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EXHIBIT 2
PURCHASE AGREEMENT
AMONG
BLACKLAND VISTAS, INC. AND GREAT AQ STEAMBOAT CO.
AS SELLER
AND
THAYER HOTEL INVESTMENTS L.P.
AS PURCHASER
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Definitions
The following capitalized terms used in this Agreement are defined in the
sections indicated below:
Additional Deposit Section 2.3
Agreement Introduction
Apportionment Date Section 12.1
Blackland Introduction
Claims Section 3.9(d)
Closing Section 5.1
Closing Date Section 5.1
Contract Date Section 3.2
Contracts Section 3.12
Current Ledger Section 12.3
Deposit Section 2.3
Environmental Report Section 3.9(b)
Equipment Leases Section 3.13
Escrow Instructions Section 2.3
FF&E Section 1.2
Fixed Asset Supplies Section 1.2
Front Desk Closing Hour Section 12.1
Great AQ Introduction
Hazardous Materials Section 3.9(a)
Hotel Section 1.1
Inventories Section 1.2
Land Section 1.1
Letter of Credit Section 2.3
Newco Introduction
Partnership Interest Introduction
PTO Credit Section 12.8
Permits Section 3.17
Permitted Exceptions Section 6.2
Personal Property Section 1.2
Property Section 1.2
Purchase Price Section 2.1
Purchaser Introduction
Seller Introduction
Title Commitment Section 6.2
Title Company Section 2.1
Uniform System of Accounts Section 1.2
WARN Act Section 6.8
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AMENDED AND RESTATED
PURCHASE AGREEMENT
THIS AMENDED AND RESTATED PURCHASE AGREEMENT (THIS "AGREEMENT") is
executed as of the 19th day of August, 1996 by BLACKLAND VISTAS, INC., an
Illinois corporation ("BLACKLAND") and GREAT AQ STEAMBOAT CO., a Delaware
corporation ("GREAT AQ") (BLACKLAND AND GREAT AQ COLLECTIVELY REFERRED TO AS
"SELLER"); and THAYER HOTEL INVESTMENTS L.P., a Delaware limited partnership
(TOGETHER WITH ANY PERMITTED DESIGNEE(S) OR PERMITTED ASSIGNEE, THE
"PURCHASER").
PRELIMINARY STATEMENT
A. As of the date hereof, Blackland is the owner of the Hotel (hereafter
defined) and the Land (hereafter defined) and Great AQ is the beneficial owner
of the Hotel and the Land, and is the owner of the Personal Property (hereafter
defined).
B. Prior to the Closing Date, Blackland and Great AQ shall form a single asset
Delaware limited partnership ("NEWCO").
C. Prior to or on the Closing Date, Blackland or its designee shall contribute
all of its right, title and interest in and to the Hotel and the Land to Newco,
and shall record an act of sale to reflect such transfer, as described below.
D. Prior to the Closing Date, Great AQ shall contribute all of its right,
title, and interest in and to the Hotel, the Land, and the Personal Property to
Newco.
E. At Closing, Purchaser desires to acquire one hundred percent (100%) of the
partnership interests in Newco (EACH, A "PARTNERSHIP INTEREST" AND
COLLECTIVELY, THE "PARTNERSHIP INTERESTS") in order to become the owner of the
Land, the Hotel, the Personal Property and certain other property, as
hereinafter set forth.
F. Blackland, Great AQ, and Purchaser entered into a Purchase Agreement dated
as of the 7th day of June, 1996 (THE "ORIGINAL AGREEMENT") for the acquisition
from the Seller of the Hotel, the Land, the Personal Property, and certain
other property.
G. The Original Agreement has been amended by the First Amendment to Purchase
Agreement dated as of July 22, 1996, by Second Amendment to Purchase Agreement
dated as of July 31, 1996, by Third Amendment to Purchase Agreement dated as of
August 6, 1996, by Fourth Amendment to Purchase Agreement dated as of August 6,
1996, and by Fifth Amendment to Purchase Agreement dated as of August 8, 1996
(COLLECTIVELY, THE "AMENDMENTS").
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H. Blackland, Great AQ, and Purchaser desire to amend and restate in its
entirety the Original Agreement as amended by the Amendments.
ARTICLE I
SALE
Subject to the terms and conditions set forth in this Agreement, Seller
agrees to sell, convey, and assign (or cause to be sold, conveyed, and
assigned) to Purchaser, and Purchaser agrees to buy from Seller one hundred
percent (100%) of the Partnership Interests in Newco which owns (or will own
prior to closing):
1.1 HOTEL. All that certain parcel of land located at 1001 Toulouse
Street in New Orleans, Louisiana as described on EXHIBIT A attached hereto,
including all right, title and interest, if any, in and to the land lying in
the bed of any street or highway in front of or adjoining each such parcel to
the center line thereof, all water and mineral rights, development rights and
all easements, rights and other interests appurtenant thereto ( THE "LAND"),
together with all buildings and other improvements that are located thereon,
including, without limitation, all elevators, escalators, furnaces, heating,
ventilating and air-conditioning systems and equipment, fixtures, electrical
equipment, fire prevention and extinguishing apparatus located therein
(COLLECTIVELY THE "HOTEL").
1.2 PERSONAL PROPERTY. All right, title and interest in the following
personalty: (a) any and all furniture, furnishings, fixtures, rugs, mats,
carpeting, appliances, devices, furnace, telephone and other communications
equipment, televisions and other video equipment, plumbing fixtures and other
equipment located within the Hotel, including property described in the
Equipment Leases (hereafter defined) (THE "FF&E"); (b) any and all items used
by the Hotel included within the definition of "Property and Equipment" under
the Uniform System of Accounts for Hotels, Eighth Revised Edition, 1987, as
published by the Hotel Association of New York City, Inc. (THE "UNIFORM SYSTEM
OF ACCOUNTS"), including, without limitation, linen, china, glassware,
tableware, uniforms and similar items, whether in use or held in stock for
future use, in connection with the operation of the Property, subject to such
depletion and including such resupplies prior to the Closing Date as shall
occur in the ordinary course of business (THE "FIXED ASSET SUPPLIES"); (c) any
and all "Inventories" as defined in the Uniform System of Accounts used by the
Hotel, such as provisions in storerooms, refrigerators, pantries, and kitchens,
beverages in wine cellars and bars, other merchandise intended for sale or
resale, fuel, mechanical supplies, stationery, guest supplies, maintenance and
housekeeping supplies and other expensed supplies and similar items (THE
"INVENTORIES"), provided that to the extent that any applicable law prohibits
the transfer of alcoholic beverages from Seller to Purchaser, such beverages
shall not be considered a part of Inventories; (d) to the extent assignable, an
interest in common with Seller in (i) all surveys, architectural, consulting
and engineering blueprints, plans and specifications (together with the
architects' certificates indicating that the Hotel has been completed in
accordance therewith), drawings and reports, to the extent in the Seller's
possession, custody or control, and (ii) all books and records (financial and
otherwise), all telephone numbers, all non-proprietary customer and guest lists
and information and any goodwill of Seller
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related to the Property; and (e) any and all other items of personalty located
on, or used in connection with the operation of the Hotel (COLLECTIVELY, THE
"PERSONAL PROPERTY" AND TOGETHER WITH THE HOTEL, HEREINAFTER REFERRED TO AS THE
"PROPERTY"). The Property excludes the following: (i) accounts receivable for
periods prior to and including the Apportionment Date, and (ii) property of
guests.
ARTICLE II
PURCHASE PRICE
2.1 PURCHASE PRICE. In accordance with the terms of this Agreement,
Seller shall sell and Purchaser shall buy one hundred percent (100%) of the
Partnership Interests of Newco for a total purchase price of Twenty-Two
Million Dollars ($22,000,000.00) (the "PURCHASE PRICE"), payable to Seller on
the Closing Date, subject to adjustment as set forth in Article XII below and
application of the Deposit in accordance herewith, by wire transfer for
Seller's account to Chicago Title Insurance Company, 1129 20th Street, N.W.,
Suite 100, Washington, D.C. 20036, ATTN: Douglas J. Mathis, Esq. (THE "TITLE
COMPANY").
2.2 ALLOCATION OF PURCHASE PRICE. On or before August 27, 1996, Purchaser
and Seller shall determine in good faith an allocation of the Purchase Price
among the Hotel and various items of Personal Property (including, without
limitation, goodwill) as set forth on EXHIBIT B. Seller and the Purchaser
agree to file federal, state and local tax returns consistent with such
allocations.
2.3 DEPOSIT. Purchaser has delivered to Title Company a deposit in the
amount of Two Hundred Fifty Thousand Dollars ($250,000.00), comprised of an
irrevocable, commercial letter of credit, in substantially the form of EXHIBIT
C attached hereto (THE "LETTER OF CREDIT"). Provided that the transaction
contemplated by this Agreement has been approved by the advisory board of
Purchaser in accordance with Section 6.7, on August 23, 1996, Purchaser shall
replace the Letter of Credit with a cash deposit in the amount of One Million
Dollars ($1,000,000) (THE "DEPOSIT") posted with the Title Company, which
Deposit shall be nonrefundable to Purchaser, except as expressly described
herein. The Title Company shall hold and disburse the Deposit in accordance
with the form of escrow instructions (THE "ESCROW INSTRUCTIONS") attached
hereto as EXHIBIT D.
ARTICLE III
SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
For purposes of this Article III, "Seller's knowledge" means the current
actual knowledge of Seller derived after due and diligent inquiry of
appropriate employees, officers, directors and agents. All representations and
warranties contained herein with respect to the Hotel and/or the Property are
given only by Blackland and/or Great AQ as appropriate. In order to induce
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Purchaser to enter into this Agreement and to consummate the transactions
contemplated hereby, Seller represents and warrants to, and covenants with,
Purchaser as follows:
3.1 GOOD STANDING. Blackland is duly organized, validly existing and in
good standing under the laws of Illinois, Great AQ is duly organized, validly
existing and in good standing under the laws of Delaware, and each is qualified
to conduct business in the State of Louisiana and is authorized to conduct the
business in which it is now engaged.
3.2 TITLE. As of the date Seller and Purchaser execute this Agreement
(THE "CONTRACT DATE") Seller is, and as of the Closing Newco will be, the owner
of fee simple title to the Hotel and all appurtenances thereto, which shall be
subject only to the Permitted Exceptions. Seller warrants that it has, and as
of the Closing Date Newco shall have, good title to the Personal Property
subject only to the Permitted Exceptions.
3.3 DUE AUTHORIZATION. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by all requisite corporate actions of Seller,
including all appropriate nominee trust authorizations of Blackland on behalf
of Great AQ (none of which actions have been modified or rescinded, and all of
which actions are in full force and effect). This Agreement constitutes a
valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms.
3.4 NO VIOLATIONS OR DEFAULTS. To Seller's knowledge, it is not in
violation or default under any agreement with any third party, or under any
judgment, order, decree, rule or regulation of any court, arbitrator,
administrative agency or other governmental authority to which it may be
subject, which violation or default will, in any one case or in the aggregate,
materially adversely affect the ownership or operation of the Property or
Seller's ability to consummate the transactions contemplated hereby. To
Seller's knowledge, the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not (a)
violate any law or any order of any court or governmental authority with proper
jurisdiction; (b) result in a breach or default under any agreement or other
binding commitment of Seller or any provision of the organizational documents
of Seller or Newco (except that performance under the Agreement now may give
rise to breaches or defaults under Contracts and Equipment Leases); or (c)
require any consent (other than with respect to consents required under any
Contracts, Permits or Equipment Leases), approval or vote of any court or
governmental authority or of any third person or entity that, as of the Closing
Date, has not been given or taken, and does not remain effective.
3.5 LITIGATION. Except as shown on EXHIBIT E, there are no actions,
suits, arbitrations, governmental investigations or other proceedings pending
or, to Seller's knowledge, threatened in writing against Seller, Newco or
affecting the Property before any court or governmental authority, an adverse
determination of which might adversely affect in any material respect (a) the
financial condition or operations of Seller, Newco or the Property, (b)
Seller's or Newco's ability to enter into or perform this Agreement, or (c)
Seller's or Newco's, as applicable, title to the Property.
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3.6 COMPLIANCE WITH LAWS. To Seller's knowledge, Seller and the Property
are in compliance (in all material respects) with all laws, rules, regulations,
health and sanitation codes, zoning ordinances and with the terms of all
Permits applicable to the Property, except for any breaches thereof caused by
the transfer by Seller to Newco without necessary consents, requirements of the
Americans with Disabilities Act and the matters disclosed in the Environmental
Reports or elsewhere in this Agreement.
3.7 INSURANCE. EXHIBIT F lists all existing insurance policies
covering the Property, all of which shall be maintained by Seller in all
material respects in full force and effect until the Closing Date or earlier
termination of this Agreement. All such policies will terminate as of the
Closing.
3.8 CONDEMNATION ACTIONS. There are no pending condemnation actions or
special assessments of any nature and, to Seller's knowledge, there are no
written threatened condemnation actions or special assessments of any nature
with respect to the Property or any part thereof.
3.9 HAZARDOUS MATERIALS. (a) "HAZARDOUS MATERIALS" means any of the
following located on or under, or emanating from or affecting the Property :
asbestos-containing materials, polychlorinated biphenyls (PCBs), flammable
materials, explosives, radioactive materials, petroleum products and any
materials, wastes, substances, or chemicals that are deemed hazardous, toxic, a
pollutant or a contaminant under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et
seq.), the Hazardous Materials Transportation Act as amended (49 U.S.C. Section
1801, et seq.), the Resource Conservation and Recovery Act of 1976, as amended
(42 U.S.C. Section 6901, et seq.), in the regulations adopted or publications
promulgated pursuant thereto, or in any other applicable federal, state or
local laws, ordinances, rules or regulations in effect on the Closing Date
relating to protection of public health, safety or the environment.
(b) Seller has delivered to Purchaser the following environmental report:
Phase I Environmental Site Assessment as prepared by ATEC Associates, Inc.
dated May 3, 1993 (THE "ENVIRONMENTAL REPORT"). Based solely upon the
information contained in the Environmental Report, and except as disclosed
therein, Seller has no knowledge of the presence of any Hazardous Materials on
the Property during Seller's period of ownership of the Hotel, except for such
cleaning and office supplies which may constitute Hazardous Materials as are
used in the ordinary course of business of the Property. Seller hereby
represents to Purchaser that the Environmental Report is the only environmental
report which Seller has in its possession relating to the Property. Seller has
no knowledge of any violation of federal, state or local law, rule or
ordinances with respect to Hazardous Materials other than as disclosed in the
Environmental Report.
