CONTRACT OF SALE
AGREEMENT (the "Agreement") made this ____ day of July, 1996 between The
Soho Hotel Company, L.P., a Delaware limited partnership, having an office at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter "Seller") and The
▇▇▇▇▇▇ I L.L.C., a Delaware limited liability company, having an address c/o BD
Hotels, LLC, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter
"Purchaser").
W I T N E S S E T H
WHEREAS, Seller is the owner of the Property (as defined below).
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, the Property.
NOW THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Seller and Purchaser agree as follows:
0. Sale-Purchase. Seller agrees to sell, assign and convey to
Purchaser, and Purchaser agrees to purchase from Seller, subject to the
terms and conditions of this Agreement, all of Seller's right, title and
interest as fee owner of the premises more particularly described in
Exhibit A attached hereto (the "Land"), together with the building and
improvements thereon (collectively, the "Building"), commonly known by the
street address of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, and all of Seller's right, title and
interest in, to and under (i) all easements, rights of way, privileges,
appurtenances, development rights, strips, gores and other rights
pertaining to the Land and the Building, if any (collectively, the
"Appurtenances"); and (ii) the fixtures, and equipment, if any, owned by
Seller and attached to or built into the Building (collectively, the
"Fixtures"). The Land, the Building, the Appurtenances, and the Fixtures
are hereinafter collectively referred to as the "Property".
1. Purchase Price. Purchaser shall pay to Seller for the Property the
sum of Seven Million Eight Hundred Twenty-Six Thousand Five Hundred Five
and 14/100 DOLLARS ($7,826,505.14) (hereinafter, the "Purchase Price").
Purchaser shall pay the Purchase Price, on the Closing Date (as herein
defined), by wire transfer of immediately available federal funds for
credit to Seller's account or to such other bank account or accounts, and
divided into such amounts, as Seller shall designate.
2. Title: Permitted Encumbrances. Subject to the terms and provisions
of this Agreement, title to the Property shall be sold, assigned and
conveyed by Seller to Purchaser, and Purchaser shall accept the same
subject to the following (collectively, the "Permitted Encumbrances"):
( ) The encumbrances, conditions, stipulations and exceptions
raised in Exhibit B attached hereto and hereby made a part hereof and
such other matters as any reputable title insurance company shall be
willing, without special premium, to omit as exceptions to coverage;
(a) Real estate taxes, water and sewer charges, vault taxes and
assessments affecting the Property;
(b) All utility company rights, easements and franchises to
maintain and operate lines, poles, wires, cables, pipes, distribution
boxes and other fixtures and facilities in over, under and upon the
Property;
(c) Possible projections and/or encroachments of retaining walls,
stoops, areas, steps, ▇▇▇▇▇, trim, cornices, standpipes, casings,
ledges, water table, lintels, porticos, keystones, bay windows,
copings, cellar doors, sidewalk elevators, fences, fire escapes and
the like, or similar projections of objects on, under or above any
adjoining streets of the Property or any property adjoining the
Property, or within any set-back areas, and encroachments of similar
elements projecting from adjoining property over the Property and
variations between the lines of record title and fences, retaining
walls and the like;
(d) Zoning ordinances and restrictions and amendments thereto now
or hereafter in force or effect provided they are not violated by the
Building or the use thereof as a hotel with restaurant and retail
uses;
(e) Existing rights and obligations in respect of any party walls
which are not the subject of written agreement provided such
obligations do not interfere with or prevent the use of the building
as a hotel with restaurant and retail uses;
(f) The rights, if any, of any governmental authority having or
asserting jurisdiction thereof, with respect to any vaults under the
sidewalks beyond the building line;
(g) All notes or notices of any violation of law or municipal
ordinances, orders or requirements noted in any federal,
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state or municipal department having or asserting jurisdiction against
the Property (hereinafter "Violations") after the date hereof;
(h) The rights of J. Crew Company under the terms and provisions
of that certain retail lease with respect to a portion of the
Building, dated as of January 29, 1996, by and between Seller, as
lessor, and ▇▇▇▇▇ ▇▇▇▇▇▇, Inc., as lessee (the "J. Crew Lease");
(i) The mechanics liens identified on Exhibit C annexed hereto
(the "Mechanics' Liens").
