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EXHIBIT 10.1
CONTRIBUTION AGREEMENT
dated as of June 2, 1997
among
A Kansas Limited partnership
as Contributor,
INNKEEPERS USA LIMITED PARTNERSHIP,
a Virginia limited partnership,
as Acquiror,
and
INNKEEPERS USA TRUST,
a Maryland real estate investment trust,
in connection with the
[SUMMERFIELD] SUITES HOTEL
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TABLE OF CONTENTS
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1. DEFINITIONS; RULES OF CONSTRUCTION.............................................................................5
1.1. Definitions.........................................................................................5
1.2. Rules of Construction..............................................................................13
2. CONTRIBUTION AND ACQUISITION;PAYMENT OF CONTRIBUTION CONSIDERATION............................................13
2.1. Contribution and Acquisition.......................................................................14
2.2. Study Period.......................................................................................14
2.3. Payment of Contribution Consideration..............................................................16
2.4. Allocation of Contribution Consideration...........................................................17
2.5. Determination of Number of Common Partnership Units................................................18
2.6. Authorization and Reservation of Common Shares.....................................................18
2.7. Contingent Consideration...........................................................................18
3. CONTRIBUTOR'S REPRESENTATIONS, WARRANTIES AND COVENANTS.......................................................19
3.1. Organization and Power.............................................................................19
3.2. Authorization and Execution........................................................................19
3.3. Noncontravention...................................................................................20
3.4. No Special Taxes...................................................................................20
3.5. Compliance with Existing Laws......................................................................20
3.6. Operating Agreements...............................................................................21
3.7. Warranties and Guaranties..........................................................................21
3.8. Insurance..........................................................................................22
3.9. Condemnation Proceedings; Roadways.................................................................22
3.10. Litigation........................................................................................22
3.11. Labor Disputes and Agreements.....................................................................23
3.12. Financial Information.............................................................................23
3.13. Organizational Documents..........................................................................24
3.14. Operation of Property.............................................................................24
3.15. Personal Property.................................................................................24
3.16. Bankruptcy........................................................................................24
3.17. Title to Property.................................................................................24
3.18. Zoning............................................................................................25
3.19. Historical Districts..............................................................................25
3.20. Brokerage Commission..............................................................................25
3.21. Hazardous Substances..............................................................................25
3.22. Room Furnishings..................................................................................26
3.23. Franchisor........................................................................................26
3.24. Liquor License....................................................................................26
3.25. Independent Audit.................................................................................26
3.26. Sufficiency of Certain Items......................................................................27
3.27. Additional Representations and Warranties.........................................................27
3.28. Securities Matters................................................................................28
3.29. Taxes.............................................................................................28
3.30. No Misrepresentations.............................................................................29
3.31. Tax Opinion Representations.......................................................................29
3.32. Mortgage Documents................................................................................30
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3.33. Updating of Representations and Warranties........................................................31
3.34. Bulk Sales Compliance.............................................................................31
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF ACQUIROR AND REIT................................................32
4.1. Organization and Power.............................................................................32
4.2. Authorization and Execution........................................................................32
4.3. Noncontravention...................................................................................33
4.4. Compliance with Existing Laws......................................................................33
4.5. Litigation.........................................................................................34
4.6. Labor Disputes and Agreements......................................................................34
4.7. Financial Statements...............................................................................35
4.8. Title to Properties................................................................................35
4.9. Zoning.............................................................................................35
4.10. Insurance.........................................................................................35
4.11. Personal Property.................................................................................36
4.12. Bankruptcy........................................................................................36
4.13. Brokerage Commission..............................................................................36
4.14. Hazardous Substances..............................................................................36
4.15. Capitalization....................................................................................37
4.16. Organizational Documents..........................................................................37
4.17. Options, Warrants, and Other Rights...............................................................37
4.18. Taxes.............................................................................................38
4.19. No Misrepresentations.............................................................................38
4.20. Leases............................................................................................38
4.21. Common Shares and Redemption Shares...............................................................39
4.22. Tax Consequences to Contributor and its Partners..................................................39
4.23. Updating of Representations and Warranties........................................................39
5. CONDITIONS AND ADDITIONAL COVENANTS...........................................................................40
5.1. Acquiror's Obligations.............................................................................40
5.2. Contributor's Obligations..........................................................................42
6. CLOSING.......................................................................................................44
6.1. Closing............................................................................................44
6.2. Contributor's Deliveries...........................................................................44
6.3. Acquiror's Deliveries..............................................................................46
6.4. Closing Costs......................................................................................47
6.5. Income and Expense Allocations.....................................................................48
7. POST CLOSING COVENANTS........................................................................................49
7.1. Taxable Sale of Real Property......................................................................49
7.2. [Intentionally Omitted]............................................................................50
7.3. [Intentionally Omitted]............................................................................50
7.4. Tax Elections......................................................................................50
7.5. Re-election of Board Member........................................................................50
7.6. Timely Filing of SEC Filings.......................................................................50
7.7. Book Capital Accounts..............................................................................50
7.8. Release of Mortgage Note...........................................................................50
7.9. Common Partnership Units...........................................................................51
7.10. Contributor's Financing...........................................................................51
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7.11. Liquor License....................................................................................52
8. CONDEMNATION; RISK OF LOSS....................................................................................53
8.1. Condemnation.......................................................................................53
8.2. Risk of Loss.......................................................................................53
9. LIABILITY OF ACQUIROR; INDEMNIFICATION; TERMINATION RIGHTS....................................................53
9.1. Liability of Acquiror..............................................................................53
9.2. Indemnification by Contributor.....................................................................53
9.3. General Indemnification by Acquiror................................................................54
9.4. Tax Indemnification by Acquiror....................................................................55
9.5. Termination by Acquiror............................................................................56
9.6. Termination by Contributor.........................................................................58
10. MISCELLANEOUS PROVISIONS.....................................................................................59
10.1. Completeness; Modification........................................................................59
10.2. Assignments; Taking Title.........................................................................59
10.3. Successors and Assigns............................................................................60
10.4. Days..............................................................................................60
10.5. Governing Law.....................................................................................60
10.6. Counterparts......................................................................................60
10.7. Severability......................................................................................61
10.8. Notices...........................................................................................61
10.9. Incorporation by Reference........................................................................62
10.10. Survival.........................................................................................62
10.11. Further Assurances...............................................................................63
10.12. Time of Essence..................................................................................63
10.13. Confidentiality..................................................................................63
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LIST OF EXHIBITS AND SCHEDULES
Exhibit A - Land
Exhibit B - Operating Agreements
Exhibit C - Contributor's Organizational Documents
Exhibit D - Mortgage
[FOR TINTON FALLS - Exhibit D-1 - Other Mortgage Documents]
Exhibit E - Mortgage Note
Exhibit F - Permitted Exceptions
Exhibit G - Percentage Rent Provisions
Schedule 2.3(b) - Capital Leases
Schedule 3.2 - Contribution Consents
Schedule 3.6 - Operating Agreements Not Freely
Terminable.
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CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT, dated as of the 2nd day of June, 1997, among
_________________________________________, a Kansas limited partnership (the
"Contributor"), INNKEEPERS USA LIMITED PARTNERSHIP, a Virginia limited
partnership (the "Acquiror"), and INNKEEPERS USA TRUST, a Maryland Real Estate
Investment Trust ("REIT") (REIT and Acquiror, collectively, "Innkeepers"),
provides:
1. DEFINITIONS; RULES OF CONSTRUCTION
1.1. Definitions.
The following terms shall have the indicated meanings:
"Acquiror's Break-Up Fee" shall have the meaning set forth in
Section 9.5.
"Acquiror's Out-of-Pocket Costs" shall have the meaning set forth in
Section 9.5.
"Acquiror's Knowledge" shall mean the actual knowledge of Xxxxxxx X.
Xxxxxx, Xxxxxxxx Xxxx, Xxxxx Xxxxxx, Xxxx Xxxxxx and Xxxx Xxxxxxx.
"Acquiror's Partnership Agreement" shall mean the Second Amended and
Restated Agreement of Limited Partnership of the Acquiror in the form of Item 1
to the Master Addendum.
"Acquiror Material Adverse Effect" shall have the meaning set forth
in Section 4.1.
"Act of Bankruptcy" shall mean if a party hereto or any general
partner thereof shall (a) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its Property, (b) admit in writing its
inability to pay its debts as they become due, (c) make a general assignment for
the benefit of its creditors, (d) file a voluntary petition or commence a
voluntary case or proceeding under the Federal Bankruptcy Code (as now or
hereafter in effect), (e) be adjudicated a bankrupt or insolvent, (f) file a
petition seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding-up or composition or
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adjustment of debts, (g) fail to controvert in a timely and appropriate manner,
or acquiesce in writing to, any petition filed against it in an involuntary case
or proceeding under the Federal Bankruptcy Code (as now or hereafter in effect),
or (h) take any corporate or partnership action for the purpose of effecting any
of the foregoing; or if a proceeding or case shall be commenced, without the
application or consent of a party hereto or any general partner thereof, in any
court of competent jurisdiction seeking (1) the liquidation, reorganization,
dissolution or winding-up, or the composition or readjustment of debts, of such
party or general partner, (2) the appointment of a receiver, custodian, trustee
or liquidator or such party or general partner or all or any substantial part of
its assets, or (3) other similar relief under any law relating to bankruptcy,
insolvency, reorganization, winding-up or composition or adjustment of debts,
and such proceeding or case shall continue undismissed; or an order (including
an order for relief entered in an involuntary case under the Federal Bankruptcy
Code, as now or hereafter in effect) judgment or decree approving or ordering
any of the foregoing shall be entered and continue unstayed and in effect, for a
period of 60 consecutive days.
"Affiliate" shall mean, with respect to any person or entity, any
individual, corporation, general or limited partnership, stock company or
association, joint venture, association, company, trust, bank, trust company,
land trust, business trust, or other entity, or any government, agency or
political subdivision thereof (each such entity, a "person") that, directly or
indirectly, controls or is controlled by or is under common control with such
person or entity, any other person that owns, beneficially, directly or
indirectly, five percent or more of the outstanding capital stock, shares or
equity interests of such person or entity, or any officer, director, employee,
partner or trustee of such person or entity or any person controlling,
controlled by or under common control with such person or entity (excluding
trustees and persons serving in similar capacities who are not otherwise and
Affiliate of such person). For the purposes of this definition, "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with") shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
person, through the ownership of voting securities, partnership interests or
other equity interests.
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"Approved Investors" shall mean the Contributor and the partners of
the Contributor who meet the "Accredited Investor" qualifications set forth in
Rule 501(a) of Regulation D of the Securities Act, and who have provided the
Representation Letter in the Study Period.
"Assignment and Assumption Agreements" shall mean one or more
assignment and assumption agreements whereby the Contributor assigns all of the
Contributor's right, title and interest in and to the Intangible Personal
Property, to the extent assignable to the Acquiror (or its designee) or the
Lessee.
"Authorizations" shall mean all licenses, permits and approvals
required by any governmental or quasi-governmental agency, body or officer for
the ownership, operation and use of the Property or any part thereof.
"Xxxx of Sale [Inventory]" shall mean that certain xxxx of sale
conveying title to the Inventory to the Lessee.
"Xxxx of Sale [Personal Property]" shall mean that certain xxxx of
sale conveying title to the Tangible Personal Property and Intangible Personal
Property to the Acquiror.
"Capital Leases" shall have the meaning set forth in Section 2.3(b).
"Closing" shall mean the Closing of the contribution of the Property
pursuant to this Agreement.
"Closing Date" shall mean the date on which the Closing occurs.
"Closing Documents" shall mean the documents required to be
delivered on the Closing Date by Acquiror pursuant to Section 6.3 and the
Contributor pursuant to Section 6.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
References to particular sections or provisions of the Code shall include any
successor sections or provisions.
"Common Partnership Units" shall mean common units of limited
partnership interest in the Acquiror.
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"Contributor's Break-Up Fee" shall have the meaning set forth in
Section 9.6.
"Contribution Consideration" shall mean $_______________, payable in
the manner described in Article II.
"Contributor's Financial Information" shall mean the financial
information delivered by Contributor to Acquiror consisting of the Property
income statements and Property balance sheets for the years ended the Friday
closest to December 31, 1993-1996, and for each four-week period ending on a
Friday in 1997 to date.
"Contributor's Knowledge" shall mean the actual knowledge of Xxxx X.
Xxxxxx, B. Xxxxxxx Xxxxx, Xxx X. Xxxxx and, after inquiry of the Manager's
Regional Manager, General Manager and Director of Sales for the Hotel, Xxxxxx X.
Xxxxx.
"Contributor Material Adverse Effect" shall have the meaning
ascribed to that term in Section 3.1.
"Contributor's Organizational Documents" shall mean the current
partnership agreement of the Contributor, as set forth on EXHIBIT C, and the
certificate of limited partnership of the Contributor.
"Contributor's Out-of-Pocket Costs" shall have the meaning set forth
in Section 9.6.
"Deed" shall mean that certain deed conveying title to the Real
Property with limited warranty from the Contributor to the Acquiror, subject
only to Permitted Title Exceptions. The description of the Land in the Deed
shall be by courses and distances and, if there is a discrepancy between the
description of the Land attached hereto as EXHIBIT A and the description of the
Land as shown on the Survey, the description of the Land in the Deed shall be
identical to the description shown on the Survey.
"Escrow Agent" shall mean Tri-State Commercial Closings, Inc.
"Final Determination" shall have the meaning ascribed to that term
in Section 9.4(a).
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"First Closing" shall mean the first closing of the contribution of
a hotel to occur pursuant to this Agreement or any Other Contribution Agreement.
"FIRPTA Certificate" shall mean the affidavit of the Contributor
under Section 1445 of the Code certifying that the Contributor is not a foreign
corporation, foreign partnership, foreign trust, foreign estate or foreign
person (as those terms are defined in the Code and the regulations thereunder),
in form and substance satisfactory to the Acquiror.
"Franchise Agreement" shall mean that certain agreement and license
to operate the Property as a [Summerfield] Suites Hotel, to be executed by the
Franchisor and the Lessee effective on the Closing Date, which is substantially
in the form of Item 8 of the Master Addendum.
"Franchisor Comfort Letter" shall mean the letter agreement to be
executed by Franchisor and the Acquiror effective on the Closing Date, which is
in the form of Item 11 of the Master Addendum.
"Franchisor" shall mean Summerfield Suites Management Company, L.P.,
the issuer of the franchise to be owned by the Lessee.
"GAAP" shall mean generally accepted accounting principles
consistently applied as promulgated by the Financial Accounting Standards Board.
[Intentionally Omitted]
"Hazardous Substances" shall mean any substance or material whose
presence, nature, quantity or intensity of existence, use, manufacture,
disposal, transportation, spill, release or effect, either by itself or in
combination with other materials is either: (1) potentially injurious to the
public health, safety or welfare, the environment or the Property, (2)
regulated, monitored or defined as a hazardous or toxic substance or waste by
any governmental agency, or (3) a basis for liability of the owner of the
Property to any governmental agency or third party, and Hazardous Substances
shall include, but not be limited to, hydrocarbons, petroleum, gasoline, crude
oil, or any products, by-products or components thereof, and asbestos.
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"Hotel" shall mean the ___-suite hotel and related amenities located
on the Land.
"Improvements" shall mean the Hotel and all other buildings,
improvements, fixtures and other items of real estate located on the Land.
"Indemnifiable Claim" shall have the meaning ascribed to that term
in Section 9.4(a).
"Indemnitees" shall have the meaning ascribed to that term in
Section 9.4(a).
"Innkeepers Financial Statements" shall mean the consolidated
financial statements of Innkeepers for the calendar years ended December 31,
1995 and 1996, and for the quarterly period ended March 31, 1997 and such other
financial statements delivered after the date hereof as provided in Section 4.7
hereof. "Innkeepers Hotel Properties" shall mean the hotels owned by the REIT or
any partnership in which the REIT or any wholly-owned subsidiary is the general
partner and which are leased to an Innkeepers Lessee.
"Innkeepers Lease" shall mean a lease between the Acquiror or an
affiliated partnership and an Innkeepers Lessee with respect to the operation of
Innkeepers Hotel Properties.
"Innkeepers Lessee" shall mean each of JF Hotel, Inc., JF Hotel II,
Inc., JF Hotel III, Inc., JF Hotel IV, Inc. and JF Hotel V, Inc., each of which
is a Virginia corporation.
"Innkeepers Property Owning Partnerships" shall mean any limited
partnership of which, as of the date hereof, either the Acquiror, the REIT or a
wholly-owned subsidiary of the REIT is the general partner.
"Insurance Policies" shall mean all policies of insurance relating
to the Property, or any portion thereof.
"Intangible Personal Property" shall mean all intangible personal
property owned or possessed by the Contributor and used in connection with the
ownership of the Property, including, without limitation, the right to use the
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trade name ["Summerfield Suites",] the Authorizations, general intangibles,
business records relating to the Property, plans and specifications, surveys and
title insurance policies pertaining to the Real Property and the Personal
Property, all licenses, permits and approvals with respect to the construction,
ownership, operation, leasing, occupancy or maintenance of the Property, any
unpaid award for taking by condemnation or any damage to the Land by reason of a
change of grade or location of or access to any street or highway, excluding (a)
any of the aforesaid rights the Acquiror elects not to acquire, (b) the
Contributor's replacement reserves, and (c) deposits, working capital,
marketable securities, escrows, prepaid items, the Contributor's cash on hand,
in bank accounts and invested with financial institutions.
"Interested Party" shall have the meaning ascribed to that term in
Section 9.4(c).
"Inventory" shall mean all "inventories" including all inventories
of merchandise and inventories of supplies (as such terms are used in the
Uniform System of Accounts for Hotels (9th Revised Edition, 1996) as published
by the Hotel Association of New York City, Inc., as the same may be revised) and
similar consumable supplies and any property of the type described in Section
1221(1) of the Codes.
"IRS" shall mean the Internal Revenue Service.
"JF Hotel Financial Statements" shall mean the combined financial
statements of the Innkeepers Lessees for the calendar years 1995 and 1996, and
for the quarterly period ended March 31, 1997 and such other financial
statements delivered after the date hereof as provided in Section 4.7 hereof.
"Land" shall mean that certain parcel of real estate lying and being
in _____________________, as more particularly described on EXHIBIT A attached
hereto, together with all easements, rights, privileges, remainders, reversions
and appurtenances thereunto belonging or in any way appertaining, and all of the
estate, right, title, interest, claim or demand whatsoever of the Contributor
therein, in the streets and ways adjacent thereto and in the beds thereof,
either at law or in equity, in possession or expectancy, now or hereafter
acquired.
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"Lease Master Agreement" shall mean the contract between the Lessee
and the Partnership in the form of Item 6 of the Master Addendum.
"Lessee's Assignment and Assumption Agreements" shall mean that
certain assignment and assumption agreement whereby the Contributor assigns to
the Lessee and the Lessee assumes the Operating Agreements.
"Lessee Xxxx of Sale [Personal Property]" shall mean that certain
xxxx of sale conveying to the Lessee title to certain Personal Property, as
contemplated by the Percentage Lease, and Authorizations related to the
operation and use of the Property.
"Lessee" shall mean Summerfield Suites Lease Company, L.P.
"Manager" shall mean Summerfield Suites Management Company, L.P.
"Management Agreement" shall mean the contract for the management of
the Property to be executed effective on the Closing Date between the Lessee and
the Manager, substantially in the form of Item 9 of the Master Addendum;
provided, that such contract will (i) contain such changes as are necessary to
reflect the fact that the Acquiror will not be privity with the Manager and (ii)
will comply with the requirements set forth in the Lease.
"Master Addendum" shall mean the Master Addendum, dated as of the
date hereof, executed by the Summerfield Affiliated Partnerships and the
Acquiror, which is incorporated herein by reference and made a part of this
Agreement, which addendum contains documents that have also been incorporated as
part of the Other Contribution Agreements.
[FOR TINTON FALLS ONLY - "Monthly Financing Spread" shall mean, with
respect to any calendar month (or any partial calendar month) during the Spread
Calculation Period, the product of (i) the outstanding principal amount of the
Mortgage Note as of the first day of the calendar month (or partial calendar
month) multiplied by (ii) the excess of (A) the effective interest rate (A.P.R.)
on the Mortgage Note expressed as a monthly rate (prorated to reflect any
partial calendar month)
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over (B) the interest rate Acquiror is able to obtain from the lender that is
financing its acquisition of the Property, also expressed as a monthly rate
(prorated to reflect any partial calendar month).]
"Mortgage" shall mean that certain Deed of Trust, dated
____________________, 19__, by the Contributor to [Bank], recorded on [Register
No./Book and Page] of the [Clerk] of [locality]. A complete and correct copy of
the Mortgage is attached hereto as EXHIBIT D.
"Mortgage Documents" shall mean collectively the Mortgage Note, the
Mortgage and [FOR TINTON FALLS - the other documents set forth in D-1.] all
other documents executed or delivered in connection therewith, including all
modifications thereto.
"Mortgage Note" shall mean that certain Promissory Note, dated
________________, 19__, in the original principal sum of $_____________ made by
the Contributor and payable to the order of [Bank]. A true and complete copy of
the Mortgage Note is attached hereto as EXHIBIT E. The outstanding principal
balance of the Mortgage Note, as of the date hereof, is approximately, and in
any event not greater than $______________.
"Mortgagee" shall mean the holder of the Mortgage Note.
"Operating Agreements" shall mean the management agreements, service
contracts, leases and other agreements, if any, in effect with respect to the
construction, ownership, operation, occupancy or maintenance of the Property,
excluding the Franchise Agreement. All of the Operating Agreements in force and
effect as of the date hereof are listed on EXHIBIT B attached hereto.
"Other Contribution Agreements" shall mean the ten (10) other
Contribution Agreements, each between Acquiror and a Summerfield Affiliated
Partnership, and dated the date hereof, for the contribution by each respective
"Contributor" (as defined in each respective Other Contribution Agreement) to
the Acquiror of a Summerfield Suites hotel, a Sierra Suites hotel or a Sunrise
Suites hotel.
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"Owner's Title Policy" shall mean an owner's policy of title
insurance issued to the Acquiror by the Title Company, pursuant to which the
Title Company insures the Acquiror's ownership of fee simple title to the Real
Property (including the marketability thereof) subject only to Permitted Title
Exceptions. The Owner's Title Policy shall insure the Acquiror in the amount of
the Contribution Consideration and shall be acceptable in form and substance to
the Acquiror. The description of the Land in the Owner's Title Policy shall be
by courses and distances and shall be identical to the description shown on the
Survey.
"Pay-Off Letters" shall mean (a) pay-off letters for the Mortgage
executed on behalf of the Mortgagee, in a form sufficient for the Title Company
to insure title to the Property as of the Closing Date, without taking exception
for the Mortgages, and (b) pay-off letters for the Capital Lease executed by or
on behalf of the lessors thereunder, in a form reasonably satisfactory to the
Acquiror.
"Percentage Lease" shall mean the percentage lease agreement to be
entered into by the Acquiror and the Lessee at Closing with respect to the Hotel
and the hotels acquired pursuant to the Other Contribution Agreements, the form
of which is attached to the Master Addendum as Item 5; specific rent provisions
to be included in the Percentage Lease for the Property are attached as EXHIBIT
G.
"Permitted Title Exceptions" shall mean those exceptions to title to
the Real Property that are set forth on EXHIBIT F.
"Permitted Transferees" shall have the meaning set forth in Section
7.1.
"Personal Property" shall mean the Tangible Personal Property (other
than Tangible Personal Property leased pursuant to operating [as opposed to
capital] leases and set forth on SCHEDULE 3.6) and the Intangible Personal
Property.
"Property" shall mean collectively the Real Property, the Inventory,
the Tangible Personal Property (other than Tangible Personal Property leased
pursuant to operating [as opposed to capital] leases) and the Intangible
Personal Property.
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"Real Property" shall mean the Land and the Improvements.
"Redemption and Registration Rights Agreement" shall mean the
Redemption and Registration Rights Agreement in the form of Item 2 to the Master
Addendum which provides the Contributor and the Approved Investors with certain
redemption and registration rights.
"Redemption Shares" shall mean all of the shares of the REIT which
are to be issued to a Unit Holder upon conversion of Common Partnership Units
into REIT Shares pursuant to the Redemption and Registration Rights Agreement.
"REIT" shall mean Innkeepers USA Trust, a Maryland real estate
investment trust.
"REIT Shares" shall mean common shares of beneficial interest of the
REIT, par value $0.01 per share.
"Representation Letter" shall mean a representation letter in the
form of Item 3 of the Master Addendum.
[Intentionally Omitted.]
"SEC" shall mean the Securities and Exchange Commission.
"SEC Filings" shall mean all filings made with the SEC by the REIT
from and after the initial Registration Statement filed in connection with its
initial public offering to the Closing Date.
"Securities Act" shall mean the Securities Act of 1933, as amended.
[Intentionally Omitted]
[FOR TINTON FALLS - "Spread Calculation Period" shall mean the
period beginning on the Closing Date and ending on the date that the Mortgage
Note is first permitted to be repaid in full without penalty.]
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"Study Period" shall mean the period commencing at 9:00 a.m. on the
date hereof, and continuing through 5:00 p.m. E.D.T. on June 2, 1997.
"Summerfield Affiliated Partnerships" shall mean the ten (10)
partnerships which own and are contributing to the Acquiror pursuant to this
Agreement and the Other Contribution Agreements, ten (10) hotels: Xxxxxxx
Xxxxxxxxxxx Associates, L.P., Atlanta Cumberland Sierra Associates, L.P.,
Atlanta Perimeter Sierra Associates, L.P., Belmont Summerfield Associates, L.P.,
El Xxxxxxx Xxxxxxxxxxx Associates, L.P., Las Colinas Summerfield Associates,
L.P., Mount Xxxxxx Xxxxxxxxxxx Associates, L.P., Phoenix Camelback Sierra
Associates, L.P., Tinton Falls Hotel Associates, L.P., and West Hollywood
Summerfield Associates, L.P.
"Survey" shall mean the survey prepared pursuant to Section 5.1(d).
"Tangible Personal Property" shall mean the items of tangible
personal property consisting of all furniture, fixtures and equipment situated
on, attached to, or used in the operation of the Hotel (excluding all Franchisor
signage used thereon), and all furniture, furnishings, equipment, machinery, and
other personal property of every kind located on or used in the operation of the
Hotel and owned by the Contributor; provided, however, that the Acquiror agrees
that all Inventory and certain Personal Property designated on the Lessee Xxxx
of Sale [Personal Property]shall be conveyed to Lessee or its designee.
"Title Commitment" shall mean the commitment by the Title Company to
issue the Owner's Title Policy.
"Title Company" shall mean Tri-State Commercial Closings, Inc.,
insuring through Commonwealth Title Insurance Company.
"Transfer" for purposes of Section 3.31 only, shall have the meaning
ascribed to that term in Section 3.31(b).
"Unit Holder" shall mean a person holding Common Partnership Units
which were issued in connection with this transaction to the Contributor, its
partners, or a permitted transferee of such person.
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"Utilities" shall mean public sanitary and storm sewers, natural
gas, telephone, public water facilities, electrical facilities and all other
utility facilities and services necessary for the operation and occupancy of the
Property as a hotel.
"Voting Agreement" means the agreement relating to voting of Common
Partnership Units and Redemption Shares in the form of the agreement attached as
Item 10 of the Master Addendum.
[FOR TINTON FALLS ONLY - "Yield Maintenance Adjustment" shall mean
the sum of the present values, calculated with a 10.25% annual discount rate, as
of the Closing Date of the Monthly Financing Spreads for each calendar month
(including any partial calendar month) during the Spread Calculation Period.]
1.2 Rules of Construction.
The following rules shall apply to the construction and
interpretation of this Agreement:
(a) Singular words shall connote the plural number as well as the
singular and vice versa, and the masculine shall include the feminine and the
neuter.
(b) All references herein to particular articles, sections,
subsections, clauses or exhibits are references to articles, sections,
subsections, clauses or exhibits of this Agreement.
(c) The table of contents and headings contained herein are solely
for convenience of reference and shall not constitute a part of this Agreement
nor shall they affect its meaning, construction or effect.
(d) Each party hereto and its counsel have reviewed and revised (or
requested revisions of) this Agreement, and therefore any usual rules of
construction requiring that ambiguities are to be resolved against a particular
party shall not be applicable in the construction and interpretation of this
Agreement or any exhibits hereto.
2. CONTRIBUTION AND ACQUISITION;PAYMENT OF CONTRIBUTION CONSIDERATION
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2.1. Contribution and Acquisition.
The Contributor agrees to contribute and the Acquiror agrees to
acquire the Property for the Contribution Consideration and in accordance with
the other terms and conditions set forth herein.
2.2. Study Period.
(a) The Acquiror shall have the right, until the end of the Study
Period (and thereafter if the Acquiror does not notify the Contributor that the
Acquiror has elected to terminate this Agreement in the manner described below)
to enter upon the Real Property during normal business hours with reasonable
notice and Contributor's permission, which permission shall not be unreasonably
withheld, conditioned or delayed, and to perform, at the Acquiror's expense,
such economic, surveying, engineering, environmental, topographic and marketing
tests, studies and investigations as the Acquiror may deem appropriate.
(b) If such tests, studies, investigations and audits reveal (i)
material structural or environmental problems, or (ii) material discrepancies in
the financial statements, the Acquiror may elect not to proceed to Closing and
shall so notify the Contributor prior to the expiration of the Study Period. If
the Acquiror notifies the Contributor, in writing prior to the expiration of the
Study Period that it has determined not to proceed to Closing for one or more of
the reasons set forth in this Section 2.2(b), this Agreement automatically shall
terminate and the Acquiror and the Contributor shall be released from any
further liability or obligation under this Agreement; provided, however, that if
the Acquiror determines not to proceed to Closing because of a material
structural problem, the Acquiror shall provide the Contributor,
contemporaneously with the foregoing notice, with the written report from a
structural engineer describing the structural problem and the Contributor shall
have the right to cure such structural problem to the satisfaction of Acquiror
within thirty (30) days of its receipt of such report, and the Closing shall be
extended to the last day of the Hotel accounting period immediately after the
date of Closing set forth in Section 6.1, as such date may have otherwise been
extended.
(c) If such tests, studies and investigations do not warrant, in the
Acquiror's sole, absolute and unreviewable
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discretion, the acquisition of the Property for any reason not set forth in
Section 2.2(b) or 2.2(f), the Acquiror may elect not to proceed to Closing and
shall so notify the Contributor prior to the expiration of the Study Period. If
the Acquiror notifies the Contributor, in writing, prior to the expiration of
the Study Period that it has determined not to proceed to Closing pursuant to
this Section 2.2(c), this Agreement and each of the Other Contribution
Agreements shall automatically terminate and the Acquiror shall be released from
all further liability and obligations, if any, under this Agreement and the
Other Contribution Agreements.
(d) During the Study Period, the Contributor shall make available to
the Acquiror, its agents, auditors, engineers, attorneys and other designees,
for inspection, copies of all existing architectural and engineering studies,
surveys, title insurance policies, zoning and site plan materials, as-built
plans and specifications, certificates of occupancy, liquor licenses, historical
and budgeted financial information, auditors' opinions and reports, auditor's
"management letters", correspondence and other related materials or information
if any, relating to the Property which are in, or come into, the Contributor's
possession or control.
(e) The Acquiror shall indemnify and defend the Contributor against
any costs, loss, damage, claim, or expense (including reasonable costs and
attorneys fees) arising from entry upon the Real Property by the Acquiror or any
agents, contractors or employees of the Acquiror. The indemnity contained in
this Section 2.2(e) shall not be subject to the survival limitation set forth in
Section 10.10(b)(i) nor shall the indemnity be subject to the $500,000 floor set
forth in Section 9.3.
(f) During the Study Period, the Acquiror, at its expense, shall
cause an examination of title to the Property to be made and shall promptly
order the Title Commitment and the Survey, and, prior to the expiration of the
Study Period, shall notify the Contributor of any defects in title (other than
Permitted Title Exceptions) shown by such examination that the Acquiror is
unwilling to accept. Within seven (7) business days after such notification, the
Contributor shall notify the Acquiror whether the Contributor is willing to
attempt to cure such defects. If the Contributor is willing to attempt to cure
such defects, the Contributor shall act promptly and diligently
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to cure such defects at its expense, and, in any event, shall cure such defects
prior to Closing. If such defects consist of deeds of trust, mechanics' liens,
tax liens or other liens or charges in a fixed sum or capable of computation as
a fixed sum, the Contributor shall pay and discharge (and the Escrow Agent is
authorized to pay and discharge at Closing) such defects at Closing. If the
Contributor is unwilling or unable to cure any other such defects by Closing,
the Acquiror shall elect (1) to waive such defects and proceed to Closing
without any abatement in the Contribution Consideration or (2) to terminate this
Agreement and receive a full refund of the Deposit. The Contributor shall not,
after the date of this Agreement, knowingly subject the Property to any liens,
encumbrances, covenants, conditions, restrictions, easements or other title
matters or seek any zoning changes or take any other action which may affect or
modify the status of title without the Acquiror's prior written consent. All
title matters revealed by the Acquiror's title examination and not objected to
by the Acquiror as provided above shall be deemed Permitted Title Exceptions. If
Acquiror shall fail to examine title and notify the Contributor of any such
title objections by the end of the Study Period, all such title exceptions
(other than those rendering title unmarketable and those that are to be paid at
Closing as provided above) shall be deemed Permitted Title Exceptions.
(g) The Contributor shall have the right, until the end of the Study
Period, to terminate this Agreement and all (but not fewer than all) Other
Contribution Agreements, if the REIT's closing share price on any day in the
Study Period is less than $12.00 by delivery to Acquiror of written notice
within the earlier of (i) five (5) days after such date or (ii) the end of the
Study Period. If the Acquiror terminates this Agreement and the Other
Contribution Agreements pursuant to this Section 2.2(g), the Acquiror and the
Contributor shall be released from all liability and obligations under this
Agreement and the Other Contribution Agreements.
2.3. Payment of Contribution Consideration.
The Contribution Consideration shall be paid to the Contributor in
the following manner:
(a) The Acquiror shall take the Property subject to existing
indebtedness evidenced by the Mortgage and Mortgage Note and the Acquiror shall
receive a credit against the Contribution
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Consideration in an amount equal to the principal balance of the Mortgage Note
which the Mortgage secures, plus all accrued interest to the Closing Date plus
any prepayment premium and any other charges incurred by the Acquiror and
required by the Mortgagee in connection with the transactions contemplated by
this Agreement. [FOR TINTON FALLS - The Acquiror also shall receive a credit
against the Contribution Consideration in an amount equal to the Yield
Maintenance Adjustment. In addition, the Acquiror shall be charged and the
Contributor shall be paid for the amount of the sums being held in escrow by the
Mortgagee (as confirmed by the Mortgagee) and being assigned and transferred to
the Acquiror.]
(b) The Acquiror shall assume the lease or leases ("Capital Leases")
identified on SCHEDULE 2.3(B) and shall receive a credit against the
Contribution Consideration in an amount equal to the amount required to
completely satisfy its obligations thereunder, including but not limited to any
accrued or future rental payments, pre-payment, early payment, re-marketing or
similar fees, purchase price amounts, and any other incidental charges incurred
by Acquiror and required by the lessor under the Capital Lease in connection
with the transactions contemplated by this Agreement.
(c) The Acquiror shall pay the balance of the Contribution
Consideration (i) $______________ in the form of Common Partnership Units, all
as more particularly described in Section 2.5, and (ii) the balance in cash, to
be delivered by wire transfer to an account designated in writing by
Contributor. Upon receipt of the Common Partnership Units, the Contributor shall
become a limited partner of the Acquiror and shall execute the Acquiror's
Partnership Agreement.
The parties agree that, to the extent that the Contributor receives
Common Partnership Units, the transfer of the Property to the Acquiror shall be
treated for federal income tax purposes as a contribution of the Property in
exchange for a partnership interest in the Acquiror that qualifies as a tax-free
contribution under the Code.
2.4. Allocation of Contribution Consideration.
Prior to Closing, the parties shall use good faith efforts to agree
upon the amounts of Contribution Consideration to be allocated at Closing to the
Tangible Personal Property, to
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the Land and to the Improvements. The Acquiror and the Contributor agree to use
such allocation of Contribution Consideration to complete IRS Form 8594, if such
form is required to be filed by the Acquiror and the Contributor.
2.5. Determination of Number of Common Partnership Units.
For purposes of determining the number of Common Partnership Units
to be delivered by the Acquiror at the Closing, each Common Partnership Unit
shall be deemed to have a value equal to $15.00. The Contributor shall receive
certificates at the Closing representing the number of Common Partnership Units.
The certificates evidencing the Common Partnership Units will bear appropriate
legends indicating (a) that the Common Partnership Units have not been
registered under the Securities Act, and (b) that the Acquiror's Partnership
Agreement restricts the transfer of Common Partnership Units and (c) that the
Common Partnership Units shall be voted in accordance with the terms of the
Voting Agreement. The holders of Common Partnership Units shall be redeemable
for cash or REIT Shares and shall have such other characteristics all as more
fully described in the Acquiror's Partnership Agreement.
2.6. Authorization and Reservation of Common Shares.
The REIT shall at all times take all such action as may be required
to authorize and reserve for issuance all of the Redemption Shares and shall
take all such action as may be required to issue and deliver the Redemption
Shares to the Acquiror at such time or times and in such manner as may be
reasonably required in order for the Acquiror to deliver the Redemption Shares
to the Contributor, its partners and their permitted transferees, as provided in
the Acquiror's Partnership Agreement and the Redemption and Registration Rights
Agreement.
2.7. Contingent Consideration
[FOR SIERRA HOTELS ONLY] In addition to the Contribution
Consideration, if Acquiror receives a Return on Investment of more than
$__________, Acquiror shall distribute to Contributor an amount of Common
Partnership Units with a value equal to the Distributable Amount ("Distributable
Contingent Units") (based on a deemed value of $15.00 per unit) promptly after
the end of the Determination Period. In addition, Acquiror shall pay to
Contributor at the time it distributes the
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Distributable Contingent Units to Contributor Acquiror shall pay Contributor an
amount equal to all dividends that would have accrued on the Distributable
Contingent Units if they had been distributed to Contributor on the Closing
Date, plus interest from the dates such dividends would have been distributed at
the rate of [5%]. The deemed value of Distributable Contingent Units shall be
allocated in the manner described in Section 2.4. The term "Determination Period
shall mean the thirteen (13) consecutive four-week accounting periods ending on
the Friday closest to June 30, 1998. The term Return on Investment shall mean
(i) the total rent payable to Acquiror under the Percentage Lease and
attributable to the Property during the Determination Period, with such amount
being calculated with references only to the percentage rent formula based on
room revenues set forth in the Percentage Lease, and excluding cure and similar
payments, if any, minus (ii) real estate taxes and personal property taxes
payable by Acquiror for the Property that are attributable to the Determination
Period. The term "Distributable Amount" shall mean an amount equal to (i) the
amount by which the Return on Investment exceeds $__________ divided by (ii)
.12.
3. CONTRIBUTOR'S REPRESENTATIONS, WARRANTIES AND COVENANTS
To induce the Acquiror to enter into this Agreement and to purchase the
Property, the Contributor hereby makes the following representations, warranties
and covenants with respect to the Property, upon each of which the Contributor
acknowledges and agrees that the Acquiror is entitled to rely and has relied.
3.1. Organization and Power.
The Contributor is a limited partnership duly formed, validly
existing and in good standing under the laws of the State of Kansas and has all
requisite powers and all governmental licenses, authorizations, consents and
approvals, except where the failure to have such governmental licenses,
authorizations, consents and approvals would not have a material adverse affect
on the business or financial condition of Contributor (a "Contributor Material
Adverse Effect") to carry on its business as now conducted and to enter into and
perform its obligations hereunder and under any document or instrument required
to be executed and delivered on behalf of the Contributor hereunder.
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3.2. Authorization and Execution.
This Agreement has been duly authorized by all necessary action on
the part of the Contributor, has been duly executed and delivered by the
Contributor, constitutes the valid and binding agreement of the Contributor and
is enforceable in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or other similar laws and
equitable principles affecting creditors' rights generally. There is no other
person or entity (other than the Mortgagee) who has an ownership interest in the
Property or whose consent is required in connection with the Contributor's
performance of its obligations hereunder, other than such consents as have been
obtained or as set forth on SCHEDULE 3.2.
3.3. Noncontravention.
The execution and delivery of, and the performance by the
Contributor of its obligations under, this Agreement do not and will not
contravene, or constitute a default under, any provision of applicable law or
regulation, the Contributor's Organizational Documents or any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Contributor, other than the Mortgage Documents, or result in the creation of any
lien or other encumbrance on any asset of Contributor. There are no outstanding
agreements (written or oral) pursuant to which the Contributor (or any
predecessor to or representative of the Contributor) has agreed to sell or has
granted an option or right of first refusal to purchase the Property or any part
thereof.
3.4. No Special Taxes.
The Contributor has no knowledge of, nor has either received any
notice of, any special taxes or assessments relating to the Property or any part
thereof or any planned public improvements that may result in a special tax or
assessment against the Property which are not reflected on the Title Commitment.
3.5. Compliance with Existing Laws.
The Contributor possesses all Authorizations, except where the
failure to have such Authorizations would not have a Contributor Material
Adverse Effect, each of which is valid and in full force and effect, and no
provision, condition or limitation of any of the Authorizations has been
breached or violated in any material respect. The Contributor has neither
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misrepresented nor failed to disclose any material relevant fact in obtaining
all Authorizations, and to Contributor's Knowledge there has been no change in
the circumstances under which those Authorizations were obtained that result in
their termination, suspension, modification or limitation. The Contributor has
no knowledge, nor has Contributor received notice within the past eighteen
months (or since commencement of development or the date of acquisition of the
Facility if such development commenced or acquisition occurred within the past
eighteen months), nor to Contributor's Knowledge has Contributor received notice
within the past three years (or since commencement of development or the date of
acquisition of the Property if such development commenced within the past three
years) of any existing or threatened violation of any provision of any
applicable building, zoning, subdivision, environmental or other governmental
ordinance, resolution, statute, rule, order or regulation, including but not
limited to those of environmental agencies or insurance boards of underwriters,
with respect to the ownership, operation, use, maintenance or condition of the
Property or any part thereof, or requiring any repairs or alterations other than
those that have been made prior to the date hereof, except such violations as
have been cured to the satisfaction of the relevant authority.
3.6. Operating Agreements.
Other than the existing management agreement for the Hotel and the
agreements listed on SCHEDULE 3.6, each of the Operating Agreements may be
terminated upon not more than 30 days' prior written notice and without the
payment of any penalty, fee, premium or other amount. To Contributor's
Knowledge, Contributor has performed all of its obligations under each of the
Operating Agreements and no fact or circumstance has occurred which, by itself
or with the passage of time or the giving of notice or both, would constitute a
material default under any of the Operating Agreements. Without limiting the
foregoing, the Contributor has performed all of its obligations under the
existing management agreement for the Hotel and no fact or circumstance has
occurred which, by itself and or with the passage of time or the giving of
notice or both, would constitute a material default under the management
agreement.
3.7. Warranties and Guaranties.
The Contributor shall not before or after Closing, release or modify
any warranties or guarantees, if any, of
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contractors, builders, architects, manufacturers, suppliers and installers
relating to the Improvements and the Personal Property or any part thereof,
except with the prior written consent of the Acquiror.
