EXHIBIT 10.31
HOTEL ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into the 12 day of July 1997, by and
between HUDSON HOTELS CORPORATION, a New York corporation ("Hudson") and HUDSON
HOTELS PROPERTIES CORP. ("Hudson Properties"), both with its principal office at
One Airport Way, Suite 200, Rochester, New York 14624, individually and as agent
for a New York corporation to be formed with offices at One Airport Way, Suite
200, Rochester, New York 14624 ("Buyer"), and EQUITY INNS PARTNERSHIP, L.P., A
TENNESSEE LIMITED PARTNERSHIP, with its principal office at 4735 Spottswood,
Suite 102, Memphis, Tennessee 36117 ("Seller").
RECITAL:
Seller desires to sell and Buyer desires to purchase certain properties and
assets of Seller consisting of nine (9) hotel properties operated as Hampton
Inns under franchises from Promus, as identified on SCHEDULE A attached hereto,
under the terms and conditions set forth below. Buyer will be upon formation an
indirect wholly-owned subsidiary of Hudson. Hudson and Hudson Properties shall
each be liable jointly and severally as guarantors of the obligations of the
Buyer under this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
and agreements hereinafter contained, the parties hereto agree as follows:
TERMS AND CONDITIONS:
1. ASSETS SUBJECT TO SALE AND PURCHASE.
Buyer agrees to purchase and Seller agrees to sell the following assets of
Seller:
1.1. The nine parcels of real property more particularly described on
SCHEDULE A attached hereto, together with all buildings and
improvements thereon but excluding the sanitary sewer project
condemnation affecting the hotel property located at Greensboro,
North Carolina, all the awards or proceeds of which of whatever
character shall be divided equally between Buyer and Seller (each a
"hotel property" and together the "Premises");
1.2. All of Seller's interest in the tangible personal property, and
items of furnishings, fixtures, and equipment, owned by Seller with
respect to the several hotel businesses on the Premises
(collectively the "Personal Property");
1.3. All of Seller's rights in those licenses, permits and certificates
of occupancy held by Seller in connection with the ownership of
each hotel property, but only to the extent the same are legally
assignable to Buyer (the "Owner's Permits");
1.4 All of Seller's interest in any and all architectural, engineering
and other plans prepared in connection with the construction of the
building and improvements on the Premises and acquired by Seller in
its purchase thereof; and
1.5. All of Seller's interest in assignable warranties and guarantees
pertaining to the several hotel properties.
Buyer acknowledges that Crossroads Future Company, L.L.C. (the "Seller's
Tenant") owns all supplies and inventory used in the operation of the several
hotel businesses on the Premises, and Seller's Tenant and the managing agent of
the Seller's Tenant operate and manage the hotel properties located on the
Premises, and that the Seller does not participate in such operation and
management and does not own
inventory and supplies or the Contracts related to the operation and management
of the hotel properties located on the Premises. Seller shall cause Seller's
Tenant to transfer to Buyer the following assets without any consideration:
1.6 All of Seller's Tenant's rights and obligations in those contracts,
leases, and service agreements to which Seller's Tenant is a party
and which relate to the operation of each hotel property, and which
are described in SCHEDULE B attached hereto, together with any
other contracts, leases and service agreements that the Seller or
Seller's Tenant give the Buyer written notice of prior to the
expiration of the Feasibility Period, as defined herein (the
"Contracts");
1.7. All of Seller's Tenant's interest in soft goods and other
inventory, and supplies used in the operation of the several hotel
businesses on the Premises located on the Premises at Closing (the
"Inventory");
1.8 All of Seller's Tenant's rights in those licenses, permits and
certificates of occupancy held by Seller's Tenant in connection
with the operation of each hotel property, but only to the extent
the same are legally assignable to Buyer (the "Operator's Permits")
1.9. All intangible property, guest ledgers, customer and mailing lists,
brochures, and telephone numbers used in connection with the
operation of the several hotel properties; and
1.10 All books and records relating to the operation and management of
the several hotel properties in Seller's Tenant's possession and
control.
All the real property and assets listed above shall be collectively referred to
herein as the "Purchased Assets."
2. PURCHASE PRICE, DEPOSIT, AND PAYMENT. The Purchase Price shall be
$47,250,000.
2.1. The Purchase Price shall be allocated for tax purposes only among
the several hotel properties, and between the Premises and Personal
Property relating to each hotel property, as Seller and Buyer shall
agree prior to the expiration of the "Feasibility Period" (as
hereafter defined).
2.2. The Purchase Price shall be payable as follows:
2.2.1. Buyer shall make a deposit in the amount of $225,000
(together with any interest earned thereon the
"Deposit"), to be delivered in cash, certified check or
bank draft to the national business unit of Chicago Title
Insurance Company, 1129 20th Street, N.W., Suite 300,
Washington, D.C. 20036 (Telephone Number: 202-466-2266)
(Attention: Douglas J. Mathis, Esquire) ("Escrow Agent")
within three (3) business days of the Contract Date by
Buyer and to be held by Escrow Agent in accordance with
this Agreement.
2.2.2. At closing, Buyer shall cause Hudson Properties to
deliver its Promissory Note to Seller in the amount of
$5,000,000, increased or decreased, as the case may be,
by the Prorations set out in Section 3 and the
Adjustments set out in Section 4, in substantially the
form attached hereto as EXHIBIT I. Payment of amounts
outstanding under the Note shall be secured by the grant
of a security interest in 2,000,000 newly-issued shares
of Hudson common stock which shares shall be held in
escrow pursuant to a Pledge Agreement (the "Pledge
Agreement") in the form and substance to be agreed to by
Seller and Buyer prior to the expiration of the
Feasibility Period. Payment of the Note shall be
guaranteed by Hudson under a guaranty agreement in form
and substance acceptable to Seller executed and delivered
at Closing. The guarantee and payment of amounts
outstanding under the Note shall be subordinate to senior
debt of Hudson and Hudson Properties not to exceed
$30,000,000.
2.2.3. Buyer shall pay to Seller the balance of the Purchase
Price by wire transfer of immediately available funds on
the Closing Date.