(j) Any other matter or thing affecting the Property which
Purchaser agrees to take subject to or waives in writing pursuant to
the terms of this Agreement.
3. Title Insurance.
( ) Purchaser has received and reviewed a specimen owner's title
insurance policy from Chicago Title Insurance Company (the "Title
Company") numbered TA #▇▇▇▇-▇▇▇-▇▇▇▇▇▇ (the "Specimen Policy") a copy
of which is attached hereto as Exhibit D and incorporated herein by
this reference. Purchaser has no objections to the exceptions set
forth in the Specimen Policy and agrees that such exceptions shall be
deemed Permitted Encumbrances. It shall be a condition to Purchaser's
obligation to close that the Title Company commit to issue to
Purchaser a title insurance policy in the amount of $18,000,000 in the
form of the Specimen Policy.
(a) In lieu of satisfying any monetary liens or encumbrances
which Seller may elect, or be required pursuant to the express terms
hereof, to satisfy under this Agreement, Seller may deposit with the
Title Company such amount of money as may be determined by the Title
Company as being sufficient to induce the Title Company to
affirmatively insure Purchaser (at the then current rate(s) of the
Title Company which shall be Seller's obligation) against collection
of such liens and/or encumbrances out of or against the Property.
(b) If, at the Closing, the Property is subject to any existing
mortgage or mortgages given by Seller, unpaid taxes, water charges and
assessment or any other lien or liens which, pursuant to the terms of
this Agreement Seller is required to satisfy or discharge, Seller
shall not be obligated to satisfy or discharge same of record provided
(i) recordable instruments of satisfaction, discharge or pay-off
letters are delivered to the Title Company on
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the Closing Date (as hereinafter defined) and proper allowances made
to Purchaser for recording charges thereon and (ii) the Title Company
shall omit same as an exception to title on Purchaser's title
insurance policy.
(c) If the title report of the Title Company discloses judgments,
bankruptcies or other returns against other persons having names the
same as, or similar to, that of Seller, Seller shall, if requested,
deliver to the Title Company affidavits showing that such judgments,
bankruptcies or other returns are not against Seller in order to
induce the Title Company to omit exceptions with respect to such
judgments, bankruptcies or other returns or to insure over same.
(d) Franchise or other similar taxes against any owner or others
in the chain of title shall not constitute a title objection if the
Title Company shall agree to insure without additional premium that
such taxes will not be collectible against the Property. As a
condition to Closing, Seller shall deliver to the Title Company a good
standing certificate from the State of Delaware and a current
certificate of authority to transact business in the State of New York
with respect to Seller. In the event Seller is unable to deliver such
certificates by the Closing Date, Seller shall be entitled to a
reasonable adjournment of the Closing Date for the purpose of
obtaining such certificates.
(e) Seller shall deliver to the Title Company, if required, in
reasonable and customary form (i) a certificate with respect to
mechanics' liens certifying that there are no unpaid bills for
services rendered or material furnished to the Property, other than
the Mechanics' Liens set forth on Exhibit C, and (ii) an agreement
indemnifying the Title Company against claims for any such services or
materials other than the claims of the Mechanics' Liens. In the event
Seller shall elect a New York style Closing, Seller shall agree to
deliver to the Title Company a gap indemnity agreement in the
customary reasonable form of the Title Company limited to a time
period of not greater than forty-eight (48) hours.
4. Closing Date. The closing of title (the "Closing") shall take place
on July 11, 1996 at the office of Seller's attorneys, Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Upon delivery
of the Purchase Price to Seller by Purchaser, as aforesaid, Seller and
Purchaser shall deliver the documents referred to in Section 11 hereof. The
date on which the Closing shall take place is hereinafter referred to as
the "Closing Date."
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5. Intentionally omitted.
6. Assessments. If, on the Closing Date, the Property or any part
thereof shall be or shall have been affected by an assessment or
assessments which are payable in annual installments, then for the purposes
of this Agreement (a) all installments due and payable at the time of the
Closing shall be the responsibility of Seller and (b) all the unpaid
installments which are not due and payable as of the Closing shall be paid
and discharged by Purchaser as and when same shall become due and payable;
provided that any annual installment for the fiscal year in which the
Closing Date occurs shall be apportioned.
7. Condition of the Property.
( ) Subject to the provisions of Section 16 hereof, Purchaser
agrees to accept the Property "as is", "where is" and with all faults
on the date hereof
(a) Except as expressly set forth in this Agreement (i) neither
Seller, nor the employees, agents, representatives, accountants or
attorneys of Seller have made any verbal or written representations or
warranties whatsoever with respect to the physical condition or
operation of the Property, the zoning and other laws, regulations,
rules and ordinances applicable thereto (including the Landmarks
Preservation Commission) or the compliance by the Property therewith,
(ii) neither Seller nor Purchaser has relied or will rely on any such
representations made or to be made by the other except as herein
specifically set forth, and (iii) Purchaser and Seller acknowledge
that no such representations or warranties have been made by the other
except as herein specifically set forth.
8. Brokers and Advisors.
( ) Purchaser represents to Seller that Purchaser did not
negotiate with any real estate agents, brokers or finders in
connection with this transaction. Purchaser hereby agrees to
indemnify, defend and hold Seller harmless from and against any and
all claims, losses, liability, costs and expenses (including
reasonable attorneys' fees and disbursements) resulting from any claim
that may be made against Seller by any broker, or any other person
claiming a commission fee or other compensation by reason of this
transaction, if the same shall arise by, through or on account of any
alleged act of Purchaser or Purchaser's representatives.
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(a) Seller represents to Purchaser that Seller did not negotiate
with any real estate agents, brokers or finders in connection with
this transaction. Seller hereby agrees to indemnify, defend and hold
Purchaser harmless from and against any and all claims, losses,
liability, costs and expenses (including reasonable attorneys' fees
and disbursements) resulting from any claim that may be made against
Purchaser by any broker, or any other person claiming a commission fee
or other compensation by reason of this transaction, if the same shall
arise by, through or on account of any alleged act of Seller or
Seller's representatives.
(b) The provisions of this Section 9 shall survive the Closing.
9. Recording Charges.
( ) Purchaser shall pay, without credit against the Purchase
Price, any and all recording charges and fees and all transfer,
conveyance, sales, intangible and mortgage taxes paid or payable in
connection with any assignment or transfer by Seller, or any person or
entity comprising Seller, of all or any portion of its interest in the
Property.
(a) The obligations arising pursuant to this Section 10 shall
survive the Closing.
10. Deliveries to be made on the Closing Date.
Seller, pursuant to the provisions of this Agreement, shall execute,
acknowledge and/or deliver, as applicable, to Purchaser on the Closing Date
the following items:
(i) A bargain and sale deed without covenants against grantor's
acts, conveying good and valid record title to the Property, subject
to no encumbrances other than the Permitted Encumbrances;
(ii) An instrument of assignment of (x) permits and licenses, (y)
warranties and guarantees from contractors with respect to any work
performed at the Property and (z) intangible personal property, duly
executed by Seller;
(iii) Plans and specifications for the Building, and surveys and
site plans for the Property, to the extent in Seller's
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possession; provided, however, Seller makes no representation or
warranty as to the accuracy or completeness of same;
(iv) A resolution of the Board of Directors of the Managing
General Partner of Seller authorizing the transactions contemplated
hereby, together with a certificate of the Secretary of the Managing
General Partner of Seller certifying that the Board of Directors of
the Managing General Partner of Seller has duly adopted such
resolutions;
(v) A duly executed certification as to Seller's non-foreign
status as prescribed in Section 13 hereof;
(vi) An instrument of assignment of the J. Crew Lease, duly
executed by Seller;
(vii) An instrument of assignment of the Contracts (as
hereinafter defined), duly executed by Seller;
(viii) An estoppel certificate duly executed and acknowledged by
the tenant under the J. Crew Lease which shall be acceptable to
Purchaser in form and substance;
(ix) A lien waiver and estoppel certificate duly executed by the
party with whom Seller contracted under each of the Contracts which
shall be acceptable to Purchaser in form and substance; and
(x) A ▇▇▇▇ of sale conveying Seller's right, title and interest
in and to any personal property located at the Property.
The Closing and consummation of the transaction contemplated herein shall
be deemed to be a waiver by Purchaser of any of the Seller's deliveries in this
Section 11, unless Seller and Purchaser agree otherwise in writing.
Purchaser shall execute and deliver to Seller on the Closing Date the
following items:
(i) An instrument of assumption of the Contracts, duly executed by
Purchaser; and
(ii) An instrument of assumption of the J. Crew Lease, duly executed
by Purchaser; and
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(iii) A release by Purchaser in favor of Seller with respect to claims
relating to the Mechanics's Liens.
11. REPRESENTATIONS, WARRANTIES AND COVENANTS.
( ) Seller represents, warrants and covenants to Purchaser as of the
date hereof that:
(i) Seller is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(ii) Seller has not received written notice of any pending
condemnation or eminent domain proceedings which would affect the Property;
(iii) This Agreement constitutes the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its
terms;
(iv) Except for the Mechanics' Liens, to Seller's actual knowledge, no
action, suit, claim, investigation or proceeding, whether legal or
administrative or in mediation or arbitration, is pending or threatened, at
law or in equity (collectively, "Pending Proceedings"), against Seller or
the Property before or by any court or federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality including, without limitation, any Pending Proceedings,
which would prevent Seller from performing its obligations pursuant to this
Agreement, and to Seller's actual knowledge, there are no judgments,
decrees or orders entered on a suit or proceeding against Seller or the
Property, an adverse decision in which might, or which judgment, decree or
order does, adversely affect Seller's ability to perform its obligations
pursuant to, or Purchaser's rights under, this Agreement, or which seeks to
restrain, prohibit, invalidate, set aside, rescind, prevent or make
unlawful this Agreement or the carrying out of this Agreement or the
transactions contemplated hereby;
(v) The execution and delivery of this Agreement and the performance
by Seller of its obligations hereunder do not and will not conflict with or
violate any law, rule, judgment, regulation, order, writ, injunction or
decree of any court or governmental or quasi-governmental entity with
jurisdiction over Seller, including, without limitation, the United States
of America, the State of New York or any political subdivision of either of
the
8
foregoing, or any decision or ruling of any arbitrator to which Seller is a
party or by which Seller is bound or affected;
(vi) To the best of Seller's knowledge, Seller has not received any
written notice from any governmental authority having jurisdiction over the
Property claiming that the Property is in violation of any laws, rules,
orders, codes or ordinances of all applicable federal, state, city or other
governmental authority (collectively, "Laws") applicable to the Property
including, without limitation, any Laws relating to the presence, release
or discharge at the Property of any flammable explosives, radioactive
materials, hazardous wastes, hazardous and toxic substances, or related
materials, asbestos or any material containing asbestos or any other
substance or material, as defined by any federal, state or local
environmental law, ordinance, rule or regulation.
(vii) Seller has taken all necessary action to authorize and approve
the execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement; and
(viii) Exhibit E annexed hereto and made a part hereof is a true and
complete list of all contracts and agreements (other than the J. Crew
Lease) (collectively, the "Contracts") which bind Seller and/or the
Property. To the best of Seller's knowledge, there are no material defaults
by Seller beyond any applicable grace period under the Contracts.
If any written materials which have been exhibited or delivered to or reviewed
by Purchaser or its representative contain provisions that are inconsistent with
the foregoing representations and warranties, such representations and
warranties shall be deemed modified to the extent necessary to eliminate such
inconsistency and to conform such representations and warranties to the
provisions of such materials. All representations and warranties made to the
best of Seller's knowledge or to Seller's actual knowledge or any variation
thereof shall be conclusively construed to mean and be limited to the statement
that there is no fact or circumstance contrary to such representation or
warranty included in a written notice received or sent by the general partner in
Seller on behalf of Seller.
(a) Purchaser represents, warrants and covenants to Seller as of the
date hereof that:
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(i) This Agreement constitutes the legal, valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance
with its terms. Purchaser has taken all necessary action to authorize
and approve the execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement.
(ii) The execution and delivery of this Agreement and the
performance by Purchaser of its obligations hereunder do not and will
not conflict with or violate any law, rule, judgment, regulation,
order, writ, injunction or decree of any court or governmental or
quasi-governmental entity with jurisdiction over Purchaser, including,
without limitation, the United States of America, the State of new
York, or any political, subdivision of either of the foregoing; and
(b) The representations and warranties set forth hereinabove and all
other representations and warranties contained in this Agreement shall not,
except as expressly set forth herein, survive the Closing Date.
12. FIRPTA Compliance. Seller shall comply with the provisions of the
Foreign Investment in Real Property Tax Act, Internal Revenue Code of 1986, as
amended, Section 1445, as the same may from time to time be amended, or any
successor or similar law (collectively, the "FIRPTA Code"). On the Closing Date,
Seller shall deliver to Purchaser a certification as to Seller's non-foreign
status which complies with the provisions of Section 1445(b)(2) of the FIRPTA
Code, and shall comply with any temporary or final regulations promulgated with
respect thereto and any relevant revenue procedures or other officially
published announcements of the Internal Revenue Service of the U.S. Department
of the Treasury in connection therewith.
13. Merger. Except as otherwise expressly provided to the contrary in this
Agreement or in a separate written agreement, no representations, warranties,
covenants or other obligations of Seller set forth in this Agreement shall
survive the Closing, and no action based thereon shall be commenced after the
Closing. The delivery and acceptance of the Deed at the Closing, absent the
simultaneous execution and delivery of a specific agreement which by its terms
shall survive the Closing, shall be deemed to constitute full compliance by the
parties with all of the terms, conditions and covenants of this Agreement on
their part to be performed, except to the extent of any representations or
covenants, if any, expressly
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set forth herein which are specifically stated to survive the Closing.
14. Notices. All demands, requests or other communications (collectively,
"notices") required to be given or which may be given hereunder shall be in
writing and shall be sent by (a) certified or registered mail, return receipt
requested, postage prepaid, or (b) national prepaid overnight delivery service,
acknowledged in writing, directed to:
Seller: The Soho Hotel Company, L.P.
c/o ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
c/o Hotel Corporation of America
c/o Sonesta International Hotels
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
with a copy to: Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
and
▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Purchaser: The ▇▇▇▇▇▇ I L.L.C.
c/o BD Hotels, LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ Born
with a copy to: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Attn: M. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., Esq.
Any notice shall be deemed given on the date of receipt or when delivered or
refused. A notice may be given either by a party or by such party's attorney.
Both Seller and Purchaser may designate by not less five (5) business days'
notice given to the other in accordance with the terms of this Section 15,
substituted parties to whom notices should be sent hereunder.
15. Inspection of the Property. Purchaser acknowledges and agrees that
Purchaser and/or its consultants and contractors have, prior to the date hereof,
entered upon the Property for the purposes of making "walk-through" visual
inspections of the Property and for otherwise making such tests, inspections,
surveys, Phase 1 environmental assessments and such other architectural,
engineering or environmental studies of the same as Purchaser has deemed
necessary or desirable in making its determination to purchase the Property.
Purchaser has determined the condition of the Property to be satisfactory to
Purchaser based solely upon Purchaser's own and/or its consultants' and
contractors' inspection, analysis and evaluation of the Property and not in
reliance upon any records or other information obtained from or on behalf of
Seller, and Purchaser agrees to accept the Property subject to all latent and
patent defects existing as of the Closing Date. All actions taken by or on
behalf of Purchaser with respect to the inspection of the Property have been in
accordance with all applicable laws, rules and regulations of the appropriate
governmental authorities having jurisdiction over the Property. Purchaser
acknowledges that Seller has made available to Purchaser, for its review, copies
of any existing surveys of the Property in the possession of Seller, copies of
certain environmental, engineering or architectural tests, studies and reports;
provided, however, the Purchaser and Seller agree that any such surveys, and
environmental or engineering tests, studies, reports or similar items were
provided by Seller as an accommodation to Purchaser and without representation
or warranty by Seller as to the accuracy or completeness thereof.
( ) Purchaser agrees to provide to Seller, without representation or
warranty as to accuracy, a copy of all results from structural or
environmental tests and written reports with respect to structural or
environmental matters related to the Property. Purchaser agrees that all
reports, data, information, studies and materials (collectively, "Reports")
resulting from the tests shall be confidential and Purchaser shall not
disclose any such reports prior to the Closing to any third party.
Notwithstanding
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the foregoing, Purchaser shall not have any liability for disclosure of
confidential Reports required by law or by court order or by order of any
governmental or administrative agency or tribunal having jurisdiction over
the Property or Purchaser.
(a) Purchaser shall promptly repair any damage to the Property caused
by the tests and inspections and agrees to restore the Property to the same
condition as existed immediately before the commencement of the tests and
inspections.
