EXHIBIT 10.1
AGREEMENT
This Agreement is made as of April 21, 1998. Everest Properties II, LLC and its
affiliates listed below ("Everest") are prepared to cooperate with Mark
Grotewohl and his affiliated entity (the "Buyer") to complete a purchase of the
properties (the "Properties") owned by the 5 Super 8 partnerships listed below
(the "Partnerships") on the following conditions:
(1) The Partnerships will execute and deliver, concurrently with execution of
the Purchase Agreement referred to below, the Exclusive Sales Agency
Contract in the form attached hereto as Exhibit A.
(2) Not later than April 30, 1998, Buyer executes a Purchase Agreement (in a
commercially reasonable from acceptable to Everest, incorporating the terms
set forth in this paragraph) to acquire all of the Properties for the
appraised values, payable in cash at closing. The Purchase Agreement will
provide that the Properties will be acquired by Buyer in an "as is"
condition and customary representations and warranties by the Buyer and the
Partnerships. The Purchase Agreement will include the following terms: (a)
all due diligence and receipt of a financing commitment (the "Buyer's
Contingencies") will be satisfied not later than June 30, 1998; (b) Buyer
will make a deposit (the "Deposit") of $150,000 to secure its performance
under the Purchase Agreement on the later to occur of the date the Buyer's
Contingencies are satisfied or the date Buyer is notified that the limited
partners of the Partnerships have approved the transaction (the "LP
Approval Date"); and (c) the Closing will occur on or before the later of
July 15, 1998 or 30 days after the LP Approval Date. The dates referred to
in 2(a) and 2(c) will be subject to commercially reasonable extensions. The
Deposit will be non-refundable if Buyer fails to complete the Closing as
set forth above, except if Buyer's lender fails to fund as permitted by the
terms of the financing commitment, the Deposit will be refunded to Buyer.
(3) Buyer agrees to permit Everest to attempt to provide financing for
acquisition of the Properties on terms which are to be provided to Everest
by Buyer (such terms being comparable to the terms otherwise available to
Buyer). Everest shall have 5 days following receipt of Buyer's term sheet,
to produce a written proposal from a qualified lender accepting all key
terms set forth by Buyer. If Everest's recommended lender provides
financing for the acquisition of the Properties, Everest Financial, Inc.
will be paid a 0.75% loan brokerage fee by Buyer at the Closing.
(4) The Partnerships will work diligently to file the proxy materials for the
limited partners' approval of the transaction with Buyer with the SEC not
later than April 30, 1998 and the Partnerships will work diligently to get
the proxy materials approved, mailed to limited partners and obtain the
affirmative vote of the limited partners to the transaction.
If the above conditions are satisfied, Everest will (a) vote the limited
partnerships units owned in the Partnerships in favor of a sale to Buyer and (b)
not inhibit, delay or discourage the Partnerships from obtaining limited
partners' approval or the consummation of the proposed transaction.
The terms set forth herein shall be an amendment to our settlement agreement
dated February 20, 1998.
Grotewohl Management Services, Inc.
By: /s/ PHILIP B. GROTEWOHL
-----------------------------
Philip B. Grotewohl, Chairman
As General Partner of
Super 8 Motels, Ltd., Super 8 Motels II,
Ltd., Super 8 Motels III, Ltd., Super 8
Economy Lodging IV, Ltd., Famous Host
Lodging V, Ltd.
/s/ MARK GROTEWOHL
--------------------------------
Mark Grotewohl, as an individual
Everest Properties II, LLC
Everest Properties, LLC
By: /s/ W. ROBERT KOHORST
----------------------------
W. Robert Kohorst, President
for itself and as a Manager of
Everest Madison Investors, LLC
Everest Lodging Investors, LLC
KM Investments, LLC
Everest Financial, Inc.
By: /s/ W. ROBERT KOHORST
----------------------------
W. Robert Kohorst, President
EXHIBIT A
EXCLUSIVE SALES AGENCY CONTRACT
Super 8 Motel, Ltd., a California limited partnership, Super 8 Motels
II, Ltd., a California limited partnership, Super 8 Motels III, Ltd., a
California limited partnership, Super 8 Economy Lodge IV, Ltd., a California
limited partnership, and Famous Host Lodging V, Ltd., a California limited
partnership (each a "Seller"), and each of them, hereby appoint Everest
Financial, Inc., a California corporation and licensed California real estate
broker ("Broker"), as their sole agent and grant Broker the exclusive right to
negotiate a sale of the properties described on Exhibit A attached hereto (each
a "Property" and collectively the "Properties").
Broker's appointment as the sole and exclusive agent shall be upon the
following terms and conditions, in addition to those contained in the attached
Commission Schedule:
1. The term of this agreement shall commence on the date of
Seller's execution hereof and continue for a period of six (6)
months (the "Term").
2. Broker agrees that it will use reasonable efforts to market
the Properties in order to secure a satisfactory purchasers of
the Properties. Broker will report to Sellers on its marketing
activities, including all submissions to potential purchasers
of the Properties. Notwithstanding the foregoing, Broker shall
not engage in such marketing activities so long as the
purchaser represented by Mark Grotewohl is negotiating or
under contract to purchase the Properties.
3. Broker, at Broker's cost, shall prepare all necessary
marketing material, and shall provide copies to Sellers not
less than 5 days prior to using them.
4. Sellers will refer to Broker all inquiries and offers received
by Sellers with respect to any Property, regardless of the
source thereof, and all negotiations shall be conducted
jointly by Broker and Sellers. Sellers will retain under this
agreement the sole and absolute right in their sole judgment
and discretion to accept or reject any proposals for any
reason or for no reason, without liability hereunder for any
commission, fee or other compensation whatsoever.
5. Sellers agree to pay Broker the commission provided in the
Commission Schedule if: (i) during the Term, a sale to any
purchaser of any or all of the Properties is completed or
any agreement or option is entered into with any purchaser
pursuant to which a sale of any or all of the Properties is
completed, whether or not Broker submitted any Properties to
such purchaser, (ii) during the Term or up to one (1) year
thereafter, any Seller enters into any agreement or option
pursuant to which a sale of any or all of the Properties is
completed with any purchaser to whom Broker had submitted
any Property. A Property shall be deemed to be submitted
to any person that is contacted by or contacts Broker
concerning the sale of the Property, or that receives from the
Broker any sales information about the Property. Broker shall
provide Sellers with a list of persons to whom any Property
was submitted within fifteen (15) days after the Term expires.
6. Except as may be provided in the Commission Schedule, no other
licensed real estate broker ("Outside Broker") is entitled to
any compensation under this agreement. However, Broker shall
cooperate with and share its commission with an Outside Broker
to the extent customary in the industry.
7. Sellers shall be responsible for providing Broker with
information on each Property, including architectural and
structural plans. Sellers hereby represent and warrant that
all information relating to the Properties which is prepared
by Sellers or their representatives and which is delivered to
Broker for its use in marketing the Properties is and shall be
true and correct.
8. Sellers hereby agree to indemnify and defend Broker and its
affiliates, shareholders, officers, directors, employees and
representatives (the "Broker Parties"), with counsel
selected by the Broker Parties, and hold the Broker Parties
harmless, from any and all liabilities, damages, expenses
and costs, including reasonable attorney fees, resulting
from any claim or proceeding based on, related to or arising
from the sale or proposed sale of any of the Properties.
Broker shall not be indemnified against its negligence or
other misconduct. Broker shall hold Sellers and their
affiliates harmless from any and all liabilities, damages,
expenses and costs, including reasonable attorney fees,
resulting from Broker's negligence or misconduct related to
the sale or proposed sale of the Properties.
9. This agreement shall be binding upon the parties hereto and
their respective successors and assigns. In any action or
proceeding to enforce the provisions of this agreement, the
losing party shall pay the prevailing party's costs and
expenses, including reasonable attorney fees.
IN WITNESS WHEREOF, the undersigned authorized representatives of each
Seller and Broker have executed and delivered this agreement on behalf of each
party, as of the date indicated below.
Dated: May 8, 1997
SUPER 8 MOTEL, LTD. EVEREST FINANCIAL, INC.
By: /S/PHILIP B. GROTEWOHL By: /S/W. ROBERT KOHORST
Name: Name: W. Robert Kohorst
Title: Title: President
SUPER 8 MOTELS II, LTD.
By: /S/PHILIP B. GROTEWOHL
Name:
Title:
SUPER 8 MOTELS III, LTD.
By: /S/PHILIP B. GROTEWOHL
Name:
Title:
SUPER 8 ECONOMY LODGE IV, LTD.
By: /S/PHILIP B. GROTEWOHL
Name:
Title:
FAMOUS HOST LODGING V, LTD.
By: /S/PHILIP B. GROTEWOHL
Name:
Title: