EXHIBIT 2.2
JOINT VENTURE PURCHASE AGREEMENT
DATED AS OF
NOVEMBER 9, 2005
BY AND AMONG
ARLINGTON HOSPITALITY DEVELOPMENT, INC.
ARLINGTON INNS OF AMERICA, INC.,
SJB EQUITIES, INC.,
SJB DEVELOPMENT, INC.,
AND
SJB PROPERTIES, INC.
TABLE OF CONTENTS
DESCRIPTION PAGE
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Article I DEFINITIONS.............................................................................................1
Section 1.1 Definitions..............................................................................1
Section 1.2 Construction.............................................................................4
Article II PURCHASE OF JOINT VENTURES AND CONSTRUCTION CONTRACTS..................................................5
Section 2.1 Purchase of Joint Ventures...............................................................5
Section 2.2 Purchase of Construction Contracts.......................................................5
Article III PURCHASE PRICE AND CLOSING............................................................................6
Section 3.1 Closing..................................................................................6
Section 3.2 Purchase Price...........................................................................6
Section 3.3 Deposit..................................................................................6
Article IV REPRESENTATIONS AND WARRANTIES OF THE SELLERs..........................................................7
Section 4.1 Organization.............................................................................7
Section 4.2 Authorization of Transaction.............................................................7
Section 4.3 Noncontravention; Consents...............................................................7
Section 4.4 Title....................................................................................7
Section 4.5 LIMITATION ON WARRANTIES.................................................................8
Article V REPRESENTATIONS AND WARRANTIES OF THE BUYERS............................................................8
Section 5.1 Organization.............................................................................8
Section 5.2 Authorization of Transaction.............................................................8
Section 5.3 Noncontravention; Consents...............................................................9
Section 5.4 Litigation...............................................................................9
Section 5.5 Availability of Funds....................................................................9
Section 5.6 Accredited Investor......................................................................9
Section 5.7 LIMITATION ON THE WARRANTIES OF THE SELLERS.............................................10
Article VI COVENANTS.............................................................................................10
Section 6.1 General.................................................................................10
Section 6.2 Notices and Consents....................................................................10
Section 6.3 Transfer Taxes..........................................................................11
Article VII CLOSING CONDITIONS...................................................................................11
Section 7.1 Conditions to Obligations of the Buyers.................................................11
Section 7.2 Conditions to Obligations of the Sellers................................................12
Article VIII TERMINATION.........................................................................................12
Section 8.1 Termination of Agreement................................................................12
Section 8.2 Effect of Termination...................................................................13
Section 8.3 Break-Up Fee............................................................................13
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ARTICLE IX MISCELLANEOUS.........................................................................................13
Section 9.1 Notices.................................................................................13
Section 9.2 Expenses; No Offset.....................................................................14
Section 9.3 Bulk Sales or Transfer Laws.............................................................14
Section 9.4 Assignment; Successors and Assigns......................................................14
Section 9.5 Amendment; Waiver.......................................................................15
Section 9.6 Severability; Specific Performance......................................................15
Section 9.7 Counterparts............................................................................15
Section 9.8 Descriptive Headings....................................................................15
Section 9.9 No Third-Party Beneficiaries............................................................15
Section 9.10 Entire Agreement........................................................................15
Section 9.11 Exhibits................................................................................15
Section 9.12 GOVERNING LAW...........................................................................15
Section 9.13 Public Announcement.....................................................................16
Section 9.14 Recitals................................................................................16
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EXHIBITS
Exhibit A AIA Ownership of Joint Ventures
Exhibit B Construction Contracts
Exhibit C Personal Property and Equipment
Exhibit D Construction Contracts -- Assignment and Assumption Agreement
Exhibit E Joint Ventures -- Assignment and Assumption Agreement
Exhibit F Personal Property and Equipment -- Bill of Sale
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JOINT VENTURE PURCHASE AGREEMENT
This JOINT VENTURE PURCHASE AGREEMENT (this "Agreement") dated as of
November ___, 2005 is entered into by and among Arlington Hospitality
Development, Inc., an Illinois corporation ("AHD"), Arlington Inns of America,
Inc., a Delaware corporation ("AIA" and together with AHD, the "Sellers"), SJB
Equities, Inc., an Ohio corporation ("SJBE"), SJB Development, Inc., an Ohio
corporation ("SJBD"), and SJB Properties, Inc., an Ohio corporation ("SJBP" and
together with SJBE and SJBD, the "Buyers").
WHEREAS, AIA owns a percentage of the membership interests in Maumee,
Ohio 901 Ltd., an Ohio limited liability company ("Maumee"), Rickenbacker 1001
LLC, an Ohio limited liability company ("Rickenbacker"), Weirton 902 LLC, a West
Virginia limited liability company ("Weirton") and Columbus Airpointe 804 LLC,
an Ohio limited liability company ("Airpointe" and together with Maumee,
Rickenbacker and Weirton, the "Joint Ventures"), in each case, as set forth on
Exhibit A attached hereto.
WHEREAS, AHD is a party to certain contracts pertaining to the
construction of a hotel for Airpointe, which contracts are set forth on Exhibit
B attached hereto (the "Construction Contracts"), and AHD is the owner of
certain personal property and equipment being utilized in connection with
Airpointe and the Construction Contracts, which personal property and equipment
is set forth on Exhibit C attached hereto (the "Personal Property and
Equipment").
WHEREAS, this Agreement contemplates a transaction in which the Buyers
will acquire all of the membership interests of AIA in the Joint Ventures, will
acquire the rights of, and assume the liabilities of, AHD under the Construction
Contracts, and will acquire the Personal Property and Equipment, all on the
terms and subject to the conditions set forth in this Agreement.
WHEREAS, each of the Sellers has filed a voluntary petition in the
United States Bankruptcy Court for the Northern District of Illinois, Eastern
Division (the "Bankruptcy Court") for relief in a bankruptcy case (collectively,
the "Bankruptcy Case") filed under Chapter 11 of Title 11 of the United States
Code (the "Bankruptcy Code").
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, and for other good and valuable consideration, the
value, receipt and sufficiency of which are acknowledged, the Parties hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For purposes of this Agreement, the following
terms have the meanings set forth below:
"Affiliates" has the meaning set forth in Rule l2b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
"Agreement" has the meaning set forth in the Preamble.
"AHD" has the meaning set forth in the Preamble.
"AIA" has the meaning set forth in the Preamble.
"Airpointe" has the meaning set forth in the Recitals.
"Alternative Transaction" means the sale, transfer or other disposition
of the Construction Contracts and Joint Ventures to a third party unaffiliated
with the Buyers, the Sellers or any of their respective Affiliates.
"Ancillary Documents" means each certificate and other document to be
delivered pursuant to ARTICLE VII.
"Approval Order" means an order from the Bankruptcy Court (i) approving
the transactions contemplated by this Agreement pursuant to Section 363 of the
Bankruptcy Code, (ii) approving the assignment to and assumption by the Buyers
of the Construction Contracts pursuant to Section 365 of the Bankruptcy Code,
(iii) containing findings of fact and rulings that each of the Buyers is a good
faith purchaser entitled to the protections of Section 363(m) of the Bankruptcy
Code; and (iv) which is otherwise reasonably acceptable to the Buyers.
"Assignment and Assumption Agreement" has the meaning set forth in
SECTION 7.1(c)(i).
"Bankruptcy Case" has the meaning set forth in the Recitals.
"Bankruptcy Code" has the meaning set forth in the Recitals.
"Bankruptcy Court" has the meaning set forth in the Recitals.
"Break-Up Fee" has the meaning set forth in SECTION 8.3(a).
"Buyer Material Adverse Effect" has the meaning set forth in SECTION
5.1.
"Buyers" has the meaning set forth in the Preamble.
"Cendant Franchise Agreements" means those certain franchise agreements
between one or more of the Sellers and affiliates of Cendant Finance Holding
Corporation as set forth on Schedule_1.1.
"Closing" has the meaning set forth in SECTION 3.1.
"Closing Date" has the meaning set forth in SECTION 3.1.
"Construction Contracts" has the meaning set forth in the Recitals.
"Deposit" has the meaning set forth in SECTION 3.3.
"Escrow Agent" means Jenner & Block LLP.
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"Governmental Entity" means the United States, any state or other
political subdivision thereof and any other foreign or domestic entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including any government authority,
agency, department, board, commission, court, tribunal or instrumentality of the
United States or any foreign entity, any state of the United States or any
political subdivision of any of the foregoing.
"Joint Ventures" has the meaning set forth in the Recitals.
"Law" means any applicable federal, state, local or foreign law,
statute, common law, rule, regulation, ordinance, permit, order, writ,
injunction, judgment or decree of any Governmental Entity.
"Lien" means any pledge, security interest, charge, claim or other
encumbrance.
"Material Adverse Effect" means any event, change or effect which is
materially adverse to the business, operations (including results of operations)
or condition (financial or otherwise) of the Joint Ventures taken as a whole;
provided, however, that "Material Adverse Effect" will not include, and the
determination of the existence of a Material Adverse Effect shall not take into
account, any of the following: (a) changes or effects that generally affect the
industries in which the Joint Ventures operate, (b) changes in or effects from
securities markets or general economic, regulatory or political conditions in
the United States not uniquely related to the Sellers or the Joint Ventures
(including terrorism or the escalation of any war whether declared or undeclared
or other hostilities), (c) changes or effects arising out of, or attributable
to, the announcement of the execution of this Agreement, the compliance by the
Sellers with their obligations hereunder, the consummation of the transactions
contemplated hereby or the identity of the Buyers, (d) changes or effects due to
changes in any Laws affecting the Joint Ventures or (e) the failure of the Joint
Ventures to meet any internal projections or forecasts.
"Maumee" has the meaning set forth in the Recitals.
"1933 Act" has the meaning set forth in SECTION 5.6.
"Parties" means the Sellers and the Buyers together, and "Party" means
the Sellers, on the one hand, or the Buyers, on the other hand, as the case may
be.
"Permitted Liens" means any (a) mechanics', materialmens', trade and
similar Liens with respect to amounts not yet due and payable, (b) Liens for
Taxes not yet due and payable or the validity of which is being contested in
good faith by appropriate proceedings, (c) Liens or imperfections in or failure
of title which do not materially interfere with the present use of the assets of
the Joint Ventures, and (d) Liens the existence of which would not result in a
Material Adverse Effect.
"Person" means an individual, partnership, limited partnership,
corporation, limited liability company, association, joint stock company, trust,
joint venture, unincorporated organization or Governmental Entity.
"Personal Property and Equipment" has the meaning set forth in the
Recitals.
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"Purchase Price" has the meaning set forth in SECTION 3.2.
"Rickenbacker" has the meaning set forth in the Recitals.
"Sellers" has the meaning set forth in the Preamble.
"Sellers' Knowledge" means the actual knowledge of James Dale, Stephen
Miller, Paul McCarty, Deedee Grammas, Rich Cybulski, and Leon Vainikos.
"SJBD" has the meaning set forth in the Preamble.
"SJBE" has the meaning set forth in the Preamble.
"SJBP" has the meaning set forth in the Preamble.
"Tax" or "Taxes" means a tax or taxes of any kind or nature, or however
denominated, including liability for federal, state, local or foreign income,
sales, use, transfer, registration, business and occupation, value added,
excise, severance, stamp, premium, windfall profit, customs, duties, real
property, personal property, capital stock, social security, unemployment,
disability, payroll, license, employee or other withholding, or other tax, of
any kind whatsoever, including any interest, penalties or additions to tax or
additional amounts in respect to the foregoing, including any transferee or
secondary liability for a tax and any liability assumed by agreement or arising
as a result of being or ceasing to be a member of any affiliated group, or being
included or required to be included in any Tax Return relating thereto.
"Tax Returns" means, with respect to any Tax, any information return
for such Tax, and any return, report, statement, declaration, claim for refund
or document filed or required to be filed under the Law for such Tax.
"Weirton" has the meaning set forth in the Recitals.
Section 1.2 Construction.
(a) For purposes of this Agreement, whenever the context requires, the
singular number will include the plural, and vice versa, the masculine gender
will include the feminine and neuter genders, the feminine gender will include
the masculine and neuter genders, and the neuter gender will include the
masculine and feminine genders.
(b) As used in this Agreement, the words "include" and "including," and
variations thereof, will not be deemed to be terms of limitation, but rather
will be deemed to be followed by the words "without limitation."
(c) Except as otherwise indicated, all references in this Agreement to
"Sections" and "Exhibits" are intended to refer to Sections and Exhibits to this
Agreement.
(d) As used in this Agreement, the terms "hereof," "hereunder,"
"herein" and words of similar import will refer to this Agreement as a whole and
not to any particular provision of this Agreement.
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(e) Each Party hereto has participated in the drafting of this
Agreement, which each Party acknowledges is the result of extensive negotiations
between the Parties. Consequently, this Agreement will be interpreted without
reference to any rule or precept of Law to the effect that any ambiguity in a
document be construed against the drafter.
ARTICLE II
PURCHASE OF JOINT VENTURES
AND CONSTRUCTION CONTRACTS
Section 2.1 Purchase of Joint Ventures. On the terms and subject to the
conditions set forth in this Agreement, at the Closing, the Buyers will purchase
from AIA, and AIA will sell, assign, convey and deliver, free and clear of any
Liens other than Permitted Liens:
(i) to SJBE, all of AIA's rights, title and interest in and to its
membership interest in Maumee and any other financial obligations of
Maumee;
(ii) to SJBD, all of AIA's rights, title and interest in and to
its membership interest in Rickenbacker and Airpointe and any other
financial obligations of Rickenbacker and Airpointe; and
(iii) to SJBP, all of AIA's membership interests in Weirton.
Section 2.2 Purchase of Construction Contracts.
(a) On the terms and subject to the conditions set forth in this
Agreement, at the Closing, the Buyers will:
(i) purchase from AHD, and AHD will sell, assign, convey and
deliver to the Buyers, the Construction Contracts; and
(ii) assume and agree to perform only those executory obligations
of AHD under the Construction Contracts first incurred and coming due
after Closing under the express terms of the Construction Contracts;
(b) from and after the Seller's acceptance of this Agreement through
Closing, no cash disbursements may be made under or related to the Construction
Contracts without Buyers' prior written approval, no additional Construction
Contracts may be entered into without Buyers' prior written approval, and no
change, modification or amendment may be made to any existing Construction
Contract without Buyers' prior written approval which shall not be unreasonably
withheld.
Section 2.3 Purchase of Personal Property and Equipment. On the terms
and subject to the conditions set forth in this Agreement, at the Closing, the
Buyers will purchase from AHD, and AHD will sell, assign, convey and deliver to
Buyers, free and clear of any Liens other than Permitted Liens, the Personal
Property and Equipment.
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ARTICLE III
PURCHASE PRICE AND CLOSING
Section 3.1 Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") will occur as promptly as practicable, but in no
event more than five business days, following the satisfaction and/or waiver of
all conditions to Closing set forth in ARTICLE VII (other than any of such
conditions that by its nature is to be satisfied at the Closing, but subject to
the satisfaction or waiver of such conditions), at the offices of Jenner & Block
LLP, One IBM Plaza, Chicago, IL 60611, or at such other place on such other date
as the Parties may agree in writing. The date on which the Closing actually
occurs will be referred to as the "Closing Date," and the Closing will be deemed
effective as of 6:00 p.m., Central time on the Closing Date.
Section 3.2 Purchase Price.
(a) Subject to Section 3.2(b) below, on the terms and subject to the
conditions set forth in this Agreement, at the Closing, the Buyers will pay and
deliver to the Sellers the sum of One Hundred Thousand Dollars ($100,000.00) in
cash by wire transfer of immediately available funds to an account or accounts
designated by the Sellers (the "Purchase Price").
(b) Notwithstanding Section 3.2(a) above, the Purchase Price shall be
increased to an amount equal to Two Hundred Thousand Dollars ($200,000.00) if,
at or prior to Closing, Sellers provide to Buyers evidence that the economic
terms of the Cendant Franchise Agreements will be unchanged and unaffected by
virtue of this Agreement and the transactions contemplated hereby (including,
without limitation, the sale and purchase of the membership interests in Maumee,
Rickenbacker, Airpointe, and Weirton); provided that such evidence, in the form
of a final order of the Bankruptcy Court or other court of competent
jurisdiction or an amendment, modification or supplement to the Cendant
Franchise Agreements, or otherwise, must be acceptable to the Buyers in their
sole discretion.
Section 3.3 Deposit. Promptly, but in no event more than two business
days after the date hereof, the Buyers shall deliver a certified or cashier's
check made payable to the Sellers and drawn on a bank which is reasonably
acceptable to the Sellers or a federal wire transfer of immediately available
funds, in an amount equal to Fifty Thousand Dollars ($50,000.00), to the Escrow
Agent, as an earnest money deposit hereunder (including interest at any time
accrued thereon, the "Deposit"). The Deposit shall be held in escrow by the
Escrow Agent in a segregated, interest-bearing account of a federally insured
commercial bank and disbursed only in accordance with the terms of this
Agreement. The Buyers shall pay all costs and expenses associated with the
engagement of the Escrow Agent. If the Closing takes place, the Escrow Agent
shall deliver the Deposit to the Sellers at the Closing. If this Agreement is
terminated or becomes null and void for any reason other than the material
breach by any of the Buyers of its obligations hereunder, the Deposit shall be
promptly paid within two days to the Buyers. If this Agreement is terminated by
the Sellers by reason of the material breach by any of the Buyers of its
obligations hereunder, the Deposit shall be paid to the Sellers as liquidated
damages and not a penalty with such payment, once received, being Seller's sole
and exclusive remedy against the Buyers. Notwithstanding the foregoing in this
SECTION 3.3, the Escrow Agent shall not disburse the Deposit until the earlier
to occur of (i) receipt by the Escrow Agent of joint written instructions,
signed by the Sellers and the Buyers, or (ii) entry of a final and nonappealable
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adjudication of the Bankruptcy Court determining which Party is entitled to
receive the Deposit. In the event of a dispute between the Parties with respect
to the Deposit, the Escrow Agent may deposit the Deposit with the Bankruptcy
Court and commence an action to determine the proper disposition of such
Deposit.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers represent and warrant to the Buyers as follows:
Section 4.1 Organization. Each Seller is a corporation duly organized,
validly existing and in good standing under the laws of its state of
incorporation. The Sellers are duly qualified or licensed to do business as a
foreign entity and are in good standing in each jurisdiction in which the
conduct of their business requires such qualification or license, except where
the failure to be so qualified or be so licensed would not reasonably be
expected to result in a Material Adverse Effect.
Section 4.2 Authorization of Transaction. Subject to the entry of the
Approval Order, each Seller has all requisite power and authority to execute,
deliver and perform this Agreement and each of the Ancillary Documents to which
it is a party. Subject to the entry of the Approval Order, this Agreement
constitutes, and each of such Ancillary Documents when executed and delivered by
such Seller will constitute, a valid and legally binding obligation of such
Seller (assuming that this Agreement and such Ancillary Documents constitute
valid and legally binding obligations of the other parties thereto), enforceable
in accordance with its terms and conditions, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar Laws of general applicability relating to or
affecting creditors' rights, or by general equity principles, including
principles of commercial reasonableness, good faith and fair dealing.
Section 4.3 Noncontravention; Consents. Except for the Bankruptcy
Court's entry of the Approval Order, no material consent, release,
authorization, order or approval of, or filing or registration with, any
governmental authority or other person is required for the execution and
delivery of this Agreement and the Ancillary Documents to be executed and
delivered by the Sellers hereunder and the consummation by the Sellers of the
transactions contemplated. Except for the Bankruptcy Court's entry of the
Approval Order, neither the execution and delivery by the Sellers of this
Agreement and the Ancillary Documents, nor the consummation by the Sellers of
the transactions contemplated hereby and thereby, will conflict with or result
in a breach of any of the terms, conditions or provisions of the Sellers'
respective certificates of incorporation or by-laws, any statute or
administrative regulation, or of any order, writ, injunction, judgment or decree
of any court or any governmental authority or of any arbitration award, which
conflict or breach would reasonably be expected to have a Material Adverse
Effect on the Joint Ventures or the transaction contemplated by this Agreement.
Section 4.4 Title. To the Sellers' Knowledge, AIA has good title to its
membership interests in the Joint Ventures, and AHD has good title to the
Personal Property and Equipment, free and clear of any Liens other than
Permitted Liens.
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Section 4.5 No Defaults. There are no uncured defaults on the part of
the Sellers under the Construction Contracts, and no party to any contract set
forth on Exhibit B attached hereto is entitled to any cure as that term is used
in 11 U.S.C.ss.365(b).
Section 4.6 LIMITATION ON WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN
THIS ARTICLE IV OR IN ANY ANCILLARY DOCUMENT, NONE OF THE SELLERS OR ANY
AFFILIATE OF THE SELLERS MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, IN RESPECT OF ANY OF THE CONSTRUCTION
CONTRACTS, JOINT VENTURES, THE MEMBERSHIP INTERESTS THEREOF OR OTHERWISE, OR
WITH RESPECT TO ANY INFORMATION PROVIDED TO THE BUYERS, INCLUDING WITH RESPECT
TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR USE OR PURPOSE. ALL OTHER
REPRESENTATIONS OR WARRANTIES ARE HEREBY DISCLAIMED. EXCEPT TO THE EXTENT
SPECIFICALLY SET FORTH IN THIS ARTICLE IV OR IN ANY ANCILLARY DOCUMENT, THE
SELLERS ARE SELLING, ASSIGNING AND TRANSFERRING THE CONSTRUCTION CONTRACTS AND
THE JOINT VENTURES TO THE BUYERS ON AN "AS-IS, WHERE-IS" BASIS.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BUYERS
The Buyers represent and warrant to the Sellers as follows:
Section 5.1 Organization. Each Buyer is duly organized, formed or
incorporated and validly existing and in good standing under the laws of the
state of such organization, formation or incorporation. Each Buyer is duly
qualified or licensed to do business as a foreign entity and is in good standing
in each jurisdiction where such qualification or license is required, except
where the failure to so qualify or be so licensed would not reasonably be
expected to adversely affect its ability to consummate the transactions
contemplated by, and discharge its obligations under, this Agreement and the
Ancillary Documents to which it is a party (a "Buyer Material Adverse Effect").
Each Buyer has all requisite power and authority to carry on its business as
currently conducted.
Section 5.2 Authorization of Transaction. Each Buyer has all requisite
power and authority to execute and deliver this Agreement and each of the
Ancillary Documents to which it is a party, and to perform its obligations
hereunder and thereunder. This Agreement constitutes, and each of the Ancillary
Documents executed and delivered by such Buyer constitutes, a valid and legally
binding obligation of such Buyer (assuming that this Agreement and such
Ancillary Documents will constitute valid and legally binding obligations of the
other parties thereto), enforceable in accordance with its terms and conditions,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar Laws of general
applicability relating to or affecting creditors' rights or by general equity
principles, including principles of commercial reasonableness, good faith and
fair dealing.
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Section 5.3 Noncontravention; Consents.
(a) The execution and delivery by each of the Buyers of this Agreement
and the Ancillary Documents to which it is a party, and the consummation by each
of the Buyers of the transactions contemplated hereby and thereby, do not: (i)
violate any Law to which such Buyer or their respective assets are subject, (ii)
conflict with or result in a breach of any provision of such Buyer's
organizational or governance documents, or (iii) create a breach, default,
termination, cancellation or acceleration of any obligation under any contract,
agreement or binding commitment to which such Buyer is a party or by which such
Buyer or any of its assets or properties is bound or subject, except for any of
the foregoing in the case of CLAUSES (I) and (III), that would not reasonably be
expected to result in a Buyer Material Adverse Effect.
(b) No notices, permits, consents, approvals, authorizations,
qualifications or orders of Governmental Entities or third parties are required
for the consummation by the Buyers of the transactions contemplated hereby or by
the Ancillary Documents, other than such of the foregoing that, if not obtained
or made, would not reasonably be expected to result in a Buyer Material Adverse
Effect.
Section 5.4 Litigation. There are no legal, administrative, arbitration
or other formal proceedings or governmental investigations pending or, to the
knowledge of the Buyers threatened, that question the validity of this Agreement
or any of the Ancillary Documents, or any action taken or to be taken by the
Buyers in connection with this Agreement or any of the Ancillary Documents,
other than such of the foregoing that would not individually or reasonably be
expected to result in a Buyer Material Adverse Effect.
Section 5.5 Availability of Funds. The Buyers have funds available to
them sufficient to pay to the Sellers the Purchase Price and to perform all of
the obligations of the Buyers pursuant to, and to consummate the transactions
contemplated by, this Agreement and each of the Ancillary Documents to which it
is a party.
Section 5.6 Accredited Investor. Each Buyer is an "accredited investor"
within the meaning of Section 501(a) of Regulation D under the Securities Act of
1933, as amended (the "1933 Act"). The Buyers have no present plan or intention
to sell, transfer, exchange, pledge or otherwise dispose of, or to effect any
other transaction which results in a reduction in the risk of ownership of, any
of the equity interests in any of the Joint Ventures that the Buyers may
acquire. The Buyers understand that (i) the sale of such equity interests is
intended to be exempt from registration under the 1933 Act by virtue of Section
4(2) of the 1933 Act or Regulation D promulgated thereunder based in part on the
representations and warranties of the Buyers contained herein, (ii) no
registration statement relating to the issuance of such equity interests has
been or will be filed with the federal Securities Exchange Commission or any
state securities commission, and (iii) such equity interests are restricted
securities that cannot be resold absent registration under applicable securities
Laws or an exemption therefrom. The Buyers are acquiring such equity interests
solely for their own account, for investment purposes only and not with a view
to the resale or distribution thereof. The Buyers, together with their
attorneys, accountants, and/or tax advisors, have such knowledge and experience
in financial and business matters to be capable of evaluating the merits and
risks of an investment in such equity interests and have had the opportunity to
ask questions of, and have received answers to their satisfaction
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from, the Sellers concerning the Joint Ventures and other matters pertaining to
an investment in the membership interests thereof.
Section 5.7 LIMITATION ON THE WARRANTIES OF THE SELLERS. THE BUYERS
HEREBY ACKNOWLEDGE AND AGREE THAT, EXCEPT TO THE EXTENT SPECIFICALLY SET FORTH
IN ARTICLE IV, NONE OF THE SELLERS OR THEIR RESPECTIVE AFFILIATES MAKE, and the
Buyers are not relying upon, ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS
OR IMPLIED, AT LAW OR IN EQUITY, IN RESPECT OF ANY OF THE CONSTRUCTION
CONTRACTS, JOINT VENTURES, MEMBERSHIP INTERESTS THEREOF OR OTHERWISE, OR WITH
RESPECT TO ANY INFORMATION PROVIDED TO THE BUYERS, INCLUDING WITH RESPECT TO
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, AND THE BUYERS ARE
ACQUIRING THE CONSTRUCTION CONTRACTS AND JOINT VENTURES ON AN "AS-IS, WHERE-IS"
BASIS.
ARTICLE VI
COVENANTS
Section 6.1 General. Each of the Parties will use commercially
reasonable efforts to take or cause to be taken all actions and to do or cause
to be done, as soon as possible, all things necessary, proper or advisable
(subject to any Laws) to consummate the Closing and the other transactions
contemplated by this Agreement, including the negotiation, execution and
delivery of any additional instruments necessary to consummate the transactions
contemplated by this Agreement or the Ancillary Documents. Neither of the
Parties will, without prior written consent of the other Party, take or fail to
take, or permit their respective Affiliates to take or fail to take, any action,
which would reasonably be expected to prevent or materially impede, interfere
with or delay the consummation, as soon as possible, of the transactions
contemplated by this Agreement or the Ancillary Documents; provided that nothing
in this SECTION 6.1 will require a Party to cure any breach or inaccuracy with
respect to any representation or warranty contained in this Agreement or any
Ancillary Documents.
Section 6.2 Notices and Consents. Prior to the Closing Date, each of
the Buyers and the Sellers will use commercially reasonable efforts to give all
notices required to be given and to obtain all material consents, approvals or
authorizations of any third parties (including any Governmental Entity) that are
required to be obtained in connection with the transactions contemplated by this
Agreement. In connection with the foregoing, each Party will (a) promptly notify
the other Party of any written communication to that Party or its Affiliates
from any Governmental Entity and, subject to Law, provide the other Party with a
copy of any written communication to any of the foregoing and (b) not
participate in any substantive meeting or discussion with any Governmental
Entity in respect of any filings, investigation or inquiry concerning the
transactions contemplated by this Agreement unless it consults with the other
Party in advance and, to the extent permitted by such Governmental Entity, gives
the other Party the opportunity to attend and participate thereat, with respect
to this Agreement or the Ancillary Documents and the transactions contemplated
hereby or thereby. Nothing contained herein will require any Party to pay any
consideration (except filing and application fees) to any other Person from whom
any such consents, approvals or authorizations are requested.
10
Section 6.3 Transfer Taxes. Subject to the Approval Order, the Buyers
will pay all Taxes that are required to be paid by reason of the sale,
assignment, transfer and delivery of the Construction Contracts and Joint
Ventures to the Buyers. The Buyers will timely file all Tax Returns required to
be filed in connection with the payment of such Taxes.
ARTICLE VII
CLOSING CONDITIONS
Section 7.1 Conditions to Obligations of the Buyers. The obligations of
the Buyers to effect the Closing are subject to the fulfillment or waiver on or
before the Closing Date of the following conditions:
(a) The representations and warranties of the Sellers contained in this
Agreement or the Ancillary Documents shall be true and correct in all material
respects on the Closing Date as though made on the Closing Date, except for
changes therein specifically permitted by this Agreement or the Ancillary
Documents, and the Sellers shall have delivered a certificate confirming the
foregoing.
(b) The covenants and agreements contained herein or in any Ancillary
Documents to be performed or complied with by the Sellers on or prior to the
Closing Date shall have been performed or complied with in all material
respects, and the Sellers shall have delivered a certificate confirming the
foregoing.
(c) The Sellers, as applicable, will have delivered to the Buyers:
(i) a duly executed counterpart of the assignment and assumption
agreement (as to the Construction Contracts) in substantially the form
attached as Exhibit D (the "Assignment and Assumption Agreement -
Construction Contracts"); and
(ii) a duly executed counterpart of the assignment and assumption
of the ownership interests in the Joint Ventures in substantially the
form of Exhibit E (the "Assignment and Assumption Agreement - Joint
Ventures"); and
(iii) a duly executed bill of sale as to the Personal Property and
Equipment in substantially the form of Exhibit F (the "Bill of Sale -
Personal Property and Equipment"); and
(iv) such other instruments of sale, transfer, conveyance and
assignment as the Buyers may reasonably request to effect the
transactions contemplated thereby.
(d) The Bankruptcy Court shall have entered the Approval Order.
(e) The Approval Order shall have become final and nonappealable;
provided, however, that at the Buyers' sole option, the Closing may occur at any
time after the entry of the Approval Order by the Bankruptcy Court and prior to
the time it shall become final and nonappealable.
11
Section 7.2 Conditions to Obligations of the Sellers. The obligations
of the Sellers to effect the Closing are subject to the fulfillment or waiver on
or before the Closing Date of the following conditions:
(a) The representations and warranties of the Buyers contained in this
Agreement or the Ancillary Documents shall be true and correct in all material
respects on the Closing Date as though made on the Closing Date, except for
changes therein specifically permitted by this Agreement or the Ancillary
Documents, and the Buyers shall have delivered a certificate confirming the
foregoing.
(b) The covenants and agreements contained herein or in any Ancillary
Document to be performed or complied with by the Buyers on or prior to the
Closing Date shall have been performed or complied with in all material respects
and the Buyers shall have delivered a certificate confirming the foregoing.
(c) The Buyers shall have delivered to the Sellers:
(i) the Purchase Price in cash by wire transfer of immediately
available funds to the account or accounts designated by the Sellers;
(ii) the Assignment and Assumption Agreement - Construction
Contracts, duly executed by the Buyers; and
(iii) the Assignment and Assumption Agreement - Joint Ventures,
duly executed by Buyers; and
(iv) such other instruments of sale, transfer, conveyance and
assignment as the Sellers may reasonably request to effect the
transactions contemplated thereby.
(d) The Bankruptcy Court shall have entered the Approval Order.
ARTICLE VIII
TERMINATION
Section 8.1 Termination of Agreement. This Agreement may be terminated
at any time prior to Closing:
(a) by the mutual written consent of the Sellers and the Buyers;
(b) by written notice from the Sellers or the Buyers if any court of
competent jurisdiction or governmental body, authority or agency having
jurisdiction shall have issued an order, decree or ruling or taken any other
action restraining, enjoining or otherwise prohibiting the transactions as a
whole contemplated by this Agreement and such order, decree, ruling or other
action shall have become final and nonappealable;
(c) by the Sellers, in the event any of the conditions set forth in
SECTION 7.2 have not been met, satisfaction of such condition is impossible and
such condition has not been waived in writing by the Sellers; provided that the
right to terminate this Agreement under this
12
SECTION 8.1(c) shall not be available to the Sellers if the failure of such
condition to be met was primarily caused by the breach of this Agreement by the
Sellers;
(d) by the Buyers, in the event any of the conditions set forth in
SECTION 7.1 have not been met, satisfaction of such condition is impossible and
such condition has not been waived in writing by the Buyers; provided that the
right to terminate this Agreement under this SECTION 8.1(D) shall not be
available to the Buyers if the failure of such condition to be met was primarily
caused by the breach of this Agreement by the Buyers;
(e) by either Party, if Closing has not occurred by January 31, 2006;
provided, however, that the right to terminate this Agreement under this SECTION
8.1(E) shall not be available to a Party if the failure of the Closing to occur
on or prior to such date was primarily caused by a breach of this Agreement by
such Party; and
(f) by the Sellers, if the Bankruptcy Court approves a higher or better
offer for any of the Construction Contracts and/or Joint Ventures.
Section 8.2 Effect of Termination. If any Party terminates this
Agreement pursuant to SECTION 8.1 above, all of the unperformed obligations of
the Parties hereunder shall terminate without any liability of any Party to such
other Party; provided that nothing herein shall relieve any Party from any
liability for any breach of this Agreement.
Section 8.3 Break-Up Fee.
(a) In the event (i) this Agreement is terminated by the Sellers at a
time when the Buyers are not in breach of this Agreement and (ii) the Sellers
within one year thereafter consummate an Alternative Transaction with an
unaffiliated third party, the Sellers shall pay to the Buyers the sum of Fifty
Thousand Dollars ($50,000.00) (the "Break-Up Fee").
(b) The payment of the Break-Up Fee shall be made by wire transfer of
immediately available funds on the fifth business day following the later of (i)
consummation of the Alternative Transaction and (ii) receipt by the Sellers of
reasonable documentation detailing the amount of Break-Up Fee due.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Notices. Any notice, request, instruction or other document
to be given hereunder will be sent in writing and delivered personally, sent by
reputable, overnight courier service (charges prepaid), sent by registered or
certified mail, postage prepaid, or by facsimile, according to the instructions
set forth below. Such notices will be deemed given: at the time delivered by
hand, if personally delivered; one business day after being sent, if sent by
reputable, overnight courier service; at the time received, if sent by
registered or certified mail; and at the time when confirmation of successful
transmission is received by the sending facsimile machine, if sent by facsimile.
13
If to any Seller: Arlington Hospitality, Inc.
2355 S. Arlington Heights Rd.
Arlington Heights, IL 60005
Attention: Leon Vainikos
Facsimile No.: (847) 228-5422
With a copy (which will not constitute notice) to: Jenner & Block LLP
One IBM Plaza
Chicago, IL 60611-7603
Attention: Catherine Steege
Facsimile No.: (312) 840-7352
If to any Buyer: SJB Companies
124 Longview Heights
Athens, OH 45701
Attention: Jack Bortle
Facsimile No.: (740) 592-5529
With a copy (which will not constitute notice) to: Sachnoff & Weaver, Ltd.
10 South Wacker Drive
40th Floor
Chicago, IL 60606
Attention.: Stephen Bobo
Facsimile No.: (312) 207-6400
or to such other address or to the attention of such other party that the
recipient party has specified by prior written notice to the sending party in
accordance with the preceding.
Section 9.2 Expenses; No Offset. Except as expressly provided in this
Agreement, each of the Buyers and the Sellers, and their respective Affiliates,
will bear their respective costs and expenses (including legal, accounting and
investment banking fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby, whether or not such transactions are
consummated. No Party may make any offset against amounts due to any other Party
pursuant to this Agreement, the Ancillary Documents or otherwise.
Section 9.3 Bulk Sales or Transfer Laws. The Sellers shall obtain, in
the Approval Order, a provision waiving compliance by the Sellers and the Buyers
with the provisions of any bulk sales laws that may be applicable to the
transactions contemplated by this Agreement.
Section 9.4 Assignment; Successors and Assigns. Neither this Agreement
nor any of the rights, interests or obligations provided by this Agreement may
be assigned by either Party (whether by operation of Law or otherwise) without
the prior written consent of the other Party, provided, however, that the Buyers
may assign their rights under this Agreement to one or more of its Affiliates,
but no such assignment shall relieve the Buyers of any of its obligations under
this Agreement. Subject to the preceding sentence and except as otherwise
expressly provided
14
herein, this Agreement will be binding upon and inure to the benefit of the
Parties hereto and their respective successors and permitted assigns.
Section 9.5 Amendment; Waiver. This Agreement may be amended by a
written instrument executed and delivered by the Sellers and the Buyers. At any
time prior to the Closing, the Parties may extend the time for performance of or
waive compliance with any of the covenants or agreements of the other Party to
this Agreement, and may waive any breach of the representations or warranties of
such other Party. No agreement extending or waiving any provision of this
Agreement will be valid or binding unless it is in writing and is executed and
delivered by or on behalf of the Party against which it is sought to be
enforced.
Section 9.6 Severability; Specific Performance. Whenever possible, each
provision of this Agreement will be interpreted in such manner as to be
effective and valid under Law, but if any provision of this Agreement is held to
be prohibited by or invalid under Law, such provision will be ineffective only
to the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement. Each Party acknowledges and agrees that the other
Party may be irreparably damaged if any provision of this Agreement is not
performed in accordance with its terms or otherwise is breached. Accordingly,
each Party agrees that the other Party may be entitled, subject to a
determination by a court of competent jurisdiction, to injunctive relief to
prevent any such failure of performance or breach and to enforce specifically
this Agreement and any of the terms and provisions hereof.
Section 9.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all such
counterparts taken together will constitute one and the same Agreement.
Section 9.8 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and will not constitute a part of
this Agreement.
Section 9.9 No Third-Party Beneficiaries. This Agreement will not
confer any rights or remedies upon any Person or entity other than the Parties
hereto, their respective successors and permitted assigns.
Section 9.10 Entire Agreement. This Agreement and the Ancillary
Documents collectively constitute the entire agreement among the Parties and
supersede any prior and contemporaneous understandings, agreements or
representations by or among the Parties, written or oral, that may have related
in any way to the subject matter hereof.
Section 9.11 Exhibits. The Exhibits attached to this Agreement are made
a part of this Agreement as if set forth fully herein.
Section 9.12 GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT GIVING
EFFECT TO ANY LAW OR RULE THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER
THAN THE STATE OF ILLINOIS TO BE APPLIED.
15
Section 9.13 Public Announcement. Neither Party will issue any press
release or public announcement relating to the subject matter of this Agreement
prior to the Closing without the prior written consent of the other Party,
provided that either Party may make any public disclosure it believes in good
faith is required by Law, including all necessary disclosures in the Bankruptcy
Case or any listing agreement concerning its publicly-traded securities, in
which case the disclosing Party will use its commercially reasonable efforts to
advise the other Party prior to making such disclosure.
Section 9.14 Recitals. The Recitals are made part of this Agreement as
if set forth fully herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
16
IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Agreement on the date first written above.
THE SELLERS:
ARLINGTON HOSPITALITY DEVELOPMENT, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ARLINGTON INNS OF AMERICA, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE BUYERS:
SJB EQUITIES, INC.
By:
------------------------------------
Jack A. Bortle
President
SJB DEVELOPMENT, INC.
By:
------------------------------------
Jack A. Bortle
President
SJB PROPERTIES, INC.
By:
------------------------------------
Jack A. Bortle
President
SCHEDULE 1.1
Cendant Franchise Agreements
AMERIHOST INN & SUITES (TOLEDO/MAUMEE)
Franchise Agreement dated as of December 19, 2000
AMERIHOST INN & SUITES (COLUMBUS AT RICKENBACKER) Franchise Agreement dated as
of December 21, 2000
AMERIHOST INN & SUITES (WEIRTON) Franchise Agreement dated as of October 11,
2002.
AMERIHOST INN & SUITES (AT PORT COLUMBUS AIRPORT) Franchise Agreement dated as
of _______________, 200__.
11/9/05
Exhibit A
AIA OWNERSHIP OF JOINT VENTURES
- -------------------------------------------------------------------------------------------------------------------
Investor Property Property
Investor Ownership Interest Name Address
- -------------------------------------------------------------------------------------------------------------------
Arlington Inns of America, 12.5% ownership interest AmeriHost Inn & Suites 6425 Kit Lane
Inc. as Manager Member of LLC Toledo/Maumee Maumee, OH 43537
and 12.5% Other Member
Interest in LLC
- -------------------------------------------------------------------------------------------------------------------
Arlington Inns of America, 12.5% ownership interest AmeriHost Inn & Suites 2323 Port Road
Inc. as Manager Member of LLC Columbus at Rickenbacker Columbus, OH 43219
and 12.5% Other Member
Interest in LLC
- -------------------------------------------------------------------------------------------------------------------
Arlington Inns of America, 16.67% ownership interest AmeriHost Inn & Suites 1 AmeriHost Drive
Inc. as Manager Member of LLC Weirton Weirton, WV 26062
and 13.75% Other Member
Interest in LLC
- -------------------------------------------------------------------------------------------------------------------
Arlington Inns of America, 11.44% ownership interest AmeriHost Inn & Suites at 1450 Airpointe Drive
Inc. as Manager Member of LLC Port Columbus Airport Columbus, OH 43219
and 17.14% Other Member
Interest in LLC
- -------------------------------------------------------------------------------------------------------------------
EXHIBIT B
CONSTRUCTION CONTRACTS
1. Agreement dated as of May 23, 2005, by and between Arlington Hospitality
Development, Inc. and A-Anytime Plumbing for plumbing services.
2. Agreement dated as of May 31, 2005, by and between Arlington Hospitality
Development, Inc. and Allied Roofing, Inc. for gutters/roof/downspouts.
3. Agreement dated as of May 31, 2005, by and between Arlington Hospitality
Development, Inc. and Anthony Irrigation for irrigation services.
4. Agreement dated as of June 2, 2005, by and between Arlington Hospitality
Development, Inc. and Bryan Electric, Inc. for electrical services.
5. Agreement dated as of July 28, 2005, by and between Arlington Hospitality
Development, Inc. and Cheugh & Schlegel, Inc. for steel columns.
6. Agreement dated as of June 2, 2005, by and between Arlington Hospitality
Development, Inc. and D&E Construction for concrete/footers.
7. Agreement dated as of June 2, 2005, by and between Arlington Hospitality
Development, Inc. and European Craft Construction for EFIS.
8. Agreement dated as of May 23, 2005, by and between Arlington Hospitality
Development, Inc. and FFE Hotel Interiors for FFE installation.
9. Agreement dated as of May 23, 2005, by and between Arlington Hospitality
Development, Inc. and Guerrero's Drywall for drywall installation.
10. Agreement dated as of May 31, 2005, by and between Arlington Hospitality
Development, Inc. and Hardware Resources, Inc. for hardware packaging.
11. Agreement dated as of May 31, 2005, by and between Arlington Hospitality
Development, Inc. and Harry Wolsky Stair Builders for stair packaging.
12. Agreement dated as of May 23, 2005, by and between Arlington Hospitality
Development, Inc. and Installed Building Products, Inc. dba Edwards, Mooney
& Moses for insulation services.
13. Agreement dated as of June 3, 2005, by and between Arlington Hospitality
Development, Inc. and Loran Dowling for beam insulation.
14. Agreement dated as of May 10, 2005, by and between Arlington Hospitality
Development, Inc. and NBN Services for sprinklers.
15. Agreement dated as of May 31, 2005, by and between Arlington Hospitality
Development, Inc. and R&N Components for trusses and wall panels.
16. Agreement dated as of May 31, 2005, by and between Arlington Hospitality
Development, Inc. and R&N Components for lumber packaging.
17. Agreement dated as of May 6, 2005, by and between Arlington Hospitality
Development, Inc. and Rayco Excavating Company for sitework/excavating
services.
18. Agreement dated as of May 31, 2005, by and between Arlington Hospitality
Development, Inc. and Roger Young for acoustic ceilings.
19. Agreement dated as of May 31, 2005, by and between Arlington Hospitality
Development, Inc. and Sunrise Pool Builders for pool/spa services.
20. Agreement dated as of May 19, 2005, by and between Arlington Hospitality
Development, Inc. and Timberweld for glued laminated beams.
21. Agreement dated as of August 16, 2005, by and between Arlington Hospitality
Development, Inc. and Tolliver & Curl Paving Contractors, Inc. for asphalt.
22. Agreement dated as of May 31, 2005, by and between Arlington Hospitality
Development, Inc. and Tri-Con Lightweight Flooring for gycprete.
23. Agreement dated as of May 16, 2005, by and between Arlington Hospitality
Development, Inc. and Trus Joint for floor joists.
24. Agreement dated as of May 31, 2005, by and between Arlington Hospitality
Development, Inc. 804 LLC and USA Direct, Inc. for windows.
25. Golden Trowec Masonry Agreement dated as of September 13, 2005, by and
between Arlington Hospitality Development, Inc. 804 LLC and Black and Stone
for nectar, supply and installation
26. Agreement dated as of October 5, 2005, by and between Arlington Hospitality
Development, Inc. 804 LLC and I Con Construction for carpeting.
27. Agreement dated as of September 12, 2005, by and between Arlington
Hospitality Development, Inc. 804 LLC and Precise Custom Millwork, Inc. for
cabinets and countertops.
28. Agreement dated as of September 6, 2005, by and between Arlington
Hospitality Development, Inc. 804 LLC and Richardson Glass Service for
doors and windows.
29. Agreement dated as of October 11, 2005, by and between Arlington
Hospitality Development, Inc. 804 LLC and Sign Resource for exterior
signage.
30. Franchise Agreement dated as of December 29, 2005 by and between Arlington
Inns of America, Inc. and AmeriHost Franchise Systems, Inc.
31. Agreement dated as of April 6, 2005, by and between Arlington Hospitality
Development, Inc. and Columbus Airpointe 804 LLC for the project known as
Columbus Airport.
EXHIBIT C
PERSONAL PROPERTY AND EQUIPMENT
The following personal property and equipment utilized in
relation to Airpointe and the Construction Contracts:
1ea. Hewlett Packard Model #500 DesignJet plotter.
1ea. Hewlett Packard Model #3380 LaserJet Fax/Printer.
1ea. Hewlett Packard Model#2100TN LaserJet printer.
3ea. Dell Model D610 Laptop Computers.
2ea. Dell Model GX270 Workstations
1ea. Viewsonic Model G220f 20" Color Monitor (Architect)
Hewlett Packard Model#880C DeskJet printer.
1ea. Canon Model P1212-DH Desktop Calculator.
1ea. Casio Model# HR150LC Desktop Calculator.
EXHIBIT D
ASSIGNMENT AND ASSUMPTION AGREEMENT - CONSTRUCTION CONTRACTS
This ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of _____________, is
entered into by and among Arlington Hospitality Development, Inc., an Illinois
corporation ("AHD"), and [___________________], an Ohio corporation,
("[___________]") to effectuate the transactions set forth in the Asset Purchase
Agreement dated November ___, 2005 by and among AHD and certain of its
Affiliates and ______________ and certain of its Affiliates (the "Agreement").
Capitalized terms not defined herein shall have the meanings ascribed to them in
the Agreement.
FOR GOOD AND VALUABLE CONSIDERATION as set forth in the Agreement, the
receipt and sufficiency of which are hereby acknowledged, effective as of the
date hereof, AHD hereby sells, transfers, assigns, conveys and delivers to
[_______________], its successors and assigns, forever, all of AHD's right,
title and interest in and to the Construction Contracts, and hereby assigns,
transfers and delegates to [_______________] all of the obligations of AHD under
the Construction Contracts. [_______________] hereby assumes and agrees to pay,
discharge and perform when due, all of the obligations of AHD under the
Construction Contracts.
This Assignment and Assumption Agreement is subject to all of the
representations, warranties, covenants, exclusions and indemnities set forth in
the Agreement, all of which are incorporated herein by reference. In the event
of any conflict or inconsistency between the terms of this Assignment and
Assumption Agreement and the terms of the Agreement, the terms of the Agreement
will prevail. Nothing contained herein will be deemed to alter, modify, expand
or diminish the terms and provisions of the Agreement.
* * * * *
IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Agreement on the date first written above.
ARLINGTON HOSPITALITY DEVELOPMENT, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[-------------------------------------]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT E
ASSIGNMENT AND ASSUMPTION AGREEMENT -- JOINT VENTURES
This ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of _____________, is
entered into by and among Arlington Inns of America, Inc., a Delaware
corporation ("AIA"), and [___________________], a[n]
________________________________ ("[___________]") to effectuate the
transactions set forth in the Asset Purchase Agreement dated November ___, 2005
by and among AIA and certain of its Affiliates and [______________] and certain
of its Affiliates (the "Agreement"). Capitalized terms not defined herein shall
have the meanings ascribed to them in the Agreement.
FOR GOOD AND VALUABLE CONSIDERATION as set forth in the Agreement, the
receipt and sufficiency of which are hereby acknowledged, effective as of the
date hereof, AIA hereby sells, transfers, assigns, conveys and delivers to
[_______________], its successors and assigns, forever, all of AIA's right,
title and interest in and to its membership interest in ____________________,
LLC, a[n] _______________ limited liability company, and directs that all
further distributions of profits, income and return of contributions on account
of such membership interest be paid to [________________].
[_____________________] hereby accepts said membership interest and assumes and
agrees to be bound by all of the obligations of AIA with respect thereto.
This Assignment and Assumption Agreement is subject to all of the
representations, warranties, covenants, exclusions and indemnities set forth in
the Agreement, all of which are incorporated herein by reference. In the event
of any conflict or inconsistency between the terms of this Assignment and
Assumption Agreement and the terms of the Agreement, the terms of the Agreement
will prevail. Nothing contained herein will be deemed to alter, modify, expand
or diminish the terms and provisions of the Agreement.
* * * * *
IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Agreement on the date first written above.
ARLINGTON INNS OF AMERICA, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[-------------------------------------]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT F
BILL OF SALE - PERSONAL PROPERTY AND EQUIPMENT
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, as of ______________________, 200__, Arlington
Hospitality Development, Inc., an Illinois corporation ("AHD"), does hereby
sell, transfer, assign, convey and deliver to [______________________] a[n]
________________, pursuant to the terms of that certain Joint Venture Purchase
Agreement dated as of November __, 2005 by and among AHD and certain of its
Affiliates and ______________ and certain of its Affiliates (the "Agreement"),
all of AHD's right, title and interest in and to the Personal Property and
Equipment, as defined in the Agreement. Capitalized terms not defined herein
shall have the meanings ascribed to them in the Agreement
This Bill of Sale is subject to all of the representations, warranties,
covenants, exclusions and indemnities set forth in the Agreement, all of which
are incorporated herein by reference. In the event of any conflict or
inconsistency between the terms of this Bill of Sale and the terms of the
Agreement, the terms of the Agreement will prevail. Nothing contained herein
will be deemed to alter, modify, expand or diminish the terms and provisions of
the Agreement.
IN WITNESS WHEREOF, AHD has duly executed and delivered this Bill of
Sale on the date first written above.
ARLINGTON HOSPITALITY DEVELOPMENT, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------