EXHIBIT 1
[Execution Counterpart]
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this
"Agreement"), dated as of the Date of this Agreement (as defined
hereinafter) by and among HUDSON HOTELS PROPERTIES CORP., a New
York corporation with offices at Xxx Xxxxxxx Xxx, Xxxxx 000,
Xxxxxxxxx, Xxx Xxxx 00000 ("Purchaser"), SB MOTEL RICHMOND CORP.,
SB MOTEL DURHAM-RESEARCH TRIANGLE PARK CORP., SB MOTEL CARY
CORP., SB MOTEL STATESVILLE CORP., SB MOTEL WILMINGTON CORP., SB
MOTEL COLUMBIA CORP., SB MOTEL CHARLESTON CORP., SB MOTEL ALBANY
CORP., SB MOTEL VIRGINIA BEACH CORP., SB MOTEL XXXXXX-XXXX CORP.,
SB MOTEL RALEIGH CORP. and SB MOTEL CHARLOTTE I-85 CORP., each a
Delaware corporation with offices at Xxxxx Xxxxx Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn: Xx. Xxxx X. Xxxx, Vice President
(collectively, "Sellers"), and Hudson Hotels Corporation, a New
York corporation with offices at Xxx Xxxxxxx Xxx, Xxxxx 000,
Xxxxxxxxx, Xxx Xxxx 00000 ("Xxxxxx").
W I T N E S S E T H
WHEREAS, Purchaser wishes to purchase, and Sellers
wish to sell, the Premises (as defined below) on the terms and
conditions set forth below; and
WHEREAS, Xxxxxx, which directly or indirectly owns
100% of the stock of Purchaser and will benefit directly from the
transactions contemplated hereby, has agreed to certain
covenants, representations and warranties made by Xxxxxx herein
and to execute the Note (as hereinafter defined) as partial
payment of the Purchase Price (as hereinafter defined).
NOW, THEREFORE, for $1.00 and other good and valuable
consideration, the receipt and sufficiency of which is hereby
mutually acknowledged, and the mutual covenants contained herein,
the parties hereto, intending to be legally bound, hereby agree
as follows:
Section 1. PROPERTIES. On the terms and subject to all
of the conditions set forth in this Agreement, Purchaser agrees
to purchase and Sellers agree to sell, for the purchase price set
forth herein, any and all of the right, title and interest of
Sellers, respectively, if any, in and to the following property
(collectively, the "Premises"):
(a) a Fairfield Inn limited service hotel located in
Richmond, Virginia, including fee simple title to the land upon
which such limited service hotel is located, as more particularly
described on Exhibit A-1, attached hereto and incorporated herein
by reference, with all improvements thereon (the "Richmond
Property");
(b) a Fairfield Inn limited service hotel located in
Durham, North Carolina, including fee simple title to the land
upon which such limited service hotel is located, as more
particularly described on Exhibit A-2, attached hereto and
incorporated herein by reference, with all improvements thereon
(the "Durham-Fairfield Property");
(c) a Fairfield Inn limited service hotel located in
Cary, North Carolina, including fee simple title to the land upon
which such limited service hotel is located, as more particularly
described on Exhibit A-3, attached hereto and incorporated herein
by reference, with all improvements thereon (the "Cary
Property");
(d) a Fairfield Inn limited service hotel located in
Statesville, North Carolina, including leasehold title to the
land upon which such limited service hotel is located, as more
particularly described on Exhibit A-4, attached hereto and
incorporated herein by reference (the "Statesville Ground
Lease"), with all improvements thereon (the "Statesville
Property");
(e) a Fairfield Inn limited service hotel located in
Wilmington, North Carolina, including fee simple title to the
land upon which such limited service hotel is located, as more
particularly described on Exhibit A-5, attached hereto and
incorporated herein by reference with all improvements thereon
(the "Wilmington Property");
(f) a Fairfield Inn limited service hotel located in
Columbia, South Carolina, including fee simple title to the land
upon which such limited service hotel is located, as more
particularly described on Exhibit A-6, attached hereto and
incorporated herein by reference, with all improvements thereon
(the "Columbia Property");
(g) a Fairfield Inn limited service hotel located in
Charleston, South Carolina, including fee simple title to the
land upon which such limited service hotel is located, as more
particularly described on Exhibit A-7, attached hereto and
incorporated herein by reference, with all improvements thereon
(the "Charleston Property");
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(h) a Fairfield Inn limited service hotel located in
Albany, Georgia, including fee simple title to the property upon
which such limited service hotel is located, as more particularly
described on Exhibit A-8, attached hereto and incorporated herein
by reference, with all improvements thereon (the "Albany
Property");
(i) a Cricket Inn limited service hotel located in
Virginia Beach, Virginia, including fee simple title to the land
upon which such limited service hotel is located, as more
particularly described on Exhibit A-9, attached hereto and
incorporated herein by reference, with all improvements thereon
(the "Virginia Beach Property");
(j) a Cricket Inn limited service hotel located in
Durham, North Carolina, including fee simple title to the land
upon which such limited service hotel is located, as more
particularly described on Exhibit A-10, attached hereto and
incorporated herein by reference, with all improvements thereon
(the "Durham-Cricket Property");
(k) a Cricket Inn limited service hotel located in
Raleigh, North Carolina, including fee simple title to the land
upon which such limited service hotel is located, as more
particularly described on Exhibit A-ll, attached hereto and
incorporated herein by reference, with all improvements thereon
(the "Raleigh Property");
(l) a Cricket Inn limited service hotel located in
Charlotte, North Carolina, including fee simple title to the land
upon which such limited service hotel is located, as more
particularly described on Exhibit A-12, attached hereto and
incorporated herein by reference, with all improvements thereon
(the "Charlotte Property"; the Richmond Property, the
Durham-Fairfield Property, the Cary Property, the Statesville
Property, the Wilmington Property, the Columbia Property, the
Charleston Property and the Albany Property are herein
collectively referred as the "Fairfield Inn Properties"; the
Virginia Beach Property, the Durham-Cricket Property, the Raleigh
Property and the Charlotte Property are herein collectively
referred to as the "Cricket Inn Properties"; the Fairfield Inn
Properties and the Cricket Inn Properties are herein collectively
referred to as the "Properties"; and each of the limited service
hotels operated on
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the Fairfield Inn Properties or the Cricket Inn Properties is
herein referred to as a "Hotel");
(m) any and all furniture, fixtures, equipment,
machinery, furnishings, carpets, drapes, blinds or mini-blinds,
service and maintenance equipment, linens, tools, signs,
landscaping equipment, supplies, pool equipment, television
systems, keys, passcards, intercom equipment and systems, and
replacement parts, and other tangible and intangible personal
property located on the Properties and owned by any Seller
(collectively, the "Personalty");
(n) all contracts or agreements to which any Seller is
a party and which relate to any of the Properties, including,
without limitation, the Statesville Ground Lease and the
franchise agreements and other contracts referenced in Exhibit B,
attached hereto and by this reference made a part hereof, but
only to the extent same are assignable to Purchaser
(collectively, the "Contracts");
(o) all permits, licenses and certificates of
occupancy held by Sellers in connection with the Hotels, but only
to the extent same are legally assignable to Purchaser (the
"Permits");
(p) all inventory, supplies and other materials used
in connection with the Hotels and the hotel business operated
thereon to the extent owned by Sellers (the "Inventory");
(g) all plans, specifications and "as-built" drawings
and surveys relating to the Properties, to the extent owned by
Sellers, all books and records relating to the operation or
management of the Properties by or on behalf of Sellers, and all
assignable warranties and guaranties of Sellers pertaining to the
Properties; and
(r) all intangible property, guest ledgers, customer
and mailing lists, catalogues and brochures, telephone numbers
and similar property used in connection with the operation of the
Hotels which, in each case, are not owned by any franchisor,
manager or other third party and which are assignable to
Purchaser (the "Intangible Rights");
provided, however, that, notwithstanding the foregoing or any
other provision hereof to the contrary, Sellers do not hereby
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agree to sell, and the Premises shall not include, any of the
inventory, contracts or property described in Exhibit C, attached
hereto and by this reference made a part hereof.
Section 2. TERMS OF PURCHASE AND SALE. The purchase
price for the Premises shall be Sixty One Million and NO/100
Dollars ($61,000,000.00) (the "Purchase Price"), payable by
Purchaser to Sellers as follows:
2.1. The sum of One Million Four Hundred Fifty
Thousand and NO/100 Dollars ($1,450,000.00) (the "Deposit") shall
be paid by Purchaser on or before Monday, September 30, 1996 by
wire transfer of immediately available funds to an account
designated by Lawyers Title Insurance Corporation, 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000, as escrow agent ("Escrow Agent").
Escrow Agent shall maintain the Deposit in an interest bearing
account subject to the provisions of Section 13. Escrow Agent
shall not disburse the Deposit except in accordance with the
terms of this Agreement. At the Closing (as hereinafter defined),
the Deposit shall be paid by Escrow Agent to Sellers by wire
transfer of immediately available funds. In the event that this
transaction is not consummated, the Deposit shall be paid as
provided in Sections 8 and 13 of this Agreement. Purchaser shall
be entitled to a credit for any interest earned on the Deposit
unless the Deposit is forfeited, in which event interest shall be
paid to Sellers. If for any reason Escrow Agent does not confirm
its receipt of the Deposit by executing this Agreement on or
before Monday, September 30, 1996, this Agreement shall be
cancelled and shall be deemed null and void, ab initio.
2.2. The balance of the Purchase Price
($59,550,000.00) shall be paid by Purchaser to Sellers at the
Closing (as hereinafter defined), as follows:
(a) The sum of Fifty Three Million Five Hundred Fifty
Thousand and NO/100 Dollars ($53,550,000.00),
plus the Stock Price Adjustment Amount (as
hereinafter defined), if any, shall be paid by
Purchaser in cash by wire transfer of immediately
available funds to an account or accounts
designated in writing by Sellers;
(b) Xxxxxx shall deliver to Sellers (i) a promissory
note executed by Xxxxxx in the amount of Three
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Million and NO/100 Dollars ($3,000,000), plus or
minus any closing adjustments made pursuant to
Section 9, in the form of Exhibit D, attached
hereto and incorporated herein by reference (the
"Note"); and
(c) Purchaser shall deliver to Sellers the lesser of
(i) 500,000 shares of the common stock, par value
$0.001, of Xxxxxx (the "Xxxxxx Common Stock") or
(ii) that number of shares of Xxxxxx Common Stock
that is equal to the number determined by dividing
$3,000,000 by the Per Share Market Price (such
number of shares of Xxxxxx Common Stock determined
in accordance with clauses (i) and (ii) above
shall be referred to herein as the "Shares").
For purposes hereof, the term "Stock Price Adjustment
Amount" shall mean the amount, if any, by which (i) the product
of the Per Share Market Price (as defined below) multiplied by
500,000 is less than (ii) $3,000,000, and the term "Per Share
Market Price" shall mean the average closing price per share of
Xxxxxx Common Stock on NASDAQ for the five trading days
immediately preceding the Closing Date. If the Closing occurs,
Purchaser will be entitled to a $50,000 credit against the
Purchase Price (which $50,000 represents the deposit previously
paid by Purchaser to Sellers which had been forfeited).
2.3. The Purchase Price shall be allocated among
Sellers in accordance with Exhibit E hereto.
Section 3. FEASIBILITY PERIOD.
3.1. Purchaser commenced its due diligence
investigation of the Premises on the date of the term sheet
executed by Sellers and Purchaser in connection with the
Premises. Purchaser shall have a period ending October 31, 1996
to review the Inspection Items and to otherwise complete its due
diligence investigation and inspection of the Premises (the
"Feasibility Period"). Purchaser shall have the right to
terminate this Agreement at any time prior to the expiration of
the Feasibility Period, by written notice to Sellers and Escrow
Agent (the "Termination Notice"), if Purchaser is dissatisfied
with any aspect of the Premises in Purchaser's sole discretion.
If Purchaser shall terminate this Agreement pursuant to this
Section
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3.1 on or before the last day of the Feasibility Period, then
Purchaser shall be entitled to a refund of the Deposit. If
Purchaser shall not have provided notice of termination of this
Agreement pursuant to this Section 3.1 during the Feasibility
Period, then from and after the Feasibility Period Purchaser
shall be deemed to have waived its right to terminate this
Agreement as permitted under this Section 3.1 and to accept the
Premises in their present condition. After the Feasibility
Period, Purchaser's and Xxxxxx'x obligation to close the
transactions contemplated hereby shall be unconditional, the
Deposit shall be non-refundable, and neither Purchaser nor Xxxxxx
shall have any termination rights hereunder whatsoever (provided
that the foregoing shall not invalidate Purchaser's remedies for
any default by Sellers, as set forth in Section 8).
The term "Inspection Items" shall mean copies of the
following documents, to the extent same are in Sellers'
possession (which shall mean, for all purposes hereunder, to the
extent same are located in the offices of SB Planning and
Management Services, 33rd Floor, Seven World Trade Center, New
York, New York), or, with respect to items (e) and (f) below, to
the extent same are either located at the Hotels or at the
offices of American General Hospitality, Inc., Sellers' manager
for the Hotels ("Manager"):
(a) any title policies, environmental reports and
surveys of or with respect to the Premises;
(b) the Contracts (including the Statesville Ground
Lease and the Franchise Agreements, as defined
below);
(c) financial statements (the "Financial Statements")
for the Hotels prepared and certified by Sellers
(including balance sheets, income statements and
statements of changes in financial condition) for
calendar years 1994 and 1995 for the first and
second calendar quarters of 1996, together with an
itemized breakdown of room sales per month,
occupancy and ADR for such periods;
(d) audited financial statements (the "Audited
Financials") prepared and certified by the firm of
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Coopers & Xxxxxxx, copies of which have been
provided to Purchaser;
(e) any guest registration records, operating
permits, certificates of occupancy, municipal
approvals and other governmental permits and
copies of Contracts copies of which have not
previously been delivered to Purchaser, which in
all such cases, are kept at the Hotels; and
(f) any books and records of the operations of the
Premises necessary to confirm the accuracy of the
Financial Statements and the Audited Financials,
which in all such cases are kept at the Hotels or
at the offices of Manager.
Within four (4) Business Days of Purchaser's request therefor,
Sellers shall make available for inspection at one or more of the
Hotels or at their offices in New York any Inspection Items
described in clauses (e) and (f) above which are located at
Manager's offices.
Except for the representations and warranties set
forth in Section 12.3 (to the extent applicable), Sellers make no
representations or warranties as to the accuracy or completeness
of any of the foregoing Inspection Items or other materials
provided or made available to Purchaser, and Purchaser's sole
remedy for any such inaccuracy or lack of completeness shall be
to terminate this Agreement during the Feasibility Period.
3.2. (a) If Purchaser shall terminate this Agreement
as permitted pursuant to Section 3.1 on or before the last day of
the Feasibility Period, then Purchaser shall be entitled to a
refund of the Deposit less $50,000, and Sellers shall be entitled
to immediate payment from Escrow Agent of such $50,000 portion of
the Deposit as option money and consideration for the Feasibility
Period and the opportunity to conduct due diligence on the
Premises during the Feasibility Period; provided, however, that
notwithstanding the foregoing, if (i) Purchaser certifies in the
Termination Notice that (x) its termination of this Agreement is
based solely upon a material defect in or problem with the
Premises which has been uncovered by Purchaser and was either
unknown to Purchaser prior to the Date of this Agreement or the
materiality or consequences of which were not understood by
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Purchaser prior to the Date of this Agreement, and which is
described with specificity in the Termination Notice, and (y)
that it has obtained financing for this transaction and is not
terminating this Agreement because of an inability to obtain a
commitment from a lender willing to finance this transaction, and
(ii) Sellers do not provide notice to Escrow Agent that they wish
to dispute the matters set forth in clause (i) of this sentence,
then such $50,000 portion of the Deposit shall be refunded by
Escrow Agent to Purchaser. For purposes of the immediately
preceding sentence, the term "material defect in or problem with
the Premises" shall mean: (i) any defect or problem with the
Premises which prevents Purchaser from obtaining financing for
this transaction from prospective lenders; (ii) the failure of
the franchisor of the Premises currently operated as Fairfield
Inns to execute and deliver to Purchaser an estoppel and comfort
letter in the form contemplated by this Agreement; or (iii) the
failure of the franchisor of the Premises currently operated as
Cricket Inns to execute and deliver to Purchaser an estoppel and
comfort letter in the form contemplated by this Agreement.
3.3. Whether or not Purchaser terminates this
Agreement as permitted pursuant to Section 3.1 hereof the
non-refundable $50,000 fee paid by Purchaser to Sellers on or
about August 12, 1996, upon execution of the term sheet in
connection with this transaction, shall be non-refundable and
fully earned by Sellers, provided that if the Closing takes
place, the non-refundable $50,000 fee shall be applied as a
credit against the Purchase Price in accordance with Section 2.2
hereof.
3.4. At least 15 days prior to the expiration of the
Feasibility Period, Sellers shall, after consultation with
Purchaser, prepare and provide to Purchaser a schedule setting
forth all material damages to the Wilmington Property and the
Raleigh Property resulting from Hurricane Xxxx on or about
September 5, 1996, and corresponding cost estimates for their
repair (such schedule shall be referred to herein as the "Xxxx
Damage Schedule"). Sellers shall, at their option, either (a)
make any or all repairs with respect to the damage represented in
the Xxxx Damage Schedule prior to the Closing Date, or (b) credit
Purchaser at Closing with the cost of such repairs set forth on
the Xxxx Damage Schedule, to the extent such repairs have not
been completed prior to the Closing Date. In the event that
Sellers elect to make any repairs with respect to the damage
represented in the Xxxx Damage Schedule pursuant to this Section
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3.4, Sellers agree to provide Purchaser with copies of all
documentation relating to the same, including evidence of lien
free completion, and to assign all related warranties and
guaranties to the extent assignable to Purchaser at Closing.
3.5. During the Feasibility Period, Sellers shall use
good faith efforts (which shall not include the expenditure of
any funds or the making of any changes, alterations or
improvements at any Premises or otherwise) to obtain estoppel and
comfort letters from the two franchisors under the franchise
agreements described in Exhibit B hereto (the "Franchise
Agreements") in a form reasonably satisfactory to Purchaser's
prospective lender. A proposed form of such estoppel and comfort
letter shall be provided to Sellers by Purchaser within 10
Business Days from the Date of this Agreement. Except as provided
in this Section 3.5, Purchaser shall pay any and all fees or.
other costs or expenses incurred directly or indirectly in
connection with such franchisors' execution and delivery to
Purchaser of such estoppel and comfort letters. If Sellers fail
to obtain such estoppel and comfort letters from such
franchisors, then Purchaser's sole remedy shall be to terminate
this Agreement during the Feasibility Period in accordance with
Section 3.1 hereof and receive a full refund of its Deposit.
After the Feasibility Period Purchaser shall be deemed to have
waived the applicability of the foregoing provisions of this
Section 3.5, provided that, if the aforesaid estoppel
certificates are obtained during the Feasibility Period, Sellers
shall, if so requested by Purchaser, in good faith request of the
relevant franchisors a second estoppel certificate (in the same
form as the first) dated as of a date within 15 days of the
Closing Date. Except as provided above, Purchaser shall be
responsible for obtaining any and all consents or approvals
required to be obtained from the franchisors under the Franchise
Agreements in connection with the sale of the Premises to
Purchaser and the assignment to and assumption by Purchaser of
the Franchise Agreements as contemplated hereby. Purchaser shall
provide to Sellers evidence of its having obtained any such
required consents or approvals at or prior to the expiration of
the Feasibility Period. The transfer fees provided for in Section
3 of Addendum Two to each of the Franchise Agreements applicable
to the Fairfield Inn Properties (the "Fairfield Franchise
Agreements"), which are required to be paid under the Franchise
Agreements in connection with the assignment and assumption of
the Franchise Agreements or the sale of Premises
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pursuant to this Agreement shall be paid by Sellers to the
relevant franchisor(s) at or prior to the Closing (the "Addendum
Two Transfer Fee"), and any other transfer fees, costs and
expenses, if any, required to be paid under the Franchise
Agreements in connection with the transactions contemplated
hereby shall be paid by Purchaser to the relevant franchisor(s)
at or prior to the Closing. Sellers shall cooperate with
Purchaser in its dealings with the franchisors under the
Franchise Agreements which are required pursuant to this Section
3.5. In the event that the transactions contemplated hereby
result in a default or termination of any Franchise Agreement,
then from and after the Closing Date Purchaser shall be solely
responsible and liable for all related costs, expenses, fees and
damages and shall fully indemnify Sellers against same.
Purchaser's foregoing obligations shall survive the Closing.
3.6. Sellers and Purchaser shall cooperate and take
all actions necessary, in a diligent and expeditious manner, to
effectuate the inspections and reviews contemplated by this
Section 3 during the Feasibility Period. Purchaser and its
representatives and agents shall be provided with access to the
Premises at all reasonable times (subject to the notice to
Sellers required hereinafter), in order to inspect the Premises,
including but not limited to, taking soil samples and test
borings (upon receipt of prior written consent from Sellers as
set forth hereinafter) and conducting environmental studies,
engineering studies and other such inspections and reviews that
Purchaser shall deem reasonably necessary to determine the
condition and financial status of the Premises. Purchaser shall
not make any borings or holes in any part of the Premises or
otherwise damage any part of the Premises in any manner or to any
extent unless prior written consent is given by Sellers thereto,
which consent shall not be unreasonably withheld, and provided,
further, that Sellers may prohibit any boring that might void any
roof warranty and that all borings, holes, or other damage shall
be repaired promptly by Purchaser.
3.7. In the event that the transaction contemplated by
this Agreement does not close for any reason, Purchaser shall
have the obligation to remediate any damage caused by Purchaser
or its representatives or agents to the Premises and to restore
the Premises to their condition prior to Purchaser's damage,
which obligation shall survive any termination of this Agreement.
The terms of this Agreement and all information furnished by
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Sellers to Purchaser in accordance with the provisions of this
Agreement or obtained by Purchaser in the course of its
investigations shall be treated as confidential information by
Purchaser, except as such disclosure may be required by
applicable state or federal environmental laws and except that
Purchaser may disclose such information to prospective investors
and lenders, as well as attorneys and other parties assisting or
representing Purchaser in connection with the subject
transaction, provided, however, that nothing herein shall
restrict or impair any disclosures which Purchaser may be
required to make by virtue of rules and regulations of the
Securities and Exchange Commission (the "SEC") applicable to
Purchaser, if any. The foregoing obligation to treat such
information as confidential shall survive any termination of this
Agreement but shall not survive Closing.
3.8. Purchaser covenants and agrees that the Premises
shall not be damaged or impaired in any way as the result of its
aforesaid activities on the Premises, and hereby agrees to
indemnify and hold Sellers harmless from and against any claims,
causes of action, damages, expenses (including attorneys' fees)
or liabilities of whatsoever nature to the extent incident to,
resulting from or in any way arising out of the presence in, on
or about the Premises of Purchaser, or Purchaser's agents or
representatives, or out of any test or inspection conducted by or
any other act or omission of Purchaser on the Premises. Such
indemnity shall survive the Closing or any termination of this
Agreement.
3.9. Purchaser shall make all inspections provided for
herein in good faith and with due diligence. All inspection fees,
appraisal fees, engineering fees and other expenses of any kind
(including, without limitation, expenses related to environmental
and engineering studies) incurred by Purchaser relating to the
inspection of the Premises will be solely Purchaser's expenses
and will be paid timely by Purchaser, except that Purchaser shall
not become liable solely by virtue of this sentence for
remediation costs relating to Hazardous Materials (as defined
below) discovered by Purchaser on any Property as long as
Purchaser did not and does not cause, accelerate or increase, in
whole or in part, directly or indirectly, the need or extent of
the required remediation. Sellers hereby reserve the right to
have a representative present at the time of making any such
inspection. Purchaser shall cause any and all surveys,
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engineering reports, environmental reports, feasibility studies,
title reports, audits and other tests, studies or reports
prepared for or obtained by Purchaser in connection with the
Premises (collectively, the "Purchaser Reports") to be certified
to Sellers as well as to Purchaser and Purchaser shall deliver a
copy of each such report to Sellers promptly after receipt
thereof. In making any inspection hereunder, Purchaser will, and
will cause any representative of Purchaser to, use discretion so
as to not disrupt any guest, tenant or customer of the Premises.
Purchaser shall notify Sellers not less than one (1) Business Day
in advance of making any such inspection.
3.10. If Purchaser shall validly terminate this
Agreement during the Feasibility Period pursuant to this Section
3, or if the Closing shall otherwise fail to occur, Purchaser
shall return to Sellers the originals and all copies of all
material relating to the Premises furnished to Purchaser pursuant
to this Agreement and shall not make or retain any copies thereof
and shall also deliver to Sellers the originals and all copies of
the Purchaser Reports, together with an absolute assignment of
all Purchaser's right, title and interest therein, and Purchaser
shall not make or retain any copies thereof.
3.11. Prior to the expiration of the Feasibility
Period, the Seller which holds leasehold title to the Statesville
Property shall use reasonable efforts (which shall not include
the expenditure of any funds or the making of any changes,
alterations or improvements at the Statesville Property or
otherwise) to obtain from the ground lessor under the Statesville
Ground Lease and to deliver to Purchaser an estoppel certificate
(a) in the form provided for in Article XV of the Statesville
Ground Lease with the addition of an acknowledgment of the lack
of necessity for approval of the proposed assignment of the
Statesville Ground Lease as contemplated hereby; or (b) in such
other form as may be required by Purchaser's prospective lender
for the acquisition contemplated hereby and which shall be
provided to Sellers within 10 Business Days after the Date of
this Agreement. If such Seller fails to obtain such an estoppel
certificate, Purchaser's sole remedy shall be to terminate this
Agreement during the Feasibility Period in accordance with
Section 3.1 hereof. After the Feasibility Period Purchaser shall
be deemed to have waived the applicability of this Section 3.11,
provided that, if the aforesaid estoppel certificate is obtained
during the Feasibility Period, the relevant Seller shall, if so
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requested by Purchaser, in good faith request of the ground
lessor a second estoppel certificate (in the same form as the
first) dated as of a date within 15 days of the Closing Date.
3.12. Purchaser shall provide to Sellers, at least
five (5) Business Days prior to the expiration of the Feasibility
Period, evidence of Purchaser's unconditional ability to finance
the acquisition of the Premises and the payment of the Purchase
Price pursuant to Section 2.2 of this Agreement. Sellers agree
that for purposes hereof, a comfort letter from Purchaser's
prospective lender which provides reasonable assurances as to the
availability of financing shall constitute evidence of
Purchaser's unconditional ability to finance the acquisition of
the Premises and the payment of the Purchase Price.
3.13. If this Agreement is terminated pursuant to this
Section 3 and the Deposit is disbursed as set forth in this
Section 3 and in Section 13, then, except as specifically set
forth in this Agreement, neither party shall have any further
obligations or liabilities hereunder.
Section 4. TITLE AND SURVEY.
4.1. Purchaser shall obtain, at its sole cost and
expense a title report and survey for each of the Properties from
a national title insurance company. At least five (5) days prior
to the expiration of the Feasibility Period, Purchaser shall
deliver copies of such title reports and surveys to Sellers and
notify (the "Title Notice") Sellers which, if any, of the liens,
defects, encumbrances or other matters disclosed thereby are
objectionable to Purchaser (the "Title Defects"). Within two (2)
Business Days after receipt by Sellers of the Title Notice,
Sellers shall notify Purchaser if Sellers are willing and able to
cure any of the Title Defects (the "Cure Notice"). All title
defects, encumbrances and other matters which are a matter of
public record on or before the expiration of the Feasibility
Period or which are otherwise disclosed by Purchaser's title
reports or surveys for the Properties, except for Title Defects
which are objected to by Purchaser and which Sellers agree to
cure in the Cure Notice, shall be deemed "Permitted Exceptions"
which Purchaser shall take title subject to. Sellers shall have
no obligation to cure any Title Defects, except for mortgages,
mechanics liens, monetary judgments or delinquent real estate
14
taxes, which Sellers agree to bond or pay off at or prior to the
Closing. In the event Sellers are unable or unwilling to cure any
Title Defects which are material to the Properties, taken as a
whole, then Purchaser shall have the right, as its sole remedy,
to terminate this Agreement pursuant to Section 3.1 hereof prior
to the expiration of the Feasibility Period. After the
Feasibility Period, Purchaser shall be deemed to have waived its
rights under this Section 4.1 and to have accepted the quality
and condition of title to the Premises subject only to the
Permitted Exceptions.
Section 5. CLOSING.
5.1. The closing of this transaction (the "Closing")
shall occur on November 27, 1996 or on such sooner date as the
parties may agree upon in writing (as the case may be, the
"Closing Date") at 10:00 a.m. at the offices of Sellers' counsel,
Wachtell, Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
5.2. At the Closing, Sellers shall deliver to Purchaser
the following:
(a) Special or limited warranty deeds conveying fee
simple title to each of the Properties other than
the Statesville Property, and an assignment of
the Statesville Ground Lease and all of Sellers'
other interests in the Statesville Property
subject only to the Permitted Exceptions;
(b) Bills of sale conveying the Personalty and
Inventory, containing special or limited
warranties of title (but no warranties of any
other kind);
(c) An assignment of Sellers' interests in and to all
Contracts, Permits, Intangible Rights and
warranties and guarantees relating to the
condition of the Premises (in each case, to the
extent legally assignable), without any
representations or warranties contained therein;
(d) Originals of the Contracts and Permits, to the
extent in Sellers' Possession;
15
(e) A certificate of Sellers dated as of the Closing
that Sellers are not foreign persons or
corporations within the meaning of Sections 1445
and 7701 of the Internal Revenue Code (the
"IRC");
(f) An affidavit of title reasonably satisfactory to
Purchaser's title insurance company to enable
such title insurance company to issue to
Purchaser a title insurance policy for the
Properties without exception for mechanics' or
materialmens' or other statutory liens or for the
rights of parties in possession other than
temporary hotel patrons;
(g) Evidence of Sellers' due formation, good standing
in Delaware, qualification to do business in the
respective States in which Sellers do business,
and authority to consummate the transactions
contemplated hereby;
(h) Originals of documents included in the definition
of "Intangible Rights", to the extent in Sellers'
possession;
(i) An estoppel certificate from the ground lessor
under the Statesville Ground Lease, if obtained
pursuant to Section 3.11;
(j) Estoppel and comfort letters from the franchisors
under the Franchise Agreements, if obtained
pursuant to Section 3.5; and
(k) Such other instruments as are customarily
executed by Sellers to effectuate the sale of
property similar to the Premises, provided that
this subpart (k) shall not require Sellers to
incur expenses, liabilities or obligations in
excess of those provided for elsewhere in this
Agreement.
At the Closing, Sellers shall also bond or pay off any mortgages,
mechanics' liens, monetary judgments or delinquent real estate
taxes which encumber any Property. None of Sellers' conveyance
documents shall have general warranties of title or any other
representations or warranties except as specifically provided
above.
16
5.3. At the Closing, Purchaser shall deliver to Sellers
the following:
(a) The sum of Fifty-Three Million Five Hundred
Thousand and NO/100 Dollars ($53,500,000), plus
the Stock Price Adjustment Amount, if any (and
Purchaser shall also cause Escrow Agent to
deliver to Sellers the Escrow Deposit);
(b) Certificates (bearing a restrictive legend, which
legend Xxxxxx shall remove following registration
of the Shares as contemplated under Section 15.3)
representing the Shares, free and clear of all
liens, with all necessary share transfer and
other documentary stamps attached;
(c) Evidence of Purchaser's due formation, good
standing in New York, qualification to do
business in each state in which it does business,
and authority to consummate the transactions
contemplated hereby;
(d) An assumption agreement pursuant to which
Purchaser will assume all obligations of Sellers
under or in connection with the Contracts,
Permits and Intangible Rights and will agree to
cooperate with Sellers to cause Sellers to be
released from any future obligations or
liabilities under the Contracts;
(e) Evidence that Purchaser has performed all of its
obligations under Section 3.5, including, without
limitation, that Purchaser has paid all fees,
costs and expenses and obtained all consents and
approvals required to be paid or obtained by
Purchaser under Section 3.5;
(f) Such other instruments as are customarily
executed by purchasers to effectuate the purchase
of property similar to the Premises, provided
that this subpart (f) shall not require Purchaser
to incur expenses, liabilities or obligations in
excess of those provided elsewhere in this
Agreement.
17
5.4. At the Closing, Xxxxxx shall deliver to Sellers
the following:
(a) The Note (naming Sellers or any designee of
Sellers as the payee);
(b) An opinion of Xxxxxx'x counsel with respect to (i)
the validity and enforceability of the Note, (ii)
the valid issuance and due authorization of the
Shares (which shall further include that the
Shares have been fully paid, are nonassessable and
are free and clear of all security interests and
other encumbrances), (iii) if Sellers so elect
pursuant to Section 15.7, the due authorization of
the board of directors of Xxxxxx with respect to
the placement of the Sellers Nominee on Xxxxxx'x
board of directors, (iv) Xxxxxx'x authority to
enter into the Note and issue the Shares, and (v)
other customary matters relating to the Shares and
the Note (which opinion shall be customary in form
and substance and shall be reasonably acceptable
to Sellers);
(c) If Sellers so elect pursuant to Section 15.7 to
place a Sellers nominee on Xxxxxx'x board of
directors immediately following Closing, evidence
satisfactory to Sellers that the board of
directors of Xxxxxx shall have adopted a resolu-
tion authorizing the placement of the Sellers
Nominee (as defined hereinafter) on the board of
directors of Xxxxxx in accordance with the terms
of Section 15.7 hereof, and approving any neces-
sary expansion of the number of directors con-
stituting such board of directors, all in ac-
cordance with the requirements of any corporate
charter, certificate of incorporation or bylaws of
Xxxxxx;
(d) Evidence of Xxxxxx'x due formation, good standing
in New York, qualification to do business in each
state in which Xxxxxx does business, and
authority to consummate the transactions
contemplated hereby; and
18
(e) Such other instruments as are customarily
executed in similar transactions, provided that
this subpart (e) shall not require Xxxxxx to
incur expenses, liabilities or obligations in
excess of those provided elsewhere in this
Agreement.
Sellers and Xxxxxx agree to negotiate in good faith and attempt
to reach agreement as to the form of the opinion referred to in
Section 5.4(b) above prior to the expiration of the Feasibility
Period.
5.5. At the Closing, Purchaser shall, and does hereby,
assume all obligations of Sellers pursuant to the Contracts,
including the Statesville Ground Lease and the Franchise
Agreements. Purchaser will cooperate with Sellers in all respects
to cause Sellers to be released from any future obligations or
liabilities under any Contract. The parties shall enter into an
assignment and assumption agreement at the Closing in respect of
the Contracts (the "Assignment and Assumption Agreement") which
shall contain reciprocal indemnities pursuant to which Sellers
shall indemnify Purchaser against liabilities arising under the
Contracts prior to the Closing and Purchaser shall indemnify
Sellers against liabilities arising under the Contracts after the
Closing. Notwithstanding the foregoing, Purchaser shall not
assume liability for any employees of Sellers or any other
persons who otherwise worked at any Property prior to the
Closing, and the Assignment and Assumption Agreement shall
expressly exclude such liability.
5.6. Purchaser shall pay all costs and expenses
associated with obtaining any title commitments, title policies,
title insurance, surveys, environmental reports and other due
diligence reports with respect to the Premises. At the Closing,
Purchaser and Sellers shall each pay fifty (50%) percent of all
transfer taxes, conveyance fees, documentary stamps, and other
similar taxes and charges imposed by any governmental authority
in connection with the conveyance of the Premises to Purchaser.
Purchaser shall pay all expenses in connection with the issuance
of the Shares. Purchaser shall pay any recording fees relating to
the deeds and other instruments of conveyance and any mortgage or
deed of trust recording taxes or fees in connection with any
financing obtained by Purchaser. Sellers shall pay all accounting
and other fees associated with the preparation and delivery of
the Audited Financials. Each party shall be
19
responsible for its own attorneys' fees and other professional
fees. Except as otherwise provided herein or elsewhere in this
Agreement, all other costs associated with the Closing will be
borne by Purchaser.
Section 6. DELIVERY OF POSSESSION. Sellers shall
deliver actual and exclusive possession of the Properties to
Purchaser on the Closing Date.
Section 7. CASUALTY AND CONDEMNATION.
7.1. If, prior to the Closing, any Material Portion
(as defined below) of any Hotel shall be destroyed by one or more
incidents of fire or other casualty, Sellers shall, promptly
after learning of same, give Purchaser notice of such occurrence,
and Purchaser shall, within ten (10) days after receipt of such
notice, elect either (a) to exclude such Hotel from the Premises
to be sold and purchased under this Agreement, in which event the
Purchase Price shall be reduced by the Purchase Price Reduction
Amount (as defined below) and such Hotel and all related property
shall be excluded from this transaction and retained by the
applicable Seller, or (b) to acquire such Hotel along with the
remainder of the Premises without any adjustment to the Purchase
Price and close the transaction contemplated hereby as scheduled,
in which event Purchaser shall have the right to participate in
the adjustment and settlement of any insurance claim relating to
such damage, and Sellers shall assign and/or pay to Purchaser at
the Closing all insurance proceeds collected or claimed with
respect to said damage. If Purchaser does not make any election
within said ten (10) day period, or if the fire or other casualty
does not result in a loss of a Material Portion of any Hotel,
Purchaser shall be deemed to have elected to close this
transaction as provided in (b) above. The term "Material Portion"
means any portion having a value in excess of $5 million. The
term "Purchase Price Reduction Amount" shall mean, with respect
to any Hotel which is excluded from the Premises to be sold and
purchased hereunder pursuant to this Section 7.1, or pursuant to
Section 7.2 below, the portion of the Purchase Price allocable to
such Hotel pursuant to Exhibit E.
7.2. If, prior to the Closing, any proceeding (xxxx-
cial, administrative or otherwise) which shall relate to the
20
proposed taking of a Material Portion of any Hotel by
condemnation or eminent domain or any action in the nature of
eminent domain, is commenced, Sellers shall promptly after
learning of same give Purchaser notice of such occurrence and
Purchaser shall, within ten (10) days after receipt of such
notice, elect either (a) to exclude such Hotel from the Premises
to be sold and purchased pursuant to this Agreement, in which
event the Purchase Price shall be reduced by the Purchase Price
Reduction Amount and such Hotel and all related property shall be
excluded from this transaction and retained by the applicable
Seller or (b) to acquire such Hotel along with the remainder of
the Premises without any adjustment to the Purchase Price and
close the transaction contemplated hereby as scheduled, in which
event Purchaser shall have the right to participate in the
proceedings affecting such Hotel and the entire award from such
proceedings shall be paid or assigned to Purchaser at the
Closing. If Purchaser does not make any election within said ten
(10) day period, or if the proposed taking does not result in a
loss of a Material Portion of any Hotel, Purchaser shall be
deemed to have elected to close this transaction as provided in
(b) above.
Section 8. REMEDIES.
8.1. If this transaction fails to close by reason of
Purchaser's or Xxxxxx'x failure to perform its obligations under
this Agreement, and such failure is not cured within five (5)
days after notice thereof from Sellers to Purchaser, then the
Deposit shall be paid by Escrow Agent to, and shall be retained
by, Sellers as full liquidated damages, the parties hereby
acknowledging and agreeing that the amount of Sellers' actual
damages in such circumstances would be difficult, if not
impossible, to determine. Sellers shall have no obligation to
close the transactions contemplated hereby if either Xxxxxx or
Purchaser shall fail to perform or shall be in breach of its
obligations hereunder. It shall be a condition to Sellers'
obligation to close hereunder that no material adverse change
shall have occurred in the condition, financial results or
operations of Xxxxxx or Purchaser after the Date of this
Agreement.
8.2. If this transaction fails to close by reason of
Sellers' failure to perform their obligations under this
Agreement and such failure is not cured within five (5) days
after notice thereof from Purchaser to Sellers, then Purchaser
shall be permitted to seek specific performance as its sole
remedy,
21
provided that if Sellers are unable or unwilling to convey the
Premises to Purchaser at Closing in accordance with Section 5.2
then Purchaser shall also be permitted, as an alternative to
seeking specific performance, to terminate this Agreement and
obtain a refund of the Deposit as its sole remedy. Purchaser's
remedies for breach shall be limited to those specified in the
immediately preceding sentence.
Section 9. PRORATIONS. All income (excluding cash on
hand and accounts receivable, which shall be and remain the
property of Sellers), current operating expenses, association or
trade group dues, accounts payable, real estate taxes, other
taxes and assessments, all utilities, water and sewer charges,
transferable license or permit fees, real estate and personal
property ad valorem taxes (provided that, personal property ad
valorem taxes shall not be prorated to the extent that Purchaser
provides to Sellers evidence prior to the expiration of the
Feasibility Period that local law where any of the Hotels are
located would require Purchaser to pay such taxes that have
already been paid by or on behalf of the respective Seller),
phone bills, office bills, prepayments made under the Contracts
and other income and expenses from or relating in each case to
the Premises shall be adjusted and prorated as of the Closing,
with Purchaser being entitled to all income and responsible for
all expenses accruing after the Closing and Sellers being
entitled to all income and responsible for all expenses accruing
prior to the Closing. Sellers shall provide Purchaser with a list
of all contracts subject to prorations for Purchaser's review at
least two (2) weeks prior to Closing. Sellers and Purchaser agree
that inventories at any of the Hotels shall not be prorated. If
any items of income or expense are unascertainable on the Closing
Date, a readjustment of such charges and expenses shall be made
within sixty (60) days after the Closing or, in the case of
property taxes for which tax bills are not yet available,
promptly after such tax bills become available. The parties agree
to cooperate in good faith in effecting such a final
reconciliation and each party shall promptly pay (or reimburse
the other party for) any expense item that is chargeable to the
former party and shall promptly remit any income item to the
other party if the other is entitled thereto. Sellers shall use
reasonable efforts to arrange for the rendition of final bills by
the utility companies involved as of the Closing Date. Sellers
shall use reasonable efforts to provide Purchaser with
accountings for vending machines and
22
commissions as of the Closing Date. Sellers shall credit
Purchaser with the cost of repairs that have not been completed
as of Closing with respect to damage caused by Hurricane Xxxx as
set forth on the Xxxx Damage Schedule, as more fully set forth in
Section 3.4.
Guest room revenues of the Premises, whether in cash
or in accounts receivable, arising from occupancy for the night
beginning on the day preceding the Closing Date, including any
tax thereon, but exclusive of food, beverage, telephone and
similar charges (which shall be retained by Sellers), shall be
credited one-half to Purchaser and one-half to Sellers. Sellers
shall collect all income and other sums payable by tenants or
guests (or otherwise) and shall be responsible for the payment of
all expenses on account of services and supplies furnished to and
for the benefit of the Premises through the Closing. Purchaser
shall purchase and Sellers shall be credited for guest ledger
receivables and for any and all cash that is in the cash drawer
of each of the Hotels on the Closing Date. On the Closing Date,
Sellers will not remove any other house funds or xxxxx cash from
the Premises until Purchaser is ready to start its operations.
Purchaser shall be credited with all deposits from tenants or
guests of the Premises (whether refundable or not) which relate
to post-Closing services. Sellers shall remit to Purchaser at
Closing all prepaid room charges for nights after the Closing
Date. In addition, at Closing, Sellers shall deliver to Purchaser
a schedule of all unpaid accounts receivable and other unpaid
income items as of Closing. All such accounts receivable and
other income items paid to and collected by Purchaser after
Closing shall be promptly remitted to the order of Sellers.
Except for sums actually received by Purchaser pursuant to the
immediately preceding sentence, Purchaser shall assume no
obligation to collect or enforce the payment of any amounts that
may be due to Sellers, except that Purchaser shall render
reasonable assistance, at no expense to Purchaser, to Sellers
after Closing in the event Sellers proceed against any third
party to collect any accounts receivable or other income items
due Sellers. Purchaser shall have the right to pursue collection
of such items after the Closing without Sellers' consent or
involvement.
In the event any adjustments pursuant to this Section
9 are, within one (l) year subsequent to Closing, found to be
erroneous, then if either party hereto is entitled to additional
23
monies and shall invoice the other party for such additional
amounts as may be owing, such amounts shall be paid promptly by
the other party upon receipt of the invoice. Such invoice shall
be accompanied by reasonable substantiating evidence.
The provisions of this Section 9 shall survive the
Closing.
Section 10. NOTICES. Any notice to be given by either
Sellers or Purchaser shall be in writing and shall be either
delivered personally or by certified or registered U.S. Mail,
postage prepaid, or by overnight courier delivery service with
charges to the sender, as follows:
To Sellers: SB Motel Richmond Corp.
SB Motel Durham-Research Triangle Park Corp.
SB Motel Cary Corp.
SB Motel Statesville Corp.
SB Motel Wilmington Corp.
SB Motel Columbia Corp.
SB Motel Charleston Corp.
SB Motel Albany Corp.
SB Motel Virginia Beach Corp.
SB Motel Xxxxxx-Xxxx Corp.
SB Motel Raleigh Corp.
SB Motel Charlotte 1-85 Corp.
Seven World Trade Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxx, Vice President
With copies to: Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx
To Purchaser: Xxxxxx Hotels Properties Corp.
Xxx Xxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attn.: E. Xxxxxxx Xxxxxx, Chairman
With copies to: Boylan, Brown, Code, Xxxxxx, Xxxxxx
& Xxxxxx, LLP
24
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx
To Xxxxxx: Xxxxxx Hotels Corporation
Xxx Xxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attn: E. Xxxxxxx Xxxxxx, Chairman
With copies to: Boylan, Brown, Code, Xxxxxx, Xxxxxx
& Xxxxxx, LLP
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx
To Escrow Agent: Lawyers Title Insurance Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Any notice, demand or other communication shall be deemed given
and effective as of the date of delivery in person or by receipt
set forth on the verification of delivery or return receipt. The
inability to deliver because of a changed address of which no
notice was given, or rejection or other refusal to accept any
notice, demand or other communication, shall be deemed to be
receipt of the notice, demand or other communication as of the
date of such attempt to transmit or deliver or rejection or
refusal to accept. Any party may change addresses for notices by
delivering written notice of such change in accordance with this
Section 10.
Section 11. BROKERAGE COMMISSIONS. Purchaser, Xxxxxx
and Sellers each represent and warrant to the other that such
party has not dealt with or employed any broker or agent in
connection with this transaction and that, to such party's
knowledge, no commission or finder's fee will be owing to any
third party in connection with this transaction. Sellers agree
to, and hereby do, indemnify and save harmless Purchaser and its
affiliates and their respective successors and assigns from and
against any loss, liability or expense, including reasonable
attorneys' fees, arising out of any claim or claims for
commissions or other compensation for bringing about this
25
Agreement or the transactions contemplated hereby made by any
broker, finder, consultant or like agent if such claim or claims
made by any such broker, finder, consultant or like agent are
based in whole or in part on any agreements or understandings
entered into with Sellers or their representatives for a
commission or other compensation. Purchaser and Xxxxxx agree to,
and hereby do, indemnify and save harmless Sellers and their
affiliates and respective successors and assigns against and from
any loss, liability or expense, including reasonable attorneys'
fees, arising out of any claim or claims for commission or other
compensation for bringing about this Agreement or the
transactions contemplated hereby made by any broker, finder,
consultant or like agent if such claim or claims made by any such
broker, finder, consultant or like agent are based on any
agreements or understandings entered into with Purchaser or its
representatives for commissions or other compensation. The
indemnities set forth in this Section 11 shall survive the
Closing.
Section 12. REPRESENTATIONS AND WARRANTIES.
12.1. Purchaser represents and warrants to Sellers
that:
(a) Purchaser is, and as of the Closing shall be, a
corporation duly organized, validly existing and
in good standing under the laws of the State of
New York, and has and as of the Closing shall have
all requisite power to enter into and perform its
obligations under this Agreement and under any
other document or instrument required to be
executed and delivered on behalf of Purchaser
hereunder.
(b) Purchaser is, and as of the Closing shall be,
authorized to enter into this Agreement and to
consummate the transactions contemplated hereby,
and the individuals executing this Agreement on
behalf of Purchaser are also duly authorized to
execute this Agreement and to bind Purchaser to
consummate such transactions. The execution of
this Agreement by Purchaser shall, within five
(5) Business Days of the Date of this Agreement,
be duly authorized by proper corporate action,
including by resolution of the board of directors
26
of Purchaser. If evidence of such due
authorization is not provided to Sellers within
such period referenced above, Sellers shall have
the right to terminate this Agreement.
(c) Purchaser is not nor as of Closing shall be a
foreign entity, foreign corporation, foreign
partnership, foreign trust or foreign estate (as
those terms are defined in the Internal Revenue
Code and Income Tax regulations).
(d) Neither the entry into nor compliance with this
Agreement by Purchaser has resulted, or as of
Closing will result, in any violation of, or
default under, or result in the acceleration of,
any obligation under any existing corporate
charter, certificate of incorporation or bylaws
of Purchaser.
(e) There is no action, suit or proceeding, pending
or, to Purchaser's knowledge, threatened, against
Purchaser in any court or before any arbitrator or
before any governmental body which (a) in any
manner raises any question affecting the validity
or enforceability of this Agreement or any other
agreement or instrument required hereunder to be
entered into by Purchaser or (b) could materially
and adversely affect the ability of Purchaser to
perform its obligations hereunder.
(f) Except as contemplated hereby, neither the
execution and delivery by Purchaser hereof nor
the consummation by Purchaser of the transactions
contemplated hereby in accordance with the terms
hereof, will require any consent, approval or
authorization of, or declaration, filing or
registration with, any government authority.
(g) To Purchaser's knowledge, there is no litigation
affecting the Purchaser which could materially
and adversely affect the ability of Purchaser to
perform its obligations under this Agreement or
any other agreement or instrument required
hereunder to be entered into by Purchaser.
27
The term "Purchaser's knowledge" or any similar phrase, as used
above, shall mean the actual knowledge, without specific
investigation, of E. Xxxxxxx Xxxxxx, the Chairman and CEO of
Purchaser or Xxxxx X. Xxxx, the President and COO of Purchaser.
12.2. Xxxxxx represents and warrants to Sellers that,
as of the date hereof and as of the Closing Date:
(a) Xxxxxx is a corporation duly organized, validly
existing and in good standing under the laws of
the State of New York, and has all requisite
power to enter into and perform its obligations
under this Agreement, the Note and any other
document or instrument required to be executed
and delivered by Xxxxxx hereunder.
(b) Xxxxxx is authorized to enter into this Agreement
and the Note and to consummate the transactions
contemplated hereby and thereby, and the
individuals executing this Agreement and the Note
on its behalf are also duly authorized to execute
this Agreement and the Note and to bind Xxxxxx to
consummate such transaction. The execution of
this Agreement and the Note by Xxxxxx shall,
within five (5) Business Days of the Date of this
Agreement, be duly authorized by proper corporate
action, including by resolution of the board of
directors of Xxxxxx. If evidence of such due
authorization is not provided to Sellers within
such period referenced above, Sellers shall have
the right to terminate this Agreement.
(c) Xxxxxx is not a foreign entity, foreign
corporation, foreign partnership, foreign trust
or foreign estate (as those terms are defined in
the Internal Revenue Code and Income Tax
regulations).
(d) There is no action, suit or proceeding, pending
or, to Xxxxxx'x knowledge, threatened, against
either Xxxxxx in any court or before any
arbitrator or before any governmental body which
(a) in any manner raises any question affecting
the validity or enforceability of this Agreement,
the Shares, the Note or any other agreement or
28
instrument required hereunder or thereunder to be
entered into by Xxxxxx or (b) except as disclosed
in Exhibit G attached hereto, could materially
and adversely affect the ability of Xxxxxx to
perform its obligations hereunder or thereunder.
(e) The authorized capital stock of Xxxxxx as of the
date hereof consists and as of Closing shall
consist of 20,000,000 shares of Xxxxxx Common
Stock and 10,000,000 shares of Xxxxxx Preferred
Stock. As of August 31, 1996 there are 4,415,805
shares of Xxxxxx Common Stock and 294,723 shares
of Xxxxxx Preferred Stock issued and outstanding.
All such issued and outstanding shares of Xxxxxx
Common Stock are duly authorized, validly issued,
fully paid, nonassessable and free of preemptive
rights.
(f) As of the Closing the Shares to be acquired
pursuant to this Agreement shall be duly
authorized for issuance, and upon issuance will
be duly and validly issued, fully paid,
nonassessable and free of preemptive rights.
(g) Except as contemplated hereby, neither the
execution and delivery by Xxxxxx hereof nor the
consummation by Xxxxxx of the transactions
contemplated hereby in accordance with the terms
hereof, will: (i) conflict with or result in any
breach or violation of, or default under, or
result in the acceleration of, any obligation
under any existing corporate charter, certificate
of incorporation or by-laws of Xxxxxx; (ii)
violate or conflict with any statute, regulation,
judgment, order, writ, decree or injunction
applicable to Xxxxxx or any of its subsidiaries;
(iii) violate or conflict with or result in a
breach of any provision of, or constitute a
default (or any event which, with notice or lapse
of time or both, would constitute a default)
under, or result in the termination or in a right
of termination or cancellation of, or accelerate
the performance required by, or result in the
creation of any lien upon any of the properties of
29
Xxxxxx or any of its subsidiaries under, or
result in being declared void, voidable or
without further binding effect, any of the terms,
conditions or provisions of any note, bond,
mortgage, indenture, deed of trust or any
license, franchise, permit, lease, contract,
agreement or other instrument, commitment or
obligation to which Xxxxxx or any of its
subsidiaries is a party, or by which Xxxxxx or
any of its subsidiaries or any of its properties
is bound or affected; or (iv) require any
consent, approval or authorization of, or
declaration, filing or registration with, any
government authority, other than any filings
required under the Securities Act of 1933, as
amended (the "Securities Act"), the Securities
Exchange Act of 1934, as amended (the "Exchange
Act"), state securities laws ("Blue Sky Laws")
(collectively, the "Regulatory Filings") and any
filings required to be made with any national
securities exchange on which the Xxxxxx Common
Stock is listed.
(h) Xxxxxx has filed with the SEC a registration
statement in connection with Xxxxxx'x initial
public offering of Xxxxxx Common Stock, and all
exhibits, amendments and supplements thereto
(collectively, the "Xxxxxx Registration
Statement"), and each registration statement,
report, proxy statement or information statement
and all exhibits thereto prepared by it or
relating to its properties since the effective
date of the Xxxxxx Registration Statement
(collectively, the "Xxxxxx Reports"). The Xxxxxx
Reports were filed with the SEC in a timely manner
and constitute all forms, reports and documents
required to be filed by Xxxxxx under the Securi-
ties Act, the Exchange Act and the rules and
regulations promulgated thereunder (the "Securi-
ties Laws"). As of their respective dates, the
Xxxxxx Reports (i) complied as to form in all
material respects with the applicable requirements
of the Securities Laws and (ii) did not contain
any untrue statement of a material fact or omit to
state a material fact required to be stated
30
therein or necessary to make the statements made
therein, in the light of the circumstances under
which they were made, not misleading. There is no
unresolved violation asserted by any government
authority with respect to any of the Xxxxxx
Reports. The Xxxxxx Reports disclose all adverse
matters with respect to Xxxxxx which are known to
Xxxxxx and required by applicable law to be
disclosed by Xxxxxx on the Xxxxxx Reports.
(i) Each of the balance sheets included in or
incorporated by reference into the Xxxxxx Reports
(including the related notes and schedules) fairly
presented the financial position of the entity or
entities to which it relates as of its date and
each of the statements of operations,
shareholders' equity (deficit) and cash flows
included in or incorporated by reference into the
Xxxxxx Reports (including any related notes and
schedules) fairly presented the results of
operations, retained earnings or cash flows, as
the case may be, of the entity or entities to
which it relates for the periods set forth
therein, in each case in accordance with United
States generally accepted accounting principles
("GAAP") consistently applied during the periods
involved.
(j) Except as disclosed in the Xxxxxx Reports filed
with the SEC prior to the date hereof, as of the
date of this Agreement, Xxxxxx and each of its
subsidiaries has and as of the Closing Date Xxxxxx
and each of its subsidiaries shall have conducted
its business only in the ordinary course and has
and shall have acquired real estate and other
assets and entered into financing arrangements in
connection therewith only in the ordinary course
of such business, and as of the Date of this
Agreement there has not and as of the Closing Date
there shall have not been (a) any declaration,
setting aside or payment of any dividend or other
distribution with respect to the Xxxxxx Common
Stock, (b) any commitment, contractual obligation,
borrowing, capital expenditure or transaction
31
(each, a "Commitment") entered into by Xxxxxx or
any of its subsidiaries, other than Commitments
which would not, individually or in the
aggregate, reasonably be expected to result in a
material adverse effect, or (c) any change in
Xxxxxx'x accounting principles, practices or
methods. Since June 30, 1996 there has not been,
and as of the Closing Date there shall not have
been, an adverse change in the condition or
financial results of Xxxxxx.
(k) The affirmative vote of the board of directors of
Xxxxxx (which shall be obtained within five (5)
Business Days after the Date of this Agreement) is
the only vote necessary to approve this Agreement
and the Note and the transactions contemplated
hereby and thereby. No shareholder vote by the
shareholders of Xxxxxx is required in connection
with this transaction.
(l) Xxxxxx has entered into this Agreement and agreed
to provide the Note to Sellers and the Shares to
Sellers (indirectly, through delivery thereof to
Purchaser for delivery to Sellers) and to
otherwise perform its obligations hereunder at
Purchaser's request in order to induce Sellers to
enter into this Agreement with Purchaser. Xxxxxx,
being the owner of 100% of the stock of Purchaser
(directly or indirectly) will derive material
benefits from this transaction and has received
fair and adequate consideration for its entry into
and performance of this Agreement (including,
without limitation, payment of a portion of the
Purchase Price, payment and performance of the
Note, issuance of the Shares, and performance of
the covenants set forth in Section 15 and
elsewhere in this Agreement). Xxxxxx understands
that its agreements herein with respect to the
Note, the Shares and otherwise constitutes
material consideration to Sellers for entering
into this Agreement without which Sellers would
not have entered into this Agreement.
32
The term "Xxxxxx'x knowledge" or any similar phrase, as used
above, shall mean the actual knowledge, without specific
investigation, of E. Xxxxxxx Xxxxxx, the Chairman and CEO of
Xxxxxx or Xxxxx X. Xxxx, the Executive Vice President and COO of
Xxxxxx.
12.3. Sellers represent and warrant to Purchaser, and
to Xxxxxx with respect to Sections 12.3(e) and (m) through (o)
only, as follows:
(a) Sellers are, and as of the Closing shall be,
corporations, duly organized, validly existing and
in good standing under the laws of the state of
Delaware, and have, and as of the Closing shall
have, all requisite power to enter into and
perform their obligations under this Agreement and
under any document or instrument required to be
executed and delivered on behalf of Sellers
hereunder.
(b) Sellers are, and as of Closing shall be, autho-
rized to enter into this Agreement and to con-
summate the transaction contemplated hereby, and
the individuals executing this Agreement on behalf
of Sellers are also duly authorized to execute
this Agreement and to bind Sellers to consummate
such transaction. The execution of this Agreement
by Sellers has been duly authorized by proper
corporate action, including by resolution of the
board of directors of each Seller.
(c) No Seller either is or as of Closing shall be a
foreign entity, foreign corporation, foreign
Partnership, foreign trust or foreign estate (as
those terms are defined in the Internal Revenue
Code and Income Tax regulations)
(d) Neither the entry into nor compliance with this
Agreement by Sellers has resulted, or as of
Closing will result, in any violation of, or
default under, or result in the acceleration of,
any obligation under any existing corporate
charter, certificate of incorporation or bylaws
of any Seller.
33
(e) There is no action, suit or proceeding pending or,
to Sellers' knowledge, threatened, against Sellers
in any court or before any arbitrator or before
any governmental body which (a) in any manner
raises any question affecting the validity or
enforceability of this Agreement or any other
agreement or instrument required hereunder to be
entered into by Sellers or (b) could materially
and adversely affect the ability of Sellers to
perform their obligations hereunder.
(f) There are no pending or, to the knowledge of
Sellers, threatened, condemnation or similar
proceedings affecting the Premises, or any
portion thereof, to which any Seller is a party.
(g) To Sellers' knowledge, except as disclosed in the
Inspection Items there are no options to purchase,
rights of first refusal or other similar
agreements with respect to the Premises which give
anyone the right to purchase the Premises or any
part thereof. To Sellers' knowledge (based on
inquiry of the management company which manages
the Hotels), there are no contracts or agreements
which affect or relate to the Premises, except for
the Contracts and Permits. Except as set forth in
Exhibit F attached hereto, Sellers have no
knowledge of any unpaid xxxx or claim in excess of
$35,000 in connection with the construction,
repair or replacement of the Premises which is
past due or was incurred outside the ordinary
course of business, except for such bills or
claims as Sellers are required to pay or bond off
at the Closing. Except as disclosed by the
Inspection Items, to Sellers' knowledge there are
no agreements to which any Seller is a party and
which will be binding upon Purchaser which require
any reduction, concession or abatement of room
rates, except in the ordinary course of business.
(h) To Sellers' knowledge, the Financial Statements
for each of the Hotels that have been made
available to Purchaser pursuant to this Agreement
are true, correct and accurate in all material
34
respects and fairly present the results of
operations of the Premises for the periods covered
thereby.
(i) To Sellers' knowledge, each Seller has filed all
federal, state, county and local tax returns
required to be filed by such Seller and has paid
all taxes, interest and penalties that have
become due and payable by such Seller. To
Sellers' knowledge, there is no tax deficiency or
penalty owing with respect to Sellers or the
Premises.
(j) To Sellers' knowledge, Sellers do not lack any
permit, license, certificate or authority
necessary for the present use and occupancy of
each of the Properties.
(k) To Sellers' knowledge, except as set forth in the
Inspection Items, the Premises are in compliance
in all material respects with all statutes, laws,
ordinances, rules, regulations, orders and
directives (including, without limitation, all
building, health, zoning, fire, labor,
environmental control and antipollution laws,
ordinances, rules, regulations or directives) of
any and all governmental agencies pertaining to
the use or occupancy of the Premises. To Sellers'
knowledge, except as set forth in the Inspection
Items (including, without limitation, the
environmental reports listed in Exhibit H hereto
(the "Environmental Reports"), copies of which
Purchaser acknowledges receiving), Sellers and the
Premises are not under investigation or threatened
investigation for failure to comply with any
statutes, laws, ordinances, rules, regulations,
orders and directives of any governmental agency
pertaining to the use, generation, dumping,
releasing, burying or disposing of or emitting of
any materials or substances now or heretofore
defined as "hazardous substances," "hazardous
materials," "hazardous waste," "toxic substances,"
or other similar designations under the
Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C.
35
Section 9601, et seq., the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et
seq., the Hazardous Materials Transportation Act,
49 U.S.C. Section 1801, et seq. and other laws,
whether or not of a similar nature, applicable to
the Premises and adopted by, enacted in or
applicable to the states where the Premises are
located. To Sellers' knowledge, except as may be
set forth in the Environmental Reports, the
Premises have never appeared on any federal or
state registry of active or inactive hazardous
waste disposal sites. Sellers have never received
any notice of claim from a governmental agency
concerning the alleged release or threatened
release of Hazardous Materials at the Premises.
(l) Sellers have no employees.
(m) Within ten (10) Business Days of the Date of this
Agreement and as of Closing, Sellers shall (i)
acknowledge that Xxxxxx is a public company and
(ii) confirm that they have had an opportunity to
review the periodic filings of Xxxxxx with the
SEC, had an opportunity to ask questions of
officials of Xxxxxx concerning the business of
Xxxxxx, and otherwise had the opportunity to
obtain such information as they deemed necessary
to making their decision to accept the Shares as
partial payment of the Purchaser Price and upon
the terms and conditions set forth in this
Agreement.
(n) The Shares are not and as of Closing shall not be
purchased for resale, resyndication,
distribution, subdivision or fractionalization
thereof nor will the Shares be purchased with a
view to or for sale in connection with any
distribution within the meaning of the Securities
Act of 1933, as amended.
(o) Each Seller is and as of Closing shall be an
"Accredited Investor", as defined in Regulation D
under the Securities Act of 1933, as amended.
36
(p) To Sellers' knowledge, except as disclosed in
Exhibit I attached hereto, there is no litigation
affecting Sellers or the Premises that is likely
to have a material adverse affect on the
Premises.
(q) As of Closing, all rooms located in the Hotels
will be in habitable condition, subject to
ordinary ongoing maintenance.
Sellers make no representations or warranties to Purchaser or
Xxxxxx other than as specifically set forth herein. The term
"Sellers' knowledge" or any similar phrase, as used above, shall
mean the actual knowledge, without specific investigation or
inquiry (except as specifically provided above), of Xxxx X. Xxxx,
vice president of each of the Sellers. No claim may be asserted
against Sellers under the foregoing representations and
warranties unless upon execution of this Agreement the aforesaid
Xxxx X. Xxxx had actual knowledge of the falsity or inaccuracy
thereof. Notwithstanding any provision hereof to the contrary,
each Seller makes the aforesaid representations and warranties
only as to such Seller and its Property, and no Seller shall be
liable or responsible for any breach of any representation or
warranty which relates to any other Seller or any Property owned
by any other Seller. The Premises will, on the Closing Date, be
transferred "as is," without warranty or representation of any
kind or character except as specifically set forth herein,
including without limitation without any representations as to
physical condition, value, compliance with legal requirements or
the existence or status of contracts affecting the Premises.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THERE IS NO
WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A
SPECIFIC PURPOSE OR AS TO THE CONDITION OF ANY PROPERTY.
Purchaser will make inspection of the Premises as it deems
appropriate, and has not received any warranties or
representations of any kind, whether written or oral, except as
specifically set forth herein. Purchaser shall, and effective as
of the Closing Date does hereby, assume and agree to indemnify
Sellers from and against all obligations and liabilities arising
in connection with the Premises from and after the Closing Date.
The scope of such indemnification shall not include adverse
environmental conditions which existed or originated prior to the
Closing Date but which are disclosed or manifest themselves after
the Closing Date. Purchaser's and Xxxxxx'x sole remedy for
breaches or violations of the foregoing representations and
37
warranties which are uncovered prior to the expiration of the
Feasibility Period shall be to terminate this Agreement pursuant
to Section 3 prior to the expiration of the Feasibility Period.
The truth or accuracy of the foregoing representations and
warranties shall not be a condition to Closing and shall not give
rise to any right to terminate this Agreement after the
Feasibility Period. However, the foregoing shall not constitute a
waiver of Purchaser's rights to make claims against Sellers after
the Closing for breach of the foregoing representations and
warranties, subject to the limitations set forth below. Except as
may be otherwise expressly stated to the contrary above, Sellers'
foregoing representations and warranties are made only as of the
Date of this Agreement (and not as of the Closing Date), but
Sellers agree that if they become aware of any matter which would
be inconsistent with any representation or warranty if such
representation or warranty were made as of the Closing Date then
Sellers shall disclose such matter to Purchaser.
12.4. Except as provided in Section 12.5, each of the
representations and warranties contained in Sections 12.1 and
12.3 (collectively, the "Base Reps") shall survive the Closing
until the first anniversary of the Closing Date or, in the case
of the representations and warranties set forth in Section 12.3,
until a sale, assignment or other transfer of the Premises (or
any part thereof) by Purchaser, if sooner. No claim may be
asserted by either party under the foregoing representations or
warranties after the expiration of such survival period, and all
claims for breach of such representations and warranties asserted
during such survival period may continue to be asserted after
such survival period only if during the survival period the
claiming party provided the other party specific and detailed
written notice thereof and commenced and diligently prosecuted a
law suit against the other in connection therewith. The parties
agree that, except as provided in Section 12.5 but
notwithstanding any other provision hereof to the contrary, (i)
no claim may be asserted against Purchaser or Sellers under the
Base Reps unless the aggregate amount of all claims under the
Base Reps (and the Ninety Day Covenants as provided in Section
14.7 as applicable to Sellers) against Purchaser or Sellers, as
the case may be, is in excess of $100,000, and (ii) the maximum
aggregate liability of each of Purchaser and Sellers under or in
connection with the Base Reps (and the Ninety Day Covenants as
provided in Section 14.7 as applicable to Sellers) (as a result
of any breach thereof or inaccuracy therein, or otherwise) shall
38
not exceed $3 million, and neither Purchaser nor Sellers shall
have liability under or in connection with the Base Reps (and the
Ninety Day Covenants as provided in Section 14.7 as applicable to
Sellers) in excess of such maximum aggregate amount.
Notwithstanding any provision hereof to the contrary, no claim
may be asserted against Sellers for breach of Section 12.3(q)
later than seven (7) Business Days after the Closing Date, and
any claim asserted prior to such time must be specific as to the
breach being asserted.
12.5. Each of the representations and warranties
contained in Section 12.2, and, notwithstanding Section 12.4
above, the representations and warranties set forth in Sections
12.3(m), (n) and (o) to the extent that such representations and
warranties are applicable to the Shares (the representations and
warranties set forth in Section 12.2 and the aforesaid
representations and warranties set forth in Section 12.3(m), (n)
and (o) being hereinafter referred to as the "Shares/Note Reps")
shall survive the Closing until the later to occur of (i) the
first anniversary of the Closing Date and (ii) such time as
Sellers no longer own any of the Shares and the Note has been
paid in full. No claim may be asserted by Sellers under the
Shares/Note Reps after the expiration of such survival period,
and all claims for breach of such representations and warranties
asserted during such survival period may continue to be asserted
after such survival period only if during the survival period the
claiming party provided the other party specific and detailed
written notice thereof and commenced and diligently prosecuted a
law suit against the other in connection therewith. The parties
agree that, notwithstanding any provision hereof to the contrary,
(i) no claim may be asserted against Xxxxxx or Sellers under the
Shares/Note Reps unless the aggregate amount of all claims
against Xxxxxx or Sellers, as the case may be, under the
Shares/Note Reps is in excess of $100,000, and (ii) the maximum
aggregate liability of each of Xxxxxx and Sellers under or in
connection with the Shares/Notes Reps (as a result of any breach
thereof or inaccuracy therein, or otherwise) shall not exceed $6
million, and neither Xxxxxx nor Sellers shall have liability
under the Shares/Note Reps in excess of such maximum aggregate
amount.
12.6. Purchaser acknowledges that Sellers have
orally disclosed to Purchaser the unresolved disagreements and
disputes between certain of the Sellers and the franchisor under
39
the Franchise Agreements for the Cricket Inn Properties. Sellers
shall deliver to Purchaser within five (5) Business Days of the
Date of this Agreement a writing which shall further explain such
matters. Purchaser agrees that if it is dissatisfied with the
Premises or this transaction because of the aforesaid matters,
Purchaser's sole remedy shall be to terminate this Agreement
during the Feasibility Period, and in no event shall Purchaser
assert a breach of any representation or warranty by Sellers or
any other claim against Sellers in connection therewith.
Section 13. ESCROW.
13.1. Escrow Agent hereby acknowledges receipt of the
Deposit and agrees to hold the Deposit in escrow until the
Closing or sooner termination of this Agreement and shall pay
over and apply the proceeds thereof in accordance with the terms
of this Agreement. If, for any reason, the Closing does not occur
and either Purchaser or Sellers makes a written demand upon
Escrow Agent for payment of the Deposit, Escrow Agent shall give
written notice to the other party of such demand. If Escrow Agent
does not receive a written objection from the other party to the
proposed payment within five (5) Business Days after the giving
of such notice, Escrow Agent is hereby authorized to make such
payment. If Escrow Agent does receive such written objection
within such five (5) Business Day period, or if for any reason
Escrow Agent in good faith shall elect not to make such payment,
or in the event of any other dispute between Purchaser and
Sellers, Escrow Agent shall either continue to hold the Deposit
until otherwise directed by written instructions from the parties
to this Agreement or until a final judgment (beyond any
applicable appeal period) by a court of competent jurisdiction is
rendered disposing of such Deposit, or shall have the right to
deposit the escrowed funds in a court of competent jurisdiction
pursuant to CPLR 1006 or any other applicable statute. Upon
delivery of the Deposit to either Purchaser, Sellers or a court
of competent jurisdiction under and pursuant to this Section 13,
Escrow Agent shall be relieved of all liability, responsibility
or obligation with respect to or arising out of the Deposit and
any and all of its obligations therefrom. Escrow Agent shall be
liable as a depository only and its duties hereunder are limited
to the safekeeping of the Deposit and the delivery of same in
accordance with the terms of this Agreement.
40
13.2. Purchaser and Sellers hereby agree to indemnify,
defend and hold harmless Escrow Agent from and against any cost
and expense Escrow Agent may incur as a result of its agreement
to act as Escrow Agent. Purchaser and Sellers shall be equally
responsible for such indemnity.
13.3. Escrow Agent shall not have any liability or
obligation for loss of all or any portion of the Deposit by
reason of the insolvency or failure of the institution or
depository with whom the Deposit has been made. The parties
acknowledge that Escrow Agent shall deposit and maintain the
Deposit with Chemical Bank and the parties agree that said
institution is acceptable.
13.4. Escrow Agent shall not be liable to Purchaser or
Sellers, or any other party, for any action taken or omitted to
be taken by it in good faith; and Escrow Agent shall not be
responsible to any party for the consequences of any oversight or
errors of judgment on its part, nor be answerable to any party
for any loss, cost or expense unless same shall occur through
Escrow Agent's gross negligence or willful misconduct. Escrow
Agent shall be entitled to consult with counsel of its own
choosing and shall not be liable for any action taken, suffered
or omitted by it in accordance with the advice of such counsel.
13.5. Escrow Agent shall have the right to act in
reliance upon any document, instrument or signature believed by
it to be genuine and to assume that any person purporting to give
any notice or instruction in accordance with the provisions
hereof has been duly authorized to do so.
13.6. Escrow Agent shall execute this Agreement solely
to acknowledge its obligations as Escrow Agent hereunder.
Section 14. SELLERS COVENANTS.
14.1. Following the date of this Agreement and to and
including the Closing, Sellers shall, or shall cause the manager
of the Premises to, continue normal maintenance and management of
the Premises and operation and marketing of the Hotels in the
ordinary course of business. Sellers will terminate their
existing management agreement at or prior to Closing. If
requested by Purchaser, Sellers will cooperate with Purchaser in
41
its attempt to negotiate an agreement with Sellers' management
company for such management company to continue managing the
Properties on Purchaser's behalf and at Purchaser's cost for one
month following the Closing in order to facilitate the transition
of ownership. No claim may be asserted under this Section 14.1
after the Closing.
14.2. All taxes levied against the Premises which were
or shall be due and payable prior to the Closing shall be paid in
full by Sellers on or prior to the Closing.
14.3. All payments which are due and payable prior to
the Closing Date under any Contract shall be made by Sellers at
or prior to the Closing. Sellers shall not enter into new
contracts or amend, cancel or renew any existing Contracts after
the Date of this Agreement except in the ordinary course of
business. Any such new Contract entered into after the Date of
this Agreement shall, unless Purchaser otherwise consents,
provide that it may be cancelled on not more than 30 days' notice
by Sellers at no penalty or cost.
14.4. Sellers shall maintain the present level of fire
and casualty insurance on the Premises up to and including the
Closing.
14.5. Sellers shall deliver to Purchaser a report
itemizing room sales per month, occupancy and ADR through a date
which is not later than one month prior to the Closing Date.
14.6. Prior to the Closing Date, Sellers shall not
deplete inventories of any of the Hotels below their normal
levels. Purchaser shall have seven (7) Business Days following
Closing to confirm that Sellers did not breach this covenant and
to assert any related claim (Purchaser hereby waiving any right
to assert any such claim after such seven (7) Business Day
Period), except that, (i) no claim may be asserted against
Sellers under this Section 14.6 unless the aggregate amount of
all claims under this Section 14.6 against Sellers is in excess
of $15,000, and (ii) the maximum aggregate liability of Sellers
under or in connection with this Section 14.6 (as a result of any
breach hereof or inaccuracy therein, or otherwise) shall not
exceed $120,000, and Sellers shall not have liability under or in
connection with this Section 14.6 in excess of such maximum
aggregate amount.
42
14.7. No claim may be asserted by either party for
breach of the covenants contained in Sections 14.2, 14.3, and
14.4 (collectively, the "Ninety Day Covenants") except during the
90 day period immediately following the Closing and all claims
for breach of such Ninety Day Covenants asserted during such
period may continue to be asserted after such period only if
during such period the claiming party provided the other party
specific and detailed written notice thereof and commenced and
diligently prosecuted a law suit against the other in connection
therewith. The parties agree that (i) no claim may be asserted
against Sellers under the Ninety Day Covenants unless the
aggregate amount of all claims under the Ninety Day Covenants
against Sellers is in excess of $100,000, and (ii) the maximum
aggregate liability of Sellers under or in connection with the
Ninety Day Covenants and the Base Reps, in the aggregate shall
not exceed $3 million, and Sellers shall not have liability under
or in connection with the Ninety Day Covenants and/or the Base
Reps in excess of such maximum aggregate amount.
14.8. None of the Sellers' covenants set forth in this
Agreement shall survive the Closing unless otherwise expressly
set forth herein.
Section 15. XXXXXX COVENANTS.
15.1. For as long as Sellers own any of the Shares,
Xxxxxx shall provide at least 30 days' prior written notice to
Salomon Brothers Inc (at the address for Sellers set forth
herein) of any equity offering of Xxxxxx ("Equity Offering") and
an opportunity to make the first offer to underwrite such
offering. Provided that Salomon Brothers Inc shall submit a
written proposal to Xxxxxx with respect to such underwriting
within 20 days after written notice from Xxxxxx that it proposes
to have such Equity Offering, and provided further that, after
reviewing whether Salomon Brothers Inc's proposal has terms,
pricing, a fee structure and any other pertinent business terms
substantially similar in Xxxxxx'x judgