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Exhibit (10)(p)
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT (the "Agreement") is made
and entered into this 10th day of August, 2000, by and between ▇▇▇▇▇▇'▇
RESTAURANTS, INC., an Ohio corporation ("Seller"), and REMINGTON HOTEL
CORPORATION, a Texas corporation ("Purchaser").
R E C I T A L S:
A. Seller is the owner of a certain hotel commonly known as the Clarion
Hotel, Covington, Kentucky.
B. Purchaser desires to purchase from Seller, and Seller is willing to
sell to Purchaser, in accordance with the terms and conditions hereinafter set
forth, such hotel and related property.
W I T N E S S E T H:
NOW, THEREFORE, for and in consideration of the above premises, the
mutual promises and covenants herein contained, and for other good and valuable
consideration, the full receipt and sufficiency of which is hereby acknowledged
by the parties hereto, it is hereby agreed as follows:
1. SALE AND PURCHASE.
1.1 DESCRIPTION. Seller and Purchaser agree that at Closing
(hereinafter defined), subject to the terms and conditions of this
Agreement, Seller will sell, assign, convey and deliver to Purchaser,
and Purchaser will purchase and accept conveyance and delivery of, all
of the following tangible and intangible property and assets,
agreements, contracts, contract rights, leases, licenses, business,
goodwill and property (real, leasehold, personal and mixed) in which
Seller has any right, title and interest (collectively, the "Assets" or
the "Property"):
1.1.1 FEE SIMPLE ESTATE. Those certain tracts or
parcels of land situated in Covington, Kentucky, more
particularly described in Exhibit "A" attached hereto and
incorporated herein for all purposes, together with all strips
and gores, rights of way, privileges and appurtenances
pertaining thereto, including any right, title and interest of
Seller in and to any street adjoining any portion of such
property (collectively, the "Fee Simple Real Property");
1.1.2 FEE SIMPLE IMPROVEMENTS. All parking areas and
all buildings, structures, facilities and improvements located
on the Fee Simple Real Property and including, without
limitation, all mechanical systems, fixtures and equipment;
heating systems, fixtures and equipment; air conditioning
systems, fixtures and equipment; plumbing systems, fixtures
and equipment; electrical systems, fixtures and equipment; and
ventilating systems, fixtures and equipment (collectively, the
"Fee Simple Improvements");
1.1.3 LEASEHOLD ESTATE. All of Seller's interest,
right and title in the leasehold estate (the "Leasehold
Estate") created by that certain Lease dated May 1, 1970
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Exhibit (10)(p)
(the "Ground Lease") covering those certain tracts or parcels
of land situated in Covington, Kentucky, more particularly
described in Exhibit "A-1" attached hereto and incorporated
herein for all purposes, together with all of Seller's fee
simple interest, if any, in the property described on Exhibit
"A-1", together with all strips and gores, rights of way,
privileges and appurtenances pertaining thereto, including any
right, title and interest of Seller in and to any street
adjoining any portion of such property (collectively, the
"Leasehold Real Property"). The Fee Simple Real Property and
the Leasehold Real Property shall be collectively referred to
as the "Real Property".
1.1.4 LEASEHOLD IMPROVEMENTS. All parking areas and
all buildings, structures, facilities and improvements located
on the Leasehold Real Property and including, without
limitation, all mechanical systems, fixtures and equipment;
heating systems, fixtures and equipment; air conditioning
systems, fixtures and equipment; plumbing systems, fixtures
and equipment; electrical systems, fixtures and equipment; and
ventilating systems, fixtures and equipment (collectively, the
"Leasehold Improvements"). The Fee Simple Improvements and the
Leasehold Improvements shall be collectively referred to as
the "Improvements".
1.1.5 PERSONAL PROPERTY. All equipment, furniture,
furnishings, fixtures, machinery, compressors, appliances,
engines, desks, files, tools, spare parts, inventory, food and
beverage inventory, and other items of tangible personal
property owned by Seller for use in connection with its
operations of the Real Property (collectively, the "Personal
Property"). The Personal Property to be conveyed is subject to
depletions, replacements and additions in the ordinary course
of Seller's business, subject, however, to the covenants of
Seller provided in Section 11.2 hereof;
1.1.6 TENANT LEASES. All of Seller's rights and
interests in and to all leases, subleases and other rental
agreements (written or verbal, now or hereafter in effect)
that grant a possessory interest in and to any space situated
in the Improvements or that otherwise grant rights for the use
of the Improvements or any portion thereof (collectively, the
"Tenant Leases"), all such Tenant Leases (both written and
verbal) being more particularly described on Exhibit "B"
attached hereto; and all security deposits and other deposits
held in connection with the Tenant Leases;
1.1.7 MAINTENANCE AGREEMENTS, SERVICE CONTRACTS,
EQUIPMENT LEASES, AND OTHER CONTRACTS. All of Seller's rights
and interests in and to all maintenance agreements, service
contracts, equipment leases and other contracts, agreements
and contract rights (collectively, the "Maintenance
Agreements") of every kind concerning the operations of the
Real Property but only to the extent assignable (and assumed
by Purchaser pursuant to Section 4.4 hereof), as more
particularly set forth
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Exhibit (10)(p)
on Exhibit "C" attached hereto, together with all related
deposits, prepaid items and open orders for the purchase of
personal property;
1.1.8 ACCOUNTS. All of the outstanding accounts
receivable or other earned, unpaid income (the "Receivables")
owed to Seller on account of Seller's operations of the Real
Property as of Closing (hereinafter defined) shall be retained
by Seller and not purchased by Purchaser;
1.1.9 WARRANTIES. All of Seller's right, title and
interest in and to all transferable warranties and guaranties,
express or implied, related to any of the Assets (the
"Warranties") from any contracts, contractors, subcontractors,
materialmen, suppliers or vendors, but only to the extent that
such Warranties are assignable;
1.1.10 SURVEYS. Any and all site plans, surveys, soil
and substrata studies, architectural drawings, plans and
specifications, engineering plans and studies, landscape
plans, environmental site assessments and/or reports and any
other plans or studies of any kind (the "Plans and Studies"),
if any, in Seller's possession or control that relate to the
Real Property (provided Seller makes no representations or
warranties as to the accuracy or completeness of any such
studies, reports, plans or environmental audits);
1.1.11 LICENSES, PERMITS, APPROVALS AND TRADENAMES.
All licenses, permits, approvals, tradenames and other
intangible property rights for or related to the use,
occupancy or operation of the Real Property and the
Improvements thereon, or the services rendered in connection
therewith, but only to the extent transferrable, including,
without limitation, all transferable liquor licenses
(hereinafter the "Licenses and Permits"), a complete list of
which is attached hereto as Exhibit "D";
1.1.12 EASEMENTS AND AWARDS. All right, title and
interest of Seller, if any, in and to any easements,
rights-of-way, privileges, licenses or other interests in, on,
or to, any land, highway, street, road, or avenue, open or
proposed, in, on or across, in front of, abutting or
adjoining, the Real Property; and all right, title and
interest of Seller, if any, in and to any awards made, or to
be made in lieu thereof, and in and to any unpaid awards for
damage thereto by reason of a change of grade of any such
highway, street, road or avenue (collectively, the "Easements
and Awards");
1.1.13 INVENTORY. All inventories of supplies used in
connection with the operation of the Assets;
1.1.14 ADVANCE DEPOSITS. The advance reservations and
bookings, as the same may be amended, cancelled and renewed
(the "Reservations") and advance deposits made in respect
thereof (the "Reservation Deposits").
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Exhibit (10)(p)
1.2 CONVEYANCE OF TITLE. Seller agrees to convey, and Purchaser
agrees to accept, title to the Leasehold Estate and Leasehold
Improvements by General Warranty Assignment and Assumption of Leasehold
(or similar form generally accepted in the applicable jurisdiction) and
title to the Fee Simple Real Property and Fee Simple Improvements by
Bargain and Sale Deed with Covenants Against Grantor Acts (or similar
form generally accepted in the applicable jurisdiction), in form
satisfactory to Purchaser and its counsel, subject only to the
Permitted Exceptions (hereinafter defined), and title to the Personal
Property, by ▇▇▇▇ of Sale with warranty as to title.
2. PURCHASE PRICE; PAYMENT OF PURCHASE PRICE AND ▇▇▇▇▇▇▇ MONEY AND
ALLOCATION
2.1 PURCHASE PRICE. The purchase price ("Purchase Price")
hereunder for the Assets shall be TWELVE MILLION FOUR HUNDRED THOUSAND
AND 00/100 DOLLARS ($12,400,000.00), as adjusted pursuant to the terms
of this Agreement, and to be payable at Closing in immediately
available federal funds by wire transfer or other form acceptable to
Seller.
2.2 ▇▇▇▇▇▇▇ MONEY. Within three (3) days after the Effective
Date (hereinafter defined), Purchaser shall deliver to Fidelity
National Title Insurance Company, ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the "Escrow Agent"), the
sum of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) in
immediately available federal funds to be held by the Escrow Agent in a
federally insured, interest bearing trust account satisfactory to
Purchaser (the "First Deposit"). Provided Purchaser does not terminate
this Agreement pursuant to Section 4.6 hereof, Purchaser shall deposit
with Escrow Agent the additional sum of Two Hundred Fifty Thousand and
No/100 Dollars ($250,000.00) within two (2) business days following the
expiration of the Inspection Period (the "Second Deposit"). The First
Deposit and the Second Deposit (collectively, together with accrued
interest therein, herein called the "▇▇▇▇▇▇▇ Money") shall be held by
Escrow Agent and disbursed or applied by Escrow Agent in accordance
with the provisions of this Agreement. All interest accrued on the
▇▇▇▇▇▇▇ Money shall be reported under Purchaser's federal tax
identification number. If the sale of the Assets is not consummated,
the ▇▇▇▇▇▇▇ Money shall be disbursed in strict accordance with the
terms hereof to Purchaser, or delivered to Seller as liquidated damages
as herein provided. If the sale of the Assets is consummated, the
▇▇▇▇▇▇▇ Money shall be applied to the Purchase Price.
A fully executed copy of this Agreement shall be deposited
with Escrow Agent, and Escrow Agent is hereby appointed and designated
to act as escrow agent and is authorized and instructed to hold the
▇▇▇▇▇▇▇ Money and to distribute or apply the ▇▇▇▇▇▇▇ Money in strict
accordance with the terms and conditions hereof.
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Exhibit (10)(p)
2.3 RIGHTS OF ESCROW AGENT.
(a) Escrow Agent shall be entitled to rely upon, and
shall be fully protected from all liability, loss, cost,
damage or expense in acting or omitting to act pursuant to,
any instruction, order, judgment, certification, affidavit,
demand, notice, opinion, instrument or other writing delivered
to it which the Escrow Agent in good faith believes to be
genuine, without being required to determine the authenticity
of such document, the correctness of any fact stated therein,
the propriety of the service thereof or the capacity, identity
or authority of any party purporting to sign or deliver such
document.
(b) The duties of Escrow Agent are only as herein
specifically provided, and are purely ministerial in nature.
This Agreement sets forth all the obligations of Escrow Agent
with respect to any and all matters pertinent to the escrow
contemplated hereunder and no additional obligations of Escrow
Agent shall be implied from the terms of this Agreement or any
other Agreement. Escrow Agent shall incur no liability in
connection with the discharge of its obligations under this
Agreement or otherwise in connection therewith, except such
liability as may arise from the gross negligence or willful
misconduct of Escrow Agent.
(c) Escrow Agent may consult with counsel of its
choice and shall not be liable for any action taken or omitted
to be taken by Escrow Agent in good faith in accordance with
the advice of such counsel.
(d) Escrow shall not be bound by any modification,
cancellation or rescission of this Agreement unless in writing
and signed by Escrow Agent.
(e) Escrow Agent shall have no tax reporting duties
with respect to the Escrow Funds, the closing proceeds
delivered to Escrow Agent or income on any of the foregoing,
such duties being the responsibility of the party or parties
which receive, or have the right to receive, any taxable
income hereunder. Notwithstanding the foregoing, Escrow Agent
has the authority to comply with the provisions of Section
468B(g) in the Internal Revenue Code of 1986, as amended, and
any regulations promulgated thereunder. Such authority shall
include, without limitation, (i) the filing of tax returns
(including information returns) with respect to any funds or
income thereon, (ii) the payment of any tax, interests or
penalties imposed thereon, (iii) the withholding of any
amounts which are required to be withheld and (iv) the payment
of such withheld amounts to the appropriate taxing authority.
The parties to this Agreement, other than the Escrow Agent,
shall provide the Escrow Agent with all information necessary
to enable Escrow Agent to comply with the foregoing. Escrow
Agent may withdraw from the funds held in escrow any amounts
necessary to pay all applicable income or withholding taxes
(plus interest and penalties thereon) that are required to be
paid.
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Exhibit (10)(p)
(f) Escrow Agent is acting as a stakeholder only with
respect to the total documents and funds delivered in escrow
to it. If any dispute arises as to whether Escrow Agent is
obligated to deliver any escrowed documents or funds or as to
whom any escrowed documents or funds are to be delivered,
Escrow Agent shall not be required to make any delivery, but
in such event Escrow Agent may hold such documents and funds
until receipt by Escrow Agent of instructions in writing,
signed by all parties which have, or claim to have, an
interest therein, directing the disposition of such documents
and funds. In the absence of such authorization, Escrow Agent
may hold such documents and funds until receipt of a certified
copy of a final judgment of a court of competent jurisdiction
providing for the disposition of such documents and funds.
Escrow Agent may require, as a condition to the disposition of
such documents and/or funds, pursuant to written instructions,
an indemnification in form and substance satisfactory to
Escrow Agent, from each party providing such instructions. If
such written instructions and indemnification are not
commenced, within thirty (30) days after receipt by Escrow
Agent of notice of any such dispute and diligently continued,
or if the Escrow Agent is uncertain as to which party or
parties are entitled to the documents and/or funds, Escrow
Agent may either (i) hold the escrowed documents and/or funds
until receipt of (x) such written instruments and
indemnification or (y) a certified copy of a final judgment of
a court of competent jurisdiction providing for the
disposition of the documents and/or funds, or (ii) deposit the
documents and/or funds in the registry of a court of competent
jurisdiction; provided, however, that notwithstanding the
foregoing, Escrow Agent may, but shall not be required to,
institute legal proceedings of any kind.
(g) Seller and Purchaser agree to reimburse Escrow
Agent on demand for, and to indemnify and hold Escrow Agent
harmless against and with respect to, any and all loss,
liability, damage or expense (including, without limitation,
attorneys' fees and costs) that Escrow Agent may suffer or
incur in connection with the entering into of this Agreement
and performance of its obligations under this Agreement or
otherwise in connection therewith, except to the extent such
loss, liability, damage or expense arises from the gross
negligence or willful misconduct of Escrow Agent.
(h) In the event that Escrow Agent does deposit the
documents and funds in the registry of a court of competent
jurisdiction as contemplated in subsection (f) hereof, all
costs, expenses and attorneys' fees associated with any such
action may be deducted by Escrow Agent from the funds so
deposited into the registry prior to depositing the same with
the court. Upon notifying Seller and Purchaser of such course
of action, all liability on the part of Escrow Agent shall
fully terminate.
(i) Escrow Agent and any successor escrow agent may
at any time resign as such by delivering the documents and
funds held by it to either (i) any successor escrow agent
designated by all the parties hereto (other than Escrow Agent)
in
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Exhibit (10)(p)
writing, or (ii) any court having competent jurisdiction. Upon
its resignation and delivery of the documents and funds as
provided in this subsection, Escrow Agent shall be discharged
of, and from, any and all further obligations arising in
connection with the escrow contemplated by this Agreement.
(j) Nothing in this Agreement, express or implied,
shall give to anyone, other than the parties hereto and their
respective permitted successors and assigns, any benefit, or
any legal or equitable right, remedy or claim, under or in
respect of this Agreement or the escrow contemplated hereby.
2.4 PURCHASE PRICE ALLOCATION. The Purchase Price shall be
allocated in a manner reasonably acceptable to Purchaser and Seller to
be agreed upon within fifteen (15) days following the Effective Date.
3. CLOSING.
3.1 CLOSING DATE. The closing of the transactions provided for
herein (herein called the "Closing") shall take place at the offices of
Escrow Agent, at 10:00 a.m., E.S.T., on a mutually acceptable date
("Closing Date") confirmed in writing by the parties, but in no event
later than the thirtieth (30th) day following the expiration of the
Inspection Period (hereinafter defined). If the parties fail to jointly
confirm in writing the Closing Date (as designated, herein the
"Scheduled Closing Date") within thirty (30) days following the
expiration of the Inspection Period, then the Closing Date shall be on
the thirtieth (30th) day following the expiration of the Inspection
Period.
4. INSPECTION PERIOD PROVISIONS.
4.1 INSPECTION PERIOD. For and in consideration of the First
Deposit paid by Purchaser to Escrow Agent and the mutual covenants
contained herein, Purchaser shall have the right and option for a
period (the "Inspection Period") commencing from the Effective Date
through 5:00 o'clock p.m., E.S.T., on the forty-fifth (45th) day
following the Effective Date, to enter upon the Real Property to
conduct physical inspections of the Assets and undertake such other due
diligence measures as Purchaser deems appropriate, including, without
limitation, environmental tests, soil and bearing tests, engineering
studies, feasibility studies, review of books and records, review of
personnel files, and other investigations (collectively, the
"Inspections"). Any and all inspections, tests, audits and other
investigations performed by Purchaser or its agents and representatives
shall be at Purchaser's sole cost and expense and without liability to
Seller. Seller shall promptly and in no event past the fifth (5th) day
following the Effective Date, provide to Purchaser copies of the
following to the extent in the possession of Seller:
(i) Copies of any existing environmental reports;
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Exhibit (10)(p)
(ii) Copies of any engineering reports, property condition
surveys, geotechnical studies and similar reports
concerning the Real Property and the Improvements
thereon;
(iii) Copies of any ADA reports or reviews;
(iv) Copies of any major franchisor correspondence or
reports concerning property inspections made within
twelve (12) months prior to the date hereof;
(v) A true, accurate and complete list (together with
legible copies) of all Maintenance Agreements;
(vi) True and accurate list (together with legible copies)
of all transferable Licenses and Permits;
(vii) True, accurate and complete list (together with
legible copies) of all Tenant Leases, together with a
certified rent roll thereof;
(viii) Copies of tax bills (real and personal property) for
the calendar years 1997, 1998 and 1999; and
(ix) All items listed in Exhibit "4.1" attached hereto in
the possession of Seller.
If Seller fails to deliver the aforementioned items within
five (5) days after the Effective Date, then the Inspection Period
shall be extended for each day past the fifth (5th) day following the
Effective Date until such items are delivered by Seller to Purchaser.
4.2 NON-OBTRUSIVE TESTING. Purchaser shall not conduct or
allow any physically intrusive testing of, on or under the Real
Property without first obtaining Seller's written consent to the timing
and scope of the work to be performed, not to be unreasonably withheld
or delayed.
4.3 INSURANCE; REPORTS. Purchaser shall, in making any
inspections of, or conducting any testing of, on or under the Real
Property, carry comprehensive general liability insurance with
contractual liability endorsement which names Seller as an additional
insured, in an amount and with insurance carriers reasonably
satisfactory to Seller. Prior to the commencement of the Inspections,
Purchaser shall provide Seller with certificates or other written
evidence of same upon request of Seller. Purchaser will not reveal to
any third party the results of its inspections or tests and will
restore promptly any physical damage caused by the inspections or
tests. Purchaser shall give Seller reasonable prior notice of its
intention to conduct any inspections or tests, and Seller reserves the
right to have a representative present. Purchaser agrees to provide
Seller with a copy of any inspection or
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Exhibit (10)(p)
test report promptly upon Seller's written request therefor (without
any representation or warranty).
4.4 MAINTENANCE AGREEMENTS. On or before the expiration of the
Inspection Period, Purchaser shall notify Seller in writing if
Purchaser elects not to assume at Closing any of the Maintenance
Agreements. If Purchaser does not exercise its right to terminate this
Agreement on or before the Inspection Period, Seller shall, at or prior
to Closing give notice of termination of such disapproved contracts to
the vendors under such contracts. If, by the terms of the disapproved
contract, Seller has no right to terminate same on or prior to Closing,
or if any fee or other compensation is due thereunder as a result of
such termination, Seller shall be responsible for the payment of the
termination-related charge or damage.
4.5 INDEMNIFICATION BY PURCHASER. Purchaser agrees to indemnify
and hold Seller harmless from and against any and all claims, liens
(including, without limitation, mechanic's or materialmen's liens or
claims of liens), demands, liabilities, losses, damages, costs and
expenses including, reasonable attorneys' fees incurred by Seller,
arising out of or resulting directly or indirectly from any activity of
Purchaser or any of its agents and representatives pursuant to this
Section 4 or in enforcing Seller's rights to indemnification created
hereby.
4.6 PURCHASER'S RIGHT TO TERMINATE. If, as a result of
Purchaser's various investigations, Purchaser determines that the
Assets are not a suitable investment for its purposes, or for any
reason whatsoever, Purchaser shall have the right by giving Seller
written notice (the "Termination Notice") on or before the expiration
of the Inspection Period to elect to terminate its obligations to
purchase the Assets and shall simultaneously provide a copy thereof to
Escrow Agent. If the Termination Notice is timely given, Escrow Agent
shall promptly return the ▇▇▇▇▇▇▇ Money to Purchaser, and neither party
shall have any further liability hereunder except for Purchaser's
obligations arising under Section 4.5 above.
4.7 FRANCHISE AGREEMENT/LIQUOR LICENSES.
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Exhibit (10)(p)
4.7.1 FRANCHISE. During the Inspection Period,
Purchaser shall have the right to elect to either assume the
existing franchise agreement between Seller and Clarion dated
_______________ (the "Franchise Agreement"), or to otherwise
elect not to assume or enter into a new franchise agreement
with Clarion. If Purchaser elects, by written notice to Seller
prior to the expiration of the Inspection Period, that it has
elected not to assume the Franchise Agreement, or to otherwise
enter into a new franchise agreement with Clarion, then Seller
shall be responsible for the termination of the Franchise
Agreement as of the Closing and shall be responsible for the
payment of all termination fees, liquidated damages and
related charges together with all sums due and payable under
the Franchise Agreement through the date of termination. If
Purchaser elects to enter into a new franchise agreement with
Clarion or otherwise receive an assignment thereof from Seller
at Closing, then Purchaser shall be responsible for all costs
of transfer assessed by Clarion (such as application and
transfer fees) to be paid by Purchaser at Closing.
4.7.2 LIQUOR LICENSES. Seller shall transfer to
Purchaser or its designee, or cause to be transferred to
Purchaser or its designee, all liquor licenses and alcoholic
beverage licenses necessary to operate the restaurant, bars
and lounges presently located within the Hotel, but only to
the extent assignable and at no additional cost to Seller. To
that end, Seller and Purchaser agree to cooperate each with
the other, and each shall execute or cause to be executed such
transfer forms, licenses applications and other documents as
may be necessary to effect such transfer. If permitted under
the laws of the jurisdiction in which the Hotel is located,
the parties shall execute and file all necessary transfer
forms, applications and papers with the appropriate liquor and
alcoholic beverage authorities prior to Closing, so that the
transfer shall take effect, if possible, on the Closing Date,
simultaneously with Closing. The parties agree each with the
other that they will promptly execute all transfer forms,
applications and other documents required by the liquor
authorities in order to effect such transfer at the earliest
date in time possible consistent with the laws of the State
where the Property is located, in order that all liquor
licenses may be transferred from Seller to Purchaser or its
designee at the earliest possible time. If under the laws of
the State where the Property is located, such licenses cannot
be transferred until after the Closing of the transaction
contemplated hereby, then Seller covenants and agrees that
Seller shall cause the Seller to reasonably cooperate with
Purchaser in keeping open the bars and lounges and liquor
facilities of the hotel between the Closing Date and the time
when such liquor license transfers actually become effective,
by exercising management and supervision of such facilities
until such time under Seller's licenses, provided, however,
that Purchaser shall indemnify and hold Seller harmless from
any liability, damages or claims encountered in connection
with such operations during said period of time, except for
Seller's gross negligence or willful misconduct, and provided
further that Purchaser provides Seller with insurance
coverages reasonably acceptable to Seller.
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Exhibit (10)(p)
5. REVIEW OF TITLE.
5.1 TITLE COMMITMENT. Upon the Effective Date, Purchaser shall,
at Purchaser's sole cost and expense, order a Commitment for an ALTA
extended coverage Owners Policy of Title Insurance (the "Title
Commitment") in the amount of the Purchase Price covering the Real
Property, issued by Escrow Agent, which Title Commitment shall include
legible copies of all instruments shown as exceptions thereto. The
Title Commitment shall set forth the status of title to the Real
Property and shall show all liens, encumbrances, reservations, and
restrictions, if any, relating to the Real Property.
5.2 SURVEY. Within fourteen (14) days following the Effective
Date, Purchaser shall, at its sole cost and expense, deliver to
Purchaser four (4) copies of an ALTA/ACSM Land Title Survey (herein
called the "Survey") and field notes describing the Real Property,
prepared and certified by a surveyor reasonably satisfactory to
Purchaser.
5.3 REVIEW OF COMMITMENT AND SURVEY. Purchaser shall have the
right to review the Title Commitment and Survey for a period (the
"Title Review Period") of fifteen (15) days from the later of (i)
receipt of the Title Commitment and copies of all documents referred to
therein, or (ii) the receipt of the Survey. If the Title Commitment or
Survey fails to show good and marketable title to the Real Property to
be in Seller free and clear of all liens, encumbrances, assessments,
reservations and restrictions other than Permitted Exceptions customary
exceptions to title reflected on a Kentucky standard form for
commitments to issue owner's policies of title insurance, then
Purchaser may give Seller written notice of its objections to any such
non-conforming title exceptions or its objections to the Survey (the
"Objections") on or before the expiration of the Title Review Period.
Any title encumbrances set forth in the Title Commitment or the Survey
to which Purchaser does not object within the Title Review Period shall
be deemed to be a Permitted Exception (hereinafter defined).
5.4 CURE PERIOD. Seller shall have twenty (20) days ("Cure
Period") from Seller's receipt of written notice of any such Objections
within which to make such arrangements and to take such steps as
reasonably necessary to satisfy Purchaser's Objections; provided,
however, Seller shall not be required to pay any sum of money or
undertake or agree to undertake any obligations in order to cure such
Objections except for liens or encumbrances, judgment liens or
materialmen's liens arising from actions of Seller to be satisfied and
paid at Closing from proceeds realized therefrom which costs relating
thereto shall not exceed $100,000.00. If Seller fails to cure any such
Objections to the reasonable satisfaction of Purchaser within the time
provided above and give Purchaser written notice thereof (or evidence
that same will be so cured at the Closing with the cash proceeds to be
received by Seller at such Closing), Purchaser shall have the right
either to:
5.4.1 Terminate this Agreement by giving written
notice thereof to Seller within five (5) days following the
expiration of the Cure Period (in which event the
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Exhibit (10)(p)
▇▇▇▇▇▇▇ Money shall be immediately returned to Purchaser by Escrow
Agent upon receipt of such written notice of termination) and this
Agreement shall be null and void and of no further force or effect
(except for Purchaser's indemnity provided in Section 4.5 hereof); or
5.4.2 By written notice to Seller within five (5) days
following the expiration of the Cure Period, elect to
consummate the purchase of the Property subject to the uncured
Objections without reduction or adjustment of the Purchase
Price on account of such Objections. The failure of Purchaser
to timely elect to terminate this Agreement in accordance with
Section 5.4.1 above shall be deemed a waiver by Purchaser of
such right to terminate.
5.5 PERMITTED EXCEPTIONS. As used in this Agreement, the term
"Permitted Exceptions" shall mean those matters or exceptions either
shown on the Survey or listed in the Commitment to which Purchaser does
not raise a timely objection or, having timely objected, Purchaser
waives or is deemed to have waived in accordance with the foregoing.
6. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants to Seller as follows (which such representations and
warranties will survive Closing):
6.1 ORGANIZATION. Purchaser is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
Texas and has all requisite power and authority and is qualified under
Texas law to execute and deliver this Agreement and perform its
obligations hereunder.
6.2 AUTHORITY. The execution and delivery of this Agreement
and consummation of the transactions contemplated herein have been duly
authorized by all requisite shareholder, board and other corporate
approvals of Purchaser. This Agreement is a valid and binding agreement
of the Purchaser enforceable against Purchaser in accordance with its
terms.
6.3 NO CONFLICT OR REQUIRED CONSENTS. Neither the execution of
this Agreement nor the consummation by Purchaser of the transactions
contemplated hereby will (i) conflict with or result in a breach of the
terms, conditions or provisions of or constitute a default, or result
in the termination of any agreement or instrument to which Purchaser is
a party; (ii) violate any restriction to which Purchaser is subject; or
(iii) constitute a violation of any applicable code, resolution, law,
statute, regulation, ordinance, judgment, rule, decree or order of
which Purchaser has knowledge.
6.4 CONDITION OF PREMISES; AS-IS TRANSACTION. The Purchaser
represents that it has preliminarily inspected the Real Property and
Improvements (collectively, the "Premises") and agrees, subject to the
representations and warranties of Seller herein, to accept same in an
"as is" condition on the Closing Date, reasonable wear and tear
excepted,
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Exhibit (10)(p)
assuming Purchaser has not terminated this Agreement pursuant to the
terms hereof on or before the expiration of the Inspection Period.
7. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Purchaser as follows (which such representations and warranties will
survive Closing and not merge with the closing documents):
7.1 ORGANIZATION. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Ohio, and has all requisite power and authority and is qualified under
applicable law to own, lease and operate the Property and to conduct
the business presently conducted by it at the Property.
7.2 AUTHORITY. The execution and delivery of this Agreement and
consummation of the transactions contemplated herein have been duly
authorized by all requisite shareholder, board and other corporate
approvals of Seller. This Agreement is a valid and binding agreement of
Seller enforceable against Seller in accordance with its terms.
7.3 COMPLIANCE WITH ORGANIZATION DOCUMENTS. Except for the
consent of Firstar Bank, N.A. required under 8.2.13 neither the
execution and delivery of this Agreement nor the consummation by Seller
of the transactions contemplated hereby will (i) conflict with or
result in a breach of the terms, conditions and provisions of or
constitute a default, or result in the termination of any material
agreement or instrument to which Seller is a party or which Seller may
be bound; (ii) violate any restrictions to which Seller is a party or
to which Seller may be bound; or (iii) constitute a violation of any
applicable code, resolutions, law, statute, regulation, ordinance,
judgment, rule, decree or order applicable to Seller or any of the
Assets.
7.4 COMPLIANCE WITH LAWS. To the best of Seller's knowledge,
except for matters shown on the Title Commitment, neither Seller's
ownership, holding or use of the Assets or the proposed conveyance of
the Assets to Purchaser is or shall be in material violation of any
applicable statute, ordinance, rule, law, regulation (including without
limitation, building, zoning or environmental laws) or order of any
governmental agency, body or subdivision thereof.
7.5 SPECIAL ASSESSMENTS. Seller has not received any notice,
and has no actual knowledge that the Assets or any portion or portions
thereof is or will be subject to or affected by any special
governmental assessments, whether or not presently a lien thereon, or
any condemnation, eminent domain, change in grade or public streets or
similar proceedings. There are no special or benefit assessments,
utility district assessments, or other public charges (other than
general real estate taxes) pertaining to the Assets.
7.6 NO COMMITMENTS. No commitments have been made to any
governmental authority, utility company, school board, church or other
religious body, or any homeowner or homeowner's
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Exhibit (10)(p)
association, or to any other organization, group or individual relating
to the Assets which would impose an obligation upon Purchaser or its
successors or assigns to make any contributions or dedications of money
or land or to construct, install or maintain any improvements of a
public or private nature on or off the Real Property.
7.7 FLOOD PLAIN. To the best of Seller's knowledge, no part of
the Real Property is located within the 100-year flood plain or in any
recognized fault zone.
7.8 SPECIAL USE. Seller has not claimed the benefit of any law
permitting a special use valuation (such as "agricultural" or "open
space") for the purpose of obtaining an ad valorem tax rate lower than
the normal rate applicable to the Assets.
7.9 RESTRICTIONS. To the best of Seller's knowledge, except for
matters shown on the Title Commitment, there are no restrictive use
covenants affecting or encumbering title to the Assets.
7.10 ENVIRONMENTAL COMPLIANCE. To the best knowledge and belief
of Seller, Seller has no actual knowledge of any conditions affecting
the Assets which would violate any federal, state or local
environmental statutes, regulations, ordinances or other requirements
and more specifically, but without limitation, there are not (i) any
geological faults (surface or subsurface) which lie on the Real
Property, (ii) wetlands, as defined by federal or state law or
regulation on the Real Property, and (iii) threatened or endangered
species or other habitat as defined by state law or by the U.S. Fish
and Wildlife Service, on the Real Property.
7.11 LITIGATION. There are no actions, suits or proceedings
pending, or to the knowledge of Seller, threatened against Seller or
the Assets, at law or in equity, or before or by any person or entity,
including any federal, state, municipal or other governmental
department, commission board, agency or instrumentality that relate to
(i) the transactions contemplated by this Agreement, (ii) the Assets,
or any portion thereof, or (iii) the operation, ownership or use of the
Assets which would give rise to lien or claim against the Assets or
Purchaser (after Closing).
7.12 NOTICE OF VIOLATIONS. Seller has not received, and to the
best of Seller's knowledge, there exists no written notice that either
the Assets or the use thereof violates in any material manner any rules
and regulations of any state, city or county government or agency, body
or subdivision thereof having any jurisdiction over the Assets that has
not been resolved to the satisfaction of the issuer of the notice.
7.13 LEASES AND AGREEMENTS. There are no written contracts,
agreements, equipment leases concerning or relating to the Assets or
the operation thereof except for the Maintenance Agreements disclosed
on Exhibit "C". There are no oral agreements or commitments which will
bind Purchaser or the Assets after Closing. There are no leases,
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Exhibit (10)(p)
license agreements or occupancy agreements concerning the Assets or the
operation thereof other than the Tenant Leases which are described on
Exhibit "B". To the best of Seller's knowledge, Seller is not in
default under any Tenant Lease. There are no outstanding commissions
payable by Seller under any Tenant Lease and, except as previously
disclosed by Seller to Purchaser and to the best of Seller's knowledge,
each tenant is in compliance with the terms and conditions of each
Tenant Lease in all material respects and no default under any such
leases on the part of any tenant is existing.
7.14 EMPLOYEES. There are no employees of Seller utilized in
connection with the operation of the Assets who, after conveyance of
the Assets to Purchaser, Purchaser would be obligated to retain or
compensate. There are employee benefit plans, ERISA plans or similar
type plans applicable to any employee of Seller or its manager engaged
in connection with the operation of the Property. Neither Seller or any
of the employees employed at the Property are party to any collective
bargaining agreement, union contract or similar agreement.
7.15 EQUIPMENT LEASES. Except for the equipment leases listed
as a Maintenance Agreement on Exhibit "C", none of the Personal
Property is the subject of any conditional sales agreement, title
retention agreement or deferred payment arrangement secured by chattel
mortgage, security agreement or otherwise.
7.16 INSURANCE NOTICES. No notice has been received by Seller,
nor to the actual knowledge of Seller, has any notice been issued from
any insurance company that has issued an insurance policy to Seller
with respect to any portion of the Assets or from any board of fire
underwriters (or other body exercising similar functions), claiming any
defects or deficiencies requiring the performance of any repairs,
replacements, alterations or other work to any of the Assets.
7.17 SUBSEQUENT DISCLOSURE. In the event that material or
adverse changes occur as to any information, documents or exhibits
referred to in this Agreement, of which Seller has knowledge, Seller
will promptly disclose same to Purchaser when first available to
Seller.
7.18 GROUND LEASE. There are no existing defaults under the
Ground Lease, no event has occurred which, with the passage of time or
the giving of notice, or both, would constitute a default thereunder,
no notice from the ground lessor has been received by Seller asserting
a default under the Ground Lease, and the Ground Lease is freely
transferrable.
7.19 NO MANAGEMENT AGREEMENTS. There are no written management
contracts or agreements of any kind whatsoever concerning or relating
to the operation and/or management of the Assets. There are no oral
agreements or commitments of such type which will bind Purchaser or the
Assets after Closing.
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Exhibit (10)(p)
7.20 SURVIVAL. Seller shall certify to the accuracy of each
and every representation contained herein effective as of the Closing
Date, which such representations and warranties shall survive the
Closing hereof for a period of one (1) year and shall not merge with
the documents and instruments delivered at Closing, subject to the
provisions of Section 13.3 below.
8. CLOSING DOCUMENTS.
8.1 PURCHASER'S OBLIGATIONS. Purchaser shall deliver at
Closing the following:
8.1.1 CASH PORTION OF PURCHASE PRICE. The Purchase
Price in the form as provided in Paragraph 2.1 hereof and
subject to the adjustments provided in this Agreement;
8.1.2 ASSIGNMENTS. Duly executed counterparts of (i)
the General Warranty Assignment and Assumption of Ground
Lease, in form acceptable to Purchaser and its counsel, (ii)
the ▇▇▇▇ of Sale in the form of Exhibit "E" attached hereto,
(iii) the Assignment and Assumption of Contracts in the form
of Exhibit "F" attached hereto, and (iv) the Assignment and
Assumption of Leases in the form of Exhibit "G" attached
hereto;
8.1.3 CLOSING STATEMENT. A duly executed closing
statement taking into account all prorations and adjustments
required pursuant to the terms of this Agreement.
8.1.4 OTHER DOCUMENTS. Such additional documents,
instruments, assumptions, consents, waivers and releases as
may be reasonably necessary to effectuate the transactions
contemplated herein or to evidence the capacity and authority
of Purchaser to consummate the transactions contemplated
herein.
8.2 SELLER'S OBLIGATIONS. Seller shall deliver to Purchaser at
Closing the following:
8.2.1 GENERAL WARRANTY ASSIGNMENT/GROUND LEASE. A duly
executed and acknowledged General Warranty Assignment and
Assumption of Ground Lease covering the Leasehold Real
Property and Ground Lease in the form acceptable to
Purchaser's title insurer, Purchaser and Purchaser's counsel,
conveying good and indefeasible title to the Leasehold Estate
and the Leasehold Improvements thereon, subject only to the
Permitted Exceptions;
8.2.2 BARGAIN AND SALE DEED. A duly executed and
acknowledged Bargain and Sale Deed (with covenants against
grantor's acts) covering the Fee Simple Real Property in the
form acceptable to Purchaser's title insurer, Purchaser and
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Exhibit (10)(p)
Purchaser's counsel, conveying good and indefeasible fee
simple title to the Fee Simple Real Property and the Fee
Simple Improvements thereon, subject only to the Permitted
Exceptions;
8.2.3 ASSIGNMENTS. Duly executed counterparts of (i)
the ▇▇▇▇ of Sale, (ii) the Assignment and Assumption of
Contracts, and (iii) the Assignment and Assumption of Leases;
8.2.4 ROOM RESERVATION RECORDS. Copies of all room
reservations and service and maintenance records not
previously delivered to Purchaser to be delivered on site at
the Real Property, together with correspondence and other
records pertaining thereto which Purchaser will reasonably
require in the future operation of the Assets (but
specifically excluding tax and other records not necessary for
the continued operations of the Assets);
8.2.5 KEYS. Keys or codes to all doors to, and
equipment and utility rooms located on, the Real Property;
8.2.6 POSSESSION. Possession of the Assets, subject
to the rights to use and occupy same of any Tenants or other
hotel guests of the Property;
8.2.7 TENANT LEASES AND MAINTENANCE AGREEMENTS. All
executed original Tenant Leases and Maintenance Agreements in
the possession of Seller (to the extent not previously
delivered to Purchaser);
8.2.8 FIRPTA CERTIFICATE. A duly executed affidavit
from Seller stating: Seller's United States Taxpayer
Identification Number for federal income tax purposes and that
Seller is not a "foreign person" within the meaning of Section
1445, et seq., of the Internal Revenue Code;
8.2.9 AFFIDAVIT. A "Bills Paid Affidavit" executed by
Seller in a form reasonably required by the Title Company for
purposes of deleting exceptions for labor performed, materials
supplied or services provided for or to Assets prior to
Closing.
8.2.10 UPDATE OF REPRESENTATIONS AND WARRANTIES.
Seller shall certify the accuracy of or any change in the
accuracy of each of the representations and warranties
contained herein as of Closing.
8.2.11 EXISTING LIENS. Seller reserves the right and
privilege to pay any liens on the Premises at Closing out of
the proceeds of this sale or to deliver a release thereof in
customary form.
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Exhibit (10)(p)
8.2.12 GROUND LEASE ESTOPPEL/CONSENT. Seller shall
provide to Purchaser an Estoppel and Consent duly executed by
the ground lessor under the Ground Lease in form acceptable to
Purchaser, Purchaser's lender and the title insurer generally
providing for the following: (a) a consent to the assignment
of the Ground Lease, (b) a consent to Purchaser's pledge of
the Ground Lease to its lender with customary financing
requirements such as notices and opportunities to cure, and
(c) representations of no defaults. If an Estoppel and Consent
from the ground lessor is not obtainable, then, subject to
Purchaser's lender's consent, Purchaser will accept an
estoppel and indemnity from Seller in form acceptable to
Purchaser, Purchaser's lender and the title insurer.
8.2.13 FIRSTAR CONSENT. Seller shall provide a
consent to the sale of the Property duly executed by Firstar
Bank, N.A.
8.2.14 ADDITIONAL DOCUMENTS. Such further instruments
of conveyance, assignments, approvals, waivers, consents,
confirmations, releases, and other documents as may be
reasonably necessary to effectuate the sale and transfer of
all title, ownership, and possessory rights in and to the
Assets to Purchaser, and to otherwise consummate and evidence
the capacity and authority of Seller to consummate the
transactions contemplated herein, such instruments and/or
documents to be in form and content reasonably acceptable to
Seller.
9. CONDITIONS PRECEDENT TO CLOSING.
9.1 PURCHASER'S OBLIGATION TO CLOSE. The obligations of
Purchaser hereunder shall be subject to the satisfaction of the
following conditions precedent:
9.1.1 REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Seller contained herein
shall be and remain materially true and correct as of the
Closing.
9.1.2 PERFORMANCE OF COVENANTS AND AGREEMENTS. Seller
shall have materially performed and complied with all
covenants and agreements required to be performed or complied
with pursuant to this Agreement prior to or as of the Closing.
9.1.3 LITIGATION. No suit, action, or other proceeding
shall be pending before any court or governmental agency by
which any third party is seeking to restrain or prohibit or to
obtain damages or other injunctive relief in connection with
this Agreement or the consummation of the transactions
contemplated hereby, which, if successful, would adversely
affect the ability of Purchaser to own or operate the Property
as presently operated.
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Exhibit (10)(p)
9.1.4 CLOSING DOCUMENTS. Seller shall have duly
executed and/or delivered the documents and instruments
required pursuant to Section 8.2 hereof.
9.1.5 INTENTIONALLY OMITTED.
9.1.6 LIQUOR LICENSES. Purchaser shall have received
the required governmental approvals for the transfer of all
liquor licenses related to the Property. Purchaser shall
promptly after the Effective Date commence all required
applications for such transfer (and Seller agrees to
reasonably cooperate with Purchaser).
9.1.7 TAX CLEARANCE CERTIFICATES. Purchaser shall
obtain from applicable governmental authorities, tax clearance
certificates, no further action letters or other reasonable
evidence that (i) there are no outstanding taxes of any kind
due and owing by Seller with respect to the Property or its
operation including, without limitation, sales, use and
occupancy taxes, and (ii) there are no outstanding code or
regulation violations on the Property.
9.1.8 GROUND LESSOR ESTOPPEL. Seller shall have
delivered the Estoppel and Consent from the Ground Lessor
under the Ground Lease required under Section 8.2.12 hereof,
or the Seller Estoppel and Indemnity referenced in Section
8.2.12.
9.1.9 FIRSTAR [RELEASE/CONSENT]. Seller shall have
delivered the [consent] required pursuant to Section 8.2.13
hereof.
Seller shall use its best efforts to obtain the items
required pursuant to Sections 9.1.5, 9.1.8 and 9.1.9 above. If
Closing fails to occur as a result of the Seller failing to
satisfy delivery of the items required under Sections 9.1.5,
9.1.8 or 9.1.9, then in addition to Purchaser receiving the
▇▇▇▇▇▇▇ Money, Seller shall reimburse Purchaser all reasonable
out of pocket costs and expenses incurred by Purchaser in
connection with this Agreement.
9.2 SELLER'S OBLIGATION TO CLOSE. The obligations of Seller
hereunder shall be subject to the satisfaction of the following
conditions precedent:
9.2.1 REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Purchaser contained herein
shall be materially true and correct as of the Closing Date.
9.2.2 PERFORMANCE OF COVENANTS AND AGREEMENTS.
Purchaser shall have materially performed and complied with
all covenants, agreements and conditions required to be
performed or complied with pursuant to this Agreement prior to
or as of the Closing.
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Exhibit (10)(p)
9.2.3 LITIGATION. No suit, action, or other
proceedings shall be threatened or pending before any court or
governmental agency by which any third party seeking to
restrain or prohibit or to obtain damages or other relief in
connection with this Agreement or the consummation of the
transactions contemplated hereby.
10 ADJUSTMENTS. The following items shall be apportioned or prorated
between Seller and Purchaser as of 12:01 o'clock a.m. local time, on the Closing
Date (the "Cut-Off Time") and shall constitute adjustments to the Purchase Price
to be paid by Purchaser to Seller at Closing:
10.1 EMPLOYEES. (a) The parties acknowledge that all on-site
personnel employed at the Facility are employees of Seller. Attached
hereto as Exhibit "H" is a list of the employees currently employed in
connection with the operation of the Assets, which list shall be
certified by Seller to be true and correct as the date of Closing.
(b) Purchaser shall not assume any liabilities with
respect to the employees or the termination of the employees as of the
Closing. Purchaser shall have no responsibility whatsoever with respect
to the hiring or engagement of any such employees and any liabilities
attributable thereto shall be the responsibility of Seller, including,
without limitation, accrued wages, accrued benefits, accrued vacation
and COBRA liability. Seller shall indemnify, defend (with counsel
approved by Purchaser) and hold Purchaser harmless from and against any
and all claims, causes of action, proceedings, judgments, damages,
penalties and liabilities made, assessed or rendered against Purchaser
and any costs and expenses (including attorneys' fees and
disbursements) incurred by Purchaser with respect to claims, causes of
action, judgments, damages, penalties and liabilities asserted by any
such employees for any such liabilities arising from the termination of
the employees, including, without limitation, accrued wages, accrued
benefits, accrued vacation, COBRA liability and under the Federal
Worker Adjustment and Retraining Notification Act, 29 U.S.C.
ss.2101-2109 ("WARN") or in any manner relating, directly or
indirectly, to the termination of such employees by Seller. The
provisions of this Section 10.1 shall survive the Closing and shall not
merge with the deed of conveyance of the Property to be delivered at
Closing.
10.2 TAXES. Real estate, ad valorem and personal property taxes,
sewer rents and charges, and other state, county and municipal taxes,
charges and assessments (special or otherwise), on the basis of the
fiscal year for which the same are levied, imposed or assessed, and
regardless of when the same become a lien or are payable shall be
adjusted between Seller and Purchaser and shall be prorated on a per
diem basis as of the Closing Date. If the rate of any such taxes or
other charges shall not be fixed prior to the Closing, the adjustment
thereof at the Closing shall be upon the basis of the rate for the
preceding year applied to the latest assessed valuation (or other basis
of valuation) and the same shall be further adjusted when the rate and
actual amount of tax due for the current fiscal year is fixed.
10.3 CHARGES FOR TELEPHONE, WATER, ELECTRICITY, GAS AND OTHER
UTILITIES. The consumption of all utilities is measured by meter, and
Seller shall furnish a current reading of
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Exhibit (10)(p)
each meter at the Closing, which reading shall have been made not
earlier than one (1) business day prior to Closing, and Seller shall
pay the charges therefor to such date. The telephone service will be
changed over as of the Closing Date and Purchaser shall be responsible
for charges incurred on the Closing Date and thereafter. All deposits,
if any, made by Seller as security under any contract or license, shall
be refunded to Seller.
10.4 GUEST LEDGER. Room charges (exclusive of food, beverage,
telephone and similar charges) for the night preceding the Closing Date
and ending on the morning of the Closing Date shall be divided equally
between Purchaser and Seller. Dinner charges for the evening of the
Apportionment Date shall be the property of Seller. Breakfast charges
for the morning of the Closing Date shall be the property of Purchaser.
The final night's housekeeping expenses shall be Seller's
responsibility.
10.5 PREPAID EXPENSES. A prorated portion of any expense which
has been prepaid by Seller prior to the Closing Date and which is
attributable to a period on or after the Closing Date, including,
without limitation, prepaid charges for transferable licenses, permits
and other items, shall be credited to Seller.
10.6 PREPAID RESERVATIONS. Purchaser shall receive a credit
for all prepaid reservations, advance room deposits, Reservation
Deposits or other such deposits assigned to Purchaser hereunder.
10.7 MAINTENANCE AGREEMENTS. Charges under the Maintenance
Agreements (which are assumed by Purchaser) shall be prorated at the
Closing with Seller paying all such charges through and including the
Apportionment Date.
10.8 FOOD AND BEVERAGE INVENTORY. No adjustments shall be made
with respect to food and beverage inventories.
10.9 ACCOUNTS RECEIVABLE AND ACCOUNTS PAYABLE.
10.9.1 Purchaser is not purchasing from Seller any
accounts receivable or other income accrued through the date
of Closing related to the operations of the Property by Seller
prior to the Closing, all such accounts receivable to be
retained by Seller (except for the agreement to divide equally
the guest ledger as indicated in Section 10.4 above).
10.9.2 Purchaser, unless expressly assumed in writing
at Closing, shall not be obligated to assume any payables,
liabilities or obligations of Seller which relate to the
operations of the Property prior to Closing, all such payables
to be promptly paid by Seller on or before Closing.
10.10 HOUSE BANKS. The sale of the Assets shall include cash,
checks and other funds including till money and house banks held at the
hotel as of the Closing Date
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Exhibit (10)(p)
(collectively, "House Banks"). The House Bank's shall be purchased by
Purchaser at Closing, and Purchaser shall pay the amount of such House
Banks to Seller at Closing as a separate amount over and above the
Purchase Price.
10.11 FURTHER ASSURANCES. All items to be adjusted, in
accordance with the foregoing Sections 10.1 through 10.10, for which
figures are not available at Closing, will be adjusted and payment
therefor will be made by Seller to Purchaser or by Purchaser to Seller,
as appropriate, as soon as figures are available after Closing.
Purchaser or Seller, as appropriate, will deliver simultaneously with
such payment, any and all data, information or other backup it may have
with respect to such payment and/or such proration so as to fully
indicate to the other party the calculation of the amount of payment
contained therewith.
10.12 BENEFIT AND LIABILITY. The purpose and intent of the
provisions as to the prorations, adjustments and apportionments set
forth above and elsewhere in this Agreement are that Seller shall bear
all expenses of ownership and operation of the Property and shall
receive all income therefrom accruing through the Cut-Off Time, and
Purchaser shall bear all such expenses and receive all such income
accruing thereafter. Accordingly, effective upon Closing, Seller agrees
to indemnify and hold Purchaser harmless from and against any and all
costs and expenses relating to the operation of the Assets during the
period preceding Closing, and Purchaser agrees to indemnify, defend and
hold Seller harmless from and against any and all costs and expenses
relating to the operation of the Assets from and after Closing. If a
computation of the apportionments and adjustments described in this
Section 10 shows that a net amount is owed by Seller to Purchaser, such
amount shall be credited against the Purchase Price. If such
computation shows that a net amount is owed by Purchaser to Seller,
such amount shall be paid by wire transfer to Seller by Purchaser on
the Closing Date in addition to the payment of the cash portion of the
Purchase Price to be made by Purchaser under Section 2.1. The
provisions of this Section 10 shall survive the Closing and shall not
merge with the closing documents to be delivered at Closing.
10.13 SAFE AND BAGGAGE.
(a) On the Closing Date, Seller shall cause the delivery to
Purchaser of all of the keys to the safe in the Hotel. On the Closing
Date, Seller shall give written notices to those persons who have
deposited items in the safe, advising them of the sale of the Assets to
Purchaser and requesting the removal or verification of their contents
in the safe. All such removals or verifications on the Closing Date
shall be under the supervision of Seller's and Purchaser's respective
representatives. All contents that are to remain in the safe shall be
recorded. Items belonging to guests who have not responded to such
written notice by so removing and verifying their safe contents by the
end of the Closing Date shall be recorded in the presence of the
respective representatives. Any such contents so verified and recorded
and thereafter remaining in the hands of Purchaser shall be the
responsibility of Purchaser, and Purchaser hereby agrees to indemnify,
defend and hold Seller harmless from any liability therefor. Seller
hereby agrees to indemnify and hold Purchaser harmless from any
liability
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Exhibit (10)(p)
arising from claims by guests for any loss of contents in the safe not
recorded on the Closing Date.
(b) On the Closing Date, representatives of Purchaser and
Seller shall take an inventory of all baggage, valises and trunks
checked or left in the care of Seller. From and after the Closing Date,
Purchaser shall be responsible for all baggage listed in said
inventory, and Purchaser hereby agrees to indemnify, defend and hold
Seller harmless from any liability therefor. Seller shall remain liable
for any negligence or misfeasance with respect to such baggage which
occurred prior to the Closing Date as well as for claimed omissions
from said inventory, and Seller hereby agrees to indemnify and hold
Purchaser harmless from any liability therefor.
(c) The provisions of this Section 10.12 shall survive the
Closing and shall not merge with the documents of conveyance of the
Assets to be delivered at Closing.
11 PRE-CLOSING COVENANTS OF SELLER AND PURCHASER.
11.1 INSURANCE. Seller or Seller's agent shall keep the Assets
insured against fire and other hazards covered by extended coverage
endorsement and comprehensive public liability insurance against claims
for bodily injury, death and property damage occurring in, on or about
the Property, in such amounts consistent with its prior operations.
11.2 OPERATIONS. Seller or Seller's agent shall operate and
maintain the Assets in a business-like manner and substantially in
accordance with Seller's past practices with respect to the Assets;
maintain normal inventory levels substantially in accordance with
Seller's past practices including a 2.5 par level of linen inventory;
and, make any and all repairs and replacements to the Assets reasonably
required to deliver the Assets to Purchaser at Closing in its present
condition, normal wear and tear excepted.
11.3 SERVICE AGREEMENTS. Seller shall enter into only those
third party contracts that are necessary to carry out its obligations
under Section 11.2 above and which shall be cancellable upon thirty
(30) days' written notice. If Seller enters into any such contract, it
shall promptly provide written notice thereof to Purchaser.
11.4 WARRANTIES AND GUARANTIES. Seller shall not modify or
release any warranties or guaranties with respect to the Asset without
the prior written consent of Purchaser.
11.5 LEASES. Seller shall not enter into any leases or tenancies
with respect to the Real Property (or the Improvements thereon) which
are not terminable upon thirty (30) days prior written notice.
-23-
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Exhibit (10)(p)
11.6 EMPLOYEES. Seller shall not engage or retain any new or
additional employees, entities or independent contractors whose
compensation will be assumable by Purchaser.
11.7 ENCUMBRANCES. Seller shall not grant any encumbrances on
any of the Assets or contract for any construction or service for the
Assets which may impose any mechanic's or materialmen's lien on any of
the Assets not satisfiable by the Purchase Price at Closing.
11.8 PUBLIC ANNOUNCEMENTS. Neither Seller nor Purchaser shall
make any public statement or issue any press release with respect to
this Agreement or the transactions contemplated hereby ("Public
Announcement") prior to the expiration of the Due Diligence Period.
After the expiration of the Due Diligence Period, and until the
Closing, neither Seller nor Purchaser shall make any Public
Announcement without the prior written consent of the other party,
except as required by law.
12 DESTRUCTION, DAMAGE OR CONDEMNATION PRIOR TO CLOSING.
12.1 RISK OF LOSS. Seller shall bear the risk of all loss,
destruction or damage to the Assets, or any portion thereof, from any
and all causes whatsoever until and including the Closing Date.
12.2 DAMAGE OVER $500,000.00. If, prior to the Closing, there
shall occur (i) damage to the Assets caused by fire or other casualty
which would cost $500,000.00 or more to repair, or (ii) the taking or
proposed taking by condemnation of all or such portion of the Assets as
would, in Purchaser's reasonable opinion, materially interfere with
Purchaser's use and enjoyment thereof, then, and in either of such
event, Purchaser may terminate its obligations under this Agreement by
written notice given to Seller within seven (7) days after Purchaser
has received notice of such casualty or condemnation from Seller, in
which event no party shall have any further obligations to the other
hereunder and the ▇▇▇▇▇▇▇ Money shall be immediately returned by the
Escrow Agent to Purchaser upon the Escrow Agent's receipt of written
notice thereof. If Purchaser does not so elect to terminate its
obligations under this Agreement, then the Closing shall take place as
herein provided without abatement of the Purchase Price (except in
amount equal to the deductible applicable to insurance policy
applicable to the casualty), and there shall be assigned to Purchaser
at the Closing all interest in any insurance claims and proceeds
including, without limitation, any business interruption insurance, or
condemnation awards up to the full Purchase Price which may be payable
to or available to Seller for any period after the Closing Date on
account of any such fire, casualty, or condemnation.
12.3 DAMAGE UNDER $500,000.00. If, prior to the Closing there
shall occur (i) damage to the Assets caused by fire or other casualty
which would cost less than $500,000.00 to repair, or (ii) the taking or
proposed taking by condemnation of a portion of
-24-
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Exhibit (10)(p)
the Assets which, in the Purchaser's reasonable judgment, is not
material to the use or enjoyment thereof, then, and in either of such
event, Purchaser shall have no right to terminate its obligations under
this Agreement, but there shall be assigned to Purchaser at Closing all
interest in any insurance claims and proceeds, including, without
limitation, any business interruption insurance, or condemnation awards
which may be payable to Seller for any period after the Closing Date on
account of any such fire, casualty or condemnation. In addition, the
Purchase Price shall be adjusted for the amount of the deductible under
the insurance policy applicable to the casualty.
13 DEFAULTS AND REMEDIES.
13.1 SELLER'S DEFAULT.
13.1.1 REMEDIES. If Seller fails to perform any of
Seller's obligations hereunder for any reason other than the
termination of this Agreement by Seller or Purchaser pursuant
to any right to terminate expressly set forth in this
Agreement, or Purchaser's failure to perform Purchaser's
obligations under this Agreement, or if any of Seller's
representations or warranties set forth herein are determined
to be materially inaccurate or untrue, then Purchaser, at
Purchaser's option and in addition to an action for damages
arising from a breach by Seller of any representation,
warranty, covenant or agreement, which all such remedies shall
be cumulative, shall have the right to either (i) terminate
this Agreement by giving written notice to Seller, whereupon
the ▇▇▇▇▇▇▇ Money shall be immediately delivered to Purchaser
by Escrow Agent upon receipt of written notice from Purchaser
of such termination, or (ii) waive such representations,
warranties or performance by Seller and enforce specific
performance of the obligations of Seller under this Agreement.
13.1.2 LIMITATION ON PRE-CLOSING DEFAULT. In the event
that the Seller should breach the within Agreement by failing
and/or refusing to close title as required hereby ("Refusal to
Close") or by a breach of representation, warranty or covenant
known or discovered by Purchaser prior to Closing, the
Purchaser shall have the right to terminate this Contract and
to receive the return of its ▇▇▇▇▇▇▇ Money and Purchaser's
Transaction Costs (consisting of the Purchaser's reasonable
attorneys', architects and engineering fees and expenses
actually incurred in the negotiation of the within transaction
and in the Purchaser's due diligence investigation involving
the within transaction). However, if the Purchaser elects not
to terminate the Agreement and receive said monies, the
Purchaser's sole remedy is to obtain specific performance in a
court of competent jurisdiction; it being understood that the
Seller shall not be liable for monetary damages of any nature
or amount, unless Purchaser is the prevailing party in such
litigation, in which event Seller shall be liable to Purchaser
for the reasonable attorneys' fees and court costs incurred by
Purchaser in enforcing its rights hereunder.
-25-
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Exhibit (10)(p)
13.2 PURCHASER'S DEFAULT. If Purchaser fails to perform any of
Purchaser's obligations hereunder for any reason other than the
termination of this Agreement by Seller or Purchaser pursuant to any
right to terminate expressly set forth in this Agreement, or Seller's
failure to perform Seller's obligations under this Agreement, then
Seller, as Seller's sole and exclusive remedy, shall have the right to
terminate this Agreement by giving written notice to Purchaser, in
which event Seller shall be entitled to the ▇▇▇▇▇▇▇ Money as liquidated
damages free and clear of all rights and claims with respect thereto by
Purchaser, and neither Purchaser nor Seller shall have any further
rights or obligations under this Agreement. Seller and Purchaser hereby
acknowledge and agree that the ▇▇▇▇▇▇▇ Money shall be agreed liquidated
damages hereunder because of the difficulty, inconvenience and
uncertainty of ascertaining actual damages for such default by
Purchaser.
14 NO BROKERS. Seller represents to Purchaser and Purchaser represents
to Seller that all negotiations relating to this Agreement have been pursued
without the intervention of any agent, broker or investment broker other than
Hotel Source, Inc. ("Broker"), who has been engaged by Seller. Seller and
Purchaser agree to indemnify and hold the other party harmless against any and
all claims arising out of any activity of any firm or person acting or allegedly
acting on behalf of such party in the nature of a brokerage commission or
finder's fee.
15 EXPENSES.
15.1 SELLER'S EXPENSES. Seller shall pay or give a credit to
Purchaser at Closing:
15.1.1 All realty transfer fees, intangible taxes,
documentary stamps and any applicable sales taxes;;
15.1.2 Any termination fees, liquidated damages and
related charges relating to the termination of the Clarion
Franchise Agreement; and
15.1.3 All attorneys' fees incurred by Seller in
connection herewith and the Closing.
15.2 PURCHASER'S COSTS. Purchaser shall pay:
15.2.1 All costs and expenses incurred by Purchaser
in connection with any inspections performed pursuant to the
terms herein;
15.2.2 All attorneys' fees incurred by Purchaser in
connection herewith and with the Closing;
15.2.3 All intangible taxes or documentary stamps
assessed on any financing obtained by Purchaser;
-26-
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Exhibit (10)(p)
15.2.4 All charges for UCC searches and abstract of
judgment searches incurred by Purchaser including, costs in
obtaining tax certificates, if any;
15.2.5 All costs relating to the transfer of licenses
and permits, including, the transfer, if applicable, of the
Franchise Agreement;
15.2.6 All title examination fees and all premiums
for the Owner's Policy of title insurance; and
15.2.7 All title examination fees and all premiums
for the Owner's Policy of Title Insurance and costs of the
Survey.
16 GENERAL PROVISIONS.
16.1 NOTICES. All written notices and demands of any kind which
either party may be required or may desire to serve upon the other
party in connection with this Agreement may be served (as an
alternative to personal service) by registered or certified mail. Any
such notice or demand so served by registered or certified mail shall
be deposited in the United States Mail with postage thereon fully
prepaid and addressed to the party to be served at the addresses set
forth below. Service of any such notice or demand so made by mail shall
be deemed complete upon the day of mailing. Further, any such notice
may be made by telecopy or facsimile at the numbers indicated below;
provided same is immediately followed with the original by mail as
provided above.
To Seller:
▇▇▇▇▇▇'▇ Restaurants, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy To:
▇▇▇▇▇▇'▇ Restaurants, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
-27-
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Exhibit (10)(p)
To Purchaser:
Remington Hotel Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy To:
Remington Hotel Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
16.2 CAPTIONS. The titles and headings of the various Articles
and Paragraphs hereof are intended solely for means of reference and
are not intended for any purpose whatsoever to modify, explain or place
any construction on any of the provisions of this Agreement.
16.3 SEVERABILITY. If any of the provisions of this Agreement or
the application thereof to any persons or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of this Agreement by
the application of such provision or provisions to persons or
circumstances other than those as to whom or which it is held invalid
or unenforceable shall not be affected thereby, and every provision of
this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
16.4 WAIVER. The failure of either party to insist upon a strict
performance of any of the terms or provisions of this Agreement or to
exercise any option, right or remedy herein contained or available
pursuant to applicable law, shall not be construed as a waiver or
relinquishment of such term, provision, option, right or remedy, but
the same shall continue and remain in full force and effect. No waiver
by either party of any term or provision hereof shall be deemed to have
been made unless expressed in writing and signed by such party.
16.5 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter
hereof, supersedes any oral or written agreements (except for the
Confidentiality Agreement, hereinafter defined), and may not be
modified, amended or otherwise changed in any manner except by a
writing executed by the parties hereto.
16.6 ASSIGNMENT; BENEFITS. This Agreement and all the covenants,
terms and provisions contained herein shall be binding upon and inure
to the benefit of the parties
-28-
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Exhibit (10)(p)
hereto and their respective heirs, executors, administrators,
successors and permitted assigns. Except as provided below, Purchaser
may not assign its rights, benefits and obligations under this
Agreement without the prior written consent of Seller. Any purported
assignment of Purchaser without Seller's prior written consent shall be
null and void. Notwithstanding the foregoing, Purchaser may assign this
Agreement to an entity formed or controlled, directly or indirectly, by
Purchaser or the principals or shareholders of Purchaser.
16.7 EXHIBITS. All exhibits to this Agreement are hereby fully
incorporated herein by this reference for all purposes as though fully
set forth herein.
16.8 APPLICABLE LAW; VENUE. This Agreement is made and entered
into in the City of Covington, Kentucky, and its interpretation,
validity and performance shall be governed by the laws of the State of
Kentucky. The parties hereto mutually consent to the jurisdiction of
any local, state or federal court situated in Kentucky, and waive any
objection which they may have pertaining to improper venue or forum non
conviens to the conduct of any proceeding in any such court. The
parties hereto agree that venue for any action in connection herewith,
shall be in the State of Kentucky.
16.9 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall serve as an original for all
purposes, but all copies shall constitute but one and the same
agreement, binding on all parties hereto, whether or not each
counterpart is executed by all parties hereto, so long as each party
hereto has executed one or more counterparts hereof.
16.10 ATTORNEYS' FEES. In the event of any litigation between
the parties hereto to enforce any right of either party hereto, the
non-prevailing party to such litigation agrees to pay to the prevailing
party all costs and expenses, including reasonable attorneys' fees,
incurred therein by the prevailing party, including without limitation,
fees incurred during a trial of any action and any fees incurred as a
result of an appeal from a judgment entered in such litigation.
16.11 FURTHER ASSURANCES. Seller and Purchaser shall each
execute and deliver to the other all such other documents and
instruments and perform such further acts as reasonably requested by
the other party to effectuate the transactions contemplated hereby.
-29-
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Exhibit (10)(p)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
"SELLER":
▇▇▇▇▇▇'▇ RESTAURANTS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇▇▇▇▇
President
"PURCHASER":
REMINGTON HOTEL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
ESCROW AGENT:
FIDELITY NATIONAL TITLE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: Vice President/Counsel
------------------------------
-30-
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Exhibit (10)(p)
LIST OF EXHIBITS
Exhibit "A" Description of Fee Simple Real Property
Exhibit "A-1" Description of Leasehold Real Property
Exhibit "B" Tenant Leases and Deposits
Exhibit "C" Maintenance Agreements, Service Contracts, Equipment Leases
and Other Contracts
Exhibit "D" Licenses and Permits
Exhibit "E" ▇▇▇▇ of Sale
Exhibit "F" Assignment and Assumption of Contracts
Exhibit "G" Assignment and Assumption of Leases
Exhibit "H" Employee Schedule
Exhibit 4.1 Requested Diligence Items
-31-
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Exhibit (10)(p)
EXHIBIT "A"
Fee Simple Real Property Description
A-1
33
Exhibit (10)(p)
EXHIBIT "A-1"
Leasehold Property Description
Situate in the Commonwealth of Kentucky, County of Kenton, City of ▇▇▇▇▇▇▇▇▇,
and more particularly described as follows: to-wit:
Beginning at a point in the north line of Fifth Street 305 ft. West of
Philadelphia Street; thence north 0(Degree)21'52" west along a line parallel to
Philadelphia Street 87.5 ft. to a point; thence north 89(Degree)38'08" east
along a line parallel to Fifth Street 5 ft. to a point; thence north
0(Degree)21'52" west along a line parallel to Philadelphia Street 87.5 ft.;
thence north 89(Degree)38'08" east along a line parallel to Fifth Street 87.5
ft. to a point; thence north 0(Degree)21'52" west 105 ft. to a point; thence
north 89(Degree)38'08" east along a line parallel to Fifth Street 7 ft. to a
point; thence north 0(Degree)21'52" west along a line parallel to Philadelphia
Street 52 ft. to a point in the right of way of I-75; thence south
76(Degree)04'22" west along said right of way 173.97 ft. to a point; thence
south 55(Degree)03'22" west 120.17 ft. to a point; thence south 89(Degree)38'08"
west on a line parallel to Fifth Street 145.34 ft.; thence south 0(Degree)21'52"
east on a line parallel to Philadelphia Street 223 ft. to a point in the north
side of Fifth Street; thence north 89(Degree)38'08" east along the north side of
Fifth Street 313.90 ft. to the place of beginning.
A-1
34
Exhibit (10)(p)
EXHIBIT "B"
TENANT LEASES
B-1
35
Exhibit (10)(p)
EXHIBIT "C"
MAINTENANCE AGREEMENTS, SERVICE CONTRACTS,
EQUIPMENT LEASES AND OTHER CONTRACTS
C-1
36
Exhibit (10)(p)
EXHIBIT "D"
LICENSES AND PERMITS
D-1
37
Exhibit (10)(p)
EXHIBIT "E"
BLANKET ▇▇▇▇ OF SALE AND ASSIGNMENT
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, ▇▇▇▇▇▇'▇ RESTAURANTS, INC., a _______________ corporation
(the "Seller"), hereby conveys, sets-over and assigns to
_______________________, a ______________ (the "Purchaser"), all of Seller's
right, title and interest in and to the following items of tangible and
intangible personal property (collectively, the "Assigned Property") relating to
certain real property known as the Clarion Hotel and located in Covington,
Kentucky, more particularly described on Exhibit "B" attached hereto (the "Real
Property"):
(i) PERSONAL PROPERTY. All equipment, furniture, furnishings,
fixtures, machinery, compressors, appliances, engines, desks, files,
tools, spare parts, inventory (including consumable inventory) and
other items of tangible personal property located on or used in
connection with the operations of the Real Property (collectively, the
"Personal Property");
(ii) WARRANTIES. All of Seller's right, title and interest in
and to all transferable warranties and guaranties, express or implied,
related to any of the Assets (the "Warranties") from any contracts,
contractors, subcontractors, materialmen, suppliers or vendors, but
only to the extent that such Warranties are assignable;
(iii) SURVEYS. Any and all site plans, surveys, soil and
substrata studies, architectural drawings, plans and specifications,
engineering plans and studies, landscape plans, environmental site
assessments and/or reports and any other plans or studies of any kind
(the "Plans and Studies"), if any, in Seller's possession or control
that relate to the Real Property (provided Seller makes no
representations or warranties as to the accuracy or completeness of any
such studies, reports, plans or environmental audits);
(iv) LICENSES, PERMITS AND APPROVALS. All licenses, permits
and approvals for or related to the use, occupancy or operation of the
Real Property and the Improvements thereon, or the services rendered in
connection therewith, but only to the extent transferrable (hereinafter
the "Licenses and Permits"), a complete list of which is attached
hereto as Exhibit "C";
(v) INVENTORY. All inventories of supplies used in connection
with the operation of the Assets;
(vi) ADVANCE DEPOSITS. The advance reservations and bookings
(the "Reservations") and advance deposits made in respect thereof (the
"Reservation Deposits"), as more particularly set forth on Exhibit "E"
attached hereto; and
▇-▇
▇▇
▇▇▇▇▇▇▇ (▇▇)(▇)
(▇▇▇) ▇▇▇▇▇. All other personal property, tangible or
intangible, of every kind and character, owned by Seller and used in
connection with, located on or related to the Real Property or the
operation thereof.
Except for the warranty of title above and the representations
contained in that certain Real Estate Purchase and Sale Agreement dated July __,
2000, between Purchaser and Seller, Seller has not made and does not make any
express or implied warranty or representation of any kind whatsoever with
respect to the Personal Property, including but not limited to: merchantability
of the Personal Property or its fitness for any particular purpose; the design
or condition of the Personal Property; or the quality or capacity of the
Personal Property.
TO HAVE AND TO HOLD the Assigned Property unto Purchaser, its
successors and assigns forever, and Seller does hereby bind itself, its
successors and assigns, to WARRANT AND FOREVER DEFEND all and singular the
Assigned Property unto Purchaser, its successors and assigns, against every
person whomsoever lawfully claims or to claim the same or any part thereof by,
through or under Seller.
IN WITNESS WHEREOF, Seller has caused this instrument to be executed
and delivered as of this ______ day of ____________, 1999.
"SELLER"
▇▇▇▇▇▇'▇ RESTAURANTS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: President
---------------------------
"PURCHASER"
---------------------------------
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
▇-▇
▇▇
▇▇▇▇▇▇▇ (▇▇)(▇)
EXHIBIT "F"
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
In consideration of Ten and No/100 Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, ▇▇▇▇▇▇'▇ RESTAURANTS, INC., a ____________ corporation (the
"Assignor"), hereby assigns and delegates to _________________, a
_______________ (the "Assignee"), with an office and place of business at
________________________, and Assignee hereby assumes and accepts the assignment
and delegation of, all of Assignor's right, title and interest in and to the
maintenance agreements, service contracts and equipment leases (collectively,
the "Contracts") described on Exhibit "A" attached hereto relating to certain
real property known as the Clarion Hotel and located in Covington, Kentucky;
provided, however, Assignee only assumes those obligations and liabilities which
first accrue and arise from and after the date hereof.
Assignor hereby agrees to indemnify Assignee against and hold Assignee
harmless from any and all cost, liability, loss, damage or expense, including,
without limitation, reasonable attorneys' fees and costs, relating to or arising
from Assignor's obligations under the Contracts which arose, accrued or were
performable prior to the date hereof. Assignee hereby agrees to hold Assignor
harmless from any and all cost, liability, loss, damage or expense, including,
without limitation, reasonable attorneys' fees and costs, relating to or arising
from obligations or liabilities which first arise, accrue and/or are first
performable pursuant to the Contracts on or after the date hereof.
Assignor represents and warrants to Assignee that there is no existing
uncured default under any of the Contracts on the Assignor's part and no event
has occurred which, with the giving of notice, the lapse of time, or both, could
constitute such an amended default under any of the Contracts.
If any litigation between Assignor and Assignee arises out of the
obligations of the parties under this Assignment or concerning the meaning or
interpretation of any provision contained herein, the non-prevailing party shall
pay the prevailing party's costs and expenses of such litigation including,
without limitation, reasonable attorneys' fees.
This Assignment may be executed and delivered in any number of
counterparts, each of which so executed and delivered shall be deemed to be an
original and all of which shall constitute one and the same instrument.
F-1
40
Exhibit (10)(p)
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment
to be executed and delivered as of the _____ day of _________________, 2000.
ASSIGNOR:
▇▇▇▇▇▇'▇ RESTAURANTS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: President
---------------------------
ASSIGNEE:
---------------------------------
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
F-2
41
Exhibit (10)(p)
EXHIBIT "G"
ASSIGNMENT AND ASSUMPTION OF LEASES
In consideration of the sum of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, ▇▇▇▇▇▇'▇ RESTAURANTS, INC., a _____________________ (the
"Assignor"), hereby assigns and delegates to _________________, a
_______________ (the "Assignee"), and Assignee hereby assumes and accepts the
assignment and delegation of, all Assignor's right, title and interest in and to
the leases and the security deposits (the "Tenant Leases and Deposits")
described on Exhibit "A" attached hereto relating to the property known as the
Clarion Hotel and located in Covington, Kentucky; provided, however, Assignee
only assumes those obligations and liabilities which first arise, accrue and/or
are first performable on or after the date hereof.
Assignor hereby agrees to indemnify Assignee against and hold Assignee
harmless from any and all cost, liability, loss, damage or expense, including,
without limitation, reasonable attorneys' fees and costs, relating to or arising
from Assignor's obligations under the Tenant Leases which arose, accrued or were
performable prior to the date hereof. Assignee hereby agrees to indemnify
Assignor against and hold Assignor harmless from any and all cost, liability,
loss, damage or expense, including, without limitation, reasonable attorneys'
fees and costs, relating to or arising from obligations or liabilities which
first arise, accrue and/or are first performable pursuant to the Tenant Leases
on or after the date hereof.
Assignor represents and warrants to Assignee that there is no existing
uncured default under any of the Tenant Leases on the Assignor's part and no
event has occurred which, with the giving of notice, the lapse of time, or both,
could constitute such an amended default under any of the Tenant Leases.
If any litigation between Assignor and Assignee arises out of the
obligations of the parties under this Assignment or concerning the meaning or
interpretation of any provision contained herein, the non-prevailing party shall
pay the prevailing party's costs and expenses of such litigation including,
without limitation, reasonable attorneys' fees.
This Assignment may be executed and delivered in any number of
counterparts, each of which so executed and delivered shall be deemed to be an
original and all of which shall constitute one and the same instrument.
G-1
42
Exhibit (10)(p)
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment
to be executed and delivered as of the _____ day of _________________, 2000.
ASSIGNOR:
▇▇▇▇▇▇'▇ RESTAURANTS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: President
---------------------------
ASSIGNEE:
---------------------------------
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
G-2
43
Exhibit (10)(p)
EXHIBIT "H"
EMPLOYEE SCHEDULE
H-1
44
Exhibit (10)(p)
EXHIBIT 4.1
DILIGENCE ITEMS REQUESTED
CLARION HOTEL
COVINGTON, KENTUCKY
====== =============================================================== ========
DATE
CODE ITEM RECEIVED
------ --------------------------------------------------------------- --------
A. FINANCIAL INFORMATION
------ --------------------------------------------------------------- --------
1. 1997 Financial Statements (Audited?)
------ --------------------------------------------------------------- --------
2. 1998 Financial Statements (Audited?)
------ --------------------------------------------------------------- --------
3. 1999 Financial Statements (Audited?)
------ --------------------------------------------------------------- --------
4. 1999 Monthly Financials
------ --------------------------------------------------------------- --------
5. 2000 Financial Statement YTD by Month
------ --------------------------------------------------------------- --------
6. Prepaid Expenses (detailed list)
------ --------------------------------------------------------------- --------
7. Deposits & Accruals
------ --------------------------------------------------------------- --------
8. Occupancy and Average rates `97-'99 monthly, and year to date
monthly
------ --------------------------------------------------------------- --------
9. Current `00 Budget
------ --------------------------------------------------------------- --------
10. Occupancy and Average Rates- `97-'00, if available
------ --------------------------------------------------------------- --------
B. INSPECTIONS/STUDIES
------ --------------------------------------------------------------- --------
1. Engineering Report
------ --------------------------------------------------------------- --------
2. Health Inspection Reports
------ --------------------------------------------------------------- --------
3. Franchise Quality Inspection Reports (if applicable)
------ --------------------------------------------------------------- --------
4. Phase I Environmental
------ --------------------------------------------------------------- --------
5. Appraisals
------ --------------------------------------------------------------- --------
6. Asbestos Survey
------ --------------------------------------------------------------- --------
7. Geotechnical/Soils
------ --------------------------------------------------------------- --------
====== =============================================================== ========
4.1-1
45
Exhibit (10)(p)
====== =============================================================== ========
DATE
CODE ITEM RECEIVED
------ --------------------------------------------------------------- --------
C. REAL ESTATE TITLE/TAXES
------ --------------------------------------------------------------- --------
1. Title Commitment/Copies of Exceptions
------ --------------------------------------------------------------- --------
2. ALTA/ACSM Survey
------ --------------------------------------------------------------- --------
3. Real Estate Tax Bills 1997 - 2000
------ --------------------------------------------------------------- --------
4. Personal Property Tax Bills 1997 - 2000
------ --------------------------------------------------------------- --------
D. ZONING
------ --------------------------------------------------------------- --------
1. Zoning Letters/Opinions
------ --------------------------------------------------------------- --------
2. Utility Letters
------ --------------------------------------------------------------- --------
1. Gas
------ --------------------------------------------------------------- --------
2. Sewer
------ --------------------------------------------------------------- --------
c. Electric
------ --------------------------------------------------------------- --------
4. Telephone
------ --------------------------------------------------------------- --------
E. UTILITY BILLS
------ --------------------------------------------------------------- --------
1. Utility Bills (last 12 months)
------ --------------------------------------------------------------- --------
F. INSURANCE INFORMATION
------ --------------------------------------------------------------- --------
1. Current Owners Insurance
------ --------------------------------------------------------------- --------
2. Loss History Reports
------ --------------------------------------------------------------- --------
G. FRANCHISE AGREEMENT
------ --------------------------------------------------------------- --------
1. Franchise Agreement
------ --------------------------------------------------------------- --------
2. PIP
------ --------------------------------------------------------------- --------
3. Quality Assurance Reports
------ --------------------------------------------------------------- --------
H. EQUIPMENT LEASES
------ --------------------------------------------------------------- --------
1. Copies of all Leases
------ --------------------------------------------------------------- --------
2. Schedules/Summaries
------ --------------------------------------------------------------- --------
====== =============================================================== ========
4.1-2
46
Exhibit (10)(p)
====== =============================================================== ========
DATE
CODE ITEM RECEIVED
------ --------------------------------------------------------------- --------
I. OTHER CONTRACTS/LEASES/LICENSES
------ --------------------------------------------------------------- --------
1. Commercial Leases with Abstracts
------ --------------------------------------------------------------- --------
2. Maintenance and Service Contracts with Summary of Terms
------ --------------------------------------------------------------- --------
3. Licenses & Permits
------ --------------------------------------------------------------- --------
4. No Violation Letters
------ --------------------------------------------------------------- --------
5. Tax Clearance Letters
------ --------------------------------------------------------------- --------
6. Current Management Agreement
------ --------------------------------------------------------------- --------
J. SALES & MARKETING
------ --------------------------------------------------------------- --------
1. Most Recent STAR Report/Comparable Market Information
------ --------------------------------------------------------------- --------
2. Market Segmentation Information
------ --------------------------------------------------------------- --------
3. Sales Kit & Brochures
------ --------------------------------------------------------------- --------
4. Current Marketing Plan
------ --------------------------------------------------------------- --------
5. Property Fact Sheet Including Amenities, Rooms, Food Beverage
Facilities
------ --------------------------------------------------------------- --------
6. Full Set of Photos of Hotel
------ --------------------------------------------------------------- --------
7. List of Accounts with Rates and Annual Room Nights
------ --------------------------------------------------------------- --------
K. INVENTORIES/PERSONAL PROPERTY
------ --------------------------------------------------------------- --------
1. Detailed list of all FF&E
------ --------------------------------------------------------------- --------
2. Operating Supplies (including but not limited to Food,
Beverage, China, Linen, etc.)
------ --------------------------------------------------------------- --------
3. Miscellaneous Inventories
------ --------------------------------------------------------------- --------
4. UCC Searches
------ --------------------------------------------------------------- --------
====== =============================================================== ========
4.1-3
47
Exhibit (10)(p)
====== =============================================================== ========
DATE
CODE ITEM RECEIVED
------ --------------------------------------------------------------- --------
L. EMPLOYEE INFORMATION
------ --------------------------------------------------------------- --------
1. Employee Census (name, date of hire, last increase,
department, title, rate of pay, etc.)
------ --------------------------------------------------------------- --------
2. Payroll Run
------ --------------------------------------------------------------- --------
3. Union Agreement
------ --------------------------------------------------------------- --------
4. Employee Benefits
------ --------------------------------------------------------------- --------
5. Employee Contracts
------ --------------------------------------------------------------- --------
6. Pension Documents/Schedule of Liabilities
------ --------------------------------------------------------------- --------
M. AS-BUILT PLANS AND SPECS
------ --------------------------------------------------------------- --------
1. Plans and Specs
------ --------------------------------------------------------------- --------
2. Certificate of Occupancy
------ --------------------------------------------------------------- --------
N. SCHEDULE OF PENDING LITIGATION
====== =============================================================== ========
4.1-4