3.8. Insurance.
All of the Contributor's insurance policies are valid and in full
force and effect, all premiums for such policies were paid when due and all
future premiums for such policies (and any replacements thereof) shall be paid
by the Contributor on or before the due date therefor. Prior to Closing, the
Contributor shall pay all premiums then-due on, and shall not cancel or
voluntarily allow to expire, any of the Contributor's insurance policies unless
such policy is replaced, without any lapse of coverage, by another policy or
policies providing coverage at least as extensive as the policy or policies
being replaced.
3.9. Condemnation Proceedings; Roadways.
The Contributor has received no notice of any condemnation or
eminent domain proceeding pending or, to the Contributor's Knowledge threatened
against the Property or any part thereof. To Contributor's Knowledge, there has
been no material change or proposed material change in the route, grade or width
of, or otherwise affecting, any street or road adjacent to or serving the Real
Property.
3.10. Litigation.
There is no action, suit or proceeding pending or known to be
threatened against or affecting the Contributor in any court, before any
arbitrator or before or by any governmental agency which (a) in any manner
raises any question affecting the validity or enforceability of this Agreement
or any other material agreement or instrument to which the Contributor is a
party or by which it is bound and that is or is to be used in connection with,
or is contemplated by, this Agreement, (b) could materially and adversely affect
the business, financial position or results of operations of the Contributor,
(c) could materially and adversely affect the ability of the Contributor to
perform its obligations hereunder, or under any document to be delivered
pursuant hereto, (d) could create a lien on the Property, any part thereof or
any interest therein, or (e) could otherwise materially adversely affect the
Property, any part thereof or any
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interest therein or the use, operation, condition or occupancy thereof.
3.11. Labor Disputes and Agreements.
The Contributor currently has no employees and has never had any
hotel employees. There are no labor disputes pending or, to Contributor's
Knowledge, threatened as to the operation or maintenance of the Property or any
part thereof. No labor disputes are pending or threatened as to the operation or
maintenance of the Property or any part thereof. Neither Summerfield Hotel
Corporation nor the Manager is a party to any union or other collective
bargaining agreement with employees employed in connection with the ownership,
operation or maintenance of the Property. The Acquiror shall not have any
liability under any pension or profit sharing plan that the Manager may have
established with respect to the Property or their or its employees.
3.12. Financial Information.
All of Contributor's Financial Information previously delivered to
Acquiror is correct and complete in all material respects, was prepared in
accordance with GAAP consistently applied throughout the periods indicated,
subject, in the case of interim financial statements, to normal recurring
year-end adjustments (the effect of which will not, individually or in the
aggregate, be materially adverse) and the absence of notes (which, if presented,
would not differ materially from those notes included in the most recent
year-end financial statements). The financial information presents accurately
the results of the operations of the Property for the periods indicated. If
requested by Acquiror, Contributor will forward promptly all four-week
period-ending financial information that it prepares or receives regarding, in
whole or in part, the Property. Since the date of the last financial statement
included in the Contributor's Financial Information, there has been no material
adverse change in the financial condition or in the operations of the Property.
Between the date of the latest financial information provided to
Acquiror before the end of the Study Period and Closing there will be no
material changes in the financial condition of the Contributor other than
changes made in the usual and ordinary conduct of the business of the
Contributor, none of
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which has been or will be materially adverse and all of which have been or will
be recorded in its books of account.
3.13. Organizational Documents.
The Contributor's Organizational Documents are in full force and
effect and have not been modified or supplemented, and no fact or circumstance
has occurred that, by itself or with the giving of notice or the passage of time
or both, would constitute a default thereunder.
3.14. Operation of Property.
The Contributor covenants that between the date hereof and the date
of Closing it will, or will cause the existing Manager of the Hotel to, (a)
operate the Property only in the usual, regular and ordinary manner consistent
with prior practice, (b) maintain its books of account and records in the usual,
regular and ordinary manner, in accordance with sound accounting principles
applied on a basis consistent with the basis used in keeping its books in prior
years, and (c) use all reasonable efforts to preserve intact its present
business organization, keep available the services of its present officers and
employees and preserve its relationships with suppliers and others having
business dealings with it.
3.15. Personal Property.
Subject only to the Permitted Title Exceptions, the Mortgage and the
Capital Lease, all of the Personal Property being conveyed by the Contributor to
the Acquiror will be free and clear of all liens and encumbrances on the Closing
Date and the Contributor has good, merchantable title thereto and the right to
convey same in accordance with the terms of this Agreement.
3.16. Bankruptcy.
No Act of Bankruptcy has occurred with respect to the Contributor or
the general partner(s) of the Contributor.
3.17. Title to Property.
Except for Permitted Title Exceptions, the Capital Lease and as set
forth on SCHEDULE 3.6, the Contributor is the
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sole owner of good and marketable fee simple title to the Tangible Personal
Property free and clear of all liens, leases (capital or otherwise),
encumbrances, restrictions, conditions, and agreements. The Contributor shall
not take any action from the date hereof and through and including the Closing
Date that would adversely affect the status of title to the Real Property. The
Contributor has a title insurance policy insuring its fee simple title to the
Real Property.
3.18. Zoning.
To Contributor's Knowledge, the current use and occupancy of the
Property for hotel purposes are permitted as a matter of right as a principal
use under all laws applicable thereto without the necessity of any special use
permit, special exception or other special permit, permission or consent.
3.19. Historical Districts.
Neither the Property, nor any portion thereof, is (a) listed, or
eligible to be listed, in any national, state or local register of historic
places or areas, or (b) located within any designated district or area in which
the permitted uses of land located therein are restricted by regulations, rules
or laws other than those specified under local zoning ordinances.
3.20. Brokerage Commission.
Other than Xxxxxxxxxx Securities, the Contributor has not engaged
the services of, nor is it or will it become liable to, any real estate agent,
broker, finder or any other person or entity for any brokerage or finder's fee,
commission or other amount with respect to the transactions described herein.
The Contributor shall pay any such fee, commission or other amount if it becomes
due prior to, at, or after Closing and shall indemnify and hold Acquiror
harmless for any such fee, commission or other amount.
3.21. Hazardous Substances.
To Contributor's Knowledge: there are no (a) Hazardous Substances on
the Property, or any portion thereof, or, (b) spills, releases, discharges, or
disposal of Hazardous Substances that have occurred or are presently occurring
on or onto the Property, or any portion thereof, or (c) PCB
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transformers serving, or stored on, the Property, or any portion thereof, and to
Contributor's Knowledge, Contributor and the current manager have complied with
any applicable local, state and federal environmental laws, regulations,
ordinances and administrative and judicial orders relating to the generation,
recycling, reuse, sale, storage, handling, transport and disposal of any
Hazardous Substances.
3.22. Room Furnishings.
All public spaces, lobbies, meeting rooms, and each room in the
Hotel available for guest rental is furnished in accordance with Franchisor's
standards for the Hotel and room type.
3.23. Franchisor.
The existing agreement from the Franchisor is, and at Closing will
be, valid and in full force and effect, and Contributor is not and will not be
in default with respect thereto (with or without the giving of any required
notice and/or lapse of time).
3.24. Liquor License.
________________ currently possesses and, will immediately after
Closing, possess a liquor license for the Hotel which authorizes the
distribution of the liquor products served at the Hotel. The liquor license is
valid and in full force and effect, and no provision, condition or limitation of
the liquor license has been breached or violated in any material respect.
____________ has neither misrepresented nor failed to disclose any material
relevant fact in obtaining the liquor license and there has been no change in
the circumstances under which the liquor license was obtained that could result
in its termination, suspension, modification or limitation.
3.25. Independent Audit.
Contributor shall provide access by Acquiror's representatives to
Contributor's auditors and to all financial and other information relating to
the Property in its possession, in each case as would be reasonably required to
evaluate and/or prepare audited financial statements in conformity with
Regulation S-X of the SEC and to prepare a registration
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statement, report or disclosure statement for filing with the SEC. Contributor
shall, if requested, provide to Acquiror's representatives a signed
representation letter for use in rendering an opinion on the financial
statements related to the Property. Contributor shall, if requested, authorize
and direct Contributor's auditors, at Acquiror's expense, to cooperate with REIT
and Acquiror in providing to them reports and consents relating to financial
statements prepared or to be prepared by such auditors relating to the Property
and included in whole or part in SEC filings, including but not limited to
registration statements.
3.26. Sufficiency of Certain Items.
To Contributor's Knowledge, the Property contains not less than:
(a) a sufficient amount of furniture, furnishings, color television
sets, carpets, drapes, rugs, floor coverings, mattresses, pillows, bedspreads
and the like, to furnish each guest room, so that each such guest room is, in
fact, fully furnished; and
(b) a sufficient amount of towels, washcloths and bed linens, so
that there are at least two and one-half sets of towels, washcloths and linens
for each guest room, together with a sufficient supply of paper goods, soaps,
cleaning supplies and other such supplies and materials, as are reasonably
adequate for the current operation of the Hotel.
3.27. Additional Representations and Warranties.
(a) A true and correct schedule of the legal names, identities and
current ownership percentages of the owners of the Contributor on the date
hereof are set forth on an exhibit to the Contributor's Partnership Agreement
included in Contributor's Organizational Documents. There are no outstanding
options, warrants or other rights to acquire any equity interest in the
Contributor. The Contributor will not issue any equity interest, or any option,
warrant or other right to acquire any equity interest, in the Contributor prior
to the Closing Date and will not, without the consent of the Acquiror, which
consent shall not be unreasonably withheld, permit any partner to sell, assign,
transfer or convey or otherwise attempt to dispose of any portion of his or her
interest in the Contributor, as applicable. The
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Contributor will, prior to the Closing Date, cause its partners to complete,
sign and deliver to Acquiror a Representation Letter; and
(b) Contributor understands that the Common Partnership Units have
not been registered under state or federal securities laws and that the
Redemption Shares issuable upon the redemption of the Common Partnership Units
shall not have been registered under state or federal securities laws and
neither the Common Partnership Units nor the Redemption Shares may be sold or
transferred except according to the terms of this Agreement, the Acquiror's
Partnership Agreement or the Redemption and Registration Rights Agreement, and
in any event pursuant to an effective registration statement under the
Securities Act or pursuant to an exemption from registration under the
Securities Act.
3.28. Securities Matters.
Contributor represents and warrants that (i) Contributor and each
Approved Investor is an "accredited investor" as defined under Regulation D
under the Securities Act, and (ii) Contributor and each Approved Investor will
complete, execute and deliver the Representation Letter on or before the
Closing.
3.29 Taxes.
(a) The Contributor has filed all income tax information returns on
IRS Form 1065 (including K-1s for each partner) and applicable state tax forms
required to be filed with the United States Government and with all states and
political subdivisions thereof where any such returns are required to be filed
and where the failure to file such return or report would subject any of them to
any material liability or penalty. All income taxes imposed by the United
States, or by any foreign country, or by any state, municipality, subdivision,
or instrumentality of the United States or of any foreign country, or by any
other taxing authority, which are due and payable by Contributor to have been
paid in full or adequately provided for by reserves shown in their records and
books of account and in the Contributor's Financial Information. Contributor has
not obtained or received any extension of time for the assessment of
deficiencies for any years. To Contributor's Knowledge no unassessed tax
deficiency is proposed or threatened against it.
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(b) Other than with respect to the subject matter of the opinion
delivered pursuant to Section 6.3(f), the Contributor represents and warrants
that it has obtained, and has advised each of its partners to obtain, from its
own counsel advice regarding the tax consequences of becoming a partner in the
Acquiror.
(c) To Contributor's Knowledge, all sales taxes, hotel accommodation
taxes or the equivalent, and all interest and penalties due thereon, required to
be paid or collected by Contributor or the existing manager in connection with
the operation of the Property as of the Closing Date will have been collected
and/or paid to the appropriate governmental authorities, as required.
Contributor shall be responsible for paying, or for causing the existing manager
to pay, all of such taxes, and all interest and penalties due thereon, due and
owing up until the day of Closing. Contributor shall file, or cause the existing
manager to file, all necessary returns and petitions and request any statutory
audits under state law, so as to release Acquiror and its Affiliates to the
maximum extent practicable, but without depositing any collateral with any
governmental agency, from any transferee liability with respect to such taxes.
3.30. No Misrepresentations.
Neither this Agreement nor the Contributor's Financial Information
delivered to Acquiror pursuant to or in connection with this Agreement and the
transactions contemplated hereby, contains or will contain any misstatement of a
material fact or omits or will omit to state a material fact necessary to make
the statements contained herein or therein not misleading.
3.31. Tax Opinion Representations.
For purposes of the tax opinion described in Section 6.3(f) hereof,
Contributor represents, warrants, and covenants that:
(a) The Contributor at all times has been and is classified as a
partnership for federal income tax purposes;
(b) The Acquiror will assume, or take the Property subject to, only
liabilities that fall into one of the following
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four categories (for this purpose, treating any refinancing as a continuation of
the original debt to the extent that the net proceeds of the refinancing are
used to repay the original debt): (i) debt that is more than two years old and
has encumbered the Property throughout such two-year period; (ii) debt that has
not been outstanding for more than two years, but that was incurred to purchase,
or is properly allocable to capital expenditures with respect to, the Property;
(iii) a trade payable or other similar obligation incurred in the ordinary
course of the Contributor's trade or business (regardless of how long such
payable or obligation has been outstanding); or (iv) debt incurred within two
years prior to the transfer of the Property from the Contributor to the Acquiror
(the "Transfer") that has been secured by the Property since the debt's
incurrence and that was not incurred in anticipation of such Transfer.
(c) During the two-year period immediately preceding the Transfer,
the total amount of the distributions of available cash flow (including
available cash flow from a prior year that was retained by the Contributor) made
by the Contributor to each partner of the Contributor for each year did not
exceed the product of the Contributor's net cash flow from operations for the
year multiplied by such partner's percentage interest in overall profits of the
Contributor for that year. [For purposes of this representation, the term
"available cash flow" shall not include (i) proceeds of any obligations of the
Contributor that are described in Section 3.31(b)(iv) hereof or (ii) capital
contributed to the Contributor by the partners of the Contributor that, at the
time of such contribution, was reasonable required for construction of the
Hotel, but that was later determined not to be required for construction of the
Hotel.]
(d) As of the Closing Date, the Contributor does not have the
current intention of redeeming, selling or otherwise disposing of any of its
Common Partnership Units in a taxable transaction within the two-year period
immediately following the Transfer [FOR TINTON FALLS, EL SEGUNDO AND ADDISON -
Except to the extent the same will be used to pay accrued incentive management
fees (the "Management Fee Units"), -- FOR ATLANTA PERIMETER - Except to the
extent the same will be used to pay accrued base management fees the "Management
Fee Units"].
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3.23. Mortgage Documents.
