonging to the Land or Improvements, (ii) any land lying in the bed of any
alley, highway, street, road or avenue, open or proposed, in front of or
abutting or adjoining the Land, (iii) any strips or gores of real estate
adjacent to the Land, and (iv) the use of all alleys, easements and
rights-of-way, if any, abutting, adjacent or contiguous to or adjoining the
Land (collectively, the "Appurtenances");
(j) To the extent assignable, all books and records,
promotional material, telephone numbers, tenant data, marketing and leasing
material and forms, market studies, keys, and other materials of any kind which
are or may be used in Seller's ownership or use of the Land, the Improvements
or the FF&E, whether any of the foregoing are in hard copy form or in
computerized data storage form (collectively, the "Records"); provided,
however, (i) that a copy of any such material which constitutes a part of
Seller's continuing business or financial records may be retained by Seller and
(ii) that Seller's and Seller's manager's accounting software shall not be
conveyed; and
(k) Seller's active guest ledger, tray ledger, petty
cash, cash drawers, and house accounts as of 6:00 A.M. on the Closing Date but
excluding Seller's accounts receivable, reserves, and bank accounts (the "Cash
and Equivalents"). The Cash and Equivalents shall be separately paid for by
Purchaser by adding the amount thereof to the Purchase Price at Closing.
The Hotel shall be conveyed, assigned, and transferred to Purchaser at Closing,
(i) free and clear of all mortgages, debts, liens, encumbrances, management
agreements, security interests, other encumbrances, and prior assignments and
conveyances, and (ii) free and clear of all licenses, leases, and other
agreements, and all conditions, restrictions, rights-of-way, easements,
encroachments, claims and other matters affecting title, except for those
matters specifically set forth on Exhibit B attached hereto and as described in
Section 6.1 below (the "Conveyance Standard").
ARTICLE 3
PURCHASE PRICE
3.1 Purchase Price. The total price (the "Purchase Price") for
which Seller agrees to sell and convey the Hotel to Purchaser, and which
Purchaser agrees to pay or deliver to Seller, subject to the terms of this
Agreement, and adjustments as provided herein, shall consist of (a)
$2,101,000.00 plus (b) an amount equal to the outstanding principal balance of
that certain promissory note executed by VCIA payable to GE Capital Asset
Management Corp. dated February 19, 1988 in the original principal amount of
$4,500,000 (the "GE Note") which exists on July 1, 1997 plus the amount of any
principal payments made thereon prior to the Closing Date plus (c) the sum of
the Cash and Equivalents, plus (d) the assignment to Seller of a .84 percent
interest in VCIA which is currently owned by Clubhouse Properties, Inc.
("CPI"). The cash portion of the Purchase Price shall be payable to Seller in
immediately available funds at the Closing.
3.2 Allocations. Subject to adjustments in accordance with the
terms of this Agreement, the Purchase Price shall be allocated among the Land,
Improvements, FF&E, and the
HOTEL PURCHASE AGREEMENT - Page 4
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other components of the Hotel in the manner determined by Purchaser and Seller
prior to the Closing.
3.3 Earnest Money. For the purpose of securing the performance of
Purchaser under the terms and provisions of this Agreement, Purchaser shall
deliver to the Title Company (below defined) within three (3) business days
following the full execution hereof, $1,000.00 in cash (the "Earnest Money").
All interest accruing on the Earnest Money shall become a part of and be added
to the Earnest Money so that it shall be subject to disbursement or application
in the same manner as is the principal of the Earnest Money. The Title Company
shall deposit the Earnest Money in an interest bearing account at a bank or
savings institution reasonably acceptable to Seller and Purchaser, and all
interest accrued thereon shall be reported under Purchaser's federal tax
identification number. If the sale of the Hotel is not consummated in
accordance with the terms hereof, the Earnest Money, less the sum of $100.00
therefrom which shall be paid to Seller as independent consideration for
entering into this Agreement, shall be returned to Purchaser or delivered to
Seller as liquidated damages as herein provided. If the sale of the Hotel is
consummated in accordance with the terms hereof, the Earnest Money, less such
$100.00 independent consideration, shall be applied to the Purchase Price.
ARTICLE 4
TITLE DELIVERIES
4.1 Deed. On the Closing Date, Seller shall convey, transfer, and
assign title to the Hotel to Purchaser. The Land, Improvements and
Appurtenances shall be conveyed to Purchaser by Seller's Special Warranty Deed
in a form reasonably acceptable to both Purchaser and Seller ("Seller's Deed")
conveying good, indefeasible, and insurable fee simple title to the Land and
Improvements, in accordance with the Conveyance Standard.
4.2 Bill of Sale. The FF&E, Supplies, Warranties, Licenses,
Tradenames, Plans and Specs, Utility Reservations, Records, Deposits, Cash and
Equivalents, and other personal property shall be conveyed to Purchaser
(and/or, at Purchaser's option, Purchaser's lessee or other designee) by
Seller's Special Warranty Bill of Sale, Assignment and Assumption Agreement in
a form reasonably acceptable to both Purchaser and Seller (the "Bill of Sale")
conveying good title to all such property in accordance with the Conveyance
Standard.
4.3 Title Commitment. As soon as practicable but no later than
ten (10) days after the execution of this Agreement, Purchaser shall obtain
(and promptly deliver a copy to Seller) the following:
(a) A Commitment for Title Insurance (the "Title
Commitment") issued for Chicago Title Insurance Company ("Chicago") or other
title company designated by Purchaser, issued through American Title Insurance
Company, 6029 Beltline Road, Suite 250, Dallas, Texas 75240, Attention: Carole
Badgett (972/789-8426) (the "Title Company"), for the most recent form of
owner's policy and Loan Policy covering the Land and Improvements, in the full
amount of the Purchase Price and endorsed as Purchaser or its lender may
reasonably require, setting forth the current status of the title to the Land
and Improvements, showing all liens, claims,
HOTEL PURCHASE AGREEMENT - Page 5
10
encumbrances, easements, rights of way, encroachments, reservations,
restrictions, and any other matters affecting the Land and Improvements, and
pursuant to which the Title Company agrees to issue to Purchaser at Closing an
Owner Policy of Title Insurance (the "Title Policy") on the most recent form of
ALTA owner's policy and loan policy (as above provided) as endorsed as
Purchaser or its lender may reasonably require; and
(b) A true, complete, and legible copy of all documents
and instruments (as recorded, where applicable) (the "Supporting Documents")
referred to or identified in the Title Commitment, including, but not limited
to, all deeds and other conveyance documents evidencing transfer of title into
Seller, lien instruments, leases, plats, surveys, reservations, restrictions,
and easements.
4.4 UCC Search. As soon as practicable but no later than ten (10)
days after the execution of this Agreement, Purchaser shall obtain (and
promptly deliver a copy to Seller) current written reports on those names
requested by Purchaser (the "UCC Searches") from the Office of the Secretary of
State of the State where the Hotel is located and the deed recording offices of
the county where the Hotel is located reflecting the results of current
searches of the Uniform Commercial Code Records maintained by such offices.
4.5 Survey. As soon as practicable but no later than ten (10)
days after the execution of this Agreement, Purchaser shall obtain (and
promptly deliver a copy to Seller) a current "as built" survey (the "Survey")
of the Land and Improvements made on the ground and certified by a professional
land surveyor licensed in the state in which the Hotel is located and approved
by the Title Company and Purchaser (the "Surveyor"). Except as Purchaser shall
otherwise direct, the Survey must be prepared, and the field work surveying
must be conducted, in accordance with the current Minimum Standard Detail
Requirements for ALTA/ACSM Real Property Title Surveys and the items set forth
in Table A thereto (other than contours and elevations of the Land but
including elevations of the Improvements) and, except as Purchaser shall
otherwise direct, shall (i) accurately show the locations and dimensions of all
existing easements, fire hydrants, fences, encroachments, conflicts,
protrusions, alleys, streets and roads (including median and curb cuts), and
rights-of-way on or adjacent to or serving the Land which are visible on the
ground or listed in the Title Commitment (with recording information shown if
applicable); (ii) accurately show the locations of all existing improvements,
monuments, sidewalks, driveways, parking lots (with striped spaces shown) and
other visible items on the Land; (iii) accurately show all areas designated as
being flood prone or subject to special flood hazards or other hazardous
conditions according to the most current official maps of the Flood Insurance
Administration, the Federal Emergency Management Agency or any other public or
semi-public body charged with determining the existence of such conditions
which has jurisdiction over the Hotel; (iv) set forth a metes and bounds
description of the Land and all on the ground Appurtenances tied at all corners
to physical monuments and on all sides and curves to adjoining tracts (with any
discrepancies fully reconciled) and a description by reference to the recorded
plat or map of the Land; and (v) contain a certification by the Surveyor in
form reasonably acceptable and addressed to Seller, Purchaser and the Title
Company, indicating that the Survey was made on the ground and accurately shows
all the matters required above. If different from the description contained in
Exhibit A attached to this Agreement, the legal description of the Land
contained in the Survey, once the correctness thereof has been confirmed by
Seller, Purchaser and the Title
HOTEL PURCHASE AGREEMENT - Page 6
11
Company, shall be substituted for the description of the Land contained in said
Exhibit A and this Agreement shall be deemed amended by the substitution of the
legal description of the Land contained in the Survey as a new Exhibit A
without the necessity of the parties executing any additional written
amendments to this Agreement provided that the Title Company shall accept such
description to be used in the Owner Policy of Title Insurance, in Seller's
Deed, and in any Loan Policy of Title Insurance and any mortgage to be
delivered to any lender at Closing.
ARTICLE 5
HOTEL DOCUMENTS, INSPECTION AND OBJECTIONS
5.1 [DELETED]
5.2 Hotel Documents. As soon as practicable but in no event later
than ten (10) days after the execution hereof, Seller, at Seller's sole cost
and expense, will, to the extent not heretofore delivered to Purchaser pursuant
to the Agreement and Plan of Merger dated as of July 21, 1997 by and among
Purchaser, WHC Acquisition Corporation, and ClubHouse Hotels, Inc., David H.
Aull and Roland W. Samples (the "Merger Agreement"), deliver to Purchaser true,
correct and complete copies (or where specifically indicated, original
counterparts) of the following, together with all amendments, modifications,
renewals or extensions thereof:
(i) All Warranties relating to the Hotel or any
part thereof which are still in effect;
(ii) [DELETED]
(iii) All Licenses;
(iv) [DELETED]
(v) To the extent in Seller's possession or
control or readily obtainable without material expense, all
engineering and architectural plans, drawings and specifications
relating to the Hotel, as well as copies of any environmental reports,
boundary and/or improvements surveys, engineering reports and
subsurface studies affecting the Hotel.
(vi) All Services Contracts and a schedule of such
Service Contracts including, without limitation, a schedule of media
and advertising commitments and programs (the "Schedule of Service
Contracts");
(vii) All Leases, a schedule of such Leases (the
"Schedule of Leases") and all agreements for real estate commissions,
brokerage fees, finder's fees or other compensation payable by Seller
in connection therewith which would be binding on Purchaser after
Closing;
HOTEL PURCHASE AGREEMENT - Page 7
12
(viii) A list of all governmental authorities to
which taxes are paid by Seller or its manager in connection with the
operation of the Hotel (other than income and franchise taxes) and the
account number and/or taxpayer identification number associated with
each;
(ix) To the extent in Seller's possession or
control, all notices received from governmental authorities in
connection with the Hotel within the most recent twelve (12) months;
(x) [DELETED]
(xi) All FF&E Leases and a schedule of such FF&E
Leases (the "Schedule of FF&E Leases");
(xii) Seller's franchise and/or agreement and guest
comments results with respect to the Hotel;
(xiii) The most recent inventory of the FF&E and
Supplies to the extent such inventory exists;
(xiv) A schedule of the Deposits and the Utility
Reservations (the "Schedule of Deposits and Utility Reservations");
(xv) [DELETED]
(xvi) Such other documents or information to the
extent in Seller's possession or control as may be reasonably
requested by Purchaser.
5.3 [DELETED]
ARTICLE 6
[DELETED]
ARTICLE 7
LEASES, OCCUPANCY AGREEMENTS, FF&E LEASES, AND SERVICE CONTRACTS
7.1 Schedules. Seller hereby warrants, represents, and certifies
unto Purchaser, to the best of Seller's knowledge and belief, in all material
respects (i) that the Schedule of Service Contracts, Schedule of FF&E Leases,
Schedule of Leases, and Schedule of Deposits and Utility Reservations, when
delivered, will be a true, correct, and complete list of all Service Contracts,
all FF&E Leases, all Leases, and all Deposits and Utility Reservations in
effect at that time, (ii) that the copies of the Service Contracts, FF&E
Leases, and Leases when delivered to Purchaser, will be true, complete and
correct copies of such Service Contracts, FF&E Leases, and Leases
HOTEL PURCHASE AGREEMENT - Page 8
13
(including without limitation, all amendments, modifications, renewals, and
extensions thereof), and (iii) that the Service Contracts, FF&E Leases, Leases
and Occupancy Agreements are in full force and effect and, to Seller's actual
knowledge, no default (beyond applicable grace or cure periods) exists
thereunder and no condition exists that, with the giving of notice or passage
of time, or both, would constitute a default. The term "Tenant" shall refer
only to tenants under Leases and not guests of the Hotel.
ARTICLE 8
OPERATION OF HOTEL
8.1 [DELETED]
8.2 Mechanics Liens. Seller hereby covenants that all work
required to be done prior to the Closing Date under the terms of any Lease or
License has been or will be performed and fully paid for by Seller prior to the
Closing Date in accordance with the terms of such Lease or License, and all
mechanics' and materialmen's liens arising from any labor or material furnished
prior to the Closing Date will be discharged so as to be omitted from
Purchaser's Title Policy.
8.3 [DELETED]
8.4 [DELETED]
8.5 [DELETED]
8.6 [DELETED]
ARTICLE 9
REPRESENTATIONS AND COVENANTS
9.1 Representations by Purchaser. Purchaser hereby represents and
warrants unto Seller that each and every one of the following statements is
true, correct and complete in every material respect as of the date of this
Agreement and will be true, correct and complete as of the Closing Date:
(a) Purchaser is duly organized, validly existing and in
good standing under the laws of the State of Delaware, and, other than
qualifying to do business in the state where the Hotel is located, has full
right, power and authority to enter into this Agreement and to assume and
perform all of its obligations under this Agreement; and the execution and
delivery of this Agreement and the performance by Purchaser of its obligations
under this Agreement require no further action or approval of Purchaser's
shareholders, directors, members, managers or partners (as the case may be) or
of any other individuals or entities in order to constitute this Agreement as a
binding and enforceable obligation of Purchaser. The individuals and/or
entities signing below in the indicated representative capacities are fully
authorized so to act.
HOTEL PURCHASE AGREEMENT - Page 9
14
(b) Purchaser is not a foreign entity, foreign
corporation, foreign partnership, foreign trust or foreign estate (as those
terms are defined in the Internal Revenue Code and Income Tax Regulations).
(c) To Purchaser's actual knowledge, none among the entry
into, performance of, or compliance with this Agreement by Purchaser has
resulted, or will result, in any violation of, default under, or acceleration
of any obligation under any existing corporate charter, certificate of
incorporation, bylaw, articles of organization, limited liability company
agreement or regulations, partnership agreement, mortgage indenture, lien
agreement, note, contract, permit, judgment, decree, order, restrictive
covenant, statute, rule or regulation applicable to Purchaser; provided
however, Purchaser's lender has certain approval rights, which it may exercise
in connection with the acquisition of the Hotel.
(d) There is no action, suit or proceeding pending, or to
Purchaser's actual knowledge threatened, against or affecting the Purchaser in
any court or before any arbitrator or before any governmental agency or other
instrumentality which (a) in any manner raises any question affecting the
validity or enforceability of this Agreement or any other agreement or
instrument to which the Purchaser is a party or by which it is bound and that
is to be used in connection with, or is contemplated by, this Agreement, (b)
could materially and adversely affect the business, financial position or
results of operations of the Purchaser, (c) could materially and adversely
affect the ability of the Purchaser to perform its obligations hereunder, or
under any document to be delivered pursuant hereto, (d) could create a lien on
the Hotel, any part thereof or any interest therein or (e) could adversely
affect the Hotel, any part thereof or any interest therein or the use,
operation, condition or occupancy thereof.
(e) No Act of Bankruptcy (below defined) has occurred
with respect to the Purchaser. "Act of Bankruptcy" means that a party hereto
or any general partner or member thereof shall (a) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator of itself or of all or a substantial part of its property, (b)
admit in writing its inability to pay its debts as they become due, (c) make a
general assignment for the benefit of its creditors, (d) file a voluntary
petition or commence a voluntary case or proceeding under the Federal
Bankruptcy Code (as now or hereafter in effect), (e) be adjudicated a bankrupt
or insolvent, (f) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-up or composition
or adjustment of debts, (g) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in an
involuntary case or proceeding under the Federal Bankruptcy Code (as now or
hereafter in effect), or (h) take any corporate or partnership action for the
purpose of effecting any of the foregoing; or if an involuntary proceeding or
case shall be commenced in any court of competent jurisdiction seeking (1) the
liquidation, reorganization, dissolution or winding-up, or the composition or
readjustment of debts, of such party or general partner or managing member, (2)
the appointment of a receiver, custodian, trustee or liquidator for such party
or general partner or managing member or all or any substantial part of its
assets, or (3) other similar relief under any law relating to bankruptcy,
insolvency, reorganization, winding-up or composition or adjustment of debts,
and such proceeding or case shall continue undismissed, or an order (including
an order for relief entered in an involuntary case under the Federal Bankruptcy
Code, as now or hereafter in effect), judgment, or decree approving or ordering
any
HOTEL PURCHASE AGREEMENT - Page 10
15
of the foregoing shall be entered and continue unstayed and in effect, in any
such case for a period of 60 consecutive days.
9.2 Representations by VCIA. VCIA hereby represents and warrants
unto Purchaser that each and every one of the following statements is true,
correct and complete in every material respect as of the date of this Agreement
and will be true, correct and complete as of the Closing Date:
(a) VCIA is duly organized, validly existing and in good
standing under the laws of the State of Kansas, and has full right, power and
authority to enter into this Agreement and to assume and perform all of their
obligations under this Agreement, and the execution and delivery of this
Agreement and the performance by VCIA of its obligations under this Agreement
require no further action or approval of the shareholders, directors, members,
managers or partners of VCIA or of any other individuals or entities in order
to constitute this Agreement as a binding and enforceable obligation of VCIA.
The individuals and/or entities signing below in the indicated representative
capacities are fully authorized so to act. No person or entity owns any
interest in the Hotel other than VCIA and RTLV.
(b) VCIA is not a foreign entity, foreign corporation,
foreign partnership, foreign trust or foreign estate (as those terms are
defined in the Internal Revenue Code and Income Tax Regulations).
(c) To VCIA's actual knowledge, and except to the extent
that certain items are to be discharged as of the Closing, none among the entry
into, the performance of, or compliance with this Agreement by VCIA has
resulted, or will result, in any violation of, default under, or acceleration
of any obligation under any existing corporate charter, certificate of
incorporation, bylaw, articles of organization, operating agreement,
regulations, partnership agreement, mortgage indenture, lien agreement, note,
contract, permit, judgment, decree, order, restrictive covenant, statute, rule
or reputation applicable to VCIA or to the Hotel which will, in any one case or
in the aggregate, materially and adversely affect the ownership or operation of
the Hotel or VCIA's ability to consummate the transactions contemplated hereby.
(d) No Act of Bankruptcy has occurred with respect to
VCIA.
9.3 Representations by RTLV. RTLV hereby represents and warrants
unto Purchaser that each and every one of the following statements is true,
correct and complete in every material respect as of the date of this Agreement
and will be true, correct and complete as of the Closing Date:
(a) RTLV is duly organized, validly existing and in good
standing under the laws of the State of Kansas, and has full right, power and
authority to enter into this Agreement and to assume and perform all of their
obligations under this Agreement, and the execution and delivery of this
Agreement and the performance by RTLV of its obligations under this Agreement
require no further action or approval of the shareholders, directors, members,
managers or partners of RTLV or of any other individuals or entities in order
to constitute this Agreement as a binding and enforceable obligation of RTLV.
The individuals and/or entities signing below in
HOTEL PURCHASE AGREEMENT - Page 11
16
the indicated representative capacities are fully authorized so to act. No
person or entity owns any interest in the Hotel other than VCIA and RTLV.
