EXHIBIT 10(o)
INTERCOMPANY AGREEMENT
THIS INTERCOMPANY AGREEMENT (the "Agreement") is made and entered into as
of the 12th day of October, 1999, among RRF Limited Partnership, a Delaware
limited partnership (the "Operating Partnership"), InnSuites Hotels, Inc., a
Nevada corporation ("InnSuites Lessee"), and InnSuites Innternational Hotels,
Inc., a Nevada corporation ("InnSuites Management") (InnSuites Lessee and
InnSuites Management sometimes being collectively referred to herein as the
"Tenants").
W I T N E S S E T H:
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WHEREAS, InnSuites Hospitality Trust, an Ohio real estate investment trust
("InnSuites Trust"), owns, directly or indirectly, an approximate 42.5 percent
general partnership in the Operating Partnership;
WHEREAS, the Operating Partnership may in certain circumstances determine
that it is precluded from pursuing, or is limited in the manner in which it
pursues, various business opportunities due to the status of InnSuites Trust as
a real estate investment trust ("REIT") under sections 856 through 860 of the
Internal Revenue Code of 1986, as amended (the "Code");
WHEREAS, InnSuites Lessee is a corporation formed for the purposes of,
among other things, to be a lessee of real estate owned by the Operating
Partnership;
WHEREAS, InnSuites Management is a recently created corporation that
operates the real estate leased by InnSuites Lessee from the Operating
Partnership, and was formed for the purposes of, among other things, becoming a
lessee and/or operator of various types of assets, including real estate owned
by the Operating Partnership and others; and
WHEREAS, in light of the current operations of InnSuites Lessee and the
purposes for which InnSuites Management was formed, the Operating Partnership,
InnSuites Lessee, and InnSuites Management desire to enter into this Agreement
in order to provide to each other a right of first opportunity and notification
right with respect to certain investment opportunities available to each of
them.
NOW, THEREFORE, in consideration of the premises and mutual undertakings
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
undersigned parties hereby agree as follows:
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1. Definitions. Except as may be otherwise herein expressly provided,
the following terms and phrases shall have the meanings set forth below:
(a) "Company Affiliate" means any entity in which a majority of the
beneficial ownership interests are owned by the Operating Partnership or by
any entity controlled by, controlling or under common control with the
Operating Partnership.
(b) "Insider" means James F. Wirth or any senior officer or director
of the Operating Partnership or of any entity controlled by, controlling or
under common control with the Operating Partnership.
(c) "REIT Opportunity" means a direct or indirect opportunity to
invest in (i) real estate (including without limitation the opportunity to
provide services related to real estate or to invest in a hotel property),
real estate mortgages, real estate derivatives, or entities that invest
primarily in or have a substantial portion of their assets in the
aforementioned types of real estate assets, or (ii) any other investments
which may be structured in a manner so as to be REIT-Qualified Investments
(as hereinafter defined), as determined by the Operating Partnership in its
sole discretion. The Operating Partnership shall have the right from time
to time to provide written notice to InnSuites Management and InnSuites
Lessee specifying certain criteria for a REIT Opportunity in addition to
the criteria specified above in this definition of REIT Opportunity. Any
such written notice from the Operating Partnership may be modified or
canceled by written notice given by the Operating Partnership at any time.
The definition of REIT Opportunity shall be modified as appropriate from
time to time in accordance with any such written notices sent by the
Operating Partnership.
(d) "Tenant Opportunity" means the opportunity for InnSuites Lessee to
become the lessee under a "master" lease arrangement of a property owned or
subsequently acquired by the Operating Partnership if the Operating
Partnership, in its sole discretion, determines that, consistent with the
status of InnSuites Trust as a REIT, the Operating Partnership is required
to enter into such a "master" lease arrangement for such property,
including without limitation a hotel or similar type of facility, so long
as the Operating Partnership determines, in its sole discretion, that
InnSuites Lessee, or an entity controlled by InnSuites Lessee, is qualified
to be the lessee based on experience in the industry and financial and
legal qualifications, provided that all determinations relating to both (i)
the ability or inability of the Operating Partnership to pursue an
opportunity or acquire assets and (ii) the necessity for the Operating
Partnership to enter into a "master" lease arrangement for a property,
shall be made by the Operating Partnership in its sole discretion. A Tenant
Opportunity shall not include (1) a property which already has an existing
"master" lessee as of the date of this Agreement (or, with respect to a
property acquired subsequent to the date of this Agreement, which has an
existing binding "master" lessee arrangement that predates the acquisition
of the property by the Operating Partnership, provided that the Operating
Partnership shall offer any such "master" lessee interest to InnSuites
Lessee if the lessee interest subsequently becomes available), or (2) an
opportunity in which the seller of the property (or any affiliate or
designee of the seller) desires to enter into a "master" lease agreement
with the Operating
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Partnership. InnSuites Lessee shall have the right from time to time to
provide written notice to the Operating Partnership specifying certain
criteria for a Tenant Opportunity in addition to the criteria specified
above in this definition of Tenant Opportunity. Any such written notice
from InnSuites Lessee may be modified or canceled by written notice given
by InnSuites Lessee at any time. The definition of Tenant Opportunity shall
be modified as appropriate from time to time in accordance with any such
written notices sent by InnSuites Lessee.
(e) "Operating Opportunity" means the opportunity for InnSuites
Management to become the operator under an operating arrangement for any
and all properties which are the subject of a "master" lease arrangement
between the Operating Partnership and InnSuites Lessee pursuant to this
Agreement. An Operating Opportunity shall not include a property which
already has an existing operating arrangement as of the date of this
Agreement (or, with respect to a property acquired subsequent to the date
of this Agreement, which has an existing binding operating arrangement that
predates the lease of the property by InnSuites Lessee, provided that
InnSuites Lessee shall offer any such operating interest to InnSuites
Management if the operating interest subsequently becomes available).
InnSuites Management shall have the right from time to time to provide
written notice to InnSuites Lessee specifying certain criteria for an
Operating Opportunity in addition to the criteria specified above in this
definition of Operating Opportunity. Any such written notice from InnSuites
Management may be modified or canceled by written notice given by InnSuites
Management at any time. The definition of Operating Opportunity shall be
modified as appropriate from time to time in accordance with any such
written notices sent by InnSuites Management.
2. Operating Partnership Right of First Opportunity; Notification Right.
(a) Right of First Opportunity.
(i) During the term of this Agreement, if either of the Tenants
develops a REIT Opportunity, or if any REIT Opportunity otherwise
becomes available to them, such Tenant shall first offer such REIT
Opportunity to the Operating Partnership. The offer shall be made by
written notice from the appropriate Tenant to the Operating
Partnership (the "REIT Opportunity Notice"), which REIT Opportunity
Notice shall contain a detailed description of the material terms and
conditions of the REIT Opportunity. The Operating Partnership shall
have ten (10) days (the "REIT Opportunity Period") from the date of
its receipt of the REIT Opportunity Notice to notify the appropriate
Tenant in writing that it has accepted or rejected the REIT
Opportunity. If the Operating Partnership does not so respond by the
end of the REIT Opportunity Period, the Operating Partnership shall be
deemed to have rejected the REIT Opportunity. If the Operating
Partnership accepts a REIT Opportunity, but subsequently decides not
to pursue such opportunity, or for any other reason fails to
consummate the REIT Opportunity, the Operating Partnership shall
immediately provide written notice that it is no longer pursuing such
REIT Opportunity to both Tenants.
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(ii) If the Operating Partnership rejects a REIT Opportunity, or
accepts such REIT Opportunity but thereafter provides, or is required
by the provisions hereof to provide, written notice to both Tenants
that it is no longer pursuing such REIT Opportunity, InnSuites
Management shall, for a period of one year after the Operating
Partnership Withdrawal Date (as hereinafter defined) (the "One-Year
Period"), be entitled to acquire the REIT Opportunity (A) at a price
and on terms and conditions that are not more favorable to InnSuites
Management in any material respect than the price and terms and
conditions set forth in the REIT Opportunity Notice relating to such
REIT Opportunity, or (B) if the Operating Partnership, at any time
after the REIT Opportunity Notice, negotiated a different price,
terms, or conditions with the seller, then at a price, and on terms
and conditions, that are not more favorable than such price and terms
and conditions negotiated by the Operating Partnership with the
seller. If InnSuites Management does not enter into a binding
agreement to acquire the REIT Opportunity within the One-Year Period,
InnSuites Lessee shall, for a period of one year following the
expiration of the One-Year Period, be entitled to acquire the REIT
Opportunity (A) at a price and on terms and conditions that are not
more favorable to InnSuites Lessee in any material respect than the
price and terms and conditions set forth in REIT Opportunity Notice
relating to such REIT Opportunity, or (B) if the Operating Partnership
or InnSuites Management, at any time after the REIT Opportunity
Notice, negotiated a different price, terms, or conditions with the
seller, then at a price, and on terms and conditions, that are not
more favorable than such price and terms and conditions negotiated by
the Operating Partnership or InnSuites Management with the seller. If
neither InnSuites Management nor InnSuites Lessee enter into a binding
agreement to acquire the REIT Opportunity within their respective
allotted periods, or if the price and terms and conditions are more
favorable to InnSuites Management or InnSuites Lessee in any material
respect than the price and terms and conditions set forth in the REIT
Opportunity Notice (or, if applicable, than the price and terms and
conditions negotiated by the Operating Partnership with the seller
subsequent to the REIT Opportunity Notice), InnSuites Management or
InnSuites Lessee (as the case may be) shall again be required to
comply with the procedures set forth above in Section 2(a)(i) if it
desires to acquire such REIT Opportunity. The "Operating Partnership
Withdrawal Date" means any one of the following dates, as applicable:
(A) the date that the Operating Partnership notifies the appropriate
Tenant that it has rejected the REIT Opportunity, (B) if the Operating
Partnership does not respond to such Tenant regarding the REIT
Opportunity, the expiration date of the Ten-Day Period, or (C) if the
Operating Partnership accepts the REIT Opportunity but subsequently
ceases to pursue the opportunity, the earlier of (i) thirty (30) days
after the date on which the Operating Partnership ceases to pursue the
REIT Opportunity or (ii) the date of receipt by such Tenant of written
notice from the Operating Partnership that it is no longer pursuing
the REIT Opportunity.
(iii) Each of the Tenants agrees to use its commercially
reasonable best efforts to assist the Operating Partnership in
structuring and consummating any REIT Opportunity accepted by the
Operating Partnership, on terms determined by
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the Operating Partnership (including without limitation structuring
such investment opportunity as a "REIT-Qualified Investment," as
hereinafter defined). A "REIT-Qualified Investment" means an
investment, the income from which would qualify under the 95% gross
income test set forth in section 856(c)(2) of the Code, the ownership
of which would not cause a REIT to violate the asset limitations set
forth in section 856(c)(5) of the Code, and which otherwise meets the
federal income tax requirements applicable to REITs. Any expenses
incurred that are directly related to structuring an investment as a
REIT-Qualified Investment shall be borne solely by the Operating
Partnership.
(b) Notification Right. In the event that either of the Tenants
develops or becomes aware of any investment opportunity during the term of
this Agreement (other than a REIT Opportunity), and such Tenant is not
interested in pursuing such opportunity, or the opportunity is otherwise
unavailable to the Tenant, such Tenant shall immediately notify the
Operating Partnership of such opportunity and provide to the Operating
Partnership a copy of all written information, and a description of all
material terms not set forth in writing, available to the Tenant concerning
such opportunity.
3. Operating Partnership Right of First Opportunity Following Tenant
Acquisition of a REIT Opportunity
(a) If either of the Tenants acquires a REIT Opportunity pursuant to
the provisions of Section 2(a)(ii) of this Agreement and desires to sell,
dispose, or otherwise transfer any portion of its interest in such REIT
Opportunity within five (5) years of the acquisition of such REIT Opportunity (a
"Disposition Opportunity"), such Tenant shall first offer such Disposition
Opportunity to the Operating Partnership. The offer shall be made by written
notice from the appropriate Tenant to the Operating Partnership (the
"Disposition Opportunity Notice"). The Operating Partnership shall have thirty
(30) days (the "Thirty-Day Disposition Period") from the date of its receipt of
the Disposition Opportunity Notice regarding such Disposition Opportunity to
notify the appropriate Tenant in writing that it has accepted or rejected the
Disposition Opportunity. If the Operating Partnership does not so respond by the
end of the Thirty-Day Disposition Period, the Operating Partnership shall be
deemed to have rejected the Disposition Opportunity. If the Operating
Partnership accepts a Disposition Opportunity, but subsequently decides not to
pursue such opportunity, or for any other reason fails to consummate such
Disposition Opportunity, the Operating Partnership shall immediately provide
written notice that it is no longer pursuing such Disposition Opportunity to the
appropriate Tenant.
(b) If the Tenant does not enter into a binding agreement to exercise
the Disposition Opportunity within one year of the termination of the Thirty-Day
Disposition Period, the Tenant shall again be required to comply with the
procedures set forth above in Section 3(a) if it desires to exercise such
Disposition Opportunity.
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4. Operating Partnership Option to Purchase Following Tenant Acquisition
of a REIT Opportunity
(a) If either of the Tenants acquires a REIT Opportunity pursuant to
the provisions of Section 2(a)(ii) of this Agreement, such Tenant shall grant
the Operating Partnership an option to acquire (an "Option") the property that
was the subject of such REIT opportunity. The Operating Partnership may exercise
an Option for an amount equal to the greater of (i) 90% of the value of an
Option Property established by an appraisal conducted by a Member of the
Appraisal Institute (MAI) (which appraisal shall be completed within sixty (60)
days of the delivery of an exercise notice to the Operating Partnership), or
(ii) the sum of (A) the total cost to the Tenant to acquire such Option
Property, (B) any interest charges or expenses incurred by the Tenant relating
to, and during its ownership of, such Option Property, (C) any net operating
losses incurred by the Tenant relating to its ownership of such Option Property,
and (D) an annual return of ten percent (10%) computed on the equity invested by
Tenant in the Option Property. The Operating Partnership shall have thirty (30)
days (the "Thirty-Day Period") from the date of its receipt of the MAI appraisal
report regarding such Option to notify the appropriate Tenant in writing that it
has decided to proceed to acquire the Option Property. If the Operating
Partnership does not so respond by the end of the Thirty-Day Period, the
Operating Partnership shall be deemed to have rejected the Option.
(b) An Option shall be exercisable until the earlier to occur of (i)
three (3) years from the date of Tenant's acquisition of an Option Property, or
(ii) the prior disposition of such Option Property in accordance with the
provisions of this Agreement.
5. InnSuites Lessee Right of First Opportunity for Tenant Opportunity.
(a) From and after the date hereof, and throughout the remaining term
of this Agreement, if the Operating Partnership develops a Tenant Opportunity,
or if a Tenant Opportunity otherwise becomes available to the Operating
Partnership, the Operating Partnership shall first offer such Tenant Opportunity
to InnSuites Lessee. The offer shall be made by written notice from the
Operating Partnership to InnSuites Lessee (the "Tennant Opportunity Notice"),
which Tennant Opportunity Notice shall contain a detailed description of the
material terms and conditions under which the Operating Partnership proposes to
offer such Tenant Opportunity to InnSuites Lessee. The Operating Partnership
shall thereafter provide or cause to be provided promptly to InnSuites Lessee
such additional information relating to the Tenant Opportunity as InnSuites
Lessee reasonably may request. For a period of thirty (30) days after the date
that the Operating Partnership delivers the Tennant Opportunity Notice to
InnSuites Lessee, the Operating Partnership and InnSuites Lessee shall negotiate
with each other on an exclusive basis with respect to such Tenant Opportunity.
If the Operating Partnership and InnSuites Lessee are unable to enter into a
mutually satisfactory arrangement with respect to the Tenant Opportunity within
such 30-day period, or if InnSuites Lessee indicates that it is not interested
in pursuing such Tenant Opportunity (in which event InnSuites Lessee shall
provide written notice to the Operating Partnership as soon as InnSuites Lessee
decides against pursuing such opportunity), then the Operating Partnership shall
be free for a period of one year after the expiration of such 30-day period to
enter into a binding agreement with respect to such Tenant Opportunity with
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InnSuites Management or any other party at a price and on terms and conditions
that are not more favorable to the Operating Partnership in any material respect
than the price and terms and conditions set forth in the Tennant Opportunity
Notice relating to such Tenant Opportunity. If the Operating Partnership does
not enter into a binding agreement with respect to such Tenant Opportunity
within such one-year period, or if the price and terms and conditions are more
favorable to the Operating Partnership in any material respect than the price
and terms and conditions set forth in the Tennant Opportunity Notice relating to
such tenant Opportunity, the Operating Partnership shall again be required to
comply with the procedures set forth above in this Section 4(a) if it thereafter
desires to pursue such Tenant Opportunity.
(b) Notwithstanding anything to the contrary contained in this
Agreement, (1) the Operating Partnership shall not be required to offer to
InnSuites Lessee any Tenant Opportunity in connection with a proposed
acquisition until a binding contract has been entered into with respect to such
acquisition, and the consummation of any agreement between the Operating
Partnership and InnSuites Lessee with respect to a Tenant Opportunity shall be
subject to the actual closing of such acquisition by the Operating Partnership,
(2) the Operating Partnership shall have the right in its sole discretion to
decide not to pursue, or to discontinue at any time pursuing, any investment
opportunity, even if such opportunity, if pursued, would create a Tenant
Opportunity, and (3) the Operating Partnership shall have no obligation to offer
any opportunity other than a Tenant Opportunity to InnSuites Lessee.
(c) InnSuites Lessee agrees to cooperate with the Operating
Partnership in structuring all dealings with outside parties in connection with
any Tenant Opportunity that InnSuites Lessee and the Operating Partnership agree
to enter into pursuant to Section 4(a) above. InnSuites Lessee agrees to
cooperate with the Operating Partnership in structuring any Tenant Opportunity
with the Operating Partnership as a "REIT-Qualified Investment" for the
Operating Partnership. The Operating Partnership shall have the right, in its
sole discretion, to structure any investment as a REIT-Qualified Investment,
even if such structuring prevents the Operating Partnership from creating a
Tenant Opportunity for InnSuites Lessee.
6. InnSuites Management Right of First Opportunity for Operating
Opportunity.
(a) From and after the date hereof, and throughout the remaining term
of this Agreement, if InnSuites Lessee develops an Operating Opportunity, or if
an Operating Opportunity otherwise becomes available to InnSuites Lessee,
InnSuites Lessee shall first offer such Operating Opportunity to InnSuites
Management. The offer shall be made by written notice from InnSuites Lessee to
InnSuites Management (the "Operating Opportunity Notice"), which Operating
Opportunity Notice shall contain a detailed description of the material terms
and conditions under which InnSuites Lessee proposes to offer such Operating
Opportunity to InnSuites Management. InnSuites Lessee shall thereafter provide
or cause to be provided promptly to InnSuites Management such additional
information relating to the Operating Opportunity as InnSuites Management
reasonably may request. For a period of thirty (30) days after the date that
InnSuites Lessee delivers the Operating Opportunity Notice to InnSuites
Management, InnSuites Lessee and InnSuites Management shall negotiate with each
other on an exclusive basis with respect to such Operating Opportunity. If
InnSuites Lessee and InnSuites
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Management are unable to enter into a mutually satisfactory arrangement with
respect to the Operating Opportunity within such 30-day period, or if InnSuites
Management indicates that it is not interested in pursuing such Operating
Opportunity (in which event InnSuites Management shall provide written notice to
InnSuites Lessee as soon as InnSuites Management decides against pursuing such
opportunity), then InnSuites Lessee shall be free for a period of one year after
the expiration of such 30-day period to enter into a binding agreement with
respect to such Operating Opportunity with any party at a price and on terms and
conditions that are not more favorable to InnSuites Lessee in any material
respect than the price and terms and conditions set forth in the Operating
Opportunity Notice relating to such Operating Opportunity. If InnSuites Lessee
does not enter into a binding agreement with respect to such Operating
Opportunity within such one-year period, or if the price and terms and
conditions are more favorable to InnSuites Lessee in any material respect than
the price and terms and conditions set forth in the Operating Opportunity Notice
relating to such Operating Opportunity, InnSuites Lessee shall again be required
to comply with the procedures set forth above in this Section 5(a) if it
thereafter desires to pursue such Operating Opportunity.
(b) Notwithstanding anything to the contrary contained in this
Agreement, (1) InnSuites Lessee shall not be required to offer to InnSuites
Management any Operating Opportunity in connection with a proposed lease of any
property until a binding contract has been entered into with respect to such
property, and the consummation of any agreement between InnSuites Lessee and
InnSuites Management with respect to a Operating Opportunity shall be subject to
the actual lease of such property by InnSuites Lessee, (2) InnSuites Lessee
shall have the right in its sole discretion to decide not to pursue, or to
discontinue at any time pursuing, any lease opportunity, even if such
opportunity, if pursued, would create an Operating Opportunity, and (3)
InnSuites Lessee shall have no obligation to offer any opportunity other than an
Operating Opportunity to InnSuites Management.
(c) InnSuites Management agrees to cooperate with InnSuites Lessee in
structuring all dealings with outside parties in connection with any Operating
Opportunity that InnSuites Lessee and InnSuites Management agree to enter into
pursuant to Section 5(a) above. InnSuites Management agrees to cooperate with
InnSuites Lessee and the Operating Partnership in structuring any Operating
Opportunity with InnSuites Lessee as a "REIT-Qualified Investment" for the
Operating Partnership. The Operating Partnership shall have the right, in its
sole discretion, to structure any investment as a REIT-Qualified Investment,
even if such structuring prevents InnSuites Lessee from creating an Operating
Opportunity for InnSuites Management.
7. General Terms and Conditions for Rights of First
Opportunity/Notification Rights.
(a) Unless waived or unless agreed to as part of an investment and/or
lease, each party shall bear its own expenses with respect to any opportunity to
which this Agreement is applicable, and each party agrees that it shall not be
entitled to any compensation from the other party with respect to any such
opportunity.
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(b) A party shall not be required to comply with the rights of first
opportunity and notification requirements set forth in this Agreement during any
period in which the other party or any Controlled Affiliate of such other party
(as hereinafter defined) is in default of this Agreement or any other agreement
entered into by the parties hereto or any of their Controlled Affiliates, if
such default is material and remains uncured for fifteen days after receipt of
notice thereof. A "Controlled Affiliate" of a party means any entity controlled
by, controlling or under common control with such party.
(c) Any opportunity which is offered to a party under this Agreement
and rejected by such party may thereafter be offered to Insiders, subject to the
reoffer provisions set forth in Sections 2(a)(ii), 3(b), 5(a), and 6(a) above.
(d) Any opportunity which is offered to and accepted by the Operating
Partnership under this Agreement may be entered into by or on behalf of the
Operating Partnership or by any designee which is a Company Affiliate or
Controlled Affiliate of the Operating Partnership. Any opportunity which is
offered to and accepted by either of the Tenants under this Agreement may be
entered into by or on behalf of such Tenant or by any designee which is a
Controlled Affiliate of such Tenant.
(e) All rights of first opportunity and notification rights set forth
in this Agreement shall be subordinated to any seller consent and
confidentiality requirements; no party shall be required to comply with the
rights of first opportunity and notification rights set forth in this Agreement
if such compliance would violate any seller consent or confidentiality
requirements.
(f) While it is the intention of the parties to align their businesses
in accordance with the terms of this Agreement, each party shall act
independently in its own best interests, and neither party shall be considered a
partner or agent of the other party or to owe any fiduciary or other common law
duties to the other party.
8. Specific Performance. Each party hereto hereby acknowledges that the
obligations undertaken by it pursuant to this Agreement are unique and that the
other party hereto would likely have no adequate remedy at law if such party
shall fail to perform its obligations hereunder, and such party therefor
confirms that the other party's right to specific performance of the terms of
this Agreement is essential to protect the rights and interests of the other
party. Accordingly, in addition to any other remedies that a party hereto may
have at law or in equity, such party shall have the right to have all
obligations, covenants, agreements, and other provisions of this Agreement
specifically performed by the other party hereto and the right to obtain a
temporary restraining order or a temporary or permanent injunction to secure
specific performance and to prevent a breach or threatened breach of this
Agreement by the other party hereto. Each party submits to the jurisdiction of
the courts of the State of Ohio for this purpose.
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9. Affiliates. Each party hereto shall cause all entities that are under
its control to comply with the terms hereof. InnSuites Trust, by its signature
below, hereby agrees that it shall comply with the terms of this Agreement
applicable to the Operating Partnership.
10. Term. The term of the Agreement shall commence as of the date first
written above and shall terminate on January 31, 2009. Notwithstanding the
foregoing, a party hereto may terminate this Agreement if the other party or any
Controlled Affiliate of such other party is in default of this Agreement or any
other agreement entered into by the parties hereto or any of their Controlled
Affiliates, if such default is material and remains uncured for fifteen days
after receipt of notice thereof.
11. Miscellaneous.
(a) Notices. Notices shall be sent to the parties at the following
addresses:
RRF Limited Partnership (Operating Parthership)
c/o InnSuites Hospitality Trust
1625 E. Northern Avenue
Suite 201
Phoenix, Arizona 85020
Attention: Executive Vice President
Phone: 602-944-1500
Facsimile: 602-678-0281
with a copy to:
James B. Aronoff, Esq.
Thompson Hine & Flory LLP
3900 Key Center
127 Public Square
Cleveland, Ohio 44114
Phone: 216-566-5500
Facsimile: 216-566-5800
InnSuites Hotels, Inc. (InnSuites Lessee)
1625 E. Northern Avenue
Suite 201
Phoenix, Arizona 85020
Attention: President
Phone: 602-944-1500
Facsimile: 602-678-0281
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with a copy to:
James W. Reynolds, Esq.
Dillingham Cross, P.L.C.
5080 North 40/th/ Street
Suite 335
Phoenix, Arizona 85018
Phone: 602-468-1811
Facsimile: 602-468-0442
InnSuites Innternational Hotels, Inc. (InnSuites Management)
1625 E. Northern Avenue
Suite 201
Phoenix, Arizona 85020
Attention: President
Phone: 602-944-1500
Facsimile: 602-678-0281
with a copy to:
James W. Reynolds, Esq.
Dillingham Cross, P.L.C.
5080 North 40/th/ Street
Suite 335
Phoenix, Arizona 85018
Phone: 602-468-1811
Facsimile: 602-468-0442
Notices shall first be sent by facsimile, with confirming copy to be sent
by certified mail, return receipt requested, Federal Express or comparable
overnight delivery service. Notice will be deemed received on the fourth
business day following deposit in U.S. mail or deposit with Federal Express or
other delivery service. Any party to this Agreement may change its address for
notice by giving written notice to the other party at the address and in
accordance with the procedures provided above.
(b) Reasonable and Necessary Restrictions. Each of the parties hereto
hereby acknowledges and agrees that the restrictions, prohibitions and other
provisions of this Agreement are reasonable, fair and equitable in scope, term
and duration, are necessary to protect the legitimate business interests of the
parties hereto and are a material inducement to the parties hereto to enter into
the transactions described in and contemplated by the recitals hereto. Each
party hereto covenants that it will not sue to challenge the enforceability of
this Agreement or raise any equitable defense to its enforcement.
(c) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective successors and
assigns. This Agreement shall not be assigned without the express written
consent of each of the parties hereto. Notwithstanding the foregoing, this
Agreement may be assigned without the consent of any party
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hereto in connection with any merger, consolidation, reorganization or other
combination of a party with or into another entity where the party is not the
surviving entity.
(d) Amendments; Waivers. No termination, cancellation, modification,
amendment, deletion, addition or other change in this Agreement, or any
provision hereof, or waiver of any right or remedy herein provided, shall be
effective for any purpose unless such change or waiver is specifically set forth
in a writing signed by the party or parties to be bound thereby. The waiver of
any right or remedy with respect to any occurrence on one occasion shall not be
deemed a waiver of such right or remedy with respect to such occurrence on any
other occasion.
(e) Choice of Law. This Agreement and the rights and obligations of
the parties hereunder shall be governed by the laws of the State of Ohio,
without regard to the principles of choice of law thereof.
(f) Severability. In the event that one or more of the terms or
provisions of this Agreement or the application thereof to any person(s) or in
any circumstance(s) shall, for any reason and to any extent be found by a court
of competent jurisdiction to be invalid, illegal or unenforceable, such court
shall have the power, and hereby is directed, to substitute for or limit such
invalid term(s), provision(s) or application(s) and to enforce such substituted
or limited terms or provisions, or the application thereof. Subject to the
foregoing, the invalidity, illegality or enforceability of any one or more of
the terms or provisions of this Agreement, as the same may be amended from time
to time, shall not affect the validity, legality or enforceability of any other
term or provision hereof.
(g) Entire Agreement; No Third-Party Beneficiaries. This Agreement (i)
constitutes the entire agreement and supersedes all prior agreements,
understandings, negotiations and discussions, whether written or oral, between
the parties hereto with respect to the subject matter hereof, so that no such
external or separate agreement relating to the subject matter of this Agreement
shall have any effect or be binding, unless the same is referred to specifically
in this Agreement or is executed by the parties after the date hereof; and (ii)
is not intended to confer upon any other person any rights or remedies
hereunder, and shall not be enforceable by any party not a signatory to this
Agreement.
(h) Gender; Number. As the context requires, any word used herein in
the singular shall extend to and include the plural, any word used in the plural
shall extend to and include the singular and any word used in any gender or the
neuter shall extend to and include each other gender or be neutral.
(i) Headings. The headings of the sections hereof are inserted for
convenience of reference only and are not intended to be a part of or affect the
meaning or interpretation of this Agreement or of any term or provision hereof.
(j) Counterparts. This Agreement may be executed in two or more
counterparts, each of which together shall be deemed to be an original and all
of which together shall be deemed to constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed by one of its duly authorized corporate officers, as of the date
first above written.
RRF LIMITED PARTNERSHIP, a Delaware
limited partnership
By: InnSuites Hospitality Trust, an Ohio real
estate investment trust, its sole general
partner
By: /s/ James F. Wirth
-----------------------------------
Name: James F. Wirth
----------------------------
Title: President
---------------------------
INNSUITES HOTELS, INC.,
a Nevada corporation
By: /s/ William Kidwell
-----------------------------------
Name: William Kidwell
----------------------------
Title: President
---------------------------
INNSUITES INNTERNATIONAL HOTELS,
INC., a Nevada corporation
By: /s/ James F. Wirth
-----------------------------------
Name: James F. Wirth
----------------------------
Title: President
---------------------------
The undersigned, the sole general partner of the Operating Partnership,
hereby agrees to the restrictions imposed upon it pursuant to Section 7 of the
Agreement.
INNSUITES HOSPITALITY TRUST, an Ohio
real estate investment trust
By: /s/ James F. Wirth
-----------------------------------
Name: James F. Wirth
------------------------------
Title: President
-----------------------------
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