The Mortgage Documents are complete, are in full force and effect
and have not been modified or supplemented, except as otherwise disclosed, and
no fact or circumstance has occurred that, by itself or with the giving of
notice or the passage of time or both, would constitute a default under any of
the Mortgage Documents. The Contributor has not been advised nor has Contributor
received any notice asserting that a default exists under any of the Mortgage
Documents. The Contributor shall not amend or supplement the Mortgage Documents
in whole or in part. The Contributor shall pay or make, as and when due and
payable, all payments of principal, interest and other amounts required to be
paid or made under the Mortgage Documents. The Contributor shall obtain Pay-Off
Letters from each of the Mortgagees at least three days prior to the Closing
Date.
3.33. Updating of Representations and Warranties.
Between the date hereof and the Closing Date, Contributor will
promptly disclose to Acquiror in writing any information of which it has actual
knowledge (a) concerning any event that would render any representation or
warranty of Contributor hereunder untrue if made as to the date of such event,
(b) which renders any information set forth in the Agreement no longer correct
in all material respects, or (c) which arises after the date hereof and which
would have been required to be included in the Agreement if such information had
existed on the date hereof.
3.34. Bulk Sales Compliance.
Contributor shall indemnify Acquiror from and against any and all
claims, losses or liabilities arising under any applicable bulk sales law in
connection with the transactions contemplated herein.
Each of the representations, warranties and covenants contained in
this Article III and its various subparagraphs are intended for the benefit of
the Acquiror and may be waived in whole or in part, by the Acquiror, but only by
an instrument in writing signed by the Acquiror. Each of said representations,
warranties and covenants shall survive the closing of the transaction
contemplated hereby, for the period specified in Section 10.10 and no
investigation, audit, inspection, review or the like conducted by or on behalf
of the Acquiror shall be deemed to terminate the effect of any such
representations,
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warranties and covenants, it being understood that the Acquiror has the right to
rely thereon and that each such representation, warranty and covenant
constitutes a material inducement to the Acquiror to execute this Agreement and
to close the transaction contemplated hereby and to pay the Contribution
Consideration to the Contributor.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF ACQUIROR AND REIT
To induce the Contributor to enter into this Agreement and to contribute
the Property, the Acquiror and the REIT, jointly and severally hereby make the
following representations, warranties and covenants, upon each of which
Innkeepers acknowledges and agrees that the Contributor is entitled to rely and
has relied:
4.1 Organization and Power.
(a) The Acquiror is a limited partnership duly organized, validly
existing and in good standing under the laws of the Commonwealth of Virginia,
and has all partnership powers and all governmental licenses, authorizations,
consents and approvals, except where the failure to have such governmental
licenses, authorizations, consents and approvals would not have a material
adverse affect on the business or financial condition of Acquiror (an "Acquiror
Material Adverse Effect"), to carry on its business as now conducted and to
enter into and perform its obligations under this Agreement and any document or
instrument required to be executed and delivered on behalf of the Acquiror
hereunder.
(b) The REIT is a Maryland real estate investment trust, duly
organized, validly existing and in good standing under the laws of the State of
Maryland, and has all trust powers and all material governmental licenses,
authorizations, consents and approvals, except where the failure to have such
governmental licenses, authorizations, consents and approvals would not have an
Acquiror Material Adverse Effect, to carry on its business as now conducted and
to enter into and perform its obligations under this Agreement and any document
or instrument required to be executed and delivered on behalf of the REIT
hereunder.
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4.2. Authorization and Execution.
This Agreement constitutes the valid and binding obligation of
Acquiror and the REIT, enforceable against each of them in accordance with its
terms, except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or other similar laws and equitable principles affecting creditors'
rights generally. The execution, delivery, and performance of this Agreement,
the Closing Documents, and the transactions contemplated by all such agreements
have been duly authorized by the respective boards of trustees/directors of the
REIT and the general partner of the Acquiror.
4.3. Noncontravention.
(a) The execution and delivery of this Agreement and the performance
by the Acquiror of its obligations hereunder do not and will not contravene, or
constitute a default under, any provisions of applicable law or regulation, the
Acquiror's Partnership Agreement or any agreement, judgment, injunction, order,
decree or other instrument binding upon the Acquiror or result in the creation
of any lien or other encumbrance on any asset of the Acquiror. The Acquiror is
not in violation of the Acquiror's Partnership Agreement or in material default
with respect to any material agreements.
(b) The execution and delivery of this Agreement and the performance
by the REIT of its obligations hereunder do not and will not contravene, or
constitute a default under, any provisions of applicable law or regulation, the
REIT's declaration of trust or any agreement, judgment, injunction, order,
decree or other instrument binding upon the REIT or result in the creation of
any lien or other encumbrance on any asset of the REIT. The REIT is not in
violation of its declaration of trust or in material default with respect to any
material agreements.
4.4. Compliance with Existing Laws.
Innkeepers Property Owning Partnerships and Innkeepers Lessees
possess all Authorizations, except where the failure to possess such
Authorizations would not constitute an Acquiror Material Adverse Effect, each of
which is valid and in full force and effect, and no provision, condition or
limitation of any of the Authorizations has been breached or violated in any
material respect. Innkeepers Property Owning Partnerships and Innkeepers
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Lessees have not misrepresented or failed to disclose any material relevant fact
in obtaining all Authorizations, and to Acquiror's Knowledge, there have been no
changes in the circumstances under which those Authorizations were obtained that
result in their termination, suspension, modification or limitation. To
Acquiror's Knowledge, Innkeepers Property Owning Partnerships and Innkeepers
Lessees are not in violation of any existing or threatened material violation of
any provision of any applicable building, zoning, subdivision, environmental or
other governmental ordinance, resolution, statute, rule, order or regulation,
including but not limited to those of environmental agencies or insurance boards
of underwriters, with respect to the ownership, operation, use, maintenance or
condition of Innkeepers Hotel Properties or any part thereof, or requiring any
repairs or alterations other than those that have been made prior to the date
hereof.
4.5. Litigation.
There is no action, suit or proceeding, pending or known to be
threatened, against or affecting REIT, Innkeepers Property Owning Partnerships
or Innkeepers Lessees in any court or before any arbitrator or before any
governmental agency which (a) in any manner raises any question affecting the
validity or enforceability of this Agreement or any other material agreement or
instrument to which Innkeepers is a party or by which it is bound and that is to
be used in connection with, or is contemplated by, this Agreement, (b) could
materially and adversely affect the business, financial position or results of
operations of the REIT, Innkeepers Property Owning Partnerships or Innkeepers
Lessees, (c) could materially and adversely affect the ability of any of them to
perform its respective obligations hereunder, or under any document to be
delivered pursuant hereto, (d) could create a lien on any of their assets, any
part thereof or any interest therein, or (e) could otherwise materially
adversely affect any of their assets, any part thereof or any interest therein
or the use, operation, condition or occupancy thereof.
4.6. Labor Disputes and Agreements.
None of REIT, Innkeepers Property Owning Partnership or Innkeepers
Lessee has any labor disputes pending or to Acquiror's Knowledge threatened as
to the operation or maintenance of the Innkeepers Hotel Properties. None of
REIT,
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Innkeepers Property Owning Partnership or Innkeepers Lessee is a party to any
union or other collective bargaining agreement with employees employed in
connection with the ownership, operation or maintenance of the Innkeepers Hotel
Properties.
4.7. Financial Statements.
The REIT or Innkeepers Lessee has previously provided Contributor
with the Innkeepers Financial Statements and JF Hotel Financial Statements, all
of which are true and complete in all material respects and have been prepared
in accordance with GAAP consistently followed throughout the periods indicated,
subject in the case of interim financial statements, to normal recurring
year-end adjustments (the effect of which will not, individually or in the
aggregate, be materially adverse) and the absence of notes (which if presented
would not differ materially from those included in the most recent year-end
financial statements). There have been, and prior to the Closing Date there will
be, no material changes in the financial condition of the REIT, or Acquiror
other than changes made in the usual and ordinary conduct of the businesses of
the REIT, and Acquiror, none of which has been or will be materially adverse and
all of which have been or will be recorded in their respective books of account.
4.8. Title to Properties.
The Innkeepers Property Owning Partnerships have title insurance
policies insuring their fee simple title or leasehold interest, as the case may
be, to all lands and buildings described in the REIT's 1996 Form 10-K and 1996
Annual Report to Shareholders, or otherwise disclosed in its most recent
Financial Statements as being owned by it.
4.9. Zoning.
To Acquiror's Knowledge, the current use and occupancy of the
Innkeepers Hotel Properties for hotel and restaurant purposes are permitted as a
matter of right as a principal use under all laws applicable thereto without the
necessity of any special use permit, special exception or other special permit,
permission or consent.
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4.10. Insurance.
All of the Innkeepers Property Owning Partnerships' insurance
policies are valid and in full force and effect, all premiums for such policies
were paid when due and all future premiums for such policies (and any
replacements thereof) shall be paid by the Innkeepers Property Owning
Partnerships on or before the due date therefor. Prior to Closing, the
Innkeepers Property Owning Partnerships shall pay all premiums then-due on, and
shall not cancel or voluntarily allow to expire, any of the Innkeepers Property
Owning Partnerships' insurance policies unless such policy is replaced, without
any lapse of coverage, by another policy or policies providing coverage at least
as extensive as the policy or policies being replaced.
4.11. Personal Property.
Except as disclosed in the Innkeepers Financial Statements and the
JF Financial Statements, an Innkeepers Property Owning Partnership or an
Innkeepers Lessee has good and marketable title to all of the machinery,
equipment, materials, supplies, and other property of every kind, tangible or
intangible, shown as assets in its records and books of account, free and clear
of all liens, encumbrances, and charges.
4.12. Bankruptcy.
No Act of Bankruptcy has occurred with respect to Innkeepers.
4.13. Brokerage Commission.
Neither REIT nor Acquiror has engaged the services of, nor are
either of them or will either of them become liable to, any real estate agent,
broker, finder or any other person or entity for any brokerage or finder's fee,
commission or other amount with respect to the transaction described herein.
4.14. Hazardous Substances.
To Acquiror's Knowledge, there are no (a) Hazardous Substances on
the Innkeepers Properties, or any portion thereof, or (b) spills, releases,
discharges, or disposal of Hazardous Substances that have occurred or are
presently occurring on or onto any Innkeepers Properties, or any portion
thereof, or (c) PCB transformers serving, or stored on, any Innkeepers
Properties, or any portion thereof, and to Acquiror's Knowledge
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Acquiror has complied with any applicable local, state and federal environmental
laws, regulations, ordinances and administrative and judicial orders relating to
the generation, recycling, reuse, sale, storage, handling, transport and
disposal of any Hazardous Substances.
4.15. Capitalization.
(a) The REIT is authorized to issue 100,000,000 voting common
shares, par value $0.01 per share, of which 22,323,108 shares are validly issued
and outstanding, and 20,000,000 preferred shares, par value $0.01 per share,
none of which are outstanding.
(b) On the date hereof, there are 1,236,186 Common Partnership Units
and 4,063,329 preferred units of limited partnership interest issued and
outstanding. The general partner of Acquiror is Innkeepers Financial
Corporation, a Virginia corporation, which owns an approximately 80.8% interest
in Acquiror.
(c) Except as contemplated by this Agreement (including the
transactions described in Section 4.17 below), Acquiror will not issue or agree
to issue any additional units of limited partnership interest prior to Closing.
4.16. Organizational Documents.
True and correct copies of the current declaration of trust and
bylaws of the REIT and the certificate of limited partnership of the Acquiror,
with all amendments thereto, are set forth as Item 4 of the Master Addendum.
4.17. Options, Warrants, and Other Rights.
Neither the REIT, nor the Acquiror has outstanding any options,
warrants, or rights of any kind requiring it to sell or issue to anyone any
capital stock or equity interest of any class and neither of them has agreed to
issue or sell any additional equity interests except, with respect to Acquiror,
the agreements with the Summerfield Affiliated Partnerships and except as
described in the REIT's 1996 Annual Report or Form 10-K filed with the SEC, or
any Form 10-Qs filed in the period after the filing of the 1996 10-K and the
date of this Agreement, or as may be granted under the REIT's share incentive
plans.
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4.18. Taxes.
(a) Innkeepers and Innkeepers Lessee have filed all tax
returns on IRS Form 1120-REIT and applicable state tax forms required to be
filed with the United States Government and with all states and political
subdivisions thereof where any such returns are required to be filed and where
the failure to file such return or report would subject any of them to any
material liability or penalty. All taxes imposed by the United States, or by any
foreign country, or by any state, municipality, subdivision, or instrumentality
of the United States or of any foreign country, or by any other taxing
authority, which are due and payable by any of them have been paid in full or
adequately provided for by reserves shown in their records and books of account
and in the Financial Statements or JF Hotel Financial Statements. Innkeepers and
Innkeepers Lessees have not obtained or received any extension of time for the
assessment of deficiencies for any years. To Acquiror's Knowledge, no unassessed
tax deficiency is proposed or threatened against any of them.
(b) The REIT is properly taxed as a real estate investment
trust and no act or event has occurred which may adversely affect its tax
classification as a REIT.
4.19. No Misrepresentations.
Neither this Agreement, the Innkeepers Financial Statements,
JF Hotel Financial Statements, nor any of the SEC filings, contains or will
contain any misstatement of a material fact or omits or will omit to state a
material fact necessary to make the statements contained herein or therein not
misleading.
4.20. Leases.
Each Innkeepers Hotel Lease is in full force and effect, valid
and enforceable in accordance with its terms, except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or other similar
laws and equitable principles affecting creditors' rights generally and (b) as
may be limited in the jurisdiction were the relevant Innkeepers Hotel Property
is located if such limitation would not deprive the relevant Innkeepers Property
Owning Partnership, in total, of the principal benefits contemplated by the
Innkeepers Lease, and are
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not in default. No event or occurrence exists which with notice or the passage
of time, or both, would constitute an event of default thereunder. The
Innkeepers Leases will not adversely affect the tax qualification of the REIT as
a real estate investment trust for federal income tax purposes.
4.21. Common Shares and Redemption Shares.
(a) All of the issued and outstanding shares of the REIT have
been duly authorized, validly issued, and are fully paid and non-assessable,
with no preemptive rights.
(b) All of the Redemption Shares, when issued pursuant to the
Redemption and Registration Rights Agreement, will be duly authorized, validly
issued, fully paid, and non-assessable.
4.22. Tax Consequences to Contributor and its Partners.
(a) To the extent that the Contributor receives Common
Partnership Units (as opposed to cash consideration) in connection with the
transfer of the Property to the Acquiror, the Contributor will not recognize
taxable gain or loss as a result of such transfer pursuant to the Code except to
the extent Acquiror pays Contributor's transaction costs pursuant to this
Agreement. FOR TINTON FALLS, EL SEGUNDO, ADDISON AND ATLANTA PERIMETER, and
except with respect to the Management Units.
(b) [Intentionally Omitted]
4.23. Updating of Representations and Warranties.
Between the date hereof and the Closing Date, Acquiror and
REIT will promptly disclose to Contributor in writing any information of which
either of them has actual knowledge (a) concerning any event that would render
any representation or warranty of any of them untrue if made as to the date of
such event, (b) which renders any information set forth in the Agreement no
longer correct in all material respects, or (c) which arises after the date
hereof and which would have been required to be included in the Agreement if
such information had existed on the date hereof.
Each of the representations, warranties and covenants
contained in this Article IV and its various subparagraphs are intended for the
benefit of the Contributor and may be waived in
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whole or in part, by the Contributor, but only by an instrument in writing
signed by the Contributor. Each of said representations, warranties and
covenants shall survive the closing of the transaction contemplated hereby, for
the period specified in Section 10.10 and no investigation, audit, inspection,
review or the like conducted by or on behalf of the Contributor shall be deemed
to terminate the effect of any such representations, warranties and covenants,
it being understood that the Contributor has the right to rely thereon and that
each such representation, warranty and covenant constitutes a material
inducement to the Contributor to execute this Agreement and to transfer the
Property to the Acquiror.
5. CONDITIONS AND ADDITIONAL COVENANTS
5.1. Acquiror's Obligations.
The Acquiror's obligations hereunder are subject to the
satisfaction of each of the following conditions precedent and the compliance by
the Contributor with each of the following covenants, each of which may be
waived by the Acquiror, in its sole discretion:
(a) Contributor's Deliveries. The Contributor shall have
delivered to the Escrow Agent, the Acquiror, or Acquiror's designee, as the case
may be, on or before the Closing Date, all of the documents and other
information required of Contributor pursuant to Section 6.2.
(b) Representations, Warranties and Covenants; Obligations of
Contributor; Certificate. All of the Contributor's representations and
warranties made in this Agreement shall be true and correct as of the date
hereof and as of the Closing Date as if then made, there shall have occurred no
material adverse change in the financial condition of the Property since the
date hereof, the Contributor shall have performed all of its covenants and other
obligations under this Agreement and the Contributor shall have executed and
delivered to the Acquiror at Closing a certificate to the foregoing effect.
(c) Title Insurance. Good and marketable fee simple title to
the Real Property shall be insurable as such by the Title Company at or below
its regularly scheduled rates subject only to Permitted Title Exceptions.
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(d) Survey. The Acquiror shall have obtained a current survey
of the Land delineating the boundary lines of the Land, the location of the
Improvements, all rights of way and easements thereon and contiguous public
roads and otherwise acceptable to the Acquiror. The Survey shall be prepared for
the benefit of, and shall be certified to, the Acquiror, the Title Company and
any lender or underwriter designated by Acquiror, with a certification
reasonably acceptable to Acquiror, the Title Company or such lender or
underwriter. Furthermore, the Survey shall be adequate for the Title Company to
delete any exception for general survey matters in the Owner's Title Policy.
(e) Condition of Improvements. The Improvements and the
Tangible Personal Property (including but not limited to the mechanical systems,
plumbing, electrical, wiring, appliances, fixtures, heating, air conditioning
and ventilating equipment, elevators, boilers, equipment, roofs, structural
members and furnaces) shall be in substantially the same condition at Closing as
they are at the end of the Study Period, reasonable wear and tear excepted.
Prior to Closing, the quality or quantity of maintenance and upkeep services
heretofore provided to the Real Property and the Tangible Personal Property
shall not be diminished. Between the end of the Study Period and Closing, the
Contributor or its agent(s) shall not have removed or caused or permitted to be
removed any part or portion of the Real Property or the Tangible Personal unless
the same is replaced, prior to Closing, with similar items of at least equal
quality and acceptable to the Acquiror.
(f) Utilities. All of the Utilities shall be installed in and
operating at the Property, and service shall be available for the removal of
garbage and other waste from the Property. Between the date hereof and the date
of Closing, the Contributor or its agent(s) shall have received no notice of any
extraordinary increase or proposed increase in the rates charged for the
Utilities from the rates in effect as of the date hereof.
(g) Land Use. The current use and occupancy of the for hotel
purposes are permitted as a matter of right as a principal use under all laws
applicable thereto without the necessity of any special use permit, special
exception or other special permit, permission or consent.
(h) Hotel Franchise. Lessee and the Franchisor shall have
entered into, at no cost or expense to the Acquiror or its
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Affiliates, the Franchise Agreement with respect to the Hotel for a minimum term
of twenty (20) years, to be effective on the Closing Date.
(i) Management Agreement. Lessee and Manager shall have
entered into, at no cost or expense to the Acquiror or its Affiliates, the
Management Agreement with respect to the Property, to be effective on the
Closing Date.
(j) Percentage Lease Agreement; Lease Master Agreement. The
Lessee shall have entered into the Percentage Lease with respect to the Property
and the Lease Master Agreement, to be effective on the Closing Date.
(k) Redemption and Registration Rights Agreement. The
Contributor and its partners shall have entered into the Redemption and
Registration Rights Agreement.
(l) Franchisor Comfort Letter. The Franchisor shall have
executed the Franchisor Comfort Letter.
(m) Voting Agreement. Contributor and the beneficial owners of
the Common Partnership Units shall have entered into the Voting Agreement.
(n) Pay-Off Letters. Contributor shall have caused the Pay-Off
Letters to be delivered to Acquiror. [FOR TINTON FALLS - Acquiror shall have
assumed Contributor's Obligations under the Mortgage Documents on terms and
conditions acceptable to Acquiror].
(o) Simultaneous Closing. Except to the extent (i) any of the
Other Contribution Agreements have been terminated pursuant to Sections 2.2(b),
2.2(f) or 9.6 therein, (ii) the Closing Date has been extended pursuant to
Section 2.3(b) hereof or (iii) the Closing Date under any Other Contribution
Agreements have been extended pursuant to Section 2.3(b) thereof, Contributor
shall simultaneously close on the contribution of each of the ten (10) hotel
properties owned by the Summerfield Affiliated Partnerships under the Other
Contribution Agreements.
5.2. Contributor's Obligations.
The Contributor's obligations hereunder are subject to the
satisfaction of each of the following conditions precedent
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and the compliance by the Acquiror with each of the following covenants, each of
which may be waived by the Contributor in its sole discretion:
(a) Innkeepers Deliveries. Innkeepers shall have delivered to
the Escrow Agent, the Contributor, or Contributor's designee, as the case may
be, on or before the date of Closing, all of the documents and other information
required of Innkeepers pursuant to Section 6.3.
(b) Representations, Warranties and Covenants; Obligations of
Innkeepers; Certificate. All of the Innkeepers representations and warranties
made in this Agreement shall be true and correct as of the date hereof and as of
the date of Closing as if then made, there shall have occurred no material
adverse change in the financial condition of Innkeepers since the date hereof,
Innkeepers shall have performed all of its covenants and other obligations under
this Agreement and Innkeepers shall have executed and delivered to the
Contributor at Closing a certificate to the foregoing effect.
(c) Percentage Lease. Acquiror shall have entered into the
Percentage Lease with respect to the Hotel, to be effective on the Closing Date.
(d) New Board Member. Xxxx X. Xxxxxx shall have been appointed
to the Board of Trustees of the REIT as a Class I trustee, to be effective on
the Closing Date.
(e) Redemption and Registration Rights Agreement. Acquiror and
REIT shall have entered into the Redemption and Registration Rights Agreement.
(f) Simultaneous Closing. Except to the extent (i) any of the
Other Contribution Agreements have been terminated pursuant to Sections 2.2(b),
2.2(f) or 9.5 therein, (ii) the Closing Date has been extended pursuant to
Section 2.3(b) hereof or (iii) the Closing Date under any Other Contribution
Agreements have been extended pursuant to Section 2.3(b) thereof, Acquiror shall
simultaneously close on the acquisition of each of the ten (10) hotel properties
owned by the Summerfield Affiliated Partnerships under the Other Contribution
Agreements.
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(g) SEC Filings. REIT shall have timely filed and shall have
provided Contributor with all SEC filings made by REIT after March 31, 1997.
6. CLOSING
6.1. Closing.
Closing shall be held at the Washington, D.C. offices of
Hunton & Xxxxxxxx, 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X., on June 20, 1997 at
10:00 a.m. or such later time as the parties shall mutually agree. Possession of
the Property shall be delivered to the Acquiror at Closing, subject only to
Permitted Title Exceptions and the Mortgage.
6.2. Contributor's Deliveries.
At Closing, the Contributor shall deliver to Acquiror all of
the following instruments, each of which shall have been duly executed by the
Contributor, its partners, the Lessee and/or the Franchisor, as applicable, and,
where applicable, acknowledged on behalf of such party or parties, and shall be
dated as of the date of Closing:
(a) The certificate required by Section 5.1(b).
(b) The Deed.
(c) [Intentionally Deleted].
(d) The Xxxx of Sale [Inventory].
(e) The Xxxx of Sale [Personal].
(f) The Lessee Xxxx of Sale [Personal Property].
(g) The Assignment and Assumption Agreements.
(h) Any and all other documentation reasonably requested by
the Acquiror, and at the expense of the Acquiror, or required hereby.
(i) Certificate(s)/Registration of Title for any vehicle owned
by the Contributor and used in connection with the Property.
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(j) Such agreements, affidavits or other documents as may be
required by the Title Company to issue the Owner's Title Policy.
(k) The FIRPTA Certificate.
(l) True, correct and complete copies of all warranties, if
any, of contractors, builders, roofers, architects, manufacturers, suppliers and
installers possessed by the Contributor and relating to the Improvements and the
Personal Property, or any part thereof.
(m) Certified copies of the Contributor's Organizational
Documents.
(n) Appropriate consents of the partners of the Contributor
together with all other necessary approvals and consents of the Contributor,
authorizing the execution on behalf of the Contributor of this Agreement and the
documents to be executed and delivered by the Contributor prior to, at or
otherwise in connection with Closing, and the performance by the Contributor of
its obligations hereunder and under such documents.
(o) A legal opinion from Foulston & Xxxxxxx, the Contributor's
counsel in a form satisfactory to Acquiror's counsel stating that this Agreement
and each agreement referred to in this Agreement which Contributor shall execute
and deliver in connection with the transaction contemplated by this
Agreement,(i) has been duly authorized by all necessary action on the part of
the Contributor and is partners, (ii) has been duly executed and delivered by
the Contributor, (iii) constitutes the valid and binding agreement of the
Contributor, and (iv) is enforceable in accordance with its terms.
(p) A valid, final and unconditional certificate of occupancy
for the Improvements, issued by the appropriate governmental authority.
(q) A written instrument executed by the Contributor,
conveying and transferring to the Acquiror all of the Contributor's right, title
and interest in any telephone numbers and facsimile numbers relating to the
Property, and, if the Contributor maintains a post office box, conveying to the
Acquiror all of its interest in and to such post office box and
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the number associated therewith, so as to assure a continuity in operation and
communication.
(r) Written notice executed by Contributor notifying all
interested parties that the Property has been conveyed to the Acquiror.
(s) All current real estate and personal property tax bills in
the Contributor's possession or under its control.
(t) The Percentage Lease and the Lease Master Agreement.
(u) A counterpart signature page to Acquiror's Partnership
Agreement.
(v) The Voting Agreement.
(w) The Franchisor Comfort Letter.
(x) Any other document or instrument reasonably requested by
the Acquiror.
6.3. Acquiror's Deliveries.
At Closing, the Acquiror shall pay or deliver to the
Contributor the following, each of which, if an instrument, shall have been duly
executed and, where applicable, acknowledged on behalf of the Acquiror and shall
be dated as of the date of Closing:
(a) The Certificate required by Section 5.2(b).
(b) The Contribution Consideration.
(c) The Assignment and Assumption Agreements.
(d) The certificates reflecting Contributor's ownership of the
Common Partnership Units described in Section 2.5.
(e) A legal opinion from Hunton & Xxxxxxxx in a form
satisfactory to Contributor's counsel stating that:
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(i) this Agreement, and each agreement referred
to in this Agreement which Acquiror and REIT shall execute and deliver in
connection with the transaction contemplated by this Agreement, have been duly
authorized by all necessary action on the part of Acquiror and REIT, have been
duly executed and delivered by Acquiror and REIT, constitute the valid and
binding agreements of Acquiror and REIT and are enforceable in accordance with
their respective terms;
(ii) that the Acquiror's Partnership Agreement
has been duly adopted and is in full force and effect;
(iii) the Common Partnership Units are duly
authorized, and will be validly issued and outstanding when delivered in
accordance with this Agreement; and
(iv) the appointment of Xxxx X. Xxxxxx to the
Board of Trustees of Innkeepers is effective.
(f) The opinion of Hunton & Xxxxxxxx in the form of Item 7 of
the Master Addendum.
(g) The Percentage Lease and the Lease Master Agreement.
(h) Any other document or instrument reasonably requested by
the Contributor.
6.4. Closing Costs.
Acquiror agrees to pay certain costs incurred in preparation
for Closing:
(a) The Acquiror shall pay for all transactional costs
associated with this transaction, of any kind or nature, including all filing
fees, recording fees, survey costs, title insurance fees, inspection fees,
environmental review fees, transfer taxes, sales taxes, mortgage taxes, escrow
fees and closing costs. The foregoing shall not include Contributor's (i) legal
fees and expenses, or (ii) subject to subsection (b) below, accounting fees and
expenses, or (iii) costs, fees and expenses incurred in connection with
obtaining (A) environmental reviews or updates other than the update to Phase I
Environmental Site Assessment and/or Phase I Environmental Site Assessment
prepared by SCS Engineers in March 1997 and delivered to
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Acquiror, (B) title commitments and searches, (C) surveys other than updates
and/or re-certifications to Acquiror that are required by Acquiror and are
delivered on or before Closing, (D) appraisals, (E) Xxxxx Travel information
other than information requested by Acquiror, or (F) other third-party reports
or data obtained by Contributor other than such reports or data obtained by
Contributor after receiving Acquiror's written request therefor.
(b) Acquiror will pay all costs associated with obtaining an
audit report required by Acquiror on the financial statements of Contributor.
6.5. Income and Expense Allocations.
All income and expenses with respect to the Property, and
applicable to the period of time before and after Closing, determined in
accordance with GAAP, shall be allocated between the Contributor and the
Acquiror. The Contributor shall be entitled to all income and responsible for
all expenses accrued for the period up to but not including the date of closing,
and the Acquiror shall be entitled to all income and responsible for all
expenses for the period of time from, after and including the date of Closing.
Only adjustments for real estate taxes shall be shown on the settlement
statements (with such supporting documentation as the parties hereto may require
being attached as exhibits to the settlement statements) and shall increase or
decrease (as the case may be) the amount payable by the Acquiror pursuant to
Section 2.4. All other such adjustments shall be made by separate agreement
between the parties and shall be payable by check or wire directly between the
parties.
The Contributor shall be required to pay all sales and use
taxes and similar impositions, including interest and penalties, relating to the
conduct of business at the Property currently through the date of Closing, but
excluding those arising from the Contribution.
Acquiror shall not be obligated to collect any accounts
receivable or revenues for Contributor, but if Acquiror collects same, such
amounts will be promptly remitted to Contributor in the form received.
If accurate allocations cannot be made at Closing because
current bills are not obtainable (as, for example, in the
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case of utility bills or tax bills), the parties shall allocate such income or
expenses at Closing on the best available information, subject to adjustment
upon receipt of the final xxxx or other evidence of the applicable income or
expense. Any income received or expense incurred by the Contributor or the
Acquiror with respect to the Property after the date of Closing shall be
promptly allocated in the manner described herein and the parties shall promptly
pay or reimburse any amount due.
Acquiror is assuming, pursuant to Section 2.4(b)(i), accrued
but unpaid interest on the Mortgage Note; such amount shall not be pro-rated for
income or expense purposes.
7. POST CLOSING COVENANTS
7.1. Taxable Sale of Real Property.
The Acquiror agrees that, as long as any of (i) the
Contributor, (ii) a partner of the Contributor or (iii) a Permitted Transferree
holds any of the Common Partnerhip Units issued to the Contributor on the
Closing Date for a period of five (5) years after the First Closing, the
Acquiror will not dispose of the Real Property in a transaction that would
result in the allocation of taxable income or gain by the Acquiror to any of
such persons under Section 704(c) of the Code. "Permitted Transferees" are those
persons who received from the Contributor or a partner thereof, and at the
relevant time retain, a carryover tax basis, in whole or in part, in Common
Partnership Units. The Acquiror further agrees that, if the Contributor, the
Summerfield Affiliated Partnerships, or any of their partners (or their
Permitted Transferees) hold at least 40% of the Common Partnership Units issued
to any of the Summerfield Affiliated Partnerships, during the period beginning
five (5) years after the First Closing and ending seven (7) years after the
First Closing, the Acquiror will not dispose of the Real Property in a
transaction that would result in the allocation of taxable income or gain by the
Acquiror to the Contributor or its partners (or their Permitted Transferees)
under Section 704(c) of the Code. If the Acquiror disposes of the Real Property
in violation of the foregoing covenant, and notwithstanding such prohibition,
then in such event the Acquiror shall pay to the Contributor, Contributor's
partners, or their Permitted Transferees the amount of federal and state taxes
(together with any interest and
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penalties thereon) of the Contributor, its partners or Permitted Transferees
attributable to such Code Section 704(c) allocation.
7.2. [Intentionally Omitted]
7.3. [Intentionally Omitted]
7.4. Tax Elections.
Acquiror shall make an election under section 704(c) of the
Code to allocate the tax items arising from the ownership of the Property,
including the items of depreciation, amortization, and gain or loss under the
"traditional method" as provided in Treasury Regulations Section 1.704-3(b).
7.5. Re-election of Board Member.
The Board of Trustees of REIT shall re-nominate Xxxx X. Xxxxxx
to the Board of Trustees of the REIT and support his election by shareholders
(i) as long as he continues to own directly or indirectly, (a) 25% of the Common
Partnership Units attributable to his ownership interest in the Contributor and
the Summerfield Affiliated Partnerships and/or an equivalent number of REIT
Shares, (ii) in the absence of acts or failures to act (other than, without
more, participation by Xxxx X. Xxxxxx and his affiliates in the hotel business)
by Xxxx X. Xxxxxx which the Board unanimously decides are detrimental to the
REIT and as a result of which the Board makes a unanimous good faith
determination that it cannot so nominate him or (iii) unless he is otherwise
legally disqualified from serving as a trustee.
7.6. Timely Filing of SEC Filings.
REIT will maintain its qualification to use registration
statements of the type(s)required to satisfy its obligations under the
Redemption and Registration Rights Agreement.
7.7. Book Capital Accounts.
The initial book capital account of Contributor to be
reflected on the partnership books and records of Acquiror shall be the face
amount of the Common Partnership Units.
7.8. Release of Mortgage Note.
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The Acquiror shall indemnify and hold harmless Contributor
from all liability under the Mortgage Note.
7.9. Common Partnership Units.
Except for Units transferred to the Lessee [FOR TINTON FALLS,
EL SEGUNDO, ADDISON AND ATLANTA PERIMETER - AND EXCEPT FOR THE MANAGEMENT FEE
UNITS], the Contributor shall not distribute or transfer the Common Partnership
Units for at least twelve (12) months and thereafter only in accordance with the
terms of this Agreement or the Acquiror's Partnership Agreement.
7.10. Contributor's Financing.
Except for the pledge of Common Partnership Units contemplated
by the Lease, each of the Summerfield Affiliated Partnerships (including
Contributor) (or the partners thereof, to the extent distributed to them) shall
be entitled to pledge the Common Partnership Units received under this Agreement
and the Other Contribution Agreements provided that the following conditions are
satisfied: (i) the principal amount of loan secured by the pledged Common
Partnership Units shall not be more than 40% of the value of such pledged Common
Partnership Units, assuming that each pledged Common Partnership Unit has a
value equal to the average closing price of REIT Shares on the New York Stock
Exchange for the ten (10) trading days preceding the date of funding of the loan
with respect to which the Common Partnership Units are pledged, (ii) a
mechanism, acceptable to both the Summerfield Affiliated Partnerships (including
Contributor) (or the partners thereof, as the case may be) and the Acquiror,
shall be established that ensures that all distributions on the pledged
Partnership Units are applied first to make payments of accrued interest and
principal on the loan, (iii) the pledgor of the Common Partnership Units pledged
to secure the loan shall not transfer or redeem such units while the loan
remains outstanding, (iv) the pledgors will obtain such loans only from bank
lending offices located in the U.S., (v) the pledgors will use their best
efforts to minimize the number of lenders to which Common Partnership Units are
pledged, and (vi) each pledgor will promptly pay or reimburse Acquiror or its
Affiliates for the out-of-pocket costs and expenses incurred by Acquiror or its
Affiliates in connection with the pledgor's loan(s). Acquiror will endeavor in
good faith to facilitate pledges complying with the foregoing, but the Acquiror
may refuse
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to execute and deliver agreements or instruments or do acts or things required
by a lender which in, the exercise of Acquiror's reasonable discretion, subject
Acquiror to undue burden or obligations. Acquiror and its Affiliates, including
the REIT, shall have no liability to any person or entity for any failure or
refusal of a lender to extend any loan.
7.11. Liquor License.
If applicable law requires that the owner of the Hotel be the
licensee under the required liquor license for the Hotel, the Contributor shall
use all reasonable efforts to cause to be transferred to the Acquiror or its
designee, such liquor licenses and alcoholic beverages licenses. To that end,
the Contributor and the Acquiror shall cooperate each with the other, and each
shall execute such transfer forms, license applications and other documents as
may be necessary to effect such transfer. If permitted under the laws of the
jurisdiction in which the Facility 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, to the end that the
transfer shall take effect, if possible, on the date of Closing, simultaneously
with Closing. If not so permitted, then the Contributor and the Acquiror 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 jurisdiction in which the Property is located, in order that all
liquor licenses may be transferred to the Acquiror or its designee at the
earliest possible time. If under the laws of the jurisdiction in which the
Property is located, such licenses cannot be transferred or obtained until after
the Closing of the transaction contemplated hereby, then the Contributor
covenants and agrees that the Contributor shall cooperate with the Acquiror in
continuing and maintaining the regular liquor and alcoholic beverage service at
the Hotel between the date of Closing and the time when such liquor license
transfer actually become effective (to the extent permitted under applicable
laws and for up to 180 days following the Closing), by exercising management and
supervision of such facilities and service until such time under the existing
licenses; provided, however, that in such event (i) the Acquiror shall indemnify
and hold the Contributor harmless from any liability, damages or claims
encountered in connection with such operations during said period of time,
except for the
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Contributor's gross negligence or willful misconduct, and (ii) if Acquiror is
required to obtain a liquor policy with respect to the Hotel, the Contributor
shall be named as an additional insured under the Acquiror's liquor liability
policy to the extent permitted under applicable insurance regulations.
8. CONDEMNATION; RISK OF LOSS
8.1. Condemnation.
In the event of any actual or threatened taking, pursuant to
the power of eminent domain, of all or any portion of the Real Property, or any
proposed sale in lieu thereof, the Contributor shall give written notice thereof
to the Acquiror promptly after the Contributor learns or receives notice
thereof. If all or any part of the Real Property is, or is to be, so condemned
or sold, the Acquiror shall have the right to terminate this Agreement pursuant
to Section 9.5. If the Acquiror elects not to terminate this Agreement, all
proceeds, awards and other payments arising out of such condemnation or sale
(actual or threatened) shall be paid or assigned, as applicable, to the Acquiror
at Closing.
8.2. Risk of Loss.
The risk of any loss or damage to the Property prior to the
Closing shall remain upon the Contributor. If any such loss or damage occurs
prior to Closing, the Acquiror shall have the right to terminate this Agreement
pursuant to Section 9.5. If the Acquiror elects not to terminate this Agreement,
all insurance proceeds and rights to proceeds arising out of such loss or damage
shall be paid or assigned, as applicable, to the Acquiror at Closing.
9. LIABILITY OF ACQUIROR; INDEMNIFICATION; TERMINATION RIGHTS
9.1. Liability of Acquiror.
Except for any obligation expressly assumed or agreed to be
assumed by the Acquiror hereunder, the Acquiror does not assume any obligation
of the Contributor or any liability for claims arising out of any occurrence
prior to Closing.
9.2. Indemnification by Contributor.
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Subject to the provisions of Section 10.10, the Contributor
hereby indemnifies and holds the Acquiror harmless from and against any and all
claims, costs, penalties, damages, losses, liabilities and expenses (including
reasonable attorneys' fees), net of any insurance proceeds, income tax benefits,
or other benefits or recoveries, that may at any time be incurred by the
Acquiror, whether before or after Closing, as a result of any breach by the
Contributor of any of its representations, warranties, covenants or obligations
set forth herein or in any other document delivered by the Contributor pursuant
hereto to the extent claims of the Acquiror arising under such breaches exceed
in the aggregate $500,000. The liability of Contributor under this Agreement
shall be limited to the sum of the cash and the value of Common Partnership
Units received by Contributor under this Agreement. For purposes of this
paragraph, the Common Partnership Units shall be deemed to have a fair market
value equal to $15. Indemnification obligations of Contributor under this
Article IX may be satisfied by payment in Common Partnership Units received
under this Agreement(or REIT Shares for which such Common Partnership Units are
redeemed), which will be deemed to have the same value on the payment date as
the value of the Common Partnership Units on the Closing Date. Indemnification
obligations exceeding the value of any Common Partnership Units (or REIT Shares)
delivered to satisfy indemnification obligations pursuant to the immediately
preceding sentence shall be satisfied in cash.
9.3. General Indemnification by Acquiror.
Subject to the provisions of Section 10.10 and the more
specific provisions of Section 9.4 below with respect to certain tax matters,
the Acquiror hereby indemnifies and holds the Contributor harmless from and
against any and all claims, costs, penalties, damages, losses, liabilities and
expenses (including reasonable attorneys' fees), net of any insurance proceeds,
income tax benefits, or other benefits or recoveries, that may at any time be
incurred by the Contributor, whether before or after Closing, as a result of any
breach by the Acquiror of any of its representations, warranties, covenants or
obligations set forth herein or in any other document delivered by the Acquiror
pursuant hereto, other than the representation set forth in Section 4.22 hereof
regarding the tax consequences of the transaction, the liabilities agreed to be
assumed by the Acquiror and post closing covenants of Acquiror pursuant to
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Article VII, to the extent claims of the Contributor arising under such breaches
exceed in the aggregate $500,000.
9.4. Tax Indemnification by Acquiror.
(a) Subject to Section 10.10 (b)(ii), the Acquiror hereby
agrees to indemnify and hold the partners of the Contributor (each, an
"Indemnitee," and in the aggregate, the "Indemnitees") harmless from and against
any and all claims (each, an "Indemnifiable Claim") and the costs, penalties,
interest, liabilities and expenses (including reasonable attorneys' fees)
relating thereto, net of any other benefits or recoveries, that may be asserted
against or incurred by any Indemnitee as a result of any breach by the Acquiror
of the representation set forth in Section 4.22 regarding the tax consequences
of the transaction to the Contributor and the Indemnitees, to the extent that
claims of (1) the Indemnitees arising under this Section 9.4 and (2) one or more
other Summerfield Affiliated Partnerships and/or their partners arising under
Section 9.4 of one or more of the Other Contribution Agreements exceed in the
aggregate $500,000; provided, however, that a Final Determination (as defined
below) pursuant to which the federal income tax liability of an Indemnitee was
increased has occurred with respect to such Indemnifiable Claim or Claims; and
provided, further, that the Acquiror shall not indemnify any Indemnitee with
respect to the amount of any federal income tax liability that such Indemnitee
would have incurred irrespective of any breach of the representation set forth
in Section 4.22.
For purposes of this Section, the term "Final Determination"
means (i) a final decision, judgment, decree or other order by any court of
competent jurisdiction, (ii) any settlement agreement entered into in connection
with any administrative or judicial proceeding, including, but not limited to, a
closing agreement entered into under Section 7121 of the Code, or an IRS Form
870-AD, or (iii) notice from the Acquiror to the Contributor that any proposed
adjustment or disallowance by the IRS will not be contested or protested.
(b) Audit Notice. The Contributor shall notify the Acquiror
within thirty (30) days after it receives notice thereof if the IRS (i) proposes
to audit the 1997 tax return of the Contributor or any Indemnitee or (ii)
proposes any adjustments to a tax return of the Contributor or any Indemnitee.
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(c) Control of Proceedings. In the case of any audit or
administrative or judicial proceeding involving an issue which would, upon a
Final Determination, result in an indemnification obligation of the Acquiror
under Section 9.4(a), the Acquiror or its Affiliate shall have the right to
control such audit or proceeding at the Acquiror's (or its Affiliate's) cost. If
the Acquiror opts to control any such audit or proceeding, the Acquiror shall
notify the relevant Indemnitee or Indemnitees (each, an "Interested Party")
promptly and periodically as to the status and material developments of such
audit or proceeding, provide the Interested Parties with copies of all reports,
notices and correspondence relating to such matters, and convey to the IRS all
procedural requests made by the Interested Parties, unless any such request
relates to the issue of the tax consequences of the transaction contemplated by
this Agreement and is reasonably objectionable to the Acquiror's tax counsel.