(b) RTLV is not a foreign entity, foreign corporation,
foreign partnership, foreign trust or foreign estate (as those terms are
defined in the Internal Revenue Code and Income Tax Regulations).
(c) To RTLV's actual knowledge, and except to the extent
that certain items are to be discharged as of the Closing, none among the entry
into, the performance of, or compliance with this Agreement by RTLV has
resulted, or will result, in any violation of, default under, or acceleration
of any obligation under any existing corporate charter, certificate of
incorporation, bylaw, articles of organization, operating agreement,
regulations, partnership agreement, mortgage indenture, lien agreement, note,
contract, permit, judgment, decree, order, restrictive covenant, statute, rule
or reputation applicable to RTLV or to the Hotel which will, in any one case or
in the aggregate, materially and adversely affect the ownership or operation of
the Hotel or RTLV's ability to consummate the transactions contemplated hereby.
(d) No Act of Bankruptcy has occurred with respect to
RTLV.
9.4 [DELETED]
9.5 [DELETED]
9.6 [DELETED]
9.7 [DELETED]
9.8 [DELETED]
9.9 Seller's Actual Knowledge. For the purpose of this Agreement,
the phrase "Seller's knowledge" or "Seller's actual knowledge" means (a) facts
that are actually known to VCIA or RTLV (as the case may be) and shall not
include facts that on any theory of law might be attributable to VCIA or RTLV
(as the case may be) by reason of a principal-agent or other similar
relationship but which are not actually known to VCIA or RTLV (as the case may
be), and (b) without inquiry, so that VCIA or RTLV (as the case may be) shall
not be required to have performed any due diligence, other than review of their
files as to the subject matter of the representations or warranties contained
herein, with respect to the matters covered by this Agreement.
9.10 Investigation. Purchaser acknowledges and agrees that, except
as expressly otherwise provided in this Agreement, it is relying on its own
independent factual, physical, and legal inspections and examinations of the
Hotel. Except as otherwise provided in this Agreement, Purchaser shall accept
the Hotel "AS IS," and "with all faults," and subject only to the terms and
conditions of this Agreement. EXCEPT AS PROVIDED IN THIS AGREEMENT, ALL
EXPRESS AND IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE ARE HEREBY DISCLAIMED. Purchaser acknowledges that Seller
HOTEL PURCHASE AGREEMENT - Page 12
17
has not made any representation, warranty, or statement, or held out any
inducements to Purchaser, other than those expressly made in this Agreement,
and Seller shall not be liable or bound in any manner by express or implied
warranties, guarantees, promises, statements, representations or information
pertaining to the Hotel, its physical or structural condition, permits,
licenses, leases, rents, income, cash flow, gross income, net income, profits,
earnings, occupancies, expenses or operations, or any other matter or thing,
except as specifically set forth in this Agreement. Purchaser acknowledges
that Seller shall not be bound or liable in any manner by any verbal or written
statements, representations or any information pertaining to the Hotel,
furnished or claimed to have been furnished by any person or party, agent,
contractors, engineer, consultant or employee, unless the same is specifically
set forth herein, and the parties acknowledge that all prior communications and
negotiations between the parties have been merged into this Agreement.
Notwithstanding anything to the contrary contained herein; Seller acknowledges
and agrees that Purchaser is relying upon certain warranties and
representations made to its affiliates in the Merger Agreement including,
without limitation, representations and warranties concerning VCIA and the
Hotel.
9.11 Delivery on Closing Date. On the Closing Date, Seller shall
deliver to Purchaser possession of the Hotel free and clear of all tenancies of
every kind and parties in possession, except for the Tenants under the Leases
and guests in the Hotel, and with all parts of the Hotel (including, without
limitation, the Improvements and FF&E) in substantially the same condition as
the same were on the date of this Agreement, normal wear only excepted.
ARTICLE 10
CONDITIONS PRECEDENT TO THE CLOSING
Purchaser's obligations to consummate the Closing are subject to the
timely satisfaction of each and every one of the conditions and requirements
set forth in this Article 10, all of which shall be conditions precedent to
Purchaser's obligations under this Agreement. If the conditions in this
Article 10 fail for any reason, Purchaser may terminate this Agreement, the
Earnest Money shall be returned to Purchaser within five (5) days after any
such termination, and neither party shall have any further rights or
obligations one to the other. Notwithstanding the foregoing, Purchaser, in its
sole discretion, may waive any such condition by notice to Seller.
10.1 Seller's Obligations. Seller shall have performed or shall
perform concurrently with Closing all obligations of Seller hereunder which are
to be performed prior to or concurrently with Closing.
10.2 Seller's Representations and Warranties. Seller's
representations and warranties set forth in Section 9.2 shall be true and
correct in all material respects as if made again on the Closing Date.
10.3 Title Policy. Seller shall be able and willing to deliver
title to the Land and Improvements which is insurable in accordance with and
pursuant to the Title Commitment as
HOTEL PURCHASE AGREEMENT - Page 13
18
approved by Purchaser under the terms of this Agreement, subject only to the
Permitted Exceptions.
10.4 Merger. The merger contemplated by the Merger Agreement shall
be occurring contemporaneously with the Closing.
ARTICLE 11
CLOSING AND CLOSING DOCUMENTS
11.1 Closing. The consummation and closing (the "Closing") of the
transaction contemplated under this Agreement shall take place at the offices
of Locke Purnell Rain Harrell in Dallas, Texas, or such other place as is
mutually agreeable to the parties at the Effective Time on the Closing Date (in
each case, as defined in the Merger Agreement).
11.2 Seller's Deliveries. At the Closing and at Seller's sole cost
and expense, Seller shall deliver the following to the Title Company for
delivery to, or processing in accordance with the instructions of, Purchaser in
addition to all other items required to be delivered to Purchaser by Seller:
(a) Seller's Deed. Seller's Deed duly executed and
acknowledged by Seller;
(b) Bill of Sale. The Bill of Sale duly executed and
acknowledged by Seller;
(c) Assignment and Assumption of Leases, FF&E Leases,
Service Contracts and Occupancy Agreements. An Assignment and
Assumption of all of the Leases, FF&E Leases, Service Contracts, and
Occupancy Agreements, in a form reasonably acceptable to, and duly
executed by, both Purchaser and Seller (the "Assignment");
(d) FIRPTA Affidavit. An affidavit from Seller in form
and substance acceptable to Purchaser, as required by Section 1445 of
the Internal Revenue Code, specifying (i) that Seller is not a foreign
entity, foreign corporation, foreign partnership, foreign trust or
foreign estate (as those terms are defined in the Internal Revenue
Code and Income tax regulations), (ii) Seller's taxpayer
identification number or U.S. employer identification number, (iii)
Seller's office address, and (iv) such other matters as Purchaser may
reasonably require in order to satisfy itself that no withholding is
required under Section 1445 of the Internal Revenue Code including an
indemnity against any claim for taxes which should have been withheld;
(e) Vehicle Titles. The necessary certificates of titles
duly endorsed for transfer together with any required affidavits and
other documentation necessary for the transfer of title from Seller to
Purchaser of any motor vehicles used in connection with the Hotel's
operations;
(f) Authority Documents. Evidence satisfactory to
Purchaser that the person or persons executing the closing documents
on behalf of Seller have full right, power and
HOTEL PURCHASE AGREEMENT - Page 14
19
authority to do so, and the following documentation: (i) the
Certificate of the Secretary (or similarly appointed partner or
member) of Seller certifying attached copies of the articles of
incorporation or organization, By-Laws, operating agreement,
partnership agreement, or other organizational documentation, and
enabling resolutions of Seller and all entity constituents of Seller
as true and correct, unamended, and continuing, and of the incumbency
of its or their officers, partners, or members, (ii) Certificates of
Existence and Good Standing from the Secretary of State of Seller's
incorporation or organization, and (iii) from the Secretary of State
of the state where the Hotel is located, a Certificate of Existence
and Qualification to Do Business in such state;
(g) [Deleted]
(h) Miscellaneous. Such other instruments as are
customarily executed in the county and State where the Hotel is
located to effectuate the conveyance of property similar to the Hotel,
with the effect that, after the Closing, Purchaser will have succeeded
to all of the rights, titles, and interests of Seller related to the
Hotel and Seller will no longer have any rights, titles, or interests
in and to the Hotel. Such instruments shall include, if appropriate,
any documents required effectively to transfer the Utility
Reservations by Seller to Purchaser;
(i) Plans, Keys, and Records. To the extent not
previously delivered to and in the possession of Purchaser, all Plans
and Specs, all keys, access cards, and combinations for the Hotel
(which shall be properly tagged for identification), all Records, and
all Licenses;
(j) Original Documents. To the extent in Seller's
possession or control, originals (or copies if no Originals exists) of
all of the documents and agreements covered by the foregoing that have
not already been delivered to Purchaser and all Occupancy Agreements;
(k) Updates. A complete list of all advance room
reservations, functions and the like, in reasonable detail specified
by Purchaser;
(l) Termination of Agreements. Unless Purchaser
otherwise agrees, fully executed and effective terminations of all
management agreements with respect to the Hotel.
11.3 Purchaser's Deliveries. At the Closing and at Purchaser's
sole cost and expense, Purchaser shall deliver the following to the Title
Company for delivery to Seller:
(a) Purchase Price. The Purchase Price described in
clauses (a) through (c) of Section 3.1, plus or minus the adjustments to be
made at the Closing in accordance with the terms of this Agreement;
(b) Assignment. The Assignment;
HOTEL PURCHASE AGREEMENT - Page 15
20
(c) Transfer. An Assignment of Partnership Interest as
described in clause (d) of Section 3.1;
(d) Authority Documents. Evidence satisfactory to Seller
that the person or persons executing the closing documents on behalf of
Purchaser have full right, power and authority to do so; and
(e) Miscellaneous. Such other instruments as are
customarily executed by the purchaser in the county and State where the Hotel
is located to effectuate the purchase of property similar to the Hotel.
11.4 Prorations. All income and expenses with respect to the
Hotel, and applicable to the period of time before and after Closing determined
in accordance with sound accounting principles consistently applied, shall be
allocated between Seller and Purchaser as set forth herein. Unless otherwise
explicitly provided in this Agreement, Seller shall be entitled to all income
and responsible for all expenses for the period of time up to but not including
the Closing Date, and Purchaser shall be entitled to all income and responsible
for all expenses for the period of time from, after and including the Closing
Date. At Closing, the following items of revenue and expense shall be
prorated, adjusted and appropriated as of 6:00 A.M. (except as otherwise
provided) on the Closing Date:
(a) Hotel Taxes. Real estate taxes, personal property,
use, sales, occupancy, hotel/motel, employment, other similar taxes,
assessments (special or otherwise), and sewer rents, that will be due and
payable on the Hotel for periods prior to the date on which the Closing occurs.
To the extent that the exact amount of such taxes, assessments and rents cannot
be ascertained on the date of Closing, the parties shall make an estimate of
such sums and such amount shall either be credited to Purchaser or escrowed
with the Title Company until such amount is ascertainable at which time, Seller
and Purchaser shall readjust the amounts thereof to be paid by each party to
the end that Seller shall pay for those such taxes, assessments and rents
attributable to the period of time prior to the Closing Date, and Purchaser
shall pay for same which are attributable to the Closing Date and thereafter.
(b) Operating Costs. All costs and expenses of operating
the Hotel, including without limitation amounts paid or payable under the
Service Contracts, the FF&E Leases, the Leases, the Occupancy Agreements, the
Licenses, and costs and expenses associated with employees for which Seller is
liable pursuant to Section 8.6 hereof;
(c) Lease Rents. Rents under Leases and other revenues
as and when collected;
(d) Revenues. Guest, convention, room, food, beverage,
and all other charges and revenues for services rendered and the operation of
all departments of the Hotel, including, but not limited to, advance payments
under booking agreements for rooms, facilities and services of the Hotel and
any other revenues, as and when collected, provided, however, that food, room
service and restaurant revenue shall be apportioned as of the closing of dinner
service hours at each restaurant on the evening preceding the Closing Date, and
bar revenues shall be read, measured (and tapes preserved) and apportioned as
of the closing of such bars in the morning of
HOTEL PURCHASE AGREEMENT - Page 16
21
the Closing Date (or in the preceding evening, if applicable) and provided
further that room rental receipts through the night before Closing shall belong
to Seller, though Seller shall be responsible for all room maid service costs
for such night. All cash, checks, and other funds, and all other notes,
security and other evidence of indebtedness located at the Hotel on the Closing
Date and balances on deposit to the credit of the Seller with banking
institutions are and shall remain the property of the Seller and are not
included in this sale. The amount of the Cash and Equivalents shall be added
to the Purchase Price,
(e) Miscellaneous. Fees and expenses for music,
entertainment, trade association dues, trade subscriptions, coin machine
income, and washroom and checkroom income; and
(f) Deposits. Purchaser shall receive a cash credit in
an amount equal to the sum of all prepaid rentals and all security deposits,
cleaning fees and deposits and other deposits paid under any Lease and not
properly applied as of the Closing to a monetary obligation of the related
Tenant.
11.5 Document Preparation and Closing Costs. The cost of preparing
or obtaining documents to be delivered by Purchaser or Seller pursuant to this
Agreement shall be paid by Seller. Seller shall pay for all sales, transfer
and recording fees and taxes, Title Policy premiums for the ALTA Owner Policy
of Title Insurance pursuant to the Title Commitment in the amount of the
Purchase Price, and all transfer, assumption and/or assignment fees and charges
imposed by any party having an interest in the Hotel (other than for
Purchaser's debt instruments and except as provided in Sections 15.1 and 16.1
below). Purchaser shall pay all fees and charges with respect to Survey costs,
and Purchaser's debt instruments and as provided in Sections 15.1 and 16.1
below.
11.6 Reconciliation and Final Payment. Seller and Purchaser shall
reasonably cooperate after Closing to make a final determination of the
prorations required hereunder as promptly as possible, and in any event by the
date the "Working Capital Adjustment Amount" is finally determined under the
Merger Agreement (the "Settlement Date"). On the Settlement Date, the party
which owes the other party any sums hereunder shall pay such party such sums.
The obligations to calculate such prorations, make such reconciliations and pay
any such sums shall survive the Closing.
11.7 Accounts Payable. Purchaser shall not be responsible for the
payment of any accounts payable and other debts relating to the Hotel which
have accrued prior to or as of the Closing except to the extent the Purchaser
has received a credit therefor under the proration provisions of Sections 11.4
and 11.6 of this Agreement. Purchaser shall be responsible for the particular
accounts payable relating to the Hotel arising and accruing after the Closing
to the extent the Purchase Price is not adjusted in favor of Seller under the
same provisions.
11.8 Accounts Receivable. Purchaser shall not be obligated to
collect any accounts receivable or revenues accrued prior to the Closing Date
for Seller, but if Purchaser collects same, such amounts will be remitted at
least once a month to Seller in the form received. These amounts shall
specifically include, without limitation, amounts collected from any taxing
authority
HOTEL PURCHASE AGREEMENT - Page 17
22
on account of a successful tax contest resulting in a recovery of previously
paid taxes; to the extent any such tax recovery applicable to the period prior
to the Closing Date is in the form of credits or rebates in tax periods after
the Closing Date, the cash amount equivalent to such credits or rebates
attributable to the period prior to the Closing Date shall be promptly paid by
Purchaser to Seller. If Purchaser collects any accounts receivable or revenues
which are not attributed to any particular period, Purchaser shall use
reasonable efforts to ascertain from the payor the applicable period to which
such receivables or revenue apply, but if Purchaser is unable to do so, it will
be presumed that they first apply to post-Closing periods. Purchaser
acknowledges that following the Closing, Seller is permitted to collect
accounts receivable accrued prior to the Closing Date.
ARTICLE 12
CASUALTY AND CONDEMNATION
12.1 Risk of Loss; Notice. Prior to Closing and the delivery of
possession of the Hotel to Purchaser in accordance with this Agreement, all
risk of loss to the Hotel (whether by casualty, condemnation or otherwise)
shall be borne by Seller. In the event that (a) any loss or damage to the
Hotel shall occur prior to the Closing Date as a result of fire or other
casualty, or (b) Seller receives notice that a governmental authority has
initiated or threatened to initiate a condemnation proceeding affecting the
Hotel. Seller shall give Purchaser immediate written notice of such loss,
damage or condemnation proceeding.
12.2 Purchaser's Termination Right. If, prior to Closing and the
delivery of possession of the Hotel to Purchaser in accordance with this
Agreement, (a) any condemnation proceeding shall be pending against a
substantial portion of the Hotel or (b) there is any substantial casualty loss
or damage to the Hotel, Purchaser shall have the option to terminate this
Agreement provided it delivers written notice to Seller of its election so to
terminate this Agreement within ten (10) days after the date Seller has
delivered Purchaser written notice of any such loss, damage or condemnation
(which notice shall include a certification of (i) the amounts of insurance
coverages in effect with respect to the loss or damage and (ii) if known, the
amount of the award to be received in such condemnation), and in such event all
Earnest Money shall be delivered to Purchaser and thereafter no party shall
have any further obligation or liability to the other under this Agreement. In
the context of condemnation, "substantial" shall mean condemnation of such
portion of the Hotel as would, in Purchaser's sole judgment, render use of the
remainder impractical or unfeasible for the uses herein contemplated, and, in
the context of casualty loss or damage, "substantial" shall mean a loss or
damage in excess of $250,000 in value.
12.3 Procedure for Closing. If Purchaser shall not timely elect to
terminate this Agreement under Section 12.2 above, or if the loss, damage or
condemnation is not substantial, Seller agrees to pay to Purchaser at the
Closing all insurance proceeds or condemnation awards which Seller has received
as a result of the same plus an amount equal to the insurance deductible, if
any, and assign to Purchaser all insurance proceeds and condemnation awards
payable as a result of the same in which event the Closing shall occur without
Seller replacing or repairing such damage.
HOTEL PURCHASE AGREEMENT - Page 18
23
ARTICLE 13
DEFAULT AND REMEDIES
13.1 Purchaser's Default. If, at or prior to Closing, for any
reason other than termination hereof pursuant to a right granted to Purchaser
hereunder to do so or because of an uncured default by Seller (i) Purchaser
refuses or fails to consummate the purchase of the Hotel pursuant to this
Agreement, or (ii) Purchaser shall otherwise fail in any material respect to
perform any of its material obligations as and when required hereunder, or if,
at or prior to Closing, any representation or warranty made by or on behalf of
Purchaser herein shall have been materially incorrect when made, then Seller
shall give Purchaser and the Title Company written notice specifying the nature
of the default, and Purchaser shall have ten (10) days from receipt of Seller's
notice within which to cure the specified default. If at the end of the ten
(10) day period the default is still not cured, then Seller, as its sole and
exclusive remedy, shall have the right to terminate this Agreement by giving
Purchaser and the Title Company written notice thereof, in which event neither
party shall have any further rights, duties or obligations hereunder (except to
the extent this Agreement may specifically provide for the survival of certain
obligations of Purchaser). Notwithstanding the foregoing, in the event of any
default by Purchaser under this Agreement due to a breach after Closing or any
termination hereof of any covenant or indemnity which survives the Closing or
any termination hereof, or if Seller shall discover after Closing that any
warranty or representation made by Purchaser herein or in connection with the
transaction contemplated herein was materially incorrect or breached when made,
Seller shall have any and all rights and remedies available at law or in equity
by reason of such default. If Purchaser terminates this Agreement pursuant to
a right granted to Purchaser hereunder to do so, then neither party shall have
any further rights, duties or obligations hereunder (except to the extent this
Agreement may specifically provide for the survival of certain obligations of
Purchaser).
13.2 Seller's Default. If, at or prior to Closing, for any reason
other than termination hereof pursuant to a right granted to Seller hereunder
to do so or because of an uncured default by Purchaser (i) Seller refuses or
fails to consummate the transaction contemplated by this Agreement, or (ii)
otherwise wrongfully fails to perform any of its obligations or agreements
hereunder, or if, at or prior to Closing, any representation or warranty made
by or on behalf of Seller herein shall have been materially incorrect when
made, then Purchaser shall give Seller and the Title Company written notice
specifying the nature of the default, and Seller shall have ten (10) days from
receipt of Purchaser's notice within which to cure the specified default. If
at the end of the ten (10) day period, the default is still not cured, then
Purchaser, as its sole remedies, shall have the right to do any one or more of
the following:
(a) Terminate this Agreement by written notice given to
Seller and the Title Company within fifteen (15) days of the expiration of the
ten (10) day cure period; or
(b) Seek specific performance of this Agreement.
Notwithstanding the foregoing, in the event of any default by Seller under this
Agreement due to a breach after Closing or any termination hereof of any
covenant or indemnity which survives the Closing or any termination hereof, or
if Purchaser shall discover after Closing that any
HOTEL PURCHASE AGREEMENT - Page 19
24
warranty or representation made by Seller herein or in connection with the
transaction contemplated herein was materially incorrect or breached when made,
Purchaser shall have any and all rights and remedies available at law or in
equity by reason of such default.
13.3 Survival. Neither Purchaser's nor Seller's attendance or
appearance at Closing shall be deemed to nullify or void the provisions of this
Article 13.
ARTICLE 14
BROKERS
14.1 Identity of Brokers. The parties hereto represent to each
other that they dealt with no finder, broker or consultant in connection with
this Agreement or the transactions contemplated hereby except for Smith Barney,
whose fees shall be paid by Seller.
14.2 Indemnification by Seller. Seller agrees to, and hereby does,
indemnify and save harmless Purchaser and its affiliates and their respective
successors and assigns against and from any loss, liability or expense,
including reasonable attorneys' fees, arising out of any claim or claims for
commissions or other compensation for bringing about this Agreement or the
transactions contemplated hereby made by any broker, finder, consultant or like
agent if such claim or claims made by any such broker, finder, consultant or
like agent are based in whole or in part on any agreements entered into by
Seller or its representatives for a commission or other compensation.
14.3 Indemnification by Purchaser. Purchaser agrees to, and hereby
does, indemnify and save harmless Seller and its affiliates and their
respective successors and assigns against and from any loss, liability or
expense, including reasonable attorneys' fees, arising out of any claim or
claims for commissions or other compensation for bringing about this Agreement
or the transactions contemplated hereby made by any broker, finder, consultant
or like agent if such claim or claims made by any such broker, finder,
consultant or like agent are based on any agreements entered into by Purchaser
or its representatives for a commission or other compensation.
ARTICLE 15
LIQUOR LICENSE
15.1 Liquor Licenses. (a) Purchaser and Seller recognize that the
issuance of the Liquor License (defined below) is statutorily regulated
pursuant to Georgia law, and is subject to the approval of certain governmental
authorities (the "ABC"). In order to comply with these statutory requirements,
Purchaser and any other parties holding a Liquor License shall execute
applications for issuance of the Liquor License, and Seller shall cooperate in
completing applications to the ABC. To the extent legally permissible, pending
issuance of the Liquor License, Purchaser or its designee (in this context,
"Operator") may enter into an interim arrangement with Seller for the use of
the original Liquor License, and, upon request of Purchaser, Seller shall join
in such agreement; provided, however, this interim arrangement shall
HOTEL PURCHASE AGREEMENT - Page 20
25
be a temporary measure until issuance of the Liquor License can be accomplished
but in no event without Seller's consent, longer than ninety (90) days
following Closing. This provision shall survive the Closing.
(b) Purchaser shall be responsible for complying at its
sole cost and expense, with all statutes and regulations applicable to the
issuance of the Liquor License including, without limitation, paying all
license and transfer fees and costs of recordation and publication.
(c) "Liquor Licenses" shall mean collectively any
alcoholic beverage, liquor, beer and/or wine licenses and/or permits which are
necessary for the operation of the Hotel.
(d) If Operator and Seller enter into the interim
agreement described in subsection (a) above, (i) Purchaser and Operator shall
indemnify, defend and hold Seller harmless from any liability, damages, claims,
costs, penalties, losses or expenses (including reasonable attorney's fees)
encountered by Seller in connection with, arising out of, or growing from such
operations and the sale of alcoholic beverages at and from the restaurants,
bars and lounges located at the Hotel during said period of time, and (ii)
Purchaser or Operator shall reimburse Seller for Seller's costs in maintaining
the Liquor Licenses in full force and effect. In no event shall Seller be
required to obtain any additional liquor or alcoholic beverage licenses which
Seller does not possess at the time of Closing. Purchaser shall be responsible
for all application and issuance fees for the transfer and/or issuance to
Purchaser of the Liquor Licenses.
ARTICLE 16
MISCELLANEOUS
16.1 1031 Exchange. Purchaser agrees to cooperate with Seller in
connection with a tax-free exchange of the Property provided, however, (i)
Purchaser shall not be required to execute any documents or take any action
which may impose liability on Purchaser, and (ii) Purchaser shall not take
title to any exchange property which Seller seeks to acquire. Seller shall
hold Purchaser harmless from all loss, cost, expense and liability arising out
of or related to the tax free exchange transaction involving the Property.
16.2 Notices. Any notice provided for by this Agreement and any
other notice, demand or communication which any party may wish to send to
another shall be in Writing and either delivered in person or sent by
registered or certified mail, return receipt requested, or recognized overnight
courier requiring signature upon receipt, in a sealed envelope, postage
prepaid, and addressed to the party for which such notice, demand or
communication is intended at such party's address as set forth in this Section.
Purchaser's address for all purposes under this Agreement shall be the
following:
Wyndham Hotel Corporation
2001 Bryan Tower
Suite 2300
Dallas, Texas 75201
Attention: Diane Parmerlee
HOTEL PURCHASE AGREEMENT - Page 21
26
with a copy to:
Locke Purnell Rain Harrell
2200 Ross Avenue
Suite 2200
Dallas, Texas 75201
Attention: J. Mitchell Bell
Seller's address for all purposes under this Agreement shall be the following:
ClubHouse Hotels, Inc.
11230 College Boulevard, Suite 130
Overland Park, Kansas 66210-2700
Attention: Mr. Ron Samples
with a copy to:
Hunton & Williams
951 Byrd Street
Riverfront Plaza, East Tower
Richmond, Virginia 23219
Attention: Allen Goolsby, Esq.
Any address or name specified above may be changed by a notice given by the
addressee to the other party. Any notice, demand or other communication shall
be deemed given and effective as of the date of delivery in person or receipt
set forth on the return receipt. The inability to deliver because of changed
address of which no notice was given, or rejection or other refusal to accept
any notice, demand or other communication, shall be deemed to be receipt of the
notice, demand or other communication as of the date of such attempt to deliver
or rejection or refusal to accept.