(b) The provisions of this Section 16 shall survive the Closing.
16. Intentionally omitted.
17. Amendments. This Agreement may not be modified or terminated orally or
in any manner other than by an agreement in writing signed by all the parties
hereto or their respective successors in interest.
18. Governing Law; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, Seller and
Purchaser hereby irrevocably: (a) submit in any legal proceeding relating to
this Agreement to the non-exclusive in personam jurisdiction of any state or
United States court of competent jurisdiction sitting in the City and State of
New York and agree to suit being brought in such courts; and (b) waive any
objection either party may now or hereafter have to the venue of such proceeding
in any such court or that such proceeding was brought in an inconvenient court.
19. No Offer. This document is not an offer by Seller, and under no
circumstances shall this Agreement have any binding effect upon Purchaser or
Seller unless and until Purchaser and Seller shall each have executed this
Agreement and delivered to each other executed counterparts of this Agreement.
20. Partial Invalidity. If any provision of this Agreement is held to be
invalid or unenforceable as against any person or under certain circumstances,
the remainder of this Agreement and the applicability of such provision to other
persons or circumstances shall not be affected thereby. Each provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
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21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original, but all of which,
taken together, shall constitute but one and the same instrument.
22. No Third Party Beneficiaries. The warranties, representations,
agreements and undertakings contained herein shall not be deemed to have been
made for the benefit of any person or entity other than the parties hereto.
23. Waiver. No failure to delay of either party in the exercise of any
right given to such party hereunder or the waiver by any party of any condition
hereunder for its benefit (unless the time specified herein for exercise of such
right, or satisfaction of such condition, has expired) shall constitute a waiver
or any other or further right nor shall any single or partial exercise of any
right preclude other of further exercise thereof or any other right. The waiver
of any breach hereunder shall not be deemed to be waiver of any other or any
subsequent breach hereof.
24. Assignment. Purchaser may not assign its rights and obligations
hereunder without the express prior written consent of Seller, which consent may
be granted or withheld by Seller in its sole and absolute discretion.
25. Binding Effect. This Agreement is binding upon and shall inure to the
benefit of, the parties and each of their respective successors and permitted
assigns, if any.
26. Waiver of Jury Trial. Each of Purchaser and Seller hereby irrevocably
waive all right to trial by jury in any action, proceeding or counterclaim
arising out of or relating to this Agreement.
27. Litigation. In connection with any litigation arising out of this
Agreement, the prevailing party shall be entitled to recover all reasonable
costs, including reasonable attorneys' fees for services rendered in connection
with such litigation, including appellate proceeding and post judgment
proceedings. The provisions of this Section shall survive the Closing.
28. Paragraph Headings. The headings of the various sections of this
Agreement have been inserted only for the purpose of convenience and are not
part of this Agreement and shall not be
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deemed in any manner to modify, expand, explain or restrict any of the
provisions of this Agreement.
29. No Personal Liability. Except as otherwise provided in separate written
agreements executed and delivered in connection with the Closing, no general or
limited partner of Seller, no officer, director, stockholder or partner of a
partner of Seller, no disclosed or undisclosed principal of Seller, and no
person or entity in any way affiliated with Seller shall have any personal
liability with respect to this Agreement, any instrument delivered by Seller at
the closing, or the transaction contemplated hereby, nor shall the property of
any such person or entity be subject to attachment, levy, execution or other
judicial process.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
the day and year first above written.
SELLER:
THE SOHO HOTEL COMPANY, L.P.
By: Hotel Corporation of America
By:/s/
-------------------------------
Name:
Title:
PURCHASER:
THE ▇▇▇▇▇▇ I L.L.C.
By: BDL Prince LLC, Manager
By:/s/
▇▇▇ ▇▇▇▇▇▇▇, Manager
-------------------------------
By:/s/
-------------------------------
▇▇▇▇▇▇▇ Born, Manager
By: ▇▇▇▇▇▇ Management L.L.C.,
Manager
By:/s/
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Manager-Member
16
LIST OF EXHIBITS
EXHIBIT A LEGAL DESCRIPTION
EXHIBIT B PERMITTED ENCUMBRANCES
EXHIBIT C MECHANICS' LIENS
EXHIBIT D SPECIMEN TITLE POLICY
EXHIBIT E CONTRACTS
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