The Acquiror shall not enter into a settlement agreement relating to any issue
not related to the tax consequences of the transaction contemplated by this
Agreement which results in the imposition of any additional tax, interest or
penalties on the Interested Parties unless (i) Acquiror obtains the consent of
the Interested Parties or (ii) Acquiror pays the cost of such Settlement
(including any future years' taxes resulting from such change). Each Interested
Party and its counsel shall have the right, at its sole cost and expense, to be
present at in all meetings with the IRS relating to any audit or proceeding
described in this Section 9.4(c). Notwithstanding the foregoing, nothing in this
Section 9.4(c) shall require the Acquiror to defend any audit of or proceeding
against the Contributor or any Partner.
(d) Costs. If any audit or proceeding described in Section
9.4(c) results in a Final Determination which is favorable to the Interested
Party or Parties, the Contributor, or to the extent the Contributor has
distributed the Common Partnership Units to the Interested Parties, the
Interested Parties, shall reimburse the Acquiror for the reasonable costs and
expenses (including reasonable legal and accounting fees but excluding any
taxes, interest or penalties paid by the Acquiror) the Acquiror incurred in
connection with the audit or proceeding on behalf of the Interested Parties.
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9.5. Termination by Acquiror.
(a) After the Study Period, if any condition set forth herein
cannot or will not be satisfied prior to Closing, or upon the occurrence of any
other event that would entitle the Acquiror to terminate this Agreement and its
obligations hereunder, and the Contributor fails to cure any such matter within
ten (10) business days after notice thereof from the Acquiror, the Acquiror, at
its option, may elect either (a) to terminate this Agreement, in which event (i)
Contributor shall immediately pay to Acquiror, in cash, "Acquiror's Break-Up
Fee" (as defined in Subsection (b) below) and, (ii) upon receipt of the
Acquiror's Break-Up Fee, and subject to the two immediately subsequent
sentences,(A) such fee shall be deemed full and complete liquidated damages, (B)
such fee shall be deemed Acquiror's complete remedy and (C) all other rights and
obligations of the Contributor and the Acquiror hereunder shall terminate
immediately, or (b) to waive its right to terminate and, instead, to proceed to
Closing. If the Acquiror terminates this Agreement as a consequence of a knowing
or willful misrepresentation or breach of a warranty or covenant by the
Contributor or a willful failure by the Contributor to perform its obligations
hereunder, then notwithstanding the receipt by Acquiror of the Acquiror's
Break-Up Fee the Acquiror shall retain all remedies accruing as a result
thereof. If the Acquiror terminates this Agreement and is entitled to the
Acquiror's Break-Up Fee, then, without limiting Acquiror's rights to receive
such fee, Acquiror shall retain all remedies accruing as a result of the
termination until such fee has been received by Acquiror. Notwithstanding any
termination hereof, the parties shall nevertheless remain liable for breaches of
the representations and warranties set forth in Sections 3.20 and 4.13.
(b) The "Acquiror's Break-Up Fee" shall mean, without
duplication,(i) if Contributor has executed a definitive agreement to transfer
the Hotel to a party other than Acquiror (or an Affiliate of Acquiror), or
executes such an agreement on or before the date which is six (6) months after
the termination hereof, a cash fee in an amount equal to 3% of the Contribution
Consideration,(ii) if Acquiror terminates this Agreement under Sections 2.2(c)
or 2.2(f), or after a failure to satisfy the conditions set forth in Sections
5.1(c), 5.1(d) or 5.1(f), or under Sections 8.1 or 8.2, a cash fee equal to
"Acquiror's Out-of-Pocket Costs" (as defined in Subsection (c) below) plus 10%
of Acquiror's Out-of-Pocket Costs, (iii) if Acquiror terminates this Agreement
after a failure to satisfy the condition set forth in Section 5.1(o)(i) and
Acquiror would be entitled to receive an
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"Acquiror's Break-Up Fee" payment pursuant to an Other Contribution Agreement,
Acquiror shall be entitled to an analogous Acquiror's Break-Up Fee payment under
this Contribution Agreement, or, (iv) in all other cases, a cash fee in an
amount equal to 1% of the Contribution Consideration. If Acquiror terminates
this Agreement because of a casualty or condemnation of the Property, this
Agreement shall be deemed to have been terminated under Section 8.2 hereof.
Acquiror's pursuit or collection of the amount described under (iv) above shall
not preclude its pursuit or collection of the amount described under (i) above,
but any amount collected by Acquiror under (iv) above shall be credited to the
amount, if any, owed by Contributor to Acquiror under (i) above.
(c) "Acquiror's Out-of-Pocket Costs" shall mean, (1) when less
than all of the transactions contemplated under this Agreement and the Other
Contribution Agreements are terminated under Section 9.5 hereof and thereof, the
actual costs and expenses paid or payable by Acquiror to third parties
specifically in connection with investigating and closing the contribution of
the Property and, (2) when all of the transactions contemplated by this
Agreement and the Other Contribution Agreements are terminated under Section 9.5
hereof and thereof, the actual costs and expenses paid or payable by Acquiror to
third parties specifically in connection with such transactions, which shall
include but not be limited to the costs and expenses incurred by Acquiror in
negotiating and drafting this Agreement and the agreements, instruments and
documents contemplated hereby, investigating and closing the contribution of the
Property and obtaining the financing thereof.
9.6. Termination by Contributor.
(a) If, prior to Closing, the Acquiror defaults in performing
any of its obligations under this Agreement (including its obligation to acquire
the Property), and the Acquiror fails to cure any such default within ten (10)
business days after notice thereof from the Contributor, then the Contributor's
sole remedy for such default shall be to terminate this Agreement and receive
the "Contributor's Break-Up Fee" (as defined in Subsection (b) below). If the
Contributor terminates this Agreement and is entitled to the Contributor's
Break-Up Fee, then, without limiting Contributor's rights to receive such fee,
Contributor shall retain all remedies accruing as a result of the termination
until such fee has been received by the Contributor.
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The Contributor and the Acquiror agree that, in the event of such a default, the
damages that the Contributor would sustain as a result thereof would be
difficult if not impossible to ascertain. Therefore, the Contributor and the
Acquiror agree that the Contributor shall receive the Contributor's Break-Up Fee
as full and complete liquidated damages and as the Contributor's sole remedy.
(b) The "Contributor's Break-Up Fee" shall mean, without
duplication, (i) if Contributor terminates this Agreement under Section 2.2(g),
a cash fee equal to "Contributor's Out-of-Pocket Costs" (as defined in
Subsection (c) below) plus 10% of Contributor's Out-of-Pocket Costs or, (ii) in
all other cases, a cash fee equal to 1% of the Contribution Consideration.
(c) "Contributor's Out-of-Pocket Costs" shall mean, (1) when
less than all of the transactions contemplated under this Agreement and the
Other Contribution Agreements are terminated under Section 9.6 hereof and
thereof, the actual costs and expenses paid or payable by Contributor to third
parties specifically in connection with closing the contribution of the Property
and, (2) when all of the transactions contemplated by this Agreement and the
Other Contribution Agreements are terminated under Section 9.5 hereof and
thereof, the actual costs and expenses paid or payable by Acquiror to third
parties specifically in connection with such transactions.
10. MISCELLANEOUS PROVISIONS
10.1. Completeness; Modification.
This Agreement constitutes the entire agreement between the
parties hereto with respect to the transactions contemplated hereby and
supersedes all prior discussions, understandings, agreements and negotiations
between the parties hereto. This Agreement may be modified only by a written
instrument duly executed by the parties hereto.
10.2. Assignments; Taking Title.
The Acquiror may assign any or all of its rights and
obligations hereunder to an Affiliate in which Acquiror owns at least 95% of the
interests, without the consent of Contributor. The Acquiror may assign its
rights and obligations with respect to items of Tangible Personal Property to be
selected by Acquiror
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to the Lessee without the consent of Contributor. The Acquiror shall remain
liable with respect to such obligations notwithstanding any such assignment. The
Acquiror may also designate such an Affiliate to take title to the Property,
without the consent of the Contributor. Except as provided in this Section 10.2,
the Acquiror may not assign its rights or obligations hereunder without the
prior written consent of the Contributor. The Contributor may not assign its
rights or obligations hereunder without the prior written consent of the
Acquiror.
10.3. Successors and Assigns.
This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns.
10.4. Days.
If any action is required to be performed, or if any notice,
consent or other communication is given, on a day that is a Saturday or Sunday
or a legal holiday in the jurisdiction in which the action is required to be
performed or in which is located the intended recipient of such notice, consent
or other communication, such performance shall be deemed to be required, and
such notice, consent or other communication shall be deemed to be given, on the
first business day following such Saturday, Sunday or legal holiday. Unless
otherwise specified herein, all references herein to a "day" or "days" shall
refer to calendar days and not business days.
10.5. Governing Law.
This Agreement and all documents referred to herein shall be
governed by and construed and interpreted in accordance with the laws of the
State of Kansas, except those provisions relating to the Real Property, which
shall be governed by the laws of the state where the Real Property is located,
and except the Acquiror's Partnership Agreement, which shall be governed by the
laws of Virginia.
10.6. Counterparts.
To facilitate execution, this Agreement may be executed in as
many counterparts as may be required. It shall not be necessary that the
signature on behalf of both parties
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hereto appear on each counterpart hereof. All counterparts hereof shall
collectively constitute a single agreement.
10.7. Severability.
If any term, covenant or condition of this Agreement, or the
application thereof to any person or circumstance, shall to any extent be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term, covenant or condition to other persons or circumstances, shall not be
affected thereby, and each term, covenant or condition of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
10.8. Notices.
All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered by hand, transmitted by
facsimile transmission, sent prepaid by Federal Express (or a comparable
overnight delivery service) or sent by the United States mail, certified,
postage prepaid, return receipt requested, at the addresses and with such copies
as designated below. Any notice, request, demand or other communication
delivered or sent in the manner aforesaid shall be deemed given or made (as the
case may be) when actually delivered to the intended recipient.
If to the Contributor: c/o SUMMERFIELD HOTEL CORPORATION
0000 X. 00xx Xxxxxx
Xxxxxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx, Esq.
Fax: 316/000-0000
with a copy to: Foulston & Siefkin, L.L.P.
000 Xxxxxx Xxxxxxxxx Xxxxxx
000 X. Xxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: 316/000-0000
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If to the Acquiror: INNKEEPERS USA LIMITED PARTNERSHIP
000 Xxxxx Xxxxxxxxx Xxx
Xxxx Xxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
Fax: 407/000-0000
with a copy to: Hunton & Xxxxxxxx
0000 X Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: 202/000-0000
or to such other address as the intended recipient may have
specified in a notice to the other party. Any party hereto may change its
address or designate different or other persons or entities to receive copies by
notifying the other party and the Escrow Agent in a manner described in this
Section.
10.9. Incorporation by Reference.
All of the exhibits attached hereto are by this reference
incorporated herein and made a part hereof.
10.10. Survival.
(a) The representations, warranties, and covenants of
Contributor contained in this Agreement shall survive the Closing only to the
limited extent provided herein:
(i) Representations, warranties, and covenants
as to the title to the Real Property shall be merged with the Deed and shall not
survive delivery of the Deed.
(ii) All other representations, warranties, and
covenants shall survive until twelve (12) months after the Closing Date.
(iii) All post-closing covenants shall survive
until they expire by their respective terms.
(iv) Any pre-condition to Closing shall be deemed
satisfied and waived if Closing occurs unless the parties otherwise agree in
writing.
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(b) The representations, warranties, and covenants of Acquiror
contained in this Agreement shall survive the Closing only to the limited extent
provided herein:
(i) All representations, warranties, and
covenants contained in this Agreement, except those related to the tax
consequences of the transaction to Contributor and its partners, shall survive
until twelve (12) months after the Closing Date.
(ii) The representations, warranties, and
covenants related to the tax consequences of the transaction to Contributor and
its partners shall survive the Closing and continue until all applicable
statutes of limitation for state and federal income taxes (including extensions
and waivers thereof) have lapsed.
(iii) All post-Closing covenants shall survive
until they expire by their respective terms.
(iv) Any pre-condition to Closing shall be deemed
satisfied and waived if Closing occurs unless the parties otherwise agree in
writing.
(c) Nothing herein is intended to modify or limit the
obligations of Innkeepers under the Securities Act.
10.11. Further Assurances.
The Contributor and the Acquiror each covenant and agree to
sign, execute and deliver, or cause to be signed, executed and delivered, and to
do or make, or cause to be done or made, upon the written request of the other
party, any and all agreements, instruments, papers, deeds, acts or things,
supplemental, confirmatory or otherwise, as may be reasonably required by either
party hereto for the purpose of or in connection with consummating the
transactions described herein.
10.12. Time of Essence.
Time is of the essence with respect to every provision hereof.
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10.13. Confidentiality.
Except as set forth in the subsequent sentence, the
Contributor, the Acquiror, and their representatives, including any brokers or
other professionals representing the Contributor or the Acquiror, shall keep the
existence and terms of this Agreement strictly confidential. The Acquiror may,
consistent with its obligations under applicable securities laws and New York
Stock Exchange rules, as well as good marketing and public relations practices,
issue press releases relating to this Agreement and the transactions
contemplated hereby, and information relating to this Agreement, the Property
and the transactions contemplated hereby may be included in the REIT's
registration statements and periodic reports filed with the SEC as well as
packages distributed to the Company's underwriters and securities analysts.
Prior to Closing, Acquiror shall present to Contributor, for Contributor's
approval, written press releases and announcements proposed for release by
Acquiror or its Affiliates with respect to the transactions contemplated by this
Agreement. Contributor shall comment on such proposals within 48 hours of such
presentation. Acquiror agrees to consider Contributor's comments but is not
obligated to reflect the comments in the press releases and announcements, and
Contributor shall not unreasonably withhold its approval of such releases.
Contributor's failure to respond within the 48 hour period shall be deemed
approval of the proposed press release or announcement.
IN WITNESS WHEREOF, the Contributor and the Acquiror have caused this
Agreement to be executed in their names by their respective duly-authorized
representatives.
[Signatures Continued on Following Page]
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CONTRIBUTOR:
----------------------------------,
L.P.,
a Kansas limited partnership
By: [Summerfield Suites
---------------------
Corporation, a Delaware
Corporation, its general partner
By:
Its:
ACQUIROR:
INNKEEPERS USA LIMITED
PARTNERSHIP, a Virginia limited partnership
By: Innkeepers Financial Corporation, a
Virginia Corporation, its sole
general partner
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
REIT:
INNKEEPERS USA TRUST,
a Maryland Real Estate Investment Trust
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board and President
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