16.3 Entire Agreement; Modification and Waivers; Cumulative
Remedies. This Agreement constitutes the entire agreement between the parties
hereto and may not be modified or amended except by an instrument in writing
signed by the parties hereto, and no provisions or conditions may be waived
other than by a writing signed by the party waiving such provisions or
conditions. No delay or omission in the exercise of any right or remedy
accruing to Seller or Purchaser upon any breach under this Agreement shall
impair such right or remedy or be construed as a waiver of any such breach
theretofore or thereafter occurring. The waiver by Seller or Purchaser of any
breach of any term, covenant or condition herein stated shall not be deemed to
be a waiver of any other breach, or of a subsequent breach of the same or any
other term, covenant or condition herein contained. All rights, powers,
options or remedies afforded to Seller or Purchaser either hereunder or by law
shall be cumulative and not alternative, and the exercise of one right, power,
option or remedy shall not bar other rights, powers, options or remedies
allowed herein or by law, unless expressly provided to the contrary herein.
HOTEL PURCHASE AGREEMENT - Page 22
27
16.4 Exhibits. All exhibits referred to in this Agreement and
attached hereto are hereby incorporated in this Agreement by reference.
16.5 Successors and Assigns. Purchaser may assign its rights under
this Agreement to any limited partnership, limited liability company or other
entity to be formed for the purpose of purchasing the Hotel so long as such
entity is controlled by Purchaser or by an affiliate of Purchaser or Purchaser
or an affiliate of Purchaser is an investor or co-owner of such entity, and, in
any case, and Purchaser provides notice thereof to Seller prior to Closing.
Any such assignment shall not relieve Purchaser of its obligations hereunder.
This Agreement shall be binding upon, and inure to the benefit of, Seller and
Purchaser and their respective legal representatives, successors, and assigns.
Whenever a reference is made in this Agreement to Purchaser, it shall include
Purchaser's successors and assigns under this Agreement.
16.6 Article Headings. Article headings and article and section
numbers are inserted herein only as a matter of convenience and in no way
define, limit or prescribe the scope or intent of this Agreement or any part
thereof and shall not be considered in interpreting or construing this
Agreement.
16.7 Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State where the Hotel is
located.
16.8 Time Periods. If the final day of any time period or
limitation set out in any provision of this Agreement falls on a Saturday,
Sunday or legal holiday under the laws of the State where the Hotel is located
or of the federal Government, then and in such event the time of such period
shall be extended to the next day which is not a Saturday, Sunday or legal
holiday. Time is of the essence in this Agreement.
16.9 Counterparts. This Agreement may be executed in any number of
counterparts and by either party hereto on a separate counterpart, each of
which when so executed and delivered shall be deemed an original and all of
which taken together shall constitute but one and the same instrument.
16.10 Survival. All covenants, agreements and indemnities
contained in the Agreement which contemplate performance after the Closing Date
shall survive the Closing. All representations and warranties contained in
this Agreement shall expressly survive the Closing for a period of one (1)
year. None of the foregoing shall be deemed to merge into, or be waived by,
Seller's Deed or any other closing documents. Each of Seller's
representations, warranties and covenants contained in this Agreement is
intended for the benefit of Purchaser and may be waived in whole or in part by
Purchaser, but only by an instrument in writing signed by Purchaser. No
investigation, audit, inspection, review or the like conducted by or on behalf
of Purchaser shall be deemed to terminate the effect of any such
representations, warranties and covenants. Purchaser has the right to rely
thereon and that each such representation, warranty and covenant constitutes a
material inducement to Purchaser to execute this Agreement and to close the
transaction contemplated hereby and to pay the Purchase Price to Seller.
Except as expressly set forth herein, Seller makes no other representation or
warranty with respect to any matter relating to the Hotel or any part thereof.
HOTEL PURCHASE AGREEMENT - Page 23
28
16.11 Further Acts. In addition to the acts, deeds, instruments and
agreements recited herein and contemplated to be performed, executed and
delivered by Purchaser and Seller, Purchaser and Seller shall perform, execute
and deliver or cause to be performed, executed and delivered at the Closing or
after the Closing, any and all further acts, deeds, instruments and agreements
and provide such further assurances as the other party or the Title Company may
reasonably require to consummate the transaction contemplated hereunder.
However, the foregoing shall not be deemed to (i) require Seller to expend a
sum of money which it could not reasonably have anticipated on the date of
execution of this Agreement, or (ii) require Purchaser to expend a sum of money
which it could not reasonably have anticipated on the expiration of the Review
Period.
16.12 Severability. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
16.13 Attorneys' Fees. Should either party employ an attorney or
attorneys to enforce any of the provisions hereof or to protect its interest in
any manner arising under this Agreement, the nonprevailing party in any action
pursued in a court of competent jurisdiction (the finality of which is not
legally contested) agrees to pay to the prevailing party all reasonable costs,
damages, and expenses, including attorneys' fees, expended or incurred in
connection therewith.
16.14 Qualification on Confidentiality. Notwithstanding the
confidentiality requirements elsewhere herein contained, it is acknowledged
that Purchaser is an affiliate of a company whose shares are traded to the
general public. In connection therewith, Purchaser will have the absolute and
unbridled right to market such securities and prepare all statements and other
papers, documents and instruments necessary or reasonably required in
Purchaser's judgment as the case may be and that of its respective attorneys
and underwriters, to file same with the U.S. Securities and Exchange Commission
and/or similar state or foreign authorities, and to disclose therein and thus
to its underwriters, to the U.S. Securities and Exchange Commission and/or to
similar state or foreign authorities and to the public all of the terms,
conditions and provisions of this Agreement.
16.15 Rules of Construction. Singular words shall connote the
plural number as well as the singular and vice versa, and the masculine shall
include the feminine and the neuter.
HOTEL PURCHASE AGREEMENT - Page 24
29
[PAGE 25 INTENTIONALLY DELETED]
30
Each party hereto and its counsel have reviewed and revised (or requested
revisions of) this Agreement, and therefore any usual rules of construction
requiring that ambiguities are to be resolved against a particular party shall
not be applicable in the construction and interpretation of this Agreement or
any exhibits hereto.
IN WITNESS WHEREOF, this Agreement has been entered into effective as
of the 28th day of July, 1997.
HOTEL PURCHASE AGREEMENT - Page 26
31
SELLER:
R. T. LAND VENTURE, INC.
By: /s/ ROLAND W. SAMPLES
-----------------------------------
Name: Roland W. Samples
-----------------------------------
Title: President
-----------------------------------
VALDOSTA C.I. ASSOCIATES, L.P.
By: Its General Partner,
Clubhouse Properties, Inc.
By: /s/ ROLAND W. SAMPLES
-----------------------------------
Name: Roland W. Samples
-----------------------------------
Title: President
-----------------------------------
TRANSAMERICAN INVESTMENT PROPERTIES, INC.
By: /s/ DAVID H. AULL
-----------------------------------
Name: David H. Aull
-----------------------------------
Title: President
-----------------------------------
HOTEL PURCHASE AGREEMENT - Page 27
32
PURCHASER
WYNDHAM HOTEL CORPORATION
By: /s/ LESLIE V. BENTLEY
--------------------------------------
Name: Leslie V. Bentley
-----------------------------------
Title: Executive Vice President
-----------------------------------
HOTEL PURCHASE AGREEMENT - Page 28