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EXHIBIT 10.6
THIS AGREEMENT OF PURCHASE AND SALE ("Agreement"), dated as of the
Date of this Agreement as defined hereinafter, by and among WINN Limited
Partnership, a North Carolina limited partnership, or its assigns, with
offices at 2209 Century Drive, Suite 300, Raleigh, North Carolina 27622
("Purchaser") and Dallas Lodging Associates I, Ltd., a Kentucky limited
partnership ("Dallas L.A."), A.B. Lodging, Inc., a Virginia corporation
("ABL"), London Lodging Associates, Inc., a Kentucky corporation ("LLA") and
Duncanville Lodging Associates I, Ltd., a Kentucky limited partnership
("Duncanville L.A."), Dallas L.A., ABLA, LLA and Duncanville L.A. are sometimes
referred to herein individually and collectively as "Seller" and "Sellers".
NOW, THEREFORE, for $1.00 and other good and valuable consideration,
the receipt and sufficiency of which is hereby mutually acknowledged, and the
mutual covenants contained herein, the parties hereto, intending to be legally
bound, hereby agree as follows:
I. PURCHASE AND SALE OF PROPERTY AND BUSINESS
On the terms and subject to all of the conditions set forth in this
Agreement, the Purchaser agrees to purchase and the Seller agrees to sell, for
the purchase price set forth herein, all of the following property
(collectively, the "Premises"):
(a)
(A) Dallas L.A. is the owner of the Dallas Hotel, Dallas, Texas
(as hereinafter defined), currently licensed and operated as a Holiday Inn
Select hotel.
(B) ABL is the owner of the Abingdon Hotel in Abingdon, Virginia
(as hereinafter defined), currently licensed and operated as a Holiday Inn
Express hotel.
(C) LLA is the owner of the London Hotel, London, Kentucky (as
hereinafter defined), currently licensed and operated as a Comfort Suites
hotel.
(D) Duncanville L.A. is the owner of the Duncanville Hotel, City
of Dallas, Texas (as hereinafter defined), currently licensed and operated as a
Hampton Inn hotel.
(E) Each of the Sellers desire to sell their respective Hotel (as
hereinafter defined) to Purchaser, and Purchaser desires to purchase the Hotels
from Sellers, on the terms and conditions hereinafter set forth.
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(b) HOTELS
(A) DALLAS HOTEL. As used in the Agreement, the term "Dallas
Hotel" shall mean and refer to the following:
(1) The real property located in the City of Dallas,
Dallas County, Texas and more particularly described on Schedule I-A attached
hereto and together with all rights and interests appurtenant thereto
(collectively the "Dallas Real Property"); and
(2) The four (4) building, 244-room hotel and all other
buildings, structure, parking areas and other improvements presently located on
the Dallas Real Property (collectively the "Dallas Improvements").
(B) ABINGDON HOTEL. As used in the Agreement, the term "Abingdon
Hotel" shall mean and refer to the following:
(1) The real property located at 940 East Main Street,
Abingdon, Virginia 24210, and more particularly described on Schedule I-B
attached hereto and together with all rights and interests appurtenant thereto
(collectively, the "Abingdon Real Property"); and
(2) The three (3) story 80-room hotel and all other
buildings, structures, parking areas, and other improvements presently located
upon the Abingdon Real Property (collectively the "Abingdon Improvements").
(C) LONDON HOTEL. As used in the Agreement, the term "London
Hotel" shall mean and refer to the following:
(1) The real property located at 1918 West 192 By-Pass,
London, Kentucky 40741, and more particularly described on Schedule I-C
attached hereto and together with all rights and interests appurtenant thereto
(collectively, the "London Real Property").
(2) The three (3) story, 62-room hotel and all other
buildings, structure, parking areas and other improvements presently located
upon the London Real Property (collectively, the "London Improvements").
(D) DUNCANVILLE HOTEL. As used in this Agreement, the term
"Duncanville Hotel" shall mean and refer to the following:
(1) The real property located at 4154 Preferred Placed,
City of Dallas, County of Dallas, Texas 75237 and more particularly described
on Schedule I-D attached hereto and together with all rights and interests
appurtenant thereto (collectively, the "Duncanville Real Property"); and
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(2) The three (3) building, 119-room hotel located on the
Duncanville Real Property (collectively, the "Duncanville Improvements").
The above set forth four (4) properties shall collectively be the
"Real Property" and the "Improvements."
(c) all furniture, fixtures (not part of the Real Property and
Improvements or affixed thereto, (equipment, machinery, furnishings, carpets,
drapes, blinds or mini-blinds, service and maintenance equipment, linens (not
less than two and one half (2 1/2) turns of linens for each of the Hotels shall
be included), tools, signs, landscaping equipment, supplies, pool equipment,
television systems, intercom equipment and systems, and replacement parts,
excepting any proprietary information of Impac Hotel Group, Inc., including but
not limited to the GuesTrak Kiosk System (the "Equipment") excepting those
personal property leases set forth and identified in Schedules 2-A, 2-B, 2-C
and 2-D hereof, which Purchaser shall assume, if legally assignable, subject to
their respective terms and conditions (the "Assumed Leases");
(d) moneys advanced for future reservations ("Prepaid Items");
(e) all contracts, agreements, licenses, contract rights, rights
to use and other similar rights used in connection with the Real Property and
Improvements and set forth on Schedules 3-A, 3-B, 3-C and 3-D attached hereto
and made a part hereof by this reference and which the Purchaser elects to
purchase and assume as provided in Article III, Paragraph A hereof (the
"Contracts"). The Contracts shall not include any and all rights to use the
names, trademarks, trade names, servicemarks, patents, copyrighted items or
other trade registrations of Promus Hotels, Inc., of Holiday Inns Franchising,
Inc., and of Choice Hotels International, Inc., or any parent, subsidiary
(direct or indirect), or affiliate of each of the above, in connection with the
operation of each of the Premises, or any other business on each of the
Premises, except in accordance with the terms and conditions of any license
agreements. (It being understood and agreed that the name of the respective
hotel chains to which the Hotels are affiliated by franchise or other license
agreement are protected names or registered service marks of each such hotel
chain and cannot be transferred to Purchaser by this Agreement.) The Contracts
shall not include any proprietary information of Impac Hotel Group, Inc.,
including but not limited to the GuesTrak Kiosk System;
(f) all leases and rights to use the Improvements, Equipment or
all or any part thereof in third parties as more particularly identified on
Schedules 4-A, 4-B, 4-C and 4-D attached hereto and made a part hereof by this
reference and which the Purchaser elects to purchase and assume as provided in
Article III, Paragraph A hereof; provided, however, it is expressly understood
and agreed that Seller shall convey the Premises, including the Improvements
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and Equipment, to Purchaser at Closing in accordance with Article II, Paragraph
C hereof (the "Leases");
(g) all permits, licenses, government licenses, certificates of
occupancy and approvals necessary to operate the Real Property, Improvements,
Equipment, Contracts, Leases, Intangible Rights and the other property and
rights transferred under this Agreement, but only to the extent each is legally
transferable or assignable to Purchaser (the "Permits");
(h) all inventory, supplies and other materials used in connection
with the Real Property and Improvements and the hotel business operated thereon
(excluding gift shop items owned by third parties) (the "Inventory");
(i) all plans, specifications and "as-built" drawings and surveys
relating to the Real Property and Improvements, all books and records relating
to the operation or management of the Real Property and Improvements and all
warranties and guaranties of Seller pertaining to the Premises; and
(j) all intangible property, guest ledgers, customer and mailing
lists, catalogues and brochures, telephone numbers and similar property used in
connection with the operation of the Real Property, Improvements and the
business known as the Holiday Inn Select located in Dallas, Texas, the Holiday
Inn Express located in Abingdon, Virginia, the Comfort Suites located in
London, Kentucky and the Hampton Inn located in Duncanville, Texas
(collectively the "Hotels" and individually a "Hotel"), and any telephone
numbers assigned thereto (the "Intangible Rights").
II. TERMS OF PURCHASE AND SALE
The purchase price for the Premises shall be Twenty Three Million and
NO/100 Dollars ($23,000,000.00), adjusted as provided in Article IX hereof,
(the "Purchase Price"), payable by Purchaser to Seller as follows:
A. The sum of Five Hundred Thousand and NO/100 Dollars ($500,000.00)
(the "Initial Deposit") within three (3) days after the Date of this Agreement
by check subject to collection, payable to The Title Company of North Carolina,
Inc., as agent for First American Title Insurance Company, as Escrow Agent (the
"Escrow Agent"). At the option of Purchaser, Purchaser may deposit an
additional sum of Two Hundred Thousand and NO/100 Dollars ($200,000.00) ("the
Extension Deposit") with the Escrow Agent prior to the expiration of the
initial sixty (60) day period of the Feasibility Period, as hereinafter
defined, which shall extend the Feasibility Period for an additional fifteen
(15) days. The Initial Deposit and the Extension Deposit, if deposited by
Purchaser as aforesaid, or, the Initial Deposit alone if Purchaser elects not
to
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make the Extension Deposit, shall hereinafter be referred to as "the Deposit".
The Escrow Agent shall maintain the Deposit in an interest bearing account
subject to the provisions of Article XIII. The Escrow Agent shall not disburse
the Deposit except in accordance with the terms of this Agreement. Upon the
satisfaction of all of the conditions contained in this Agreement, on the
Closing Date (as hereinafter defined), the Deposit shall be paid to Seller and
reduce the portion of the Purchase Price payable at Closing pursuant to Article
II, Paragraph B hereof. In the event that this transaction is not consummated
for any reason, the Deposit shall be paid as provided in Article XIII of this
Agreement. Purchaser shall be entitled to payment of or a credit for any
interest earned on the Deposit unless the Deposit is forfeited in which event
interest shall be paid to Seller.
B. The balance of the Purchase Price, plus or minus any closing
adjustments, by certified or bank funds or by wire transfer on the Closing Date
(as hereinafter defined) to an account designated in writing by Seller to
Purchaser at least five (5) days prior to Closing.
C. Upon the Closing, the Seller shall deliver to the
Purchaser the Premises, including but not limited to the Real Property,
Improvements, Equipment and Inventory, free and clear of all liens and
encumbrances of whatever type or description other than the Permitted
Exceptions as defined in Article IV, Paragraph A of this Agreement for each of
the Premises.
III. FEASIBILITY PERIOD; PURCHASER'S CONTINGENCIES
A. This Agreement is contingent upon Purchaser's approval of the
Premises during the Feasibility Period as hereinafter defined, including but
not limited to, approval of the Inspection Items (as hereinafter defined). The
Inspection Items have been submitted to Purchaser on or prior to the date of
this Agreement, or as specifically provided herein, are available to Purchaser
for inspection at the Improvements or at Sellers' home offices located at the
Lenox Building - Suite 1220, 3399 Peachtree Road, Northeast, Atlanta, Georgia
30326. Purchaser shall have a period of sixty (60) days from and after the Date
of this Agreement, which Purchaser may extend to seventy five (75) days from
and after the Date of this Agreement by virtue of making the Extension Deposit
as aforesaid, to review the Inspection Items and to otherwise inspect the
Premises and its or their condition (such period is hereinafter referred to as
the "Feasibility Period"). On or prior to the termination of the Feasibility
Period, the Purchaser shall notify the Seller whether or not the Purchaser
elects to purchase the Premises, which election shall be made in the sole,
absolute and unreviewable discretion of the Purchaser. In the event that the
Purchaser elects to proceed with this transaction, then on or prior to the
termination of the Feasibility Period, the Purchaser shall notify the Seller,
which of the Contracts and Leases, exclusive of
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the Assumed Leases, the Purchaser shall accept and assume and the Seller shall
retain and not assign to Purchaser those Contracts and Leases not acceptable to
Purchaser. In the event Purchaser fails to notify Seller, on or prior to the
expiration of the Feasibility Period, whether or not the Purchaser elects to
proceed with the purchase, all items shall be deemed approved. If Purchaser
notifies Seller that it elects not to proceed with this transaction, on or
prior to the expiration of the Feasibility Period, then this Agreement shall
terminate and shall be null, void and without further force or effect, the
Deposit (together with all interest) shall be promptly refunded to Purchaser by
Escrow Agent and neither party shall have any further liability to the other.
The conditions enumerated in this Article III are for Purchaser's benefit only
and the non-occurrence of a state of facts sufficient to satisfy any of such
conditions may not be used or pleaded by Seller as a defense to the
enforceability of this Agreement.
For purposes of this Agreement, the term "Inspection Items" shall, to
the extent in existence and available, mean:
(a) any engineer's reports, architectural plans, appraisals,
environmental reports, surveys or other reviews, evaluations
or studies of or with respect to the Premises that are in
Sellers' respective possession or under their respective
control;
(b) the Leases, Contracts and Permits;
(c) the utility bills for the twenty-four month (24) period
immediately preceding the Date of this Agreement;
(d) tax returns and proof of payment of all taxes for the
twenty-four (24) month period immediately preceding the Date
of this Agreement (including, but not limited to, all income,
franchise, employment, sales or occupancy taxes);
(e) guest registration records (to be available for inspection at
the Improvements);
(f) employee records (to be available for inspection at the
Improvements);
(g) financial statements (the "Financial Statements") for the
Premises prepared and warranted by the Seller (including
balance sheets, income statements, operating statements and
statements of changes in financial position) for each of the
three preceding fiscal years or during the term of Sellers'
respective ownerships and operations of the Premises,
whichever is less, as to each of the four (4) Premises, and
for the period ended thirty (30) days prior to the Closing
Date, together with monthly Financial Statements for the same
period. An itemized breakdown of
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room sales per month, occupancy and ADR for the last preceding
thirty six (36) month period. The books and records of the
operations of the Premises necessary to confirm the accuracy
of the Financial Statements shall be made available to
Purchaser or its agents at the Premises; and,
(h) Star Reports for the immediately preceding thirty six (36)
month period.
B. Seller shall request and have prepared, a new Product
Improvement Plan (the "PIP") from the respective franchisor for each of the
Hotels setting forth all items that must be completed as a prerequisite to the
issuance of a new franchise license agreement to the Purchaser by each such
existing franchisor and shall deliver the PIP to Purchaser within thirty (30)
days of this Agreement. In the event Closing occurs and Purchaser acquires the
Hotels hereunder, Purchaser shall be responsible for all costs and expenses
required in order to comply with the requirements set forth in the PIP for all
of the Hotels. In connection with the application for such franchises,
Purchaser shall pay for the initial franchise fee to such franchisors, and
other associated costs to obtain such franchises as long as such costs are
acceptable to Purchaser in Purchaser's sole, absolute and unreviewable
discretion.
C. Purchaser's obligation to close this transaction shall be
conditioned on the Purchaser's receipt of an acceptable franchise license
agreement of Purchaser's choice for each of the Hotel with a term of not less
than ten (10) years, which condition shall lapse and expire at the expiration
of the Feasibility Period.
D. Purchaser's obligation to close this transaction shall be
conditioned on Purchaser having received, effective as of the Closing Date, all
necessary governmental approvals and licenses for operation of the Premises as
a hotel, provided that Purchaser has made good faith and timely applications
for such approvals and licenses and has provided the applicable governmental
authorities with all required information reasonably necessary for such
authority to grant such approval or license, which condition shall lapse and
expire at the expiration of the Feasibility Period.
E. Seller acknowledges that Purchaser is a real estate investment
trust and in accordance therewith, Purchaser's obligation to close this
transaction shall be conditioned upon Purchaser obtaining the approval of this
Agreement and the transaction contemplated herein from the board of directors
of the general partner of Purchaser, which approval shall be obtained or denied
prior to the expiration of the Feasibility Period.
Seller and Purchaser shall cooperate and take all actions necessary,
in a diligent and expeditious manner, to effectuate the inspections, transfers
and other reviews required by this Article
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III during the Feasibility Period. The Purchaser and its representatives and
agents shall be provided with access to the Premises at all reasonable times
(subject to the notice to Seller required hereinafter), in order to inspect the
Premises, including but not limited to, taking soil samples and test borings
(upon receipt of prior written consent from Seller as set forth hereinafter)
and conducting environmental studies, engineering studies and other such
inspections and reviews that the Purchaser shall deem reasonably necessary to
determine the condition and financial status of the Premises.
In the event that the transaction contemplated by this Agreement does
not close for any reason, Purchaser shall have the obligation to restore any
damage caused by Purchaser or its representatives and agents to the Hotels to
their condition prior to Purchaser's damage, which obligation shall survive any
termination of this Agreement. The terms of this Agreement and all information
furnished by Sellers to Purchaser in accordance with the provisions of this
Agreement or obtained by Purchaser in the course of its investigations shall be
treated as confidential information by Purchaser, except that Purchaser may
disclose such information to prospective investors and lenders, as well as
attorneys and other parties assisting or representing Purchaser in connection
with the subject transaction and, provided, however, nothing herein shall
restrict or impair any disclosures which Purchaser may be required to make by
virtue of rules and regulations of the Securities and Exchange Commission
applicable to Purchaser. The foregoing obligation to treat such information as
confidential shall survive any termination of this Agreement but shall not
survive Closing. Purchaser covenants and agrees that the Hotels shall not be
damaged or impaired in any way as the result of its activities on the Hotels
premises, and hereby agrees to indemnify and hold Sellers harmless from and
against any claims, causes of action, damages and expenses (including
attorneys' fees) to the extent incident to, resulting from or in any way
arising out of the presence in, on or about the Hotels of Purchaser, or
Purchaser's agents or representatives, or out of any such test or inspection
conducted by Purchaser on the Premises. Such indemnity shall survive the
Closing or any termination of this Agreement and not be merged therein.
Purchaser shall not make any borings or holes in any part of the
Premises or otherwise damage any part of the Premises in any manner or to any
extent unless prior written consent is given by Sellers thereto, which consent
shall not be unreasonably withheld, and provided, further, that Sellers may
prohibit any boring that might void any roof warranty and that all borings,
holes, or other damage shall be repaired by Purchaser.
Purchaser shall make such inspections in good faith and with due
diligence. All inspection fees, appraisal fees, engineering fees and other
expenses of any kind (including, without limitation, expenses related to
environmental and engineering studies) incurred
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by Purchaser relating to the inspection of the Premises will be solely
Purchaser's expense. Sellers shall hereby reserve the right to have a
representative present at the time of making any such inspection. In making
any inspection hereunder, Purchaser will, and will cause any representative of
Purchaser to, use discretion so as to not disrupt any guest, tenant or customer
of the Premises. Purchaser shall notify Sellers not less than one (1) business
day in advance of making any such inspection. Purchaser agrees to indemnify
and hold harmless each of the Sellers against and from any and all losses,
damages, liabilities, claims, costs or expenses, including, without limitation,
attorneys' fees, sustained by Sellers or any of them which are caused as a
result or arising out of any inspections by Purchaser or its authorized
representatives, and this provision shall survive the termination of this
Agreement notwithstanding anything contained herein to the contrary.
If the tests, studies and investigations performed in accordance with
this Paragraph E do not warrant, in Purchaser's sole, absolute and unreviewable
discretion, the purchase of the Premises for the purposes contemplated by
Purchaser, then Purchaser shall give written notice thereof to Seller and the
Escrow Agent prior to the expiration of the Feasibility Period, in which event,
the Deposit shall be promptly returned to Purchaser and Purchaser and Sellers
shall be released from all further liability or obligation hereunder, except
those which expressly survive a termination of this Agreement.
If, for any reason, Purchaser shall terminate this Agreement,
Purchaser shall return to Sellers the originals and all copies of all material
relating to the Premises furnished to Purchaser pursuant to this Agreement and
shall not make or retain any copies thereof and shall also deliver to Sellers
copies of all reports or other documents obtained by Purchaser and relating in
any way to Purchaser's inspections and investigations hereunder.
In the event Purchaser fails to notify Seller that Purchaser is
unsatisfied with the results of its inspections made pursuant to the provisions
of this Paragraph E prior to the expiration of the Feasibility Period, then
Purchaser shall be deemed to have elected to proceed forward with the
transaction envisioned by this Agreement, Purchaser shall be deemed to have
accepted the Premises in their present conditions in which event the
contingencies as set forth in this Paragraph shall be waived and the parties
shall proceed to Closing as otherwise contemplated by this Agreement.
Subsequent to the expiration of the Feasibility Period, Sellers agree
to provide Purchaser with access to the Premises upon reasonable notice.
During the Feasibility Period and thereafter until Closing, Sellers shall, upon
reasonable notice from Purchaser, during usual business hours, make available
to Purchaser, its agents, auditors, engineers, attorneys and other designees,
for
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inspection and/or copying at the place where such records are kept, all
information and materials reasonably related to the Premises.
IV. TITLE; TITLE POLICY; SURVEY
A. Within ten (10) days after the Date of this Agreement, Seller
shall furnish to Purchaser at Seller's cost a preliminary title report and
title insurance binder (the "Title Commitment") from First American Title
Insurance Company (the "Title Company") pursuant to which the Title Company
shall commit to issue a current A.L.T.A. Form B owner's fee simple title
insurance policy or other policy of title insurance as shall be reasonably
satisfactory to Purchaser and to any lender of Purchaser (the "Lender") in the
amount designated by Purchaser, with the aggregate of such amounts being equal
to the Purchase Price (the "Title Policy") insuring that the Purchaser shall
receive at closing, good, marketable and indefeasible fee simple title to the
Real Property, free and clear of ALL liens, exceptions, encumbrances or defects
other than the matters expressly approved in writing by Purchaser as permitted
exceptions to title or waived by Purchaser as set forth hereinafter. Seller
shall furnish to Purchaser copies of all liens, exceptions, encumbrances or
defects set forth in the Title Commitment at the same time as the Title
Commitment is so furnished to Purchaser. The Seller shall not, after the Date
of this Agreement, subject the Real Property to any liens, encumbrances,
covenants, conditions, restrictions, easements or other title matters or seek
any zoning changes or take any other action which may affect or modify the
status of title without Purchaser's prior written consent.
Within twenty (20) days after the Date of this Agreement, the
Purchaser shall notify (the "Title Notice") the Seller as to which of the
liens, defects, encumbrances or exceptions set forth in the Title Commitment,
including those Proposed Title Exceptions set forth on Schedules 5-A, 5-B, 5-C
and 5-D attached hereto, which are objectionable to Purchaser ("the Title
Defects"). Within five (5) days after receipt by Seller of the Title Notice,
the Seller shall notify Purchaser as to which of the Title Defects Seller is
willing or able to cure. In the event the Seller is unable or unwilling to
cure the Title Defects to the reasonable satisfaction of the Purchaser (except
for those Title Defects that can be cured with the payment of money such as
deeds of trust, mortgages, mechanics' liens, tax liens or other liens or
charges in a fixed sum or capable of computation as a fixed sum, which will be
satisfied of record by Seller at or prior to Closing) within such five (5) day
period or the Purchaser does not agree to waive such Title Defects, then at
Purchaser's election, this Agreement shall terminate and shall be null, void
and without further force or effect, the Deposit (together with all interest)
shall be returned to Purchaser and neither party shall have any further
liability to the other or, Purchaser may waive such of the Title Defects as it
elects and proceed to Closing without any abatement to the Purchase Price. The
exceptions to title set forth in the Title Commitment which are
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either not objected to in the Title Notice or waived by Purchaser as provided
hereinbefore shall be deemed and referred to hereinafter as "the Permitted
Exceptions".
B. Within thirty (30) days after the Date of this Agreement, the
Seller shall deliver to Purchaser, at Seller's expense, a survey (the "Survey")
of the Premises, dated after the Date of this Agreement, prepared by a surveyor
duly licensed under the laws of the state in which the respective Real Property
is located and reasonably acceptable to the Purchaser and the Lender in
accordance with ALTA or such other standards as shall be reasonably
satisfactory to Purchaser. The Survey shall be in form and substance
satisfactory to the Purchaser, the Title Company and the Lender. The Survey
delivered to Purchaser and Title Company within thirty (30) days after the Date
of this Agreement, shall be certified to Seller and the Title Company and prior
to the Closing, the Seller shall cause, at its expense, the Survey to be
recertified to the Purchaser, Title Company and Lender (the form of
certification in each case to be in conformance with 1992 ALTA standards as set
forth on Schedule 5 attached hereto). The Survey shall show that all buildings
are within lot and building lines, the location of such lines, the dimensions
and total area of the Real Property and Improvements, the location and number
of parking spaces, ingress and egress to adjoining streets, all benefiting and
burdening easements, improvements, appurtenances, rights of way and utilities
whether above or below ground (to the extent that the Surveyor is able to
determine and certify to the below ground location), all encroachments from or
into the Premises, all structures and improvements on the Real Property and all
easements, rights-of-way and other restrictions of record properly identified
with recording information and certifying that the Premises are not within a
flood plain or other flood hazard area. The Survey shall be made in accordance
with the Minimum Standard Detail Requirements for Land Title Surveys adopted by
the American Land Title Association. The Survey and certification shall be
sufficient to limit the survey exception on the Title Policy to matters
disclosed thereon without indemnity or additional premium. On or prior to the
tenth (10th) day following receipt by Purchaser of the Survey, the Purchaser
shall notify the Seller of any title or other defects which relate to the
Survey and are objectionable to Purchaser or Lender ("Survey Defects"). Survey
Defects shall be deemed to be Title Defects for purposes of this Agreement and
Seller shall cure such Survey Defects according to the same procedure as for
Title Defects.
C. PURCHASE OF ALL HOTELS: In the event that Purchaser has
objections, pursuant to this Article IV, only with respect to matters
(reflected in or concerning the Title Commitments, the Surveys, any documents
or items delivered by Sellers to Purchaser, or the results of any other tests
or inspections of the Hotels made by Purchaser) as they relate to one or more,
but not all, of the Hotels, Purchaser may only elect (in its sole discretion)
to
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terminate this Agreement as to all of the Hotels, in which event this Agreement
will terminate.
D. The Purchaser and Seller shall each be responsible for the
payment of its own transaction costs, including counsel fees. Purchaser shall
be responsible for the costs incurred with the physical inspection of the Real
Property and Improvements, including any environmental and engineering studies
other than those delivered by Seller to Purchaser in accordance with Article
III, Paragraph A. At Closing, Purchaser shall pay all premiums for the Title
Policy. The Seller shall pay for the Title Commitment and the Survey. Any and
all transfer taxes, real estate excise taxes and sales taxes payable in
connection with the transfer of the Premises, or any portion thereof, and the
Personalty (as hereinafter defined) shall be paid by Seller. Unless otherwise
stated in this Agreement, the Purchaser and Seller shall pay all costs in
connection with the Closing of this transaction as are customary in the
respective locale where each of the Hotels is located.
V. CLOSING
A. The closing of this transaction shall occur on or about the
fifteenth (15th) day following the conclusion of a successful secondary public
offering of Winston Hotels, Inc.'s common stock in an amount sufficient to
consummate the transaction contemplated herein (the "Closing Date"); provided,
however, in no event shall the Closing Date be extended beyond May 1, 1996. It
is expressly understood and agreed by Purchaser and Seller that the failure of
the occurrence of such stock offering shall not be a basis for Purchaser to
obtain the return of the Deposit after the expiration of the Feasibility
Period. The closing of the transaction contemplated by this Agreement shall
occur at the offices of Brown & Bunch, 4900 Falls of Neuse Road, Suite 210,
Raleigh, North Carolina 27609 and shall be deemed effective as of 12:01 a.m.
on the Closing Date ("Closing"). If the date of Closing falls on a Saturday,
Sunday or banking holiday, the Closing shall take place on the next business
day thereafter.
B. At the Closing, the Seller, shall deliver to Purchaser and
perform the following:
1. Special or Limited Warranty Deeds conveying good, marketable,
insurable and indefeasible fee simple title to each Tract of the Real Property
free and clear of all defects, exceptions, liens or encumbrances, except for
the Permitted Exceptions.
2. Seller shall pay and discharge any special assessment which on or
before the date of Closing, (a) has been levied, imposed, or confirmed against
the Premises, (b) affects or is a lien upon the Premises or (c) although not
yet a lien upon the Premises,
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is attributable to improvements which benefit or will benefit the Premises or
the property in the vicinity of the Premises for which improvement work has
been commenced. If any of the foregoing assessments may be paid in
installments, all installments shall be deemed payable as of the day prior to
the Closing, and shall be discharged of record by Seller. If, at the Closing,
any amount which Seller is required to pay with respect to the foregoing has
not been determined, Seller agrees to pay such amount as can be reasonably
estimated at the Closing and the final amount shall be adjusted within fifteen
(15) days after Purchaser gives Seller notice that same has been determined.
This provision shall survive the Closing.
3. A Bill of Sale for each Hotel conveying the Equipment, Inventory,
Real Property not conveyed by other instruments provided for herein, and other
personal property and intangible property included in the Premises
("Personalty"), free and clear of any lien or encumbrance, other than the
Permitted Exceptions, and containing a special or limited warranty of title
(with representation that Seller has no knowledge of any claims which purport
to be superior to the title of Seller) to the Equipment, Inventory and
Personalty and an inventory of all Equipment, Inventory and Personalty.
4. An assignment for each Hotel of Seller's interest in and to all
Permits, Contracts (to the extent legally assignable) to be assumed by
Purchaser in accordance with Article III, Paragraph A, Leases (to the extent
legally assignable) to be assumed by Purchaser in accordance with Article III,
Paragraph A, Intangible Rights, Prepaid Items and other items of the Premises,
free and clear of any lien or encumbrance, together with written evidence
satisfactory to Purchaser of any required third party consent to such
assignment. Seller shall deliver to Purchaser all original Contracts and
Leases, and if the originals of any Contracts or Leases are not available,
copies, which Purchaser has elected to purchase pursuant to Article III hereof;
the Permits, including the existing certificates of occupancy for the Premises
as presently constituted and if no such certificates are available, evidence
that the Premises are legally constructed and properly zoned in accordance with
all applicable laws; all warranties and guarantees, to the extent available
(and assignments thereof to Purchaser), issued in connection with the initial
construction of the Real Property and Improvements; any Personalty, and any
repairs or additions thereto; cash bank; moneys advanced for future
registrations; guest registration records; keys; permits, approvals and
licenses issued by all appropriate governmental authorities and fire
underwriting organizations with respect to the construction and use of the
Premises or any part thereof; and any existing copies of architectural plans
and specifications, blueprints and building plans which may be in Seller's
possession.
5. At Purchaser's option, an assignment of all fire and extended coverage
insurance policies, liability policies and loss of
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rental policies, affecting any of the Premises to the extent assignable (if
assigned, premiums to be adjusted pro-rata at Closing).
6. Tax certificates or other evidence of payment from all
appropriate taxing authorities certifying the payment of all real and personal
property taxes through the current tax year.
7. A certificate of Seller dated as of the Closing that Seller is
not a foreign person or corporation within the meaning of Sections 1445 and
7701 of the Internal Revenue Code (the "IRC").
8. A bring down certificate dated as of the Closing certifying
the truth and accuracy of each representation and warranty set forth in Article
XII as of the Closing Date.
9. An affidavit of title reasonably satisfactory to the Title
Company enabling the Title Company to issue the Title Policy without exception
for mechanic's or materialman's or other statutory liens or for the rights of
parties in possession other than temporary hotel patrons.
C. At the Closing, the Purchaser shall deliver to the Seller the
following:
1. The balance of the Purchase Price.
2. Proof of authority for Purchaser to complete the transaction
reasonably satisfactory to Seller.
3. The assignments of Leases duly executed and acknowledged by
Purchaser.
4. Such other instruments as are customarily executed by
purchasers to effectuate the purchase of property similar to the Hotels.
VI. DELIVERY OF POSSESSION
Seller shall deliver actual and exclusive possession of the Premises
to Purchaser on the Closing Date.
Seller hereby grants to Purchaser the right to enter the
Premises at any reasonable time after the date hereof for the purpose of
inspecting, testing and examining the Premises, which purpose is more
particularly provided in Article III hereof.
VII. DAMAGE TO PROPERTY
Seller shall give Purchaser immediate notice of any fire or other
casualty or of any pending or threatened condemnation occurring to all or any
portion of the Premises between the date
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hereof and the Closing. If prior to the Closing, there shall occur:
(i) damage to any one of the Hotels caused by fire or other casualty,
which would cost $300,000.00 or more to repair or replace; or
(ii) the taking or condemnation of all or any portion of any one of
the Hotels (including any parking areas) as would materially interfere with the
use thereof, as reasonably determined by Purchaser; then, if any of the events
set forth in (i) or (ii) above occurs, Purchaser, at its option, may terminate
this Agreement by written notice given to Seller within fifteen (15) days
after Purchaser has received the notice referred to above or at the Closing,
whichever is earlier. If Purchaser does not elect to terminate this Agreement,
the Closing shall take place as provided herein without an abatement of the
Purchase Price and there shall be assigned to the Purchaser at Closing, all
interest of the Seller in and to any insurance proceeds or condemnation awards
which may be payable to Seller on account of such occurrence.
If, prior to the Closing, there shall occur:
(x) damage to any one of the Hotels caused by fire or other
casualty which would cost less than $300,000.00 to repair or
replace; or
(y) the taking or condemnation of all or any portion of any one of
the Hotels which is not material to the use thereof, as
reasonably determined by Purchaser;
then, if any of the events set forth in (x) or (y) above occurs, Purchaser
shall have no right to terminate this Agreement (solely as a result of the
occurrence of such events), and Seller shall, at its sole expense, with respect
to subparagraph (x), restore or replace the damaged Hotel(s) to its or their
original condition; and, with respect to subparagraph (y), there shall be
assigned to Purchaser at Closing all interest of Seller in and to any insurance
proceeds or condemnation awards which may be payable to Seller on account of
any such occurrence.
VIII. REMEDIES
A. If the transaction contemplated by this Agreement is not
consummated solely by reason of Purchaser's failure to perform its obligations
under this Agreement, then Seller, as its sole and exclusive remedy, shall be
entitled to retain the Deposit as full liquidated damages in complete and total
accord and satisfaction, the parties hereby acknowledging and agreeing to the
difficulty of ascertaining Seller's actual damages in such circumstances.
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B. If this transaction is not consummated by reason of:
(i) cancellation by Purchaser as permitted by the terms
of this Agreement, including but not limited to,
cancellation by Purchaser at any time on or prior to
the termination of the Feasibility Period;
(ii) the inability of Purchaser to obtain any approval or
consent required pursuant to or otherwise satisfy any
condition or contingency set forth in Article III
hereof;
(iii) the occurrence of any of the events described in
Article VII;
(iv) Title Defects and Survey Defects which are not cured
as provided in this Agreement (except for those Title
Defects or Survey Defects which Seller is obligated
to cure); or
(v) cancellation by Purchaser pursuant to any other
applicable provisions of this Agreement,
then Purchaser shall be entitled to a return of the Deposit (together with all
interest thereon) and this Agreement shall be null and void and all parties
relieved from any further liability hereunder, unless Purchaser elects to waive
any of the items or occurrences set forth in this Article VIII, Paragraph B.
The items enumerated in this Article VIII, Paragraph B are for Purchaser's
benefit only and the non-occurrence of a state of facts sufficient to satisfy
any of such items may not be used or pleaded by Seller as a defense to the
enforceability of this Agreement.
C. If this transaction is not consummated solely by reason of
default on the part of Seller or if Seller fails to close this transaction in
breach of its obligation to do so, then Purchaser, at its option, may
(i) seek specific performance of this Agreement; or
(ii) receive a return of the Deposit (together with all
interest thereon) and to recover its actual, monetary
costs, fees and disbursements not to exceed
$500,000.00.
IX. PRORATIONS
All income (excluding cash on hand and accounts receivable which shall
be and remain the Property of Seller), current operating expenses, accounts
payable, real estate taxes, other taxes and assessments, all utilities, water
and sewer charges, licenses or permit fees relating to the operation of the
Premises, real estate
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and personal property ad valorem taxes, prepayments made under the Contracts
(to be assumed by Purchaser pursuant to Article III hereof) and insurance
premiums (if applicable), shall be adjusted and prorated as of the Closing.
All franchise fees, maintenance and service agreements (whether or not service
is continued by Purchaser) and utility charges shall be determined as of
Closing and paid by Seller or appropriate adjustments made if Purchaser at its
option accepts an assignment of any such agreement. If such charges and
expenses are unavailable on the Closing Date, a re-adjustment of such charges
and expenses shall be made within sixty (60) days after the Closing. The
parties agree to cooperate in good faith in effecting such a final
reconciliation and each party shall promptly pay (or reimburse the other party
for) any expense item that is chargeable to the former party and shall promptly
remit any income item to the other party if entitled thereto. Seller shall
use reasonable efforts to arrange for the rendition of final bills by the
utility companies involved as of the Closing Date.
Guest room revenues of the Premises, whether in cash or in accounts receivable,
arising from occupancy for the night beginning on the day preceding the Closing
Date, including any tax thereon, but exclusive of food, beverage, telephone and
similar charges, which shall be retained by Sellers (the "Room Ledger") and
ending on the Closing Date shall be credited one-half to Purchaser and one-half
to Seller. Seller shall collect all income and other sums payable by tenants
or guests (or otherwise) and shall be responsible for the payment of all
expenses on account of services and supplies furnished to and for the benefit
of the Premises through and including the Closing. Purchaser shall be credited
with any deposits from tenants or guests of the Premises which are refundable
to such tenants or guests. Seller shall remit to Purchaser at closing all
prepaid income items. In addition, at Closing, Seller shall deliver to
Purchaser a schedule of all unpaid accounts receivable and other income items
as of Closing. All such accounts receivable and other income items paid to and
collected by Purchaser after Closing shall be promptly remitted to the order of
Seller. Except for sums actually received by Purchaser pursuant to the
immediately preceding sentence, Purchaser shall assume no obligation to collect
or enforce the payment of any amounts that may be due to Seller, except that
Purchaser shall render reasonable assistance, at no expense to Purchaser, to
Seller after Closing in the event Seller proceeds against any third party to
collect any accounts receivable or other income items due Seller. Nothing
contained in this Article shall be deemed to prohibit Purchaser and Seller from
entering into an agreed settlement in writing of all prorations at or following
Closing.
In the event any adjustments pursuant to this Article are, subsequent
to Closing, found to be erroneous, then either party hereto is entitled to
additional monies and shall invoice the other party for such additional amounts
as may be owing, and such amount shall be paid promptly by the other party upon
receipt of the
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invoice. Such invoice shall be accompanied by reasonable substantiating
evidence. Notwithstanding anything contained in this Article IX to the
contrary, in order to provide security for all of the adjustments and
prorations set forth in this Article IX to be made after Closing, Purchaser and
Seller agree that the sum of $25,000.00 ($10,000.00 for the Holiday Inn Select,
Dallas, Texas and $5,000.00 for each of the other Hotels) from the net sales
proceeds portion of the Purchase Price available to Seller at Closing shall be
deposited with Escrow Agent and shall be held by Escrow Agent until all such
adjustments and prorations are deemed final by Purchaser and Seller, which
Purchaser and Seller shall use their best efforts to accomplish within sixty
(60) days after the Closing Date. Escrow Agent shall not disburse such amount
or any portion thereof except in accordance with written instructions relative
thereto signed by both Purchaser and Seller.
Purchaser shall have no obligation with respect to Seller's employees
whatsoever all of whom shall be compensated and terminated by Seller as of
Closing, though Purchaser reserves the right to employ any such employees.
The provisions of this Article IX shall survive the delivery of the
Deeds.
X. NOTICES
Any notice to be given by either party to this Agreement shall be in
writing and shall be either delivered personally or by certified or registered
U.S. Mail, postage prepaid, or by overnight courier delivery service with
charges to the sender, or by telecopier or facsimile, with follow-up by means
of one of the other notice methods set forth herein, with its notice complete
upon receipt of the facsimile copy, as follows:
To Seller: c/o Impac Hotel Group, Inc.
The Lenox Building, Suite 1220
3399 Peachtree Road, N.E.
Atlanta, Georgia 30326
Attention: Robert S. Cole
Telephone No. (404) 364-9400
Facsimile No. (404) 364-0088
With copies to: Reece & Lang, P.S.C.
The Lenox Building, Suite 2000
3399 Peachtree Road, N.E.
Atlanta, Georgia 30326
Attention: David D. Robinson
Telephone No. (404) 365-0456
Facsimile No. (404) 365-0629
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To Purchaser: WINN Limited Partnership
2209 Century Drive, Suite 300
Raleigh, North Carolina 27622
Attention: Robert W. Winston, III
Telephone No. (919-510-6004)
Facsimile No. (919-782-1285)
With copies to: William W. Bunch, III, Esquire
Brown & Bunch
4900 Falls of Neuse Road,
Suite 210 (street zip code 27609)
Post Office Box 19409
Raleigh, North Carolina 27619-9409
Telephone No. (919) 878-8060
Facsimile No. (919) 878-8062
Any notice, demand or other communication shall be deemed given and effective
as of the date of delivery in person, by transmission or by receipt set forth
on the verification of delivery or return receipt. The inability to deliver
because of changed facsimile number and/or address of which no notice was
given, or rejection or other refusal to accept any notice demand or other
communication, shall be deemed to be receipt of the notice, demand or other
communication as of the date of such attempt to transmit, deliver or rejection
or refusal to accept. Any party may change addresses for notices by delivering
written notice of such change in accordance with this Article X.
XI. INDEMNITY
A. Seller shall indemnify and hold the Purchaser harmless from
and against any claim for any real estate commission, brokerage fee or finder's
fee made by any person, firm or corporation, claiming by, through or under the
Seller. Purchaser shall indemnify and hold the Seller harmless from and
against any claim for any real estate commission, brokerage fee or finder's fee
made BY any person, firm or corporation, claiming by, through or under the
Purchaser. Notwithstanding the foregoing, Seller warrants and represents that
there are no brokerage fees, real estate commissions, finder's fees or other
acquisition costs or any other compensation payable by Seller and due to any
third party in connection with this transaction other than a commission to be
paid to Hodges, Ward and Elliott. Seller shall pay such commission in full to
such broker upon the Closing of the transaction contemplated hereby. This
warranty and representation shall survive the Closing and the parties shall
indemnify each other from any liability, cost or loss arising out of a breach
of said warranty and representation, including consequential damages.
B. For a period of one (1) year following the Closing Date, the
Seller shall indemnify and hold the Purchaser harmless from and against any and
all liabilities, claims, demands, costs and expenses
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of any kind or nature, including but not limited to, reasonable attorney's
fees, arising out of or incurred in connection with (i) any breach of the
representations and warranties of Seller set forth in this Agreement, (ii) the
ownership, use, maintenance or operation of the Premises on or prior to the
Closing or the transfer of the Premises to the Purchaser (including the payment
of all taxes), or (iii) compliance or failure to comply with the notice
provisions relating to bulk sales laws applicable to the transfer of all or any
part of the Premises. Purchaser shall indemnify and hold Seller harmless from
and against any and all liabilities, claims, demands, costs and expenses of any
kind or nature, including reasonable attorney's fees, arising after the date of
Closing and which arise out of the ownership, use, maintenance or operation of
the Premises by the Purchaser following the Closing or other transfers of the
Premises to the Purchaser. Such indemnities shall survive Closing.
C. If Purchaser or Seller propose to make any claim for
indemnification under any Article or Paragraph of this Agreement (the
"Indemnitee"), the Indemnitee shall deliver to the other party (the
"Indemnitor") a certificate signed by the Indemnitee which certificate shall
(i) state that a loss has occurred and (ii) specify in reasonable detail each
individual item of loss or other claim including the amount thereof and the
date such loss was incurred, together with all information in the possession or
under the Control of Indemnitee or reasonably available to it. The Indemnitor
shall have the right in its discretion and at its expense to participate in and
control (a) the defense or settlement of any claim, suit, action or proceeding
(including appeals) in respect of such item (or items) by any person other than
a party hereto, (b) any and all negotiations with respect thereto, and (c) the
assertion of any claim against any insurer with respect thereto, and the
Indemnitee shall not settle any such claim, suit, action or proceeding or agree
to extend any applicable statute of limitation without the prior written
approval of the Indemnitor. The rights of participation, control and approval
granted to the Indemnitor shall be subject as a condition precedent to the
Indemnitor's acknowledging to the Indemnitee, in writing, the obligation of the
Indemnitor to indemnify the Indemnitee in respect of such third party's claim,
suit, action or proceeding giving rise to such item. Upon satisfaction of such
condition precedent, the Indemnitee shall provide the Indemnitor with all
reasonably available information, assistance and authority to enable the
Indemnitor to effect such defense or settlement and upon the Indemnitor's
payment of any amounts due in respect of such claim, suit, action or
proceeding, the Indemnitee shall, to the extent of such payment, assign or
cause to be assigned to the Indemnitor the claims of the Indemnitee, if any,
against such third parties in respect of which such payment is made. If the
Indemnitor is not so willing to acknowledge such obligation, the parties shall
jointly consult and proceed as to any such third party claim, suit, action or
proceeding.
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XII. REPRESENTATIONS AND WARRANTIES OF THE PARTIES
The Purchaser represents and warrants to the Sellers, individually
that:
A. The Purchaser is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of North Carolina,
and has all requisite partnership powers and all governmental licenses,
authorizations, consents and approvals to carry on its business as now
conducted and to enter into and perform its obligations under this Agreement
and under any document or instrument required to be executed and delivered on
behalf of the Purchaser hereunder; provided, however, it is acknowledged that
as of the Date of this Agreement, Purchaser has not yet qualified to do
business in the States of Texas and Kentucky, but will take such actions as are
required to accomplish such qualifications in due course.
B. Purchase is authorized to enter into this Agreement and to
consummate the transaction contemplated hereby, and the individuals executing
this Agreement on behalf of Purchaser are also duly authorized to execute this
Agreement and to bind Purchaser to consummate such transaction. The execution
and delivery of this Agreement and, upon receipt of approval by the board of
directors of the general partner of Purchaser, the conveyance of the Premises
to Purchaser pursuant to this Agreement, do not require the consent of any
person, agency or entity not a party to this Agreement. The execution of this
Agreement by Purchaser has been duly authorized by proper partnership action,
as the case may be, including the board of directors of the general partner of
Purchaser.
C. Purchaser is not a foreign entity, foreign corporation,
foreign partnership, foreign trust or foreign estate (as those terms are
defined in the Internal Revenue Code and Income Tax regulations).
D. Neither the entry into nor, upon receipt of approval by the
board of directors of the general partner of Purchaser, the performance of, or
compliance with, this Agreement by Purchaser has resulted, or will result, in
any violation of, or default under, or result in the acceleration of, any
obligation under any existing corporate charter, certificate of incorporation,
bylaws, articles of organization, limited liability company agreement or
regulations, partnership agreement, mortgage indenture, lien agreement, note,
contract, permit, judgment, decree, order, restrictive covenant, statute, rule
or regulation applicable to Purchaser.
E. There is no action, suit or proceeding, pending or known to be
threatened, against or affecting the Purchaser in any court or before any
arbitrator or before any Governmental Body which (a) in any manner raises any
question affecting the validity or enforceability of this Agreement or any
other agreement or
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instrument to which the Purchaser is a party or by which it is bound and that
is to be used in connection with, or is contemplated by, this Agreement, (b)
could materially and adversely affect the business, financial position or
results of operations of the Purchaser, (c) could materially and adversely
affect the ability of the Purchaser to perform its obligations hereunder, or
under any document to be delivered pursuant hereto, (d) could create a lien on
the Premises, any part thereof or any interest therein or (e) could adversely
affect the Premises, any part thereof or any interest therein or the use,
operation, condition or occupancy thereof.
F. Brokerage Commission. The Purchaser has not engaged the
services of, nor is it or will it become liable to, any real estate agent,
broker, finder or any other person or entity for any brokerage or finder's fee,
commission or other amount with respect to the transaction described herein.
As used herein, Purchaser's "actual knowledge" shall mean the
knowledge of the following person: Robert W. Winston, III, President of
Winston Hotels, Inc., the sole general partner of Purchaser.
Each of the four (4) Sellers individually (and specifically
not jointly and severally by and among
the Sellers) represents and warrants to the Purchaser the following, as to each
Seller or as to the specific Premises owned by that Seller:
A. Sellers are corporations and limited partnerships, each
existing and in good standing under the laws of the state of its incorporation
or formation and authorized to do business in the State in which the Premises
are located.
B. Sellers are authorized to enter into this Agreement and to
consummate the transaction contemplated hereby, and the individuals executing
this Agreement on behalf of Sellers are also duly authorized to execute this
Agreement and to bind Sellers to consummate such transaction. The execution
and delivery of this Agreement and upon receipt of approval by the shareholders
of ABL and of LLA, the conveyance of each of the four (4) Premises by Sellers,
pursuant to this Agreement, do not require the consent of any person, agency or
entity not a party to this Agreement. The execution of this Agreement by
Sellers has been duly authorized by proper corporate or partnership action, as
the case may be, including the board of directors of Sellers, if any of Sellers
is a corporation. In the event that either ABL or LLA is unable to obtain the
approval as set forth herein, the failure or inability to obtain such approval
shall not affect the enforceability of this Agreement by Purchaser.
Accordingly, in the event that either ABLA or LLA is unable to obtain the
approval as set forth herein, and as a direct and sole result thereof this
transaction is not consummated, then Purchaser may seek specific performance or
recover damages as set forth in Article VIII Remedies, Paragraph (C)(i) or
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(ii), at Purchaser's option.
C. There are no pending or, to the knowledge of Sellers,
threatened, condemnation or similar proceedings affecting the Premises, or any
portion thereof. Sellers have not received any written notice that any such
proceeding is contemplated, and no part of the Premises has been destroyed or
damaged by any casualty.
D. Sellers have no knowledge of any options to purchase, rights
of first refusal or other similar agreements with respect to the Premises which
give anyone the right to purchase the Premises or any part thereof. There are
no contracts or agreements which affect or cover the Premises, except for the
Contracts, Permits and Leases. Sellers have no knowledge of any unpaid bills
or claims in connection with the construction repair or replacement of the
Premises. There are no agreements allowing for any reduction, concession or
abatement of room rates, except in the ordinary course of business.
E. To Sellers' knowledge, the Financial Statements for each of
the Hotels that have been or will be made available to Purchaser pursuant to
this Agreement are true, correct and accurate in all respects and fairly
present the results of operations of the Premises for the periods then ended.
Seller shall continue to provide Financial Statements to Purchaser as soon as
reasonably practical upon receipt of reasonable requests from Purchaser through
the Closing Date.
F. To Sellers' knowledge, each Seller has filed all federal,
state, county and local tax returns required of each to be filed and has paid
all taxes, interest and penalties and assessments that have become due and
payable. Neither the Sellers nor their agents have been advised or notified of
any tax deficiency, assessment or penalty with respect to the Seller, nor do
the Sellers know of any basis for any additional claim or assessment for taxes,
interest or penalties.
G. Sellers have received no notice and have no knowledge that any
of them lack any permit, license, certificates or authority, including, but not
limited to, Certificates of Occupancy, necessary for the present use and
occupancy of each of the Improvements. Sellers have received no notice and
have no knowledge that the Real Properties are not zoned properly for the
present uses made thereof.
H. Sellers each own and have good and marketable title to the
Premises, subject to the matters that are set forth in the Title Commitment for
each Premises, when completed by the Title Company. To Sellers' knowledge,
each of the Premises owned or leased by Sellers are in a reasonable condition
and working order and will remain so until Closing, reasonable wear and tear
and acts
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beyond Sellers' control excepted. The Premises to be purchased are, as to
each, all of the property of every kind and nature necessary for the operation
of the Sellers' businesses in the ordinary course, except as otherwise set
forth in this Agreement by specific reservation from sale, rejection by
Purchaser or inability on the part of Sellers to assign to Purchaser.
I. To the best of Sellers' knowledge, the Premises are in
compliance in all material respects with all statutes, laws, ordinances, rules,
regulations, orders and directives (including, without limitation, all
building, health, zoning, fire, labor and environmental control and
antipollution laws, ordinances, rules, regulations or directives) of any and
all Governmental Agencies pertaining to the use or occupancy of the Premises.
The Sellers have not received any notice of and the Sellers and the Premises
have not been charged with, are not, to Sellers' knowledge, under investigation
or threatened investigation for failure to comply with any and all statutes,
laws, ordinances, rules, regulations, orders and directives of any and all
Governmental Agency or Agencies pertaining to the use, generation, dumping,
releasing, burying or disposing of or emitting of any particles, materials,
substances, or emissions that are now or have heretofore been determined by any
and all Governmental Agency or Agencies to be of a hazardous, toxic, pollutive,
or ecologically or environmentally damaging nature, including but not limited
to asbestos ("Hazardous Materials").
For purposes of this Agreement, the term "Hazardous Materials" shall include,
but not be limited to, those materials or substances now or heretofore defined
as "hazardous substances," "hazardous materials," "hazardous waste," "toxic
substances," or other similar designations under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C., Section 9601, et seq., the Resource Conservation and Recovery Act, 42
U.S.C., Section 6901, et seq., the Hazardous Materials Transportation Act, 49
U.S.C., Section 1801, et seq. and other laws, whether or not of a similar
nature, applicable to the Premises and adopted by, enacted in or applicable to
the respective state where the Hotel is located.
For purposes of this Agreement, the term "Governmental Agency or Agencies"
means, whether of the United States of America, of any state or territory
thereof or of any foreign jurisdiction, any government, political subdivision,
court, agency, or other entity, body, organization or group exercising any
executive, legislative, judicial, regulatory or administrative function of
government.
To the best of Sellers' knowledge, the Real Property has never appeared on any
federal or state registry of active or inactive hazardous waste disposal sites.
Sellers have never received any notice of claim from a Governmental Agency
concerning the alleged release or threatened release of Hazardous Materials at
the Real
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Property.
J. The employee records delivered or to be delivered to
Purchaser set forth or shall set forth the actual citizenship to the extent
presently disclosed in the Sellers' records of employees and known by the
Sellers and compensation of all employees at the Premises for the period set
forth thereon, and the vacation time, bonuses and benefits to which each is
entitled all of which the Sellers shall, at their sole expense, satisfy prior
to the Closing Date. There are no employment or union agreements in effect and
no employee has received a commitment from the Sellers for continued employment
at any of the Hotels after Closing. The number of the Sellers' employees at
each Hotel is as follows:
Dallas Hotel:_______
Abingdon Hotel:_______
London Hotel:________
Duncanville Hotel:________
K. Sellers have no knowledge of and have received no
notice of any causes of action, actions, or proceedings of whatever type or
description which have been instituted or threatened or are pending relating to
the Premises or any interest therein, except as set forth for each Premises on
Schedule 5 attached hereto.
L. Sellers make no representations and warranties to
Purchaser other than as specifically set forth herein;
The Premises will, on the Closing Date, be transferred "as is,"
without warranty or representation of any kind or character except as
specifically set forth herein, including without limitation any representations
as to physical condition, value, compliance with legal requirements or the
existence or status of contracts affecting the Premises. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, THERE IS NO WARRANTY, EXPRESS OR IMPLIED, OF
MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE. Purchaser will make
inspection of the Premises as it deems appropriate, and has not received any
warranties or representations of any kind, whether written or oral, except as
specifically set forth herein.
The term "to the best of Seller's knowledge or similar phrase shall
mean the knowledge of the following persons after making inquiry into the files
in their possession relating to the operation, ownership, maintenance and
management of the Premises: Robert S. Cole, the President of the general
partner of Sellers or President of Sellers, as the case may be, and Robert M.
Flanders, the chief financial officer of the general partner of Sellers or of
the Seller, as the case may be.
Each of the representations and warranties contained in this Article
XII and its various Paragraphs are intended for the benefit of the Purchaser
and may be waived in whole or in part, by the
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Purchaser, but only by an instrument in writing signed by the Purchaser.
Purchaser, in Purchaser's sole and absolute discretion, may waive any
condition to close or breach of any representation or warranty provided for
herein or any Title or Survey Defect, and in such event, this transaction shall
be consummated as if such condition, representation, warranty or defect was
satisfied. All of the representations and warranties contained in this
Agreement shall survive the Closing for the earlier to occur of a period of one
(1) year or a sale, assignment or other transfer of the Premises by Purchaser.
The representations and warranties set forth above shall be true, correct and
accurate on the date hereof and as of the date of Closing.
Each of said representations and warranties of this Article XII shall
survive the Closing of the transaction contemplated hereby for the earlier to
occur of one (1) year after the Closing Date or a sale, assignment or other
transfer of the Premises by Purchaser (unless Purchaser makes a claim by notice
in writing to Sellers in connection with the untruth or inaccuracy of such
representation or warranty within such one (1) year period, in which event the
representation or warranty that is the subject of such claim shall survive
until such claim is finally resolved), except to the extent that Sellers give
Purchaser written notice prior to Closing of the untruth or inaccuracy of any
representation or warranty, or Purchaser otherwise obtains actual knowledge
prior to Closing of the untruth or inaccuracy of any presentation or warranty,
and Purchaser nevertheless elects to close this transaction. Except to the
extent otherwise expressly provided in the immediately preceding sentence, no
investigation, audit, inspection, review or the like conducted by or on behalf
of Purchaser shall be deemed to terminate the effect of any such
representations and warranties, it being understood that Purchaser has the
right to rely thereon and that each such representation and warranty
constitutes a material inducement to Purchaser as a result of the inaccuracy or
breach of any of the representations and warranties of Seller hereunder to the
extent provided herein other than representations and warranties as to which
Seller has given Purchaser written notice prior to Closing of the untruth or
inaccuracy or which Purchaser otherwise obtains actual knowledge of the untruth
or inaccuracy; provided, however, the foregoing limitation on Seller's
indemnity shall not limit Purchaser's remedy as otherwise described herein.
XIII. ESCROW
The Escrow Agent hereby acknowledges receipt of the Deposit and agrees to
hold the Deposit in escrow until the Closing or sooner termination of this
Agreement and shall pay over and apply the proceeds thereof in accordance with
the terms of this Agreement. If, for any reason, the Closing does not occur
and either party makes a written demand upon the Escrow Agent for payment of
the
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Deposit, the Escrow Agent shall give written notice to the other party of such
demand. If the Escrow Agent does not receive a written objection from the
other party to the proposed payment within five (5) business days after the
giving of such notice, the Escrow Agent is hereby authorized to make such
payment. If the Escrow Agent does receive such written objection within such
five (5) day period, or if for any reason the Escrow Agent in good faith shall
elect not to make such payment, the Escrow Agent shall continue to hold the
Deposit until otherwise directed by written instructions from the parties to
this Agreement or until a final judgment (beyond any applicable appeal period)
by a court of competent jurisdiction is rendered disposing of such Deposit.
The Escrow Agent shall be liable as a depository only and its duties
hereunder are limited to the safekeeping of the Deposit and the delivery of
same in accordance with the terms of this Agreement. The Escrow Agent shall
not be liable for any act or omission done in good faith, or for any claim,
demand, loss or damage made or suffered by any party to this Agreement, except
such as may arise through or be caused by the Escrow Agent's willful misconduct
or negligence.
XIV. COVENANTS
A. Following the date of this Agreement and to and including the
Closing, the Seller (i) shall continue normal and prudent maintenance and
management of the Premises, (ii) shall continue to maintain supplies and
payroll at their current level, and (iii) shall operate the Hotel in the
ordinary course of business.
B. All taxes levied against the Premises which were or shall be
due and payable prior to the Closing have been or shall be paid in full by the
Seller on or prior to the Closing.
C. All Contracts and Leases, if legally assignable, which are
assumed by Purchaser in accordance with Article III shall be current and not in
default on the part of Sellers as of the Closing, and Seller shall provide
notice to Purchaser of any known default on the part of any other contracting
party or Lessee. Seller shall not enter into new Contracts or Leases except in
the ordinary course of business, and provided that any such new Contract or
Lease shall either provide that it may be cancelled on not more than 30 days
notice by Seller at no penalty or cost or, Purchaser shall consent to such
Contract or Lease in writing.
D. Seller shall maintain the present level of fire and casualty
insurance on each of the Premises up to and including the Closing.
E. Seller shall deliver to Purchaser a report itemizing room
sales per month, occupancy and ADR through a date which is not later than one
month prior to the Closing Date ("Monthly Report").
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F. During the Feasibility Period, representatives of Seller and
Purchaser shall meet at the Premises and prepare a schedule of the Equipment,
which schedule shall be attached hereto and made a part hereof at such time.
XV. BINDING EFFECT; MISCELLANEOUS
A. This Agreement shall be binding upon and shall inure to the
parties hereto, their respective heirs, successors, legal representatives and
assigns. This Agreement sets forth the entire Agreement between the parties
hereto and no other prior written or oral statement or agreement or
understanding shall be recognized or enforced. All modifications or amendments
shall be in writing and signed by the parties. This Agreement is to be
construed according to the laws of the State of North Carolina. This Agreement
may be executed in two or more counterparts all of which shall constitute one
and the same instrument. Each of the four (4) individual Sellers are hereby
acknowledged to be separate and distinct legal entities, wholly independent
from each other, with separate shareholders, or general and limited partners,
and each Seller shall be liable only for such claims or demands made by
Purchaser or otherwise with respect to that Seller's Premises and the
representations, warranties and covenants made by that Seller as set forth in
this Agreement, and it is specifically agreed by and between the Purchaser and
each of the individual Sellers hereto that liability is and shall be individual
only and is not and shall not be joint and several among the Sellers. The
singular shall include the plural and vice versa.
B. The Purchaser may assign this Agreement to a corporation,
partnership or other entity in which Purchaser or the president of its general
partner is a principal participant, and no assignment shall release Purchaser
of any liability or responsibility to perform the terms of this Agreement.
C. (1) As to each of the Premises of the individual Sellers, for
the earlier to occur of a period of five (5) years immediately following the
Closing or a sale, assignment or other transfer of the individual Premises
concerned by the restrictions placed on the Seller by this paragraph by
Purchaser to an unrelated third party, Seller agrees that it shall not,
directly or indirectly, for its own account or as agent, employee, officer,
director, trustee, lessor, sublessor, consultant or as a stockholder of any
corporation or any other entity, or as a member of any firm or otherwise,
engage or attempt to engage within the Restricted Area (as hereinafter
defined), in the hotel, motel or other business which is the same as,
substantially similar to or competitive with the operation of the Hotels
purchased pursuant to this Agreement. For purposes of this Agreement, the term
"Restricted Area" shall mean an area which
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shall consist of a circle the radius of which is five (5) miles for the Dallas
Hotel and the Duncanville Hotel purchased pursuant to this Agreement and a
radius of which is twenty (20) miles for the Abingdon Hotel and the London
Hotel purchased pursuant to this Agreement, with the center point of each such
circle being located at each of the Hotels purchased pursuant to this
Agreement.
(2) For a period of one (1) year immediately following the
Closing, Seller agrees that it shall not, directly or indirectly, for its own
account or as agent, employee, officer, director, trustee, lessor, sublessor,
consultant or as a stockholder of any corporation or any other entity, or as a
member of any firm or otherwise, employ or solicit the employment of any
employees of Seller at any of the Hotels purchased pursuant to this Agreement,
except with regard to present employees in management positions at the Hotels,
the names and positions for each of which shall be disclosed to Purchaser
within ten (10) days after the Date of this Agreement.
(3) As to each of the Premises of the individual Sellers, for the
earlier to occur of a period of two (2) years immediately following the Closing
or a sale, assignment or other transfer of the individual Premises concerned by
the restrictions placed on the Seller by this paragraph by Purchaser to an
unrelated third party, Seller covenants and agrees that it shall not use any
business information which it obtained solely as a result of the ownership and
operation of the Hotels, such as guest lists and customer accounts, and other
confidential information pertaining to the Hotels, in competition with and to
the detriment of the Hotels and in accordance therewith, Seller does hereby
covenant and agree that it shall not solicit any of the existing customer
accounts at any of the Hotels in competition with or to the detriment of the
Hotels during the time period as set forth hereinbefore.
Each of Purchaser and Seller acknowledges, warrants, represents and
agrees that the foregoing territorial, time and other limitations and
restrictions contained in this Article XV, Paragraph C are reasonable and
properly required for the adequate protection of the business and affairs of
the Purchaser, and in the event that any one or more of such territorial, time
or other limitations is found to be unreasonable by a court of competent
jurisdiction, each of Purchaser and Seller hereby agree to submit to the
reduction of the said territorial, time or other limitation, to such an area,
period or otherwise as the court may determine to be reasonable. In the event
that any limitation or restriction under this Article XV, Paragraph C is found
to be unreasonable or otherwise invalid in any jurisdiction in whole or in
part, each of Purchaser and Seller acknowledges, warrants, represents and
agrees that such limitation shall remain and be valid in all other
jurisdictions. Each of Purchaser and Seller acknowledges, warrants, represents
and agrees that the restrictive covenants contained in this Article XV,
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Paragraph C are necessary for the protection of Purchaser's legitimate
business interests and are reasonable in scope and content, and Seller
represents and warrants that its attorneys have thoroughly and completely
reviewed this Article XV, Paragraph C with it, and it understands the contents
hereof. Each of Seller and Purchaser acknowledges and agrees that in addition
to all other remedies available to Purchaser, due to the fact that such other
remedies may be inadequate, Purchaser shall have the remedies of a restraining
order, injunction or other equitable relief to enforce the provisions hereof.
All expenses, including reasonable attorneys' fees and expenses arising out of
claims under this Article XV, Paragraph C shall be borne by the losing party to
the fullest extent permitted by law. The provisions of this Article XV,
Paragraph C shall survive the Closing and the delivery of the Deeds.
D. As used herein, "the Date of this Agreement" shall mean the
date noted below as the date upon which this Agreement was executed by the
latter of the Purchaser or the Seller.
E. Indemnification by Sellers. Each Seller agree to, and hereby
does, indemnify and save harmless Purchaser and its affiliates and their
respective successors and assigns against and from any loss, liability or
expense, including reasonable attorneys' fees, arising out of any claim or
claims for commissions or other compensation for bringing about this Agreement
or the transactions contemplated hereby made by any broker, finder, consultant
or like agent if such claim or claims made by any such broker, finder,
consultant or like agent are based in whole or in part on any agreements
entered into with such Seller or its representatives for a commission or other
compensation. Each Seller shall likewise indemnify and save harmless Purchaser
and its affiliates and their respective successors and assigns against and from
any loss, liability or expense, including reasonable attorneys' fees, arising
out of any claim or claims for commissions or other compensation relating to
the Leases.
F. Indemnification by Purchaser. Purchaser agrees to, and hereby
does, indemnify and save harmless Sellers and their affiliates and their
respective successors and assigns against and from any loss, liability or
expense, including reasonable attorneys' fees, arising out of any claim or
claims for commission or other compensation for bringing about this Agreement
or the transactions contemplated hereby made by any broker, finder, consultant
or like agent if such claim or claims any such broker, finder, consultant or
like agent are based on any agreements entered into with Purchaser or its
representatives for commissions or other compensation.
G. No delay or omission in the exercise of any right or remedy
accruing to Sellers or Purchaser upon any breach under this Agreement shall
impair such right or remedy or be construed as a waiver of any such breach
theretofore or thereafter occurring. The waiver by Sellers or Purchaser of any
breach of any term, covenant
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or condition therein stated shall not be deemed to be a waiver of any other
breach, or of a subsequent breach of the same or any other term, covenant or
condition herein contained. All rights, powers, options or remedies afforded
to Sellers or Purchaser either hereunder or by law shall be cumulative and not
alternative, and the exercise of one right, power, option or remedy shall not
bar other rights, powers, options or remedies allowed herein or by law, unless
expressly provided to the contrary herein.
H. Schedules. All schedules referred to in this Agreement and
attached hereto are hereby incorporated in this Agreement by reference.
I. Article Headings. Article headings and article and section
numbers are inserted herein only as a matter of convenience and in no way
define, limit or prescribe the scope or intent of this Agreement or any part
thereof and shall not be considered in interpreting or construing this
Agreement.
J. Time Periods. Time is of the essence as to all matters
contained in the Agreement. If the final day of any time period or limitation
set out in any provision of this Agreement falls on a Saturday, Sunday or legal
holiday under the laws of the State of North Carolina or the federal
government, then and in such event the time of such period shall be extended to
the next day which is not a Saturday, Sunday or legal holiday.
K. Further Acts. In addition to the acts, deeds, instruments and
agreements recited herein and contemplated to be performed, executed and
delivered by Purchaser and Sellers, Purchaser and Sellers shall perform,
execute and deliver or cause to be performed, executed and delivered at the
Closing or after the Closing, any and all further acts, deeds, instruments and
agreements and provide such further assurances as the other party or the Title
Company may reasonably require to consummate the transaction contemplated
hereunder. However, the foregoing shall not be deemed to (i) require Sellers
to expend a sum of money which it could not reasonably have anticipated on the
date of execution of this Agreement, except to cure Title Defects or Survey
Defects, or (ii) require Purchaser to expend a sum of money which it could not
reasonably have anticipated on the expiration of the Review Period.
L. Severability. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
M. Attorneys' Fees. Should any party employ an attorney or
attorneys to enforce any of the provision hereof or to protect its interest in
any manner arising under this Agreement, or to recover
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damages for breach of this Agreement, the non-prevailing party or parties in
any action pursued in a court of competent jurisdiction (the finality of which
is not legally contested) agrees to pay to the prevailing party or parties all
reasonable costs, damages, and expenses, including attorneys' fees, expended or
incurred in connection therewith.
N. Liquor Licenses. Purchaser or its management company as lessee
for each of the Hotels shall execute such forms, license applications and other
documents as may be necessary for the Purchaser or its management company as
lessee (hereinafter "Operator") to obtain all liquor licenses and alcoholic
beverage licenses necessary to operate any restaurants, bars and lounges
presently located within the Hotels. If permitted under the laws of the
jurisdiction which the Hotels are located, Operator shall execute and file all
necessary forms, applications and other documents (and Sellers shall reasonably
cooperate with the Operator's execution in filing such forms, applications and
other documents) with the appropriate liquor and alcoholic beverage authorities
prior to the Closing, and such acquisition of the necessary liquor and
alcoholic beverage licenses as defined above shall take effect, if possible,
simultaneously with or upon completion of Closing. If not so permitted,
Operator agrees that it will promptly execute all forms, applications and other
documents required to effect such acquisition of such liquor licenses and
alcoholic beverage licenses at the earliest date reasonably practicable,
consistent with the laws of the States where the Property is located, in order
that all liquor licenses and alcoholic beverage licenses may be acquired by
Operator at the earliest reasonably practicable time after Closing. Sellers
shall cooperate reasonably with Operator's execution and filing of such forms,
applications and other documents. Operator's attempts to obtain the alcoholic
beverage licenses and liquor licenses shall not diminish, prior to the Closing,
the full force and effect of the liquor licenses and alcoholic beverage
licenses maintained by Sellers in its operation of the restaurant, lounges and
bars presently located within the Hotels. If such licenses cannot be obtained
by Operator until after Closing, then Sellers covenant and agree that Sellers
shall cooperate reasonably with Operator in keeping open the bars and lounges
and liquors facilities of the Hotels between the Closing and the time when such
liquor licenses are obtained by Operator, or a period not to exceed sixty (60)
days following the Closing Date, whichever is less (unless Operator has during
this time period following Closing diligently and continuously sought to obtain
such licenses, in which event Operator shall have the right to obtain an
extension of such time period from Sellers, not to exceed two (2) thirty-day
(30 day) extensions) by entering into a "Liquor License Agreement" in the form
attached hereto as Schedule 6. In no event shall Sellers be required to obtain
any additional liquor or alcoholic beverage licenses which Sellers do not
possess at the time of Closing and Operator shall maintain in full force and
effect, at all times during the Liquor License Agreement insurance required by
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the franchisor of each of the Hotels.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Purchaser:
WINN Limited Partnership,
a North Carolina limited partnership
By: Winston Hotels, Inc.,
a North Carolina corporation,
General Partner
(Corporate Seal) By:___________________________
_______ President
Attest:
________________________
______Secretary
SELLERS:
Dallas Lodging Associates I, Ltd.
a Kentucky limited partnership
By: Dallas Lodging Associates, Inc.,
a Texas corporation,
General Partner
(Corporate Seal) By: _____________________________________
Attest: Robert S. Cole, president
______________________________
Robert M. Flanders, Secretary
A.B. Lodging, Inc.
a Virginia corporation
(Corporate Seal) By: _____________________________________
Attest: Robert S. Cole, President
______________________________
Robert M. Flanders, Secretary
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London Lodging Associates I, Ltd.,
a Kentucky limited partnership
By: London Lodging Associates, Inc.
a Kentucky corporation,
General Partner
(Corporate Seal) By: _____________________________________
Attest: Robert S. Cole, President
______________________________
Robert M. Flanders, Secretary
Duncanville Lodging Associates I, Ltd.
a Kentucky limited partnership
By: Duncanville Lodging Associates, Inc.
a Texas corporation,
General Partner
(Corporate Seal) By: ____________________________________
Attest: Robert S. Cole, President
______________________________
Robert M. Flanders, Secretary
Escrow Agent:
The Title Company of North Carolina, Inc.
as agent for First American Title
Insurance Company
By: _________________________________
Name:_________________________________
Title:________________________________
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STATE OF __________________
COUNTY OF _________________
I, a Notary Public of the County and State aforesaid, certify that
__________________________, personally came before me this day and acknowledged
that _he is ______________ Secretary of Winston Hotels, Inc., a North Carolina
corporation, General Partner of WINN Limited Partnership, a North Carolina
limited partnership, and that by authority duly given and as the act of the
corporation, as such General Partner, the foregoing instrument was signed in
its name by its ______ President, sealed with its corporate seal and attested
by ___________________ as its ________ Secretary.
Witness my hand and seal, this the _____ day of _____________, 199__.
My commission expires:_____ _____________________________
Notary Public
(SEAL)
STATE OF _______________
COUNTY OF ______________
I, a Notary Public of the County and State aforesaid, certify that
Robert M. Flanders personally came before me this day and acknowledged that he
is Secretary of Dallas Lodging Associates, Inc., a Texas corporation, General
Partner of Dallas Lodging Associates I, Ltd., a Kentucky limited partnership,
and that by authority duly given and as the act of the corporation, as such
General Partner, the foregoing instrument was signed in its name by its
President, sealed with its corporate seal, and attested by him as its
Secretary.
Witness my hand and seal, this the ___ day of _______________, 199__.
My commission expires:_____ ______________________________
Notary Public
(SEAL)
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STATE OF _______________
COUNTY OF ______________
I, a Notary Public of the County and State aforesaid, certify that
Robert M. Flanders personally came before me this day and acknowledged that he
is Secretary of A.B. Lodging, Inc., a Virginia corporation, and that by
authority duly given and as the act of the corporation, the foregoing
instrument was signed in its name by its President, sealed with its corporate
seal and attested by him as its Secretary.
Witness my hand and seal, this the ____ day of _____________, 199__.
My commission expires:_____ ______________________________
Notary Public
(SEAL)
STATE OF ___________
COUNTY OF __________
I, a Notary Public of the County and State aforesaid, certify that
Robert M. Flanders, personally came before this day and acknowledged that he is
Secretary of London Lodging Associates, Inc., a Kentucky corporation and
General Partner of London Lodging Associates I, Ltd., a Kentucky limited
partnership, and that by authority duly given and as the act of the
corporation, as such General Partner, the foregoing instrument was signed in
its name by its President, sealed with its corporate seal, and attested by him
as its Secretary.
Witness my hand and seal, this the ___ day of______________, 199__.
My commission expires:_____ ____________________________
Notary Public
(SEAL)
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STATE OF _____________
COUNTY OF ____________
I, a Notary Public of the State and County aforesaid, certify that
Robert M. Flanders personally came before me this day and acknowledged that he
is Secretary of Duncanville Lodging Associates, Inc., a Texas corporation and
General Partner of Duncanville Lodging Associates I, Ltd., a Kentucky limited
partnership, and that by authority duly given and as the act of the
corporation, as such General Partner, the foregoing instrument was signed in
its name by its President, sealed with its corporate seal, and attested by him
as its Secretary.
Witness my hand and seal, this the ___ day of _______________, 199__.
My commission expires:______ ___________________________
Notary Public
(SEAL)
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