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(c) To Seller's knowledge and except as disclosed in the Environmental
Report, neither Seller nor any agent, officer, director or affiliate have
received notice of any violation of federal, state or local law, rule,
regulation or ordinance with respect to Hazardous Materials.
(d) Seller shall defend, indemnify, and hold harmless Purchaser and its
employees, agents and partners from and against any and all claims, demands,
penalties, fines, liabilities, losses, settlements, damages, costs or expenses
of whatever kind or nature, known or unknown, contingent or otherwise, asserted
against or incurred by Purchaser or such other person, directly or indirectly,
caused by or arising out of or based on circumstances which cause a breach of
the representations and warranties contained in Sections 3.9(b) and 3.9(c) and
which lead to governmental action, action by a third party or actions taken by
Purchaser and based upon advice of a recognized environmental authority to the
effect that action may need to be taken to avoid, reduce or limit Purchaser's
or such person's exposure to liability or the risk of injury or damage of
persons or property (COLLECTIVELY, "CLAIMS"), including, without limitation,
costs of clean-up and losses (including, without limitation, reasonably
foreseeable consequential damages) due to the partial or total interruption of
the operations of the Property, attorneys' and consultants' fees and
disbursements, investigation and laboratory fees, court costs and litigation
expenses.
3.10 ZONING; APPROVALS. Seller has received no written notice of any
actual or threatened zoning changes from a governmental entity with proper
jurisdiction which may affect the Property or any part thereof.
3.11 FF&E, FIXED ASSET SUPPLIES. A schedule reflecting the levels of
FF&E and Fixed Asset Supplies to be conveyed to Purchaser at Closing is
attached hereto as EXHIBIT O. To the extent there exists an aggregate
deficiency or overage prior to Closing, Purchaser or Seller, as appropriate,
shall receive a credit against the Purchase Price to reflect the aggregate
amount of such deficiencies or overages.
3.12 CONTRACTS. All written service, maintenance, licensing, concession
and other contracts or agreements related to the maintenance, ownership, use,
possession or operation of the Property (THE "CONTRACTS"), other than the
Equipment Leases, are listed on EXHIBIT G attached hereto.
3.13 EQUIPMENT LEASES. All written leases of personal property located
at, or used in the operation of, the Property (THE "EQUIPMENT LEASES") to which
Seller is a party are listed on EXHIBIT H attached hereto.
3.14 EMPLOYEES. (a) Other than as disclosed on EXHIBIT I, no employment
contracts or collective bargaining agreements exist with respect to the
Property that will subject Purchaser to a liability therefor. Great AQ is the
employer of all persons employed at the Property .
(b) To Seller's knowledge, there is no (i) strike, work stoppage or other
labor dispute relating to the operation of the Property or threatened by any
labor organization, or (ii) pending
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petition or demand in writing for recognition by any labor organization with
respect to any employees of the Property.
(c) Except as indicated in EXHIBIT I attached hereto and within the past
twenty four (24) months, Seller has received no written notice of (i) any
unfair labor practice charges or grievances pending against Seller or in
process or threatened by or on behalf of any employee now or previously
employed in the operation of the Property or by or on behalf of any labor
organization, (ii) material complaints received by Seller or threatened, or
with respect to unresolved complaints, on file with any applicable governmental
agencies alleging employment discrimination, (iii) workers' compensation claims
pending, in process or threatened and alleged to have resulted from or be
related in any way to any incident at the Property or to employment in
connection with the Property, (iv) any violation of any federal, state or local
laws respecting employment and employment practices, or (v) any arrearage in
the payment of any wages, benefits or payroll taxes other than in the ordinary
course of business and as reflected on the Seller's financial statements
previously provided to Purchaser. The items listed on EXHIBIT I shall be
Seller's sole responsibility.
3.15 FINANCIAL INFORMATION. Seller has previously delivered to Purchaser
an unaudited balance sheet and related statements as of December 31, 1995 and a
current balance sheet and related statements for the period ending April 30,
1996 each relating solely to the Property. All such information has been
prepared in accordance with modified cash accrual accounting principles applied
consistently with past practice of Seller.
3.16 MANAGEMENT AND FRANCHISE AGREEMENTS. There are no existing
management contracts or franchise agreements relating to the Property.
3.17 PERMITS. All licenses (including, without limitation, liquor
licenses), certificates of occupancy, permits and approvals related to the
operation of the Property (THE "PERMITS") are listed on EXHIBIT J attached
hereto, and Seller has provided to Purchaser true and complete copies of each
Permit.
3.18 "AS IS". Except as expressly set forth herein, Purchaser
acknowledges and agrees that Seller has not made, does not make and
specifically disclaims any representations, warranties, promises, covenants,
agreements or guaranties of any kind or character whatsoever, whether express
or implied, oral or written, past, present or future, of, as to, concerning or
with respect to: (i) the nature, quality or condition of the Property,
including, without limitation, the water, soil and geology; (ii) the income to
be derived from the Property; (iii) the suitability of the Property for any and
all activities and uses which Purchaser may conduct thereon; or (iv) the
habitability, merchantability or fitness for a particular purpose of the
Property.
3.19 NO LIABILITIES OF NEWCO. There are no outstanding loans, notes or
other claims or obligations on which Newco is an obligor or guarantor or is
otherwise liable, except for Permitted Exceptions, liabilities expressly
assumed by Purchaser as set forth herein and liabilities retained by Seller.
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3.20 PARTNERSHIP INTERESTS. Seller is, or shall be as of Closing, the
owner of one hundred percent (100%) of the Partnership Interests in Newco, free
and clear of any liens, encumbrances and other similar matters at the time of
Closing.
3.21 SELLER'S OPPORTUNITY TO CURE MISREPRESENTATIONS. To the extent that
any of the statements contained in this Article III (other than those contained
in Sections 3.2, 3.9(a), 3.9(b) and 3.18) become false on or before the Closing
Date, whichever of Purchaser or Seller become aware of the occurrence of a
misrepresentation shall notify the other promptly in writing. Seller shall be
required to use good faith efforts to cure such misrepresentation, including
paying those funds reasonably necessary, but in no event more than Twenty-Five
Thousand Dollars ($25,000.00) in those efforts (THE "GOOD FAITH EFFORTS"). If
Purchaser becomes aware of or is notified of the misrepresentation and Seller
does not, after making Good Faith Efforts, effect a cure of the
misrepresentation, Purchaser shall have the remedies set forth in Section 9.2.
If Seller does not, after making Good Faith Efforts, effect a cure of the
misrepresentation and Purchaser elects to close the transactions contemplated
in this Agreement, Purchaser shall be deemed to have waived its rights against
Seller with respect to such misrepresentation. As of the Contract Date,
Purchaser has no knowledge of any misrepresentation by Seller.
ARTICLE IV
PURCHASER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
In order to induce Seller to enter into this Agreement and to consummate
the transactions contemplated hereby, Purchaser represents and warrants to, and
covenants with, Seller as follows:
4.1 GOOD STANDING. Purchaser is a limited partnership duly organized,
validly existing and in good standing under the laws of Delaware, is authorized
to conduct the business in which it is now engaged and is, or as of the Closing
Date shall be, qualified to do business in the State of Louisiana, if legally
required. Purchaser's general partner is a corporation duly organized, validly
existing and in good standing under the laws of Delaware and is authorized to
conduct the business in which it is now engaged.
4.2 DUE AUTHORIZATION. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by all requisite partnership actions of
Purchaser (none of which actions have been modified or rescinded, and all of
which actions are in full force and effect). This Agreement constitutes a
valid and binding obligation of Purchaser, enforceable against Purchaser in
accordance with terms.
4.3 NO VIOLATIONS OR DEFAULTS. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby by
Purchaser will not (a) violate any law or any order of any court or
governmental authority with proper jurisdiction;
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(b) result in a breach or default under any contract or other binding
commitment of Purchaser or any provision of the organizational documents of
Purchaser; or (c) require any consent or approval or vote that has not been
taken or given, or at the time of the transaction involved, shall not have been
taken or given.
4.4 LITIGATION. There are no actions, suits, arbitrations, proceedings,
governmental investigations or other proceedings that are pending against
Purchaser that adversely and materially affect its right to enter into or
perform this Agreement.
ARTICLE V
CLOSING
5.1 CLOSING. The consummation of the purchase and sale of the Property
as contemplated by this Agreement (THE "CLOSING") shall take place at 10:00
a.m. on October 16, 1996 (THE "CLOSING DATE"), at the offices of Hogan &
Hartson L.L.P., 555 13th Street, N.W., Washington, D.C., or at such other
location as may be mutually agreed upon by Seller and Purchaser. All of
Seller's deliveries and the Purchase Price shall be delivered in escrow to the
Title Company. All transactions at the Closing shall be interdependent and are
to be considered simultaneous, so that none are effective until all are
effective.
5.2 COSTS. Purchaser and Seller shall split 50/50 all transfer and
recording taxes and fees, any bulk sales taxes and other personal property
taxes associated with the Closing. Purchaser shall pay all costs of title
insurance, title insurance premium (owner's, lender's and endorsements), and
survey. Each party shall pay its own attorneys' fees incurred in connection
with this transaction.
ARTICLE VI
ACTIONS PENDING CLOSING
6.1 CONDUCT OF BUSINESS; MAINTENANCE AND OPERATION OF PROPERTY. Between
the Contract Date and the Closing Date, Seller shall carry on the business of
the Property in the ordinary course and in a reasonable and diligent manner
consistent with prior practice. Seller shall cause the Property to be
maintained in its present order and condition, normal wear and tear and
casualty excepted, and shall cause the continuation of the normal operation
thereof, including the purchase and replacement of supplies and equipment in
the ordinary course of business and the continuation of the normal practice
with respect to maintenance and repairs so that the Property shall, except for
normal wear and tear and casualty, be in substantially the same condition on
the Closing Date as on the Contract Date. Subject to the provisions of Section
11.1 hereof, Seller shall notify Purchaser in writing of any loss, breakage or
damage to the Property occurring prior to the Closing Date, if the cost of
repair or replacement therefor are reasonably estimated to exceed $2,500, and
if such repair or replacement is not completed prior to Closing, Purchaser
shall receive a credit against the Purchase Price for the estimated remaining
cost thereof. However, if there is loss, breakage and/or damage in excess of
$2,500 as a result of an
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emergency condition, Seller may replace such item without notifying Purchaser
in advance, so long as Seller notifies Purchaser promptly thereafter. Seller
shall not remove or permit to be removed any Personal Property except as
necessary for repairs or replacements of worn out or obsolete items.
6.2 TITLE INSURANCE. (a) Attached as EXHIBIT K hereto is a list of
title exceptions on the Property agreed upon by Seller and Purchaser (THE
"PERMITTED EXCEPTIONS").
(b) Purchaser has obtained a binding commitment for an owner's policy of
title insurance to be issued by the Title Company to Purchaser on American Land
Title Association Form B-1992 (THE "TITLE COMMITMENT"), which shall be modified
to commit to insure Newco's good and marketable fee simple title to the Hotel
following the assignment of the Partnership Interest to Purchaser. The title
policy to be issued pursuant to the Title Commitment shall be in an amount
equal to the portion of the Purchase Price allocable to the value of the Hotel,
as shown in EXHIBIT B.
(c) The cost of the title policy (including lender's policy and all
endorsements) to be issued at Closing shall be borne by Purchaser, and shall
include at Purchaser's sole cost and expense a non-imputation endorsement and
such additional endorsements as Purchaser reasonably may request. Seller shall
provide at its sole cost and expense affirmative ALTA lien coverage as is
required to insure over any potential liens for work performed or materials
supplied prior to Closing.
6.3 SURVEY. Purchaser has obtained an as-built survey of the Hotel,
prepared in conformity with current American Land Title Association/American
Congress on Surveying and Mapping standards for "Class-A" Urban surveys and
certified to Purchaser, Purchaser's lender, Seller and the Title Company by a
duly licensed land surveyor or professional engineer.
6.4 CONTRACTS; EQUIPMENT LEASES. Between the Contract Date and the
Closing Date, Seller shall not renew, extend or modify any Contract or
Equipment Lease or enter into any new such agreements that either would survive
the Closing Date or may not be terminated at no cost to Purchaser as of the
Closing Date, without Purchaser's prior written consent (such consent will be
deemed given if Purchaser does not respond within five (5) days after Seller's
request for such consent) in each instance.
6.5 NO ACTION. If any event occurs, whether through Seller's action,
inaction or otherwise, prior to Closing which would cause Seller to have
knowledge that any of Seller's representations or warranties have become untrue
in any material respect, Seller shall notify Purchaser promptly in writing of
such occurrence.
6.6 COOPERATION. Seller, at no out of pocket cost or liability to itself,
shall reasonably cooperate with Purchaser in securing the transfer or issuance
of any permits or licenses, including, without limitation, a liquor license,
necessary to permit the lawful, continuous operation of the Property by
Purchaser immediately following the Closing Date.
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6.7 RIGHT OF ACCESS. (a) From and after August 23, 1996 and provided that
Seller has not otherwise terminated this Agreement in accordance with Section
6.7(b) below, Purchaser shall have the right, upon reasonable notice to Seller,
at its own risk, cost and expense and at any date or dates prior to Closing, to
enter, or cause its agents or representatives to enter, upon the Property. In
addition, Purchaser may conduct such architectural, environmental, economic and
other studies of the Property as Purchaser may, in its sole discretion, deem
desirable. Purchaser shall not make any physical alterations to the Property,
such entry shall not interfere with the guests or management of the Property,
and Purchaser shall indemnify, defend and hold Seller harmless from any cost,
claim or expense in connection therewith, except that Purchaser's obligations
as set forth in this sentence shall not extend to previously existing
conditions that are discovered by Purchaser to be present on, under or about
the Property. Purchaser shall have complete access to all on-site information
related to the Property during reasonable business hours and shall have the
right to make copies of same. Seller shall, to the extent reasonably requested
files or documents are not located on the site of the Hotel, make those files
available to Purchaser at its New Orleans offices during normal business hours.
If Purchaser elects to terminate this Agreement pursuant to Section 6.7(b)
below, Purchaser agrees to supply Seller with the results of any tests, studies
or inspections of the Property performed hereunder. Seller shall, to the
extent available, provide up to forty (40) rooms at $50.00 per night, plus
applicable tax to Purchaser, its employees, officers and agents during the
Feasibility Period and the period prior to Closing.
(b) APPROVAL OF ADVISORY BOARD. Purchaser shall present for approval by
Purchaser's advisory board this Agreement and all of the transactions
contemplated hereby on or before August 22, 1996. If Purchaser does not
receive such approval, Purchaser shall notify Seller prior to 6:00 p.m. Eastern
Daylight Time on August 22, 1996 at which time this Agreement shall terminate
and Purchaser shall receive a return of the Letter of Credit.
6.8 TERMINATION OF EMPLOYEES. If necessary, Great AQ shall terminate the
employment of all individuals employed at or in connection with the Property.
Compliance with the provisions of the Worker Adjustment and Retraining
Notification Act ("WARN ACT") 29 U.S.C. 2101 et seq. shall be and remains
Seller's sole responsibility. It is Purchaser's current intention to hire or
to cause to be hired substantially all of the employees on terms and conditions
which are comparable to those provided by Seller. Seller agrees to indemnify
and hold Purchaser harmless from and against any and all liability, loss, cost,
damage and/or expense (including, without limitation, reasonable attorneys'
fees and expenses) arising from or relating to the WARN Act insofar as it
relates to the purchase and sale of the Property and the termination of the
employees who provide services at the Property prior to the Closing Date.
Purchaser agrees to indemnify and hold Seller harmless from and against any and
all liability, loss, cost, damage and/or expense (including, without
limitation, reasonable attorneys' fees and expenses) arising from or relating
to Purchaser's failure to comply with the previous sentence. Seller shall
notify Purchaser in writing prior to the delivering of any WARN Act notice.
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ARTICLE VII
CONDITIONS PRECEDENT TO CLOSING
It shall be an express precondition to Purchaser's obligation to purchase
the Property that each and every one of the following conditions shall have
been satisfied as of the Closing Date (or waived by Purchaser).
7.1 REPRESENTATIONS AND WARRANTIES. Each of Seller's representations and
warranties shall be true and accurate in all material respects as if made on
and as of the Closing Date.
7.2 COVENANTS OF SELLER. All actions Seller covenants herein to take
shall have been completed in all material respects.
7.3 MORTGAGE RELEASE. Chemical Bank shall have issued a customary payoff
letter indicating that other than payment of its release price, which will
occur at Closing, all conditions to the issuance of the release have been
satisfied.
7.4 FORMATION AND QUALIFICATION OF NEWCO. On or before October 14, 1996,
Seller shall cause the formation of Newco as a Delaware limited partnership and
shall qualify Newco to do business in the state of Louisiana. Newco's only
assets shall be the Property, and it shall have only those liabilities
described herein.
7.5 TRANSFER OF HOTEL TO NEWCO. Immediately prior to Purchaser's
acquisition of the Partnership Interests on the Closing Date, Seller shall
cause the transfer of one hundred percent (100%) of the beneficial and legal
title to the Hotel to Newco. Immediately prior to Purchaser's acquisition of
the Partnership Interests on the Closing Date, the transfer of the Hotel shall
have been reflected in the applicable land records in the State of Louisiana.
7.6 TRANSFER OF PERSONAL PROPERTY. Seller shall have caused the transfer
of the Personal Property to Newco, subject only to the Permitted Exceptions.
7.7 FAILURE OF CONDITION. In the event of the failure of any condition
precedent set forth above, Purchaser, at its sole election, may elect one of
the following: (a) terminate this Agreement (and receive a return of the
Deposit); (b) waive the condition and proceed to Closing; (c) extend the
Closing Date for such reasonable additional period of time as may be reasonably
required to allow Seller to remedy such failure (but, in no event shall the
Closing Date be extended for more than ninety (90) days; or (d) if such failure
arises from Seller's breach of this Agreement, avail itself of any remedies
provided in Section 9.2.
ARTICLE VIII
CLOSING DELIVERIES
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8.1 ASSIGNMENT OF PARTNERSHIP INTERESTS. Seller shall deliver an
assignment of one hundred percent (100%) of the Partnership Interests in Newco
to designees of Purchaser disclosed to Seller prior to the Closing Date,
generally warranting that title to the Partnership Interests are free and clear
of any liens, encumbrances and similar matters.
8.2 BILL OF SALE. Seller shall deliver a limited warranty bill of sale,
dated as of the Closing Date, conveying to Newco the Personal Property, free of
all items other than the Permitted Exceptions. The Bill of Sale shall contain
the following provision:
Except as otherwise set forth in that certain Purchase Agreement dated
June 7, 1996 as amended through the date hereof, between Blackland Vistas, Inc.
and Great AQ Steamboat Co., as sellers and Thayer Hotel Investments L.P., as
purchaser, this Property is sold by Seller and purchased by Purchaser "AS IS"
with no warranty of condition whatsoever, either expressed or implied, even for
the return of the Purchase Price, with Purchaser expressly waiving any and all
other warranties, including those pertaining to fitness for a particular use
and those warranties against hidden, latent, or rehibitory defects. Without
limitation of the generality of the foregoing, Purchaser hereby expressly
waives and renounces any and all rights or claims which it has or may have for
rehibition and/or quanti minoris, whether under Articles 2520 et seq. of the
Louisiana Civil Code or otherwise. Purchaser has inspected the Property to the
extent it deems necessary and is satisfied with the condition thereof.
8.3 OPINION OF LOCAL COUNSEL. Seller shall deliver an opinion
substantially in the form of EXHIBIT L attached hereto or otherwise
satisfactory to Purchaser.
8.4 ASSIGNMENT OF PERMITS. Seller shall deliver an assignment without
warranty of all applicable Permits if and to the extent assignable to Newco.
8.5 ASSIGNMENT OF CONTRACTS AND EQUIPMENT LEASES. Seller shall deliver an
assignment of all Contracts, Equipment Leases and Purchase Orders. On behalf
of Newco, Purchaser shall execute such assignments to evidence its obligation
to assume all obligations of Seller under the Contracts, Equipment Leases and
Purchase Orders arising after the Closing.
8.6 FIRPTA CERTIFICATE. Each Seller shall deliver a certificate, dated as
of the Closing Date, to establish that such Seller is not a foreign person for
the purposes of the Foreign Investors in Real Property Tax Act.
8.7 NEWCO DOCUMENTS. Seller shall deliver a certificate from the State of
Delaware evidencing that Newco is a limited partnership in good standing.
Seller shall deliver a certificate from the State of Louisiana evidencing that
Newco is authorized to conduct business and in good standing in the State of
Louisiana. Seller shall deliver any necessary certificates required by the
Delaware Revised Uniform Limited Partnership Act to reflect the substitution of
partners contemplated by this Agreement. Seller shall deliver a copy of all
organizational documents of Newco.
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8.8 PROFIT PARTICIPATION AGREEMENT. Seller and Purchaser shall each
deliver an executed counterpart of the agreement reflecting that Seller receive
certain additional sums under certain conditions in the form attached hereto as
EXHIBIT M.
8.9 DELTA QUEEN AGREEMENT. Seller and Purchaser shall each deliver an
executed counterpart of the agreement concerning the $584,179 per year in base
business the Delta Queen Steamboat Company is to provide the Hotel for two (2)
years after Closing in the form attached hereto as EXHIBIT N.
8.10 ASSIGNMENT OF WARRANTIES. Seller shall deliver an assignment of any
assignable warranties payment and performance bonds, if any, and other
assignable obligations of any contractor, architect, engineer, designer,
supplier or other party in connection with the Property.
8.11 ORIGINAL DOCUMENTS. Seller shall deliver the original, to the extent
in Seller's possession, custody or control (otherwise legible copies thereof),
Permits, Contracts and Equipment Leases which are to be assigned to Purchaser.
8.12 TITLE POLICY AND OTHER DOCUMENTS. Purchaser shall be able to obtain
a policy of title insurance in conformance with the Title Commitment, subject
only to Permitted Exceptions. Each party shall deliver such other documents
and instruments as may be reasonably requested by the other or the Title
Company to effectuate the transactions contemplated by this Agreement and to
induce the Title Company to insure title to the Hotel as described herein.
Purchaser and Seller shall execute a closing statement reflecting the
apportionment's set forth in Article 12.
8.13 NON-IMPUTATION ENDORSEMENT. The title policy referenced in Section
8.12 shall contain a non-imputation endorsement. Seller shall deliver all
necessary reasonable affidavits, certificates, and other documentation required
by the Title Company in order to issue a non-imputation endorsement.
8.14 POSSESSION; KEYS. Seller shall deliver possession of the Property to
Purchaser, together with all keys, including, without limitation, keys for all
security systems, rooms and offices.
8.15 PURCHASE PRICE. Purchaser shall deliver the balance of the Purchase
Price, plus or minus prorations and credits provided for in this Agreement and
as reflected in the Closing Statement. The Title Company shall deliver the
Deposit.
8.16 LIQUOR LICENSE. Purchaser, on behalf of Newco, shall have either (i)
received a liquor license for the proper operation of the Hotel or (ii)
entered with Seller into an interim arrangement (such as the assignment of the
Seller's existing liquor license) pending receipt of a final liquor license.
ARTICLE IX
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DEFAULT
9.1 PURCHASER'S DEFAULT. If Purchaser fails, refuses or is unable to
consummate the purchase and sale contemplated herein after all conditions
precedent to Purchaser's obligation to do so have been satisfied or waived by
Purchaser, Title Company shall pay the Deposit to Seller in accordance with the
Escrow Instructions, which, except as set forth in the next sentence, shall
serve as full and complete liquidated damages, and as the exclusive and sole
right and remedy of Seller, whereupon this Agreement shall terminate and
neither party shall have any further obligations or liabilities to the other
party. In addition, Seller may, at its option, seek to recover additional
damages, if any, from Purchaser, not to exceed One Million Dollars
($1,000,000).
9.2 SELLER'S DEFAULT. If Seller breaches its representations, warranties,
covenants and/or agreements under this Agreement or has failed, refused or is
unable to consummate the purchase and sale contemplated herein by the Closing
Date, Title Company shall return the Deposit to Purchaser in accordance with
the Escrow Instructions. In addition, Purchaser shall be entitled to pursue
any one of the following remedies: (i) an action for specific performance, so
long as Purchaser files the action within forty-five (45) days after the
Seller's breach; or (ii) if Seller has not cured any such breach in accordance
with Section 3.19, seek to recover damages from Seller not to exceed Two
Million Dollars ($2,000,000).
ARTICLE X
INDEMNIFICATION
10.1 AGREEMENT TO INDEMNIFY. After consummation of the Closing, subject
to any express provisions of this Agreement to the contrary: (a) each Seller
shall hold harmless, indemnify and defend Purchaser against any and all
obligations, claims, losses, damages, liabilities and expenses (including
reasonable attorneys' fees and other charges) arising out of (i) the inaccuracy
of any representation or warranty of Seller herein, (ii) the failure of such
Seller to perform any of its obligations hereunder, (iii) events, contractual
obligations, acts or omissions of such Seller that occurred in connection with
the ownership or operation of the Property prior to the Closing, (iv) damage
to property or injury to or death of any person or any claims for any debts or
obligations occurring on or in connection with the Property or any portion
thereof or with respect to the Property's operations at any time or times prior
to the Closing, (v) contractual obligations, acts or omissions of Newco that
occurred in connection with the ownership or operation of the Property prior to
the Closing or (vi) damage to property or injury to or death of any person or
any claims for any debts or obligations occurring or in connection with any
property owned by Newco, except as expressly set forth herein; and (b)
Purchaser shall hold harmless, indemnify and defend Seller against any and all
obligations, claims, losses, damages, liabilities and expenses (including,
without limitation, reasonable attorneys' fees and other charges) arising out
of (i) the inaccuracy of any representation or warranty of Purchaser herein,
(ii) the failure of Purchaser to perform any of its obligations hereunder,
(iii) events, contractual obligations, acts or omissions of Purchaser or its
agents that occur in connection with the ownership or operation of the Property
after the Closing, or (iv) any damage to property or injury
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to or death of any person or any claims for any debts or obligations occurring
on or about the Property or any portion thereof or with respect to the
Property's operations at any time or times after the Closing.
10.2 INDEMNIFICATION REGARDING ASSUMED OBLIGATIONS. Whenever it is
provided in this Agreement that an obligation of one party will be assumed by
the other party after the Closing, the party so assuming such liability also
shall be deemed to have agreed to indemnify, defend and hold harmless the other
party and its successors and assigns, from all claims, losses, damages,
liabilities, costs and expenses (including reasonable attorneys' fees and other
charges) arising from any failure of the assuming party to perform the
obligation so assumed after the Closing.
10.3 NOTICE AND COOPERATION ON INDEMNIFICATION. Whenever either party
shall learn through the filing of a claim or the commencement of a proceeding
or otherwise of the existence of any liability for which the other party is or
may be responsible under this Agreement, the party learning of such liability
shall notify the other party promptly and furnish such copies of documents (and
make originals thereof available) and such other information as such party may
have that may be used or useful in the defense of such claims and shall afford
said other party full opportunity to defend the same in the name of such party
and generally shall cooperate with said other party in the defense of any such
claim.
10.4 DEFENSE OF THIRD PARTY CLAIMS. With respect to any action or claim
or demand set forth relating to a third party claim, the indemnity or shall
have the right to assume the defense thereof (or, if applicable continue
defense thereof), in good faith and at its expense. The indemnitee, if it so
chooses, shall have the right to participate in the defense of any such third
party claim at its expense. So long as the indemnitor is defending in good
faith any such third party claim, the indemnitee shall not settle or
compromise such third party claim. The indemnitee shall make available to the
indemnitor or its representatives all records and other materials reasonably
required by them for their use in contesting a third party claim and shall
cooperate fully with the indemnitor in the defense of all such claims. If the
indemnitor does not so elect to assume defense of (or if applicable, continue
the defense of) any such third party claim, the indemnitee shall have no
obligation to do so.
ARTICLE XI
CASUALTY OR CONDEMNATION
11.1 CONDEMNATION OR CASUALTY . If, prior to Closing, (i) condemnation
proceedings are commenced against all or any material portion of the Property ,
or (ii) the Property is damaged by fire or other casualty to the extent that
the cost of repairing such damage shall be Seven Hundred Fifty Thousand Dollars
($750,000.00) or more, as determined by an independent architect, Purchaser or
Seller shall have the right, upon notice in writing to the other delivered
within fifteen (15) days after actual notice of such condemnation, fire or
other casualty, to terminate this Agreement, whereupon the Deposit shall be
returned immediately to Purchaser,
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and neither party shall have any further liability to the other hereunder. If
Purchaser or Seller do not elect, or are not entitled, to terminate this
Agreement, the Purchase Price shall not be reduced except as hereinafter set
forth, but Purchaser shall be entitled to an assignment of Seller's proceeds
of fire or other casualty insurance with respect to the Hotel and rent
insurance proceeds (if any) payable with respect to the Property for the
period after Closing or of the condemnation award for the Property , and
Seller shall have no obligation to repair or restore the Property; provided,
however, that the Purchase Price shall be reduced by an amount equal to the sum
of (a) any uninsured or unreimbursed amount which would be reasonably required
to restore the Property to its condition prior to the casualty, (b) the
"deductible" applied by Seller's insurer with respect to such fire or casualty
and (c) the amount by which the proceeds of such insurance will be reduced by
reason of the application of any co-insurance clause in Seller's insurance
policy. If Purchaser proceeds to Closing hereunder, Seller shall not
compromise, settle or adjust any claims to such proceeds or awards, without
Purchaser's prior written consent, which consent will not be unreasonably
withheld or delayed.
11.2 RISK OF LOSS. Subject to the provisions of this Article XI, the risk
of loss or damage to the Property shall remain with Seller until Closing.
ARTICLE XII
APPORTIONMENTS
12.1 APPORTIONMENTS. The following apportionments shall be made between
the parties at the Closing as of 11:59 p.m. (THE "FRONT DESK CLOSING HOUR") on
the day immediately prior to the Closing Date (THE "APPORTIONMENT DATE"), it
being understood that for purposes of this Article XII, but not for the rest of
this Agreement, Purchaser shall be deemed to be the owner of the Property on
the Closing Date.
(a) real estate taxes, personal property taxes, special assessments and
vault charges, if any, due as of Closing, whether or not payable at Closing;
(b) water and sewer service charges and charges for gas, electricity,
telephone and all other public utilities. If there are meters measuring the
consumption of water, gas or electric current, Seller, not more than one day
prior to the Apportionment Date, if possible, shall cause such meters to be
read, and shall pay all utility bills for which Seller is liable upon receipt
of statements therefor. Purchaser shall be responsible for causing such
utilities and services to be changed to the name of Newco and shall be liable
for and shall pay all utility bills for services rendered after the
Apportionment Date. All utility adjustments will be made by the parties
outside of Closing ;
(c) amounts which have been paid or are payable under the Contracts,
Equipment Leases and Permits, if any, assigned to and assumed by Newco at
Closing;
(d) prepaid advertising expenses;
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(e) commissions of credit and referral organizations; and
(f) other similar items of income and expenses of operation of the
Property, including, without limitation, items deemed to be payables,
indebtedness, liabilities or obligations of any kind or nature related to
Seller, Newco or the Property for periods prior to and including the
Apportionment Date; all of which items shall be the sole responsibility of
Seller.
12.2 DEPOSITS. All deposits from guests or others made as security or in
connection with future services to be rendered shall be credited to Purchaser
at the Closing. Purchaser shall assume responsibility for the provision of
such services and for the amount so credited and shall hold Seller harmless
therefrom.
12.3 ROOM REVENUE, CASH REGISTER. All revenues received or to be received
from transient guests on account of room rents for the period ending on the
Apportionment Date shall belong to Seller, and for the period beginning on the
day immediately following the Apportionment Date such revenues shall belong to
Purchaser; provided, however, that revenues received or "posted" after the
Front Desk Closing Hour shall belong to Purchaser. The accounts receivable of
registered guests at the Property who have not checked out and were occupying
rooms as of the Front Desk Closing Hour on the Apportionment Date are
collectively called the "CURRENT LEDGER", and Seller shall receive a credit to
the Purchase Price at Closing for all such amounts less applicable credit card
and travel agent commissions allocable to such share, which commissions shall
be paid by Purchaser out of such proceeds when and as collected. In
addition, Seller shall receive a credit against the Purchase Price in the
amount equal to the sum of all cash maintained by Seller as of the Closing Date
in all cash registers and drawers and for all of Seller's cash maintained in
Safes.
12.4 ACCOUNTS RECEIVABLE; ACCOUNTS PAYABLE; UNOPENED INVENTORIES. A list
of all accounts receivable (other than the Current Ledger) shall be presented
to and be initialed by Purchaser and Seller at Closing.
All accounts receivable (other than the Current Ledger) originating prior
to the Apportionment Date shall belong to Seller, but Seller shall not attempt
to collect such accounts receivable unless requested to do so by Purchaser or
otherwise provided below. Following Closing, Purchaser shall use good faith
efforts toward the collection of such accounts receivable, but Purchaser shall
have no responsibility or liability with regard to such accounts receivable nor
be expected to incur any cost with respect to such collections. With regard to
any collection made from any person or entity who is indebted to the Property
both with respect to accounts receivable accruing prior to the Apportionment
Date and to accounts receivable accruing subsequent to the Apportionment Date,
such collection shall be applied first to the payment in full of any amounts
due to the Seller on accounts accrued prior to the Apportionment Date and then
to Purchaser amounts accruing subsequent to the Apportionment Date. Any
amounts collected by Purchaser on Seller's behalf shall be remitted to Seller
promptly. Purchaser shall pay Seller, in addition to the Purchase Price a
credit not to exceed Forty thousand Dollars
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($40,000.00) for all unopened Inventories, which by law are transferable to
Purchaser, and Purchaser shall receive such unopened Inventories.
12.5 FOOD AND BEVERAGE REVENUE; VENDING MACHINE AND PAY TELEPHONE REVENUE.
All moneys received in connection with bar and restaurant services at the
Property prior to the Front Desk Closing Hour shall belong to Seller and shall
be credited to Seller at Closing. Vending machine proceeds and pay telephone
proceeds shall be counted as close to the Front Desk Closing Hour as is
possible and the net amount thereof shall be credited to Seller at Closing.
12.6 GUESTS' PROPERTY. Purchaser shall be responsible from and after
the Closing Date and will indemnify and hold Seller harmless from and against
all claims for all baggage and property of guests of the Hotel checked or left
in the care of Seller.
12.7 ACCOUNTING. The computation of the adjustments shall be jointly
prepared by Seller and Purchaser in accordance with modified cash accrual
accounting principles.
12.8 EMPLOYEE COMPENSATION. Seller shall be solely responsible for any
liability for payment of all employees' wages, accrued vacation pay, sick
leave, bonuses, pension benefits and other benefits earned by and due to or
accrued to employees at the Property through the Front Desk Closing Hour on the
Apportionment Date, together with F.I.C.A., unemployment and other taxes due
from any employer of such employees. All employee 401K contributions shall be
made to employees in accordance with Seller's 401K plan. Seller shall
indemnify and hold Purchaser harmless from and against any and all liability,
loss, cost, damage or expense related to any of the foregoing items. Such
indemnity shall survive Closing.
Notwithstanding the foregoing, Purchaser may elect, at its option, to
receive a credit against the Purchase Price for the amount of earned but
unused vacation pay and sick leave (THE "PTO CREDIT") for employees who will be
rehired by Purchaser's agent. Purchaser shall indemnify and hold Seller
harmless from and against any and all liability, loss, cost, damage or expense
for claims by such employees for vacation pay and sick leave to the extent of
the PTO Credit.
ARTICLE XIII
MISCELLANEOUS
13.1 SURVIVAL. The representations, warranties, covenants and indemnities
contained in this Agreement shall be effective as of the Closing Date, and any
liability with respect to breach thereof shall survive the Closing for a period
of one (1) year, except for Seller's warranties and representations set forth
in Sections 3.19 and 3.20 and the indemnities set forth in Section 10.1(a)(v)
and (vi) which shall have no limitation on survival. The obligations of
Purchaser and Seller under this Agreement to the extent not fully performed as
of the Closing Date or to the extent so indicated herein shall survive the
Closing. Except as otherwise expressly provided
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herein, all claims by either party hereto, whether for amounts due or
otherwise, under any provision of this Agreement, must be made in writing to
the other party on or before twelve (12) months from the Closing Date.
13.2 ASSIGNMENT. (a) Purchaser agrees that from and after Closing,
Purchaser shall be general partner of Newco. Otherwise, neither party shall
assign or transfer or permit the assignment or transfer of its rights or
obligations under this Agreement without the prior written consent of the
other, any such assignment or transfer without such prior consent being hereby
declared to be null and void.
(b) In the event either party consents to an assignment of this Agreement
by the other for which consent is required, no further assignment shall be made
without another written consent from the consenting party, unless the
assignment may otherwise be made without consent under this Agreement. An
assignment by either Seller or Purchaser of its interest in this Agreement
shall not relieve Seller or Purchaser, as the case may be, from its
obligations, but this Agreement shall then inure to the benefit of, and be
binding on, the assignee's successors, heirs, legal representatives and
assigns.
13.3 CONSENTS. If, under this Agreement, the consent of a party is
required, the consent shall be in writing and shall be executed by a duly
authorized officer or agent, and shall not be unreasonably withheld or
delayed.
13.4 APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of Louisiana, without resort to the choice of law rules thereof.
13.5 HEADINGS; EXHIBITS. The headings of articles and sections of this
Agreement are inserted only for convenience; they are not to be construed as a
limitation of the scope of the particular provision to which they refer. All
exhibits attached or to be attached to this Agreement are incorporated herein
by this reference.
13.6 NOTICES. Notices and other communications required by this Agreement
shall be in writing and delivered by hand against receipt or sent by recognized
overnight delivery service, facsimile or by certified or registered mail,
postage prepaid, with return receipt requested. All notices shall be addressed
as follows:
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If to Seller:
American Classic Voyages Co.
Two North Riverside Plaza, Suite 200
Chicago, Illinois. 60606
ATTN: Jordan Allen, Senior Vice President & General Counsel
[FAX] 312 466-6151
with a copy to:
Fred Langtry, Esquire
Rosenberg & Liebentritt, P.C.
Suite 1515
Two North Riverside Plaza
Chicago, Illinois 60606
[FAX] 312 454-0335
If to Purchaser:
Thayer Hotel Investments L.P.
410 Severn Avenue
Suite 314
Annapolis, Maryland 21403
Attention: Mr. William G. Moeckel
Attention: David J. Weymer, Esquire
[FAX] 410 268-1582
with a copy to:
Carol Weld King, Esquire
Hogan & Hartson L.L.P.
555 13th Street, N.W.
Washington, D.C. 20004
[FAX] 202 637-5910
or to such other address as may be designated by a proper notice. Notices
shall be deemed to be effective upon receipt (or refusal thereof) if personally
delivered or sent by recognized overnight delivery service, three (3) days
following the date of mailing if sent by certified mail, or upon receipt of
confirmation if sent by facsimile.
13.7 WAIVER. The failure of either party to insist on strict performance
of any of the provisions of this Agreement or to exercise any right granted to
it shall not be construed as a relinquishment or future waiver; rather, the
provision or right shall continue in full force. No
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waiver of any provision or right shall be valid unless it is in writing and
signed by the party giving it.
13.8 PARTIAL INVALIDITY. If any part of this Agreement is declared
invalid by a court of competent jurisdiction, this Agreement shall be construed
as if such portion had never existed, unless this construction would operate as
an undue hardship on Seller or Purchaser or would constitute a substantial
deviation from the general intent of the parties as reflected in this
Agreement.
13.9 ENTIRE AGREEMENT. This Agreement, together with the other writings
signed by the parties and incorporated by reference and together with any
instruments to be executed and delivered under this Agreement, constitutes the
entire agreement between the parties with respect to the purchase and sale of
the Property and supersedes all prior oral and written understandings.
Amendments to this Agreement shall not be effective unless in writing and
signed by the parties hereto.
13.10 TIME IS OF THE ESSENCE. Time is of the essence with respect to
performance of all obligations under this Agreement.
13.11 WAIVER OF JURY TRIAL. Seller and Purchaser each hereby waives any
right to jury trial in the event any party files an action relating to this
Agreement or to the transactions or obligations contemplated hereunder.
13.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts which, when taken together, shall constitute a single, binding
instrument.
13.13 BROKERAGE. Purchaser represents to Seller that no broker or
consultant acting on its behalf brought about this transaction. Seller
represents to Purchaser that other than Equity Assets Management, no other
broker or consultant acting on its behalf brought about this transaction. Each
of the parties hereto agrees to indemnify and hold the other harmless from
claims made by any broker, attorney or finder claiming through such party
(including Equity Assets Management, for which Seller shall bear full
responsibility) for a commission, fee or compensation in connection with this
Agreement or the sale of the Property hereunder. The provisions of this
Section 13.13 shall survive Closing.
13.14 PURCHASER'S LENDER. Seller hereby acknowledges that, even though
this Agreement is not in any way conditional upon Purchaser's ability to find
mortgage financing for the Property, that Purchaser may, in fact, obtain or
attempt to find such financing, and that Seller shall reasonably cooperate, at
no out-of-pocket cost to Seller, with Purchaser and any such lender to enable
such financing to occur as a part of the Closing.
13.15 AMENDMENT AND RESTATEMENT. This Agreement amends, restates and
supercedes in its entirety the Original Agreement as modified by the
Amendments.
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IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be
executed as of the date indicated below.
SELLER
ATTEST: BLACKLAND VISTAS, INC., an Illinois
corporation
By: /s/ Jordan B. Allen
- -------------------- --------------------------
Name: Jordan B. Allen
------------------------
Its: Vice President
-------------------------
GREAT AQ STEAMBOAT CO., a
Delaware corporation
By: /s/ Jordan B. Allen
- -------------------- --------------------------
Name: Jordan B. Allen
------------------------
Its: Vice President
-------------------------
PURCHASER
THAYER HOTEL INVESTMENTS L.P., a
Delaware limited partnership
By: LODGING OPPORTUNITIES
CORPORATION, a Delaware corporation
ATTEST: Its: General Partner
By: /s/ David J. Weymer
- -------------------- ------------------------------------
Name: David J. Weymer
----------------------------------
Its: Vice President and General Counsel
-----------------------------------
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The following are attachments not contained herein:
A Legal Description of Land
B Purchase Price Allocation
C Form of Letter of Credit
D Form of Escrow Instructions
E List of Litigation
F Existing Insurance Policies
G List of Service Contracts
H List of Equipment Leases
I Employment Contracts and Claims
J Permits
K Permitted Exceptions
L Form of Local Counsel's Opinion
M Form of Profit Participation Agreement
N Form of Delta Queen Agreement
O List of FF&E and Fixed Asset Supplies