2.3. Escrow Agent shall hold the Deposit in an interest-bearing account.
In the event of a termination of this Agreement pursuant to
Sections 22.1-22.5, (unless the Buyer, Hudson Properties or Hudson
is in default under this Agreement or has made a material
misrepresentation or failed to obtain a consent or satisfy a
condition or contingency solely within the control of Hudson,
Hudson Properties or Buyer) the Escrow Agent shall release the
Deposit to Buyer, and Seller shall have no further liability
hereunder. In the event of Buyer's, Hudson Properties' or Hudson's
default hereunder, the Escrow Agent shall release the Deposit to
Seller, and Buyer's liability hereunder shall be limited to said
Deposit, which shall be deemed liquidated damages to Seller and
Seller's sole remedy for the loss of its bargain (provided such
limitation shall not be applicable to a default by Buyer, Hudson or
Hudson Properties of any covenants other than the obligation to
purchase the Premises, for which such other defaults the Seller
retains all of its rights and remedies at law and in equity). Any
interest earned on the Deposit prior to Closing shall be payable to
Buyer, unless Buyer, Hudson or Hudson Properties defaults
hereunder, in which case it shall be the property of Seller as
additional liquidated damages.
2.4. Seller will pay all existing assessments and installments of
assessments for local improvements due and payable as of the
Closing Date. Seller has no knowledge of any additional assessment
not appearing on the current tax roll or of record title.
3. PRORATIONS. The following accounts shall be prorated as of Closing between
Seller, Seller's Tenant and Buyer:
3.1. Real estate taxes and assessments and personal property taxes for
the current fiscal year.
3.2. Utility and telephone charges, water and sewer charges and rents.
3.3. All current rents and amounts payable under leases, service,
supply, operating and maintenance contracts assigned to and assumed
by Buyer, as set forth herein, to the extent same shall cover
periods prior to Closing.
3.4. Current rents, revenues and other payments due under any office,
shop, lounge and store leases, or under any license or concession
agreement assigned to and assumed by Buyer, as set forth herein.
3.5. Amounts paid or payable as fees for permits and licenses which are
assigned and assignable hereunder by Seller or Seller's Tenant to
Buyer.
3.6. Prepaid advertising fees and charges, and other prepaid expenses.
4. ADJUSTMENTS. The following adjustments and purchases or credits shall be
made at Closing:
4.1. Buyer shall purchase from Seller's Tenant, accounts receivable of
registered guests who have not checked out and are occupying rooms
on the evening preceding Closing (the "Guest Tray Ledger"). All
other accounts receivable originating prior to Closing shall belong
to and be the responsibility of Seller or Seller's Tenant. Buyer
shall have no obligation to collect any such accounts receivable,
but in the event Buyer collects same, it shall remit such amount
collected to Seller's Tenant.
4.2. Seller shall cause Seller's Tenant to transfer advance deposits on
future room bookings to Buyer at Closing.
4.3. Room revenue from rooms occupied on the evening preceding the
Closing will be divided equally between Seller's Tenant and Buyer.
4.4. Cash on hand in the front desk bank at the each property will be
credited to Seller's Tenant.
4.5 To the extent that the Inventory fails to meet the standards set
forth in Section 17.14, Seller's Tenant shall pay to Buyer the
value of the deficiency. To the extent that the Inventory exceeds
those standards, Buyer shall pay to Seller's Tenant the value of
such excess. Buyer shall have a period of thirty (30) days
following Closing to verify the Inventory.
5. CONTINGENCIES.
The consummation of the transactions contemplated by this Agreement shall be
contingent upon the satisfaction of the following conditions (which
contingencies shall be deemed waived unless this Agreement is terminated by
written notice by the terminating party to the other party prior to the
expiration of the Feasibility Period), in addition to the conditions set forth
elsewhere in this Agreement:
5.1. That Buyer shall have received a written commitment for financing
of this purchase in the form and upon terms satisfactory to Buyer
in its sole and absolute discretion. This contingency shall be
deemed to be satisfied upon delivery of the evidence called for in
Section 6.11.
5.2. That Buyer shall not have exercised its right to terminate the
contract during the Feasibility Period, as defined in Section 6.
5.3. The respective Boards of Directors of Seller, of Buyer and of
Hudson shall have approved this transaction.
6. FEASIBILITY PERIOD.
6.1. Buyer shall have a period ending September 28, 1997 (the
"Feasibility Period") to review the Inspection Items and to
otherwise complete its due diligence investigation and inspection
of the Premises. Buyer shall have the right to terminate this
Agreement at any time prior to the expiration of the Feasibility
Period, by written notice to Seller and Escrow Agent (the
"Termination Notice"), if Buyer is dissatisfied with any aspect of
the
Purchased Assets in Buyer's sole discretion. If Buyer shall
terminate this Agreement pursuant to this Section 6.1 on or before
the last day of the Feasibility Period, then Buyer shall be
entitled to a refund of the Deposit and all accrued interest
thereon. If Buyer shall not have provided notice of termination of
this Agreement pursuant to this Section 6.1 during the Feasibility
Period, then from and after the Feasibility Period Buyer shall be
deemed to have waived its right to terminate this Agreement as
permitted under this Section 6.1 and Section 5 and to accept the
Premises in their present condition.
6.2 The term "Inspection Items" shall mean copies of the following
documents (to the extent in the possession or control of the Seller
or Seller's Tenant):
(a) any title policies, environmental reports, engineering
studies, the PIP's referred to in Section 6.5 below, and
surveys of or with respect to any of the Premises;
(b) the Contracts;
(c) financial statements (the "Financial Statements") for each
hotel property prepared and certified by the owner thereof
(including balance sheets, income statements and statements
of changes in financial condition) for calendar years 1995
and 1996 and for the first and second calendar quarters of
1997, together with an itemized breakdown of room sales per
month, occupancy and ADR for such periods;
(d) the existing audited financial statements (the "Audited
Financials") for the properties in Seller's possession or
control, if any;
(e) any guest registration records (which shall be available at
the property), operating licenses and permits, certificates
of occupancy, municipal approvals and other governmental
permits;
(f) any books and records of the operations of the Premises
necessary to confirm the accuracy of the Financial
Statements and the Audited Financials;
(g) The leases currently in force with respect to each hotel
property; and
(h) All architectural, engineering and other plans relating to
any hotel property.
6.3 Buyer shall be responsible at its expense to obtain new Franchise
Agreements in connection with the sale of the Purchased Assets of
Buyer. Seller agrees, at no expense to itself, to assist Buyer in
obtaining Promus Hotels, Inc.'s cooperation in this regard. The
franchise application fees which are required to be paid by
franchisor in connection with obtaining new Franchise Agreements or
the sale of Purchased Assets shall be paid by Buyer to franchisor
at or prior to the Closing.
6.4 The Seller agrees to bring all hotel properties located on the
Premises up to Hampton Inn standards set forth in the Product
Improvement Plan ("PIP") issued by Promus Hotels, Inc. in
connection with the June, 1997 acquisition by Seller of such hotel
properties, provided, however, that Seller shall not be required to
spend more than an aggregate of $4,475,600 therefor (which amount
includes amounts expended by Seller's seller and reimbursed by
Seller on the properties for the June, 1997 PIP). Unless Buyer
has, on or before the expiration of the Feasibility Period,
terminated this Agreement, Buyer, at the expense of Hudson and the
Buyer, shall comply with the requirements of any PIP required by
Promus Hotels, Inc. with respect to the purchase of the Buyer of
the hotel and performing any work with respect to the June, 1997
PIP in excess of the work done by Seller for the aggregate sum of
$4,475,600 as set forth above.
6.5 The franchise application fees which are required to be paid by
franchisor in connection with obtaining new Franchise Agreements or
the sale of Purchased Assets shall be paid by Buyer to franchisor
at or prior to the Closing.
6.6 Seller and Buyer shall cooperate and take all actions necessary, in
a diligent and expeditious manner, to effectuate the inspections
and reviews contemplated by this Section 6 during the Feasibility
Period. Subject to prior written notice to the Seller's Tenant and
the reasonable rules and regulations of the Seller's Tenant, Buyer
and its representatives and agents shall be provided with access to
the Premises at all reasonable times, in order to inspect the
Premises, including but not limited to, taking soil samples and
test borings and conducting environmental studies, engineering
studies and other such inspections and reviews reasonably necessary
to determine the condition and financial status of the Purchased
Assets.
6.7 Buyer, Hudson Properties and Hudson covenant and agree that the
Premises shall not be damaged or impaired in any way as the result
of its activities on the Premises during the Feasibility Period,
and hereby agree to indemnify and hold Seller and Seller's Tenant
harmless from and against any claims, causes of action, damages,
expenses (including attorneys' fees) or liabilities of whatsoever
nature to the extent incident to, resulting from or in any way
arising out of the presence in, on or about the Premises of Buyer,
or Buyer's agents or representatives, or out of any test or
inspection conducted by or any other act or omission of Buyer on
the Premises. Such indemnity shall survive the Closing or any
termination of this Agreement and shall not be limited to the
Deposit.
6.8 Buyer shall make all inspections provided for herein 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 by Buyer relating to the inspection of the
Premises will be solely Buyer's and Hudson's expenses and will be
paid timely by Buyer and Hudson, except that Buyer and Hudson shall
not become liable solely by virtue of this sentence for remediation
costs relating to Hazardous Materials (as defined below) discovered
by Buyer or Hudson on any hotel property. Seller hereby reserves
the right to have a representative of Seller or the Seller's Tenant
present at the time of making any such inspection. In making any
inspection hereunder, Buyer will, and will cause any representative
of Buyer to, use discretion so as to not disrupt the operations of
Seller's Tenant or any guest, tenant or customer of the Premises.
Buyer shall notify Seller's Tenant not less than one (1) business
day in advance of making any such inspection.
6.9 If Buyer shall validly terminate this Agreement during the
Feasibility Period pursuant to this Section 6, or if the Closing
shall otherwise fail to occur, Buyer shall return to Seller the
originals and all copies of all material relating to the Premises
furnished to Buyer by Seller pursuant to this Agreement and shall
not make or retain any copies thereof, together with copies of any
materials relating to the Premises obtained by Buyer, Hudson or
their consultants with respect to the Premises.
6.10 Buyer shall provide to Seller by August 15, 1997, evidence of
Buyer's unconditional ability to finance the acquisition of the
Premises and the payment of the Purchase Price pursuant to Section
2.2 of this Agreement. Seller agrees that for purposes hereof, a
comfort letter from Buyer's prospective lender which provides
reasonable assurances as to the availability of financing shall
constitute such evidence.
6.11 It is understood that Buyer's lender will conduct its own due
diligence in connection with the lending and ultimate
securitization of the loan. Seller agrees to cooperate reasonably
with Buyer, Buyer's lender, and its agents, and to cause Seller's
Tenant to so cooperate, to provide the necessary access and
information to enable Buyer's lender to complete its due diligence.
6.12 If this Agreement is terminated pursuant to this Section 6 and the
Deposit is disbursed as set forth in this Section, then, except as
specifically set forth in this Agreement, neither party shall have
any further obligations or liabilities hereunder.
7. CONDUCT OF BUSINESS TO CLOSING. Seller covenants, represents and warrants,
until the completion of the Closing, unless otherwise agreed in writing by
Buyer, that:
7.1. Seller shall cause the Seller's Tenant to continue normal
maintenance and management of each such property and operation and
marketing of the hotel business in the ordinary course of business
consistent with prior practice.
7.2. Seller and Seller's Tenant shall not engage in any sale or enter
into any transaction, contract or commitment, or incur any
liability or obligation, other than in the ordinary course of
business, which would materially, adversely affect the Purchased
Assets and Seller shall not enter into any new contract, lease or
agreement regarding any hotel property unless such contract, lease
or agreement shall not be binding upon Buyer or shall be terminable
upon not more than 30 days' notice. Neither Seller nor Seller's
Tenant shall prepay expenses, whether under a contract or
otherwise, except in the ordinary course of business consistent
with prior practice;
7.3. Seller shall cause Seller's Tenant to carry and continue in force
through the Closing Date current levels of fire and extended
coverage insurance, as well as theft, liability and other current
insurance coverage, it being agreed that in the event of a casualty
prior to the Closing Date, the rights and liabilities of the
parties shall be determined in accordance with Paragraph 11 hereof;
7.4. Seller and Seller's Tenant shall not amend, modify or terminate any
Contract without Buyer's consent (which consent shall not be
required if such amendment, modification or termination would not
be binding upon the Buyer after Closing), except as provided in
Section 15 hereof;
7.5. Seller shall use its best efforts to preserve in good order all
papers and records in Seller's or Seller's Tenant's possession
relating to the Purchased Assets;
7.6. Seller shall cause Seller's Tenant to repair and maintain the
Purchased Assets in good state of repair through the Closing Date,
ordinary wear and tear excepted, and shall not dispose of any or
any part of same, or remove any or any part of same from the
Premises;
7.7. Seller shall cause Seller's Tenant to conduct its business in all
respects so as to be in compliance with all terms and conditions of
the Franchise Agreement relating to each hotel property.
8. CLOSING.
The closing of the transactions contemplated herein (the "Closing") shall take
place in Memphis, Tennessee at the offices of Seller, on September 30, 1997 at
10:00 AM or such other date and place as the parties hereto shall mutually agree
upon (the "Closing Date"). Time shall be considered to be of the essence of
this Agreement.
9. CONDITIONS OF CLOSING.
Closing of the transactions hereunder shall take place provided:
9.1. The contingencies set forth in Paragraph 5 hereof shall have been
satisfied, waived or deemed to be waived due to the failure of this
Agreement to be terminated in a timely manner.
9.2. All of the covenants to be performed by Seller and Buyer contained
in this Agreement will have been performed on or before Closing.
9.3. The Purchased Assets shall be in substantially the same condition
as of the date hereof, ordinary wear and tear excluded.
9.4. Seller shall have received no notice of material violation with
respect to the Premises from any governmental authority.
9.5. The representations and warranties of Seller and of Buyer contained
herein shall be materially true and correct on and as of the
Closing Date, as though they had been made on and as of the Closing
Date.
9.6. Seller and Seller's Tenant have complied in all material respects
with all applicable laws, rules, regulations and ordinances
relating to the Purchased Assets.
10. CLOSING OBLIGATIONS OF THE PARTIES.
10.1 At Closing, Seller shall execute and deliver, cause Seller's Tenant
to execute and deliver, or deliver, as appropriate, to Buyer the
following items:
10.1.1 The several Deeds with respect to the Premises;
10.1.2 The several Bills of Sale to transfer the Personal
Property in the form attached hereto as EXHIBIT III;
10.1.3 The several Bills of Sale for Inventory in the form
attached hereto as EXHIBIT IV;
10.1.4 Assignments and Assumptions of Contracts from Seller's
Tenant in the form attached hereto as EXHIBIT V;
10.1.5 Assignment of Owner's Permits, intangible rights and
warranties and guarantees relating to the condition of
the several hotel properties;
10.1.6 Assignment of Operator's Permits, intangible property,
guest ledgers, customer and mailing lists, brochures and
telephone numbers;
10.1.7 Originals, if available, or otherwise copies of Contracts
and Permits, which may be delivered at the respective
hotel property;
10.1.8 Any and all business records and papers related to the
ownership of each hotel property not previously provided,
which may be delivered at the respective hotel property;
10.1.9 Any and all architectural, engineering and other plans
prepared for or used in connection with the construction
of the building and improvements on the Premises in
Seller's or Seller's Tenant's possession or control which
may be delivered at the respective hotel;
10.1.10 Certified copies of resolutions of Seller authorizing the
execution of this Agreement and the consummation of the
transactions contemplated herein;
10.1.11 An opinion of Seller's counsel, dated as of the Closing
Date, stating (a) Seller's corporate existence and good
standing are as stated in Section 17.1 hereof; (b) except
as may be specified by such counsel, they do not know or
have any reasonable grounds to know of any litigation,
proceeding, suit, action, controversy or claim existing,
pending or threatened against Seller challenging the
validity of this Agreement; (c) the instruments executed
and delivered to by Seller to Buyer have been duly
authorized, executed and delivered (subject only to
bankruptcy, creditors rights and general principles of
equity);
10.1.12 All necessary releases or payoff letters of lien or
financing statements, pursuant to Paragraph 13.1 hereof;
10.1.13 Tenancy and title affidavit as may be reasonably and
customarily required by the title company;
10.1.14 Proof of payment of all current taxes due which, if
unpaid, would constitute a lien on the Premises;
10.1.15 Terminations of all management agreements and the
Crossroads lease affecting any hotel property; and
10.1.16 Such other documents and instruments as are required by
this Agreement to effectuate the sale of property similar
to the Purchased Assets.
10.2 At Closing, Buyer shall execute and deliver to Seller the following
items:
10.2.1 Certified copies of resolutions of Buyer's Board of
Directors authorizing the execution of this Agreement and
the consummation of the transactions contemplated herein;
10.2.2 The cash portion of the balance of the Purchase Price and
such other payments provided for herein;
10.2.3 The Note;
10.2.4 Written evidence reasonably satisfactory to Seller that
the scheduled repayment of the mezzanine debt (the
"Mezzanine Debt") of Hudson and Hudson Properties to
Nomura Asset Capital Corporation ("Nomura") does not
provide for the payment of principal, in whole or in
part, prior to the repayment of the principal amount of
the Note.
10.2.5 Assignment and Assumption of Contracts;
10.2.6 Checks to the order of the appropriate officers in
payment of all applicable real and personal property
transfer tax and copies of any required tax returns
executed therefor by Buyer;
10.2.7 An opinion of Buyer's counsel dated as of the Closing
Date, stating (a) Buyer's corporate existence and good
standing are as stated in Section 19 hereof; (b) except
as may be specified by such counsel, they do not know or
have any reasonable grounds to know of any litigation,
proceeding, suit, action, controversy or claim existing,
pending or threatened against Buyer challenging the
validity of this Agreement; (c) the instruments executed
and
delivered by Buyer to Seller have been duly authorized,
executed and delivered and are valid and enforceable in
accordance with their terms, (subject only to bankruptcy,
creditors rights and general principles of equity); and
(d) such other opinions reasonably requested by Seller
which are customarily required by institutional lenders
in loan transactions such as that which is contemplated
by this Agreement and the Note.
10.2.8 Such other documents and instruments as are required by
this Agreement from the Buyer.
10.3 At Closing, Hudson shall execute and deliver or cause to be
executed and delivered to Seller:
10.3.1 Certified copies of resolutions of Hudson's Board of
Directors authorizing the execution of this Agreement and
the consummation of the transactions contemplated herein;
10.3.2 Its Guaranty of the Note;
10.3.3 The Pledge Agreement;
10.3.4 An opinion of Hudson's counsel that the Guaranty, and the
Pledge Agreement have been duly authorized, executed and
delivered by Hudson and are the valid and binding
obligation of Hudson enforceable in accordance with their
terms (subject only to bankruptcy, creditors rights and
general equitable principles) and such other opinions
reasonably requested by Seller which are customarily
required by institutional lenders in loan transactions
such as that which is contemplated by this Agreement and
the Note including, without limitation, opinions
substantially setting forth each of the representations
contained in Section 3 of the Pledge Agreement (other
then those contained in paragraph (K) thereof), provided
that such opinion of counsel may be appropriately
qualified as to knowledge with respect to certain of such
representations and may expressly state its reliance upon
a certificate of Hudson and Hudson Properties to counsel
setting forth the underlying factual basis for such
opinions.
10.3.5 Its covenant and agreement not to make any voluntary
prepayment, in whole or in part, of the Mezzanine Debt or
to amend the documentation with respect to the Mezzanine
Debt which would require the scheduled payment, in whole
or in part, of the principal amount of such Debt prior to
the payment in full of the principal balance of the Note.
10.3.6 Such other documents and instruments as are required by
this Agreement to effectuate the sale of property similar
to the Purchased Assets.
10.4 At Closing, Hudson Properties shall execute and deliver or cause to
be executed and delivered to Seller:
10.4.1 Certified copies of resolutions of Hudson Properties
Board of Directors authorizing the execution of this
Agreement and the consummation of the transactions
contemplated herein;
10.4.2 Its Guaranty of the Note;
10.4.3 The Pledge and Irrevocable Proxy Security Agreement; and
10.4.4 An opinion of Hudson Properties' counsel as to the due
authorization, issuance and non-assessibility of the
pledged Shares and that the Guaranty and the Pledge and
Irrevocable Proxy Security Agreement have been duly
authorized, executed and delivered by Hudson Properties
and are the valid and binding obligations of Hudson
Properties enforceable in accordance with their
respective terms (subject only to bankruptcy, creditors'
rights and general equitable principles) and such other
opinions reasonably requested by Seller which are
customarily required by institutional lenders in loan
transactions such as that which is contemplated by this
Agreement and the Note including, without limitation,
opinions substantially setting forth each of the
representations contained in Section 3 of the Pledge
Agreement (other then those contained in paragraph (K)
thereof), provided that such opinion of counsel may be
appropriately qualified as to knowledge with respect to
certain of such representations and may expressly state
its reliance upon a certificate of Hudson and Hudson
Properties to counsel setting forth the underlying
factual basis for such opinions.
10.4.5 Its covenant and agreement not to make any voluntary
prepayment, in whole or in part, of the Mezzanine Debt or
to amend the documentation with respect to the Mezzanine
Debt which would require the scheduled payment, in whole
or in part, of the principal amount of such Debt prior to
the payment in full of the principal balance of the Note.
11. RISK OF LOSS.
The risk of material loss or damage to the Purchased Assets by fire or other
casualty or by taking by eminent domain, shall be assumed by Seller and, upon
the happening of such event, Buyer shall have the election of terminating this
Agreement with respect to the damaged property or properties and proceeding on
the remainder without further liability hereunder or of completing this purchase
and receiving the insurance monies collectible by Seller for such loss or damage
or the award for such taking by eminent domain; provided, however, that Buyer
shall not be entitled to elect to terminate this Agreement if the amount of the
loss or damage to the Purchased Assets is less than $500,000.00.
12. TITLE TO PREMISES.
12.1. Conveyance of the Premises shall be made by special warranty deed
(or its equivalent), duly executed and acknowledged so as to convey
to Seller, Buyer good and marketable fee simple title to the
Premises free and clear of all liens and encumbrances except as
provided herein. Such title shall be marketable without exception
other than the usual printed form exceptions as would be set forth
on a policy of fee title insurance issued by a recognized title
insurance company licensed to do business in the state in which the
particular hotel property is located, and those exceptions agreed
to in Section 12.3.
12.2. Buyer shall at its cost prepare current instrument survey of each
hotel which is dated after the date hereof and certified to Seller,
Buyer and Buyer's lender, prepared and certified in accordance with
the ALTA/ACSM standards by a licensed land surveyor and provide a
copy to Seller.
12.3 Buyer shall accept title subject to the following conditions and
exceptions (the "Permitted Exceptions"):
12.3.1 any facts revealed by the redated and recertified
instrument survey, so long as such facts do not render
title unmarketable, disclose material encroachments upon
or over any boundary either by an abutting landowner or
an improvement on the Premises, disclose violations of
zoning ordinances or other applicable land use
restrictions, or indicate a condition which may interfere
with the use of the Premises as a hotel, which
determination must be made by Buyer by written notice
thereof to the Seller prior to the expiration of the
Feasibility Period;
12.3.2 encumbrances, restrictions and easements of record,
applicable municipal or other ordinances, laws, rules and
regulations, including, without limitation, all
buildings, zoning and planning rules, regulations and
ordinances, provided the same do not render title
unmarketable, or will not interfere with the intended use
of the Premises as a hotel, which determination must be
made by Buyer by written notice thereof to the Seller
prior to the expiration of the Feasibility Period;
12.3.3 liens of unpaid real estate taxes not yet due;
12.3.4 Such other matters not objected to by the Buyer by
written notice thereof to the Seller prior to the
expiration of the Feasibility Period.
12.4 During the Feasibility Period, in the event Buyer learns of the
existence of a title defect which would render title unmarketable
(other than those which it agrees hereby to accept), Buyer shall
promptly notify Seller with all information Buyer has about the
same. In such event, Seller shall, within two (2) business days
following its receipt of such notice from Buyer, give notice to
Buyer as to which of such defects it deems to be material. Buyer
may, within two (2) business days following its receipt of Seller's
notice (regardless of whether the Feasibility Period has expired or
not), elect to terminate this Contract by giving written notice
thereof to Seller. If Buyer does not terminate this Contract
within such two (2) day period, (a) Seller shall use its reasonable
efforts to cure or correct, at or prior to Closing, (i) all title
defects which it has identified in its notice to Buyer as being
material, and (ii) any other such defects which Seller agrees in
writing to undertake to cure or correct, and (b) Seller shall, at
or prior to Closing, cure or correct all title defects which were
created between the date of Seller's acquisition of the premises
and the Closing (whether or not the same have been identified by
Buyer in its notice to Seller). With respect to all remaining
title defects, Seller shall, at no material expense to it,
cooperate with Buyer in undertaking any efforts to cure or correct
the same. If Seller is unable to cure or correct to Buyer's
reasonable satisfaction any title defect it is required by the
terms hereof to use reasonable efforts to cure or correct or is
required by the terms hereof to cure or correct, Seller shall
undertake to obtain at its expense for any additional premium
required to insure over such specific defect (Buyer remaining
liable for the basic premium) a policy of title insurance by a
recognized title insurance company licensed to do business in the
state in which the Premises is located and acceptable to Buyer
which shall insure the title to the Premises without exception
other than the Permitted Exceptions. Should Seller fail to obtain
such title insurance, Buyer may terminate this Agreement by giving
Seller written notice thereof, such termination to become effective
upon the giving of such notice, and neither party shall be
responsible for damages to the other hereunder.
13. PERSONAL PROPERTY AND INVENTORY.
13.1. Buyer shall obtain state and local UCC searches to the Closing Date
against Seller, Seller's Seller and Seller's Tenant with respect to
Purchased Assets. Buyer shall promptly notify Seller of any
financing statements found to be filed with respect to the
Purchased Assets, together with a copy of such report, and Seller
shall undertake to obtain releases or payoff letters of them unless
subject to capital leases to be assumed by Buyer hereunder.
13.2. At a mutually convenient time or times during the Feasibility
Period, a representative of Buyer and Seller's Tenant may inspect
and inventory all items of Personal Property and Inventory. A
representative of Seller and Seller's Tenant may be present during
the inspection and inventory.
13.3 With respect to any item of Personal Property or Inventory for
which Seller cannot obtain releases as provided in Section 13.1
Buyer may elect not to purchase the item, but the Purchase Price
shall not be adjusted accordingly.
13.4 The Personal Property and Inventory shall be sold and purchased in
"as is" condition, and Seller makes no representations whatsoever,
express or implied, in relation to same.
13.5 With respect to all items of Personal Property which are subject of
warranties, guaranties or service agreements, Seller shall assign
all of its rights under the same to Buyer to the extent possible,
and will cooperate with Buyer in the enforcement of the same.
14 INDEMNITY AGAINST CREDITORS' CLAIMS.
The parties agree to waive the requirements of the bulk transfer provisions of
the applicable Uniform Commercial Code or other applicable law, statue or rule.
Seller will indemnify Buyer and hold it harmless against all claims made by
creditors of Seller, including, but not limited to, reasonable attorneys' fees
and costs of defending such claims. Seller warrants that there are no
liabilities of any nature (accrued, absolute, contingent or otherwise), liens,
encumbrances or security interests on any of the Purchased Assets except as
expressly provided herein.
15 CONTRACTS.
On the Closing Date, Seller shall cause Seller's Tenant to assign to Buyer and
Buyer shall assume the Contracts, all of which Buyer shall have an opportunity
to review before the Closing Date. Seller shall cause Seller's Tenant to
perform all Contracts, insofar as they are required by their terms to be
performed by Seller before the Closing Date and shall indemnify Buyer against
any liability or expense arising out of any breach or default occurring before
the Closing Date. Buyer shall indemnify Seller and Seller's Tenant against any
liability or expense arising out of any breach of such Contracts occurring after
the Closing Date. Buyer shall assume no liability for any contract made by
Seller which is not listed in Schedule B. In addition, and not by way of
limitation of the foregoing disclaimer, Buyer shall assume no liability for any
employee, employed by Seller or Seller's Tenant or at the Premises, and
regardless of whether the employment of such employee was pursuant to written
agreement or otherwise. Further, Seller shall terminate as of Closing the lease
with Seller's Tenant relating to each hotel property.
16 POSSESSION.
Possession of the Purchased Assets as described herein shall be delivered by
Seller to Buyer at Closing subject to the Permitted Exceptions.
17 WARRANTIES AND REPRESENTATIONS OF SELLER.
Seller represents and warrants to Buyer as follows:
17.1 Seller is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Tennessee and
has qualified to do business and is in good standing in each state
where a hotel property is located, and has full power and authority
to carry on its current business and to own, use and sell its
assets and properties.
17.2 Seller has full power and authority and all necessary approvals to
enter into this Agreement. The execution and delivery of this
Agreement and the transactions contemplated hereby do not and will
not violate any provision of any agreement, document, or instrument
to which Seller is a party or by which Seller is bound, except as
otherwise noted in this Agreement. Seller has made no other
agreements with any other party with respect to the Purchased
Assets which would adversely affect the transactions contemplated
hereby.
17.3 There is as of the date hereof no litigation, proceeding, suit,
action, controversy, or claim existing, pending, or, to the best of
Seller's knowledge, threatened against Seller which might
materially, adversely affect the transfer of the Purchased Assets
to Buyer. At Closing, Seller will have complied with all laws,
regulations, and ordinances applicable to the transfer of the
Purchased Assets. There are at the date hereof and at Closing
there will be no judgments existing, whether or not filed, against
Seller or Seller's Tenant which might affect the Purchased Assets,
except as herein set forth.
17.4 Seller has received no written notices of any violations of any
laws, ordinances, regulations, rules or orders issued by any
federal, state, or local governmental authority adversely affecting
the Premises, except as noted in this Agreement.
17.5 To Seller's knowledge, there are no 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. Neither Seller nor to the knowledge of Seller,
Seller's Tenant is a party to any contracts, leases, or agreements,
written or oral, including without limitation sales representation
contracts, purchase contracts or restrictive agreements which
prohibit the consummation of this Agreement, except as reflected in
the preliminary title report and Schedule C attached hereto.
17.6 There are as of the date hereof no taxes outstanding against the
Purchased Assets, other than those for which adjustment in the
Purchase Price are to be made. For purposes of this paragraph,
taxes shall include any and all business-related taxes, including,
but not limited to, sales tax, employee income tax and F.I.C.A.
withholding, employment taxes, and business or license fees.
17.7 Seller is not a foreign entity, foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are
defined in the Internal Revenue Code and Income Tax regulations).
17.8 To Seller's knowledge, Seller has filed all federal, estate, county
and local tax returns required to be filed by Seller and has paid
all taxes, interest and penalties that have become due and payable
by Seller. To Seller's knowledge, there is no tax deficiency or
penalty owing with respect to Seller.
17.9 The Seller has no knowledge of, nor has it received any written
notice of, any special taxes or assessments relating to any hotel
property or any part thereof or any planned public improvements
that may result in a special tax or assessment against any hotel
property which is not of public record.
17.10 Each hotel property contains, as of the Closing Date, not less
than:
17.10.1 A sufficient amount of furniture, furnishings, color
television sets, carpets, drapes, rugs, floor coverings,
mattresses, pillows, bedspreads and the like, to furnish
each guest room, so that each such guest room is, in
fact, fully furnished in accordance with current
Franchisor standards at the time of Seller's purchase;
and
17.10.2 A sufficient amount of towels, washcloths and bed linens,
together with a sufficient supply of paper goods, soaps,
cleaning supplies and other such supplies and materials,
as are reasonably adequate for the current operations of
the Hotel in accordance with current Franchisor standards
at the time of Seller's purchase.
17.11 The Seller has not received written notice that any Contract is in
default.
18. WARRANTIES AND REPRESENTATIONS OF BUYER.
Hudson hereby represents and warrants to Seller as follows:
18.1 Prior to the expiration of the Feasibility Period, Buyer will be a
corporation duly organized, validly existing and in good standing
under the laws of the State of New York and have full power and
authority to carry on its current business and to own, use and sell
its assets and properties.
18.2 Prior to the expiration of the Feasibility Period, Buyer will have
full power and authority and all necessary approvals to enter into
this Agreement. Execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will have been
duly authorized by Buyer's Board of Directors prior to expiration
of the Feasibility Period. The execution and delivery of this
Agreement and the transactions contemplated hereby do not and will
not violate any provision of any agreement, document, or instrument
to which Buyer is a party or by which Buyer is bound, except as
otherwise noted in this Agreement. Buyer has made no other
agreements with any other party with respect to the Purchased
Assets which would adversely affect the transactions contemplated
hereby.
18.3 There is as of the date hereof no litigation, proceeding, suit,
action, controversy, or claim existing, pending, or, to the best of
Buyer's knowledge, threatened against Buyer which might affect the
Purchased Assets or the transfer thereof to Buyer, and there is no
basis known to Buyer for any such litigation, proceeding, suit,
action, controversy, or claim. At Closing, Buyer will have
complied with all laws, regulations, and ordinances applicable to
the transfer of Purchased Assets. There are at the date hereof and
at Closing there will be no judgments or liens existing, whether or
not filed, against Buyer which might affect the Purchased Assets,
except as herein set forth.
18.4 Buyer 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).
18.5 The representations and warranties made by Buyer in this Agreement
shall be true and correct in all material respects on and as of the
Closing Date, with the same force and effect as though they had
been made on and as of the Closing Date, except to the extent that
such representations and warranties shall be incorrect because of
events or changes (not materially and adversely affecting the
Purchased Assets) occurring or arising after the date hereof.
19. WARRANTIES AND REPRESENTATIONS OF HUDSON
Hudson hereby represents and warrants to Seller as follows:
19.1 Hudson is a corporation duly organized, validly existing and in
good standing under the laws of the State of New York and has full
power and authority to carry on its current business and to own,
use and sell its assets and properties.
19.2 Hudson has full power and authority and all necessary approvals to
enter into this Agreement. Execution and delivery of this
Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by Hudson's Board of Directors.
The execution and delivery of this Agreement and the transactions
contemplated hereby do not and will not violate any provision of
any agreement, document, or instrument to which Hudson is a party
or by which Hudson is bound,
except as otherwise noted in this Agreement. Hudson has made no
other agreements with any other party with respect to the Purchased
Assets which would adversely affect the transactions contemplated
hereby.
19.3 There is as of the date hereof no litigation, proceeding, suit,
action, controversy, or claim existing, pending, or, to the best of
Hudson's knowledge, threatened against Hudson which might affect
the Purchased Assets or the transfer thereof to Hudson, and there
is no basis known to Hudson for any such litigation, proceeding,
suit, action, controversy, or claim. At Closing, Hudson will have
complied with all laws, regulations, and ordinances applicable to
the transfer of Purchased Assets. There are at the date hereof and
at Closing there will be no judgments or liens existing, whether or
not filed, against Hudson which might affect the Purchased Assets,
except as herein set forth.
19.4 Hudson 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).
19.5 The representations and warranties made by Hudson in this Agreement
shall be true and correct in all material respects on and as of the
Closing Date, with the same force and effect as though they had
been made on and as of the Closing Date, except to the extent that
such representations and warranties shall be incorrect because of
events or changes (not materially and adversely affecting the
Purchased Assets) occurring or arising after the date hereof.
20. WARRANTIES AND REPRESENTATIONS OF HUDSON PROPERTIES
Hudson Properties hereby represents and warrants to Seller as follows:
20.1 Hudson Properties is a corporation duly organized, validly existing
and in good standing under the laws of the State of New York and
has full power and authority to carry on its current business and
to own, use and sell its assets and properties.
20.2 Hudson Properties has full power and authority and all necessary
approvals to enter into this Agreement. Execution and delivery of
this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by Hudson Properties'
Board of Directors. The execution and delivery of this Agreement
and the transactions contemplated hereby do not and will not
violate any provision of any agreement, document, or instrument to
which Hudson Properties is a party or by which Hudson Properties is
bound, except as otherwise noted in this Agreement. Hudson
Properties has made no other agreements with any other party with
respect to the Purchased Assets which would adversely affect the
transactions contemplated hereby.
20.3 There is as of the date hereof no litigation, proceeding, suit,
action, controversy, or claim existing, pending, or, to the best of
Hudson Properties' knowledge, threatened against Hudson Properties
which might affect the Purchased Assets or the transfer thereof to
Hudson Properties, and there is no basis known to Hudson Properties
for any such litigation, proceeding, suit, action, controversy, or
claim. At Closing, Hudson Properties will have complied with all
laws, regulations, and ordinances applicable to the transfer of
Purchased Assets. There are at the date hereof and at Closing
there will be no judgments
or liens existing, whether or not filed, against Hudson Properties
which might affect the Purchased Assets, except as herein set
forth.
20.4 Hudson Properties 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).
20.5 The representations and warranties made by Hudson Properties in
this Agreement shall be true and correct in all material respects
on and as of the Closing Date, with the same force and effect as
though they had been made on and as of the Closing Date, except to
the extent that such representations and warranties shall be
incorrect because of events or changes (not materially and
adversely affecting the Purchased Assets) occurring or arising
after the date hereof.
21. BROKERAGE.
The parties hereto agree that any broker's commission payable to any agent,
broker or realtor as a result of the Contract shall be paid by Seller, and
Seller agrees to hold Purchaser harmless from any claim or cost for such a
commission. Purchaser covenants that it has had no dealings in this transaction
with any agent, realtor, or broker other than Hotel Partners.
22. TERMINATION.
This Agreement may be terminated for the following reasons only:
22.1 Mutual written consent of Buyer and Seller.
22.2 At the sole discretion of Buyer for any reason prior to the
expiration of the Feasibility Period.
22.3 Valid objection to marketability of title to the Premises made by
written notice thereof from the Buyer to the Seller prior to the
expiration of the Feasibility Period and not cured by satisfactory
title insurance or otherwise, as provided in Section 12.4 hereof.
22.4 If any material representation or warranty contained herein shall
be untrue, so as to materially and adversely affect this Agreement,
then the party to whom such representation or warranty has run may
elect either to terminate this Agreement or waive in writing such
breach.
22.5 Failure to satisfy the conditions or contingencies set forth
herein.
22.6 Default by either party in the performance of any material term or
condition of this Agreement to be performed by that party.
23. TAX STATUS.
It is understood that neither of the parties hereto has made any representations
to the others as to the tax status or effect of the transactions contemplated by
this Agreement, and each is taking separate counsel as to such matters.
24. LIMITATIONS AND SURVIVAL OF REPRESENTATIONS.
The Buyer and Hudson each acknowledges that it has or will conduct its own due
diligence with respect to the Purchased Assets, and, except as otherwise
expressly provided herein, shall accept the Purchased Assets "as is, where is"
and in its present condition, subject to reasonable use, wear, tear and natural
deterioration between date hereof and the date of closing, without any reduction
in the purchase price for any change in such condition. Except as expressly
provided in this Agreement, neither Seller nor Seller's Tenant has made and does
not make any representations or warranties, either express or implied, with
respect to the Seller, Seller's Tenant or the Purchased Assets, including,
without limitation, the financial performance of the Purchased Assets, the
operations of the Purchased Assets, the physical condition, fitness for a
particular purpose or merchantability of any of the Purchased Assets, the status
of title and survey with respect to the Purchased Assets, or the compliance of
the Seller or Seller's Tenant or the Purchased Assets with any law, ordinance or
regulation, including, without limitation, those related to the environment,
zoning, land use, subdivision laws, handicap access or building codes. In
entering into this Agreement, Buyer nor Hudson has not been induced by and has
not relied upon any representations, warranties or statements, whether express
or implied, made by any third party, including, without limitation, the Seller,
the broker or their agents, employees or other representatives of the Seller,
Seller's Tenant or by any broker or any other person representing or purporting
to represent the Seller or Seller's Tenant, which are not expressly set forth
herein.
The representations, warranties, covenants, and agreements herein contained on
the part of each of the parties shall be deemed and construed to be continuing
representations, warranties, covenants, and agreements that shall survive the
Closing for the period of one (1) year after Closing. Seller and Buyer each
agree respectively to indemnify and hold harmless the other against and with
respect to all damages, deficiencies or liabilities resulting from any
misrepresentations, breach of warranty or nonfulfillment of any covenant or
agreement on the part of each respective party hereunder, or from any
misrepresentation in or occasioned by any certificate or other instrument
furnished or to be furnished by each of them, respectively, hereunder, and any
and all assessments, judgments, costs and legal and other reasonable expenses
incidental to any of the foregoing.
25. COVENANT OF FURTHER ASSURANCES.
From time to time, before and for the period of six (6) months after Closing,
Seller will execute and deliver such further instruments of conveyance and
transfer reasonably requested and take such other action as Buyer reasonably may
require to more effectively convey and transfer to Buyer any of the Purchased
Assets and otherwise fulfill its agreements hereunder, and will assist Buyer in
its reduction to possession of the Purchased Assets. From time to time before
and for a period of six (6) months after Closing, Buyer, Hudson Properties and
Hudson will execute and deliver such further instruments and take such other
actions as Seller reasonably may require with respect to this Agreement, the
Note, the Guaranty and the Security Agreement.
26. SALES TAX.
Any sales tax payable in connection with the transfer of the Personal Property
shall be borne by Buyer.
27. EXPENSES.
27.1 Except as otherwise specifically provided herein, each party shall
pay its own expenses in connection with this Agreement and the
consummation of the transactions contemplated herein. In
particular, Buyer shall pay all transfer taxes, conveyance fees,
documentary stamps and other similar taxes and charges imposed by
any governmental authority in connection with the conveyance of the
Premises to Buyer regardless of customary practice in each
jurisdiction. Buyer shall pay any recording fees relating to the
deeds and other instruments of conveyance and any mortgage or deed
of trust recording taxes or fees in connection with the financing
obtained by Buyer.
27.2 Unless Seller is required to obtain title insurance because of the
existence of a title defect which would render title to the
Premises unmarketable as provided in Section 12.4 hereof, and
except to the extent of such title insurance obtained by Seller,
Buyer shall pay the premiums for fee or mortgagee title insurance
with respect to the Premises.
28. MISCELLANEOUS.
28.1 This Agreement shall be binding upon and inure to the benefit of
the respective heirs, personal representatives, fiduciaries and
successors of Seller and Buyer.
28.2 This Agreement may not be assigned by either party without the
prior written consent of the other party.
28.3 Any and all notices or communications required or desired to be
given in connection with this Agreement shall be in writing, sent
by registered or certified mail, postage prepaid, return receipt
requested, or by overnight courier to the parties at the address
set forth above or to such other address as either party may from
time to time designate in writing to the other party, and shall be
effective upon receipt.
28.4 This Agreement shall be construed and enforced in accordance with
the laws of the state where the applicable hotel property is
located, but the Note, the Pledge Agreement and the Escrow
Agreement shall be governed by New York law;
28.5 A waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed as a waiver of any
other subsequent breach thereof or of any other provision.
28.6 This Agreement and the Schedules and Exhibits hereto annexed
represent the entire agreement between the parties hereto with
respect to the transactions contemplated hereby and may be modified
only by a subsequent written document executed by the party to be
charged therewith.
28.7 The headings of the paragraphs of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
28.8 This Agreement may be signed in counterparts, each of which shall
be deemed to be an original and all of which together shall
constitute one and the same instrument.
28.9 Seller and Buyer agree to structure the transactions contemplated
by this Agreement as a tax-deferred exchange of real estate by
Seller, and Buyer agrees to execute and deliver any documents
reasonably requested by Seller to effectuate such exchange.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day
and year first written above.
BUYER:
HUDSON HOTELS CORPORATION
as agent for a New York Corporation to
be formed
Date: 8-12-97 By: /s/ E. Anthony Wilson
--------------- --------------------------------
Name: E. Anthony Wilson
-----------------------------
Title: Pres-CEO
------------------------------
HUDSON HOTELS PROPERTIES CORP.
as agent for a New York corporation to
be formed
By: /s/ Bruce A. Sahs
--------------------------------
Name: Bruce A. Sahs
-----------------------------
Title: Pres
------------------------------
SELLER:
EQUITY INNS PARTNERSHIP, L.P.
Date: 8-12-97 By: EQUITY INNS TRUST,
--------------- General Partner
By: /s/ Ronald Cooper
--------------------------------
Name: Ronald Cooper
-----------------------------
Title: Asst. Secretary
------------------------------
HUDSON:
HUDSON HOTELS CORPORATION
Date: 8-12-97 By: /s/ E. Anthony Wilson
--------------- --------------------------------
Name: E. Anthony Wilson
-----------------------------
Title: Pres-CEO
------------------------------
HUDSON HOTELS
PROPERTIES CORP.
Date: By: /s/ Bruce A. Sahs
--------------- --------------------------------
Name: Bruce A. Sahs
-----------------------------
Title: Pres
------------------------------
Crossroads Future Company, L.L.C., Seller's Tenant, joins in the execution
hereof for the purpose of consenting to the provisions hereof relating to
Seller's Tenant and agreeing to reasonably cooperate with Seller and Buyer in
consummation of this Agreement and to execute and deliver the documents required
to be delivered by Seller's Tenant hereunder.
CROSSROADS FUTURE
COMPANY, L.L.C.
By: /s/ Timothy Q. Hudak
--------------------------------
Assistant Secretary
List of Schedules
- -----------------
A - Legal Descriptions
B - Schedule of Contracts
List of Exhibits
- ----------------
I - Note
II - [Reserved]
III - Bill of Sale (Personal Property)
IV - Bill of Sale (Inventory)
V - Assignment and Assumption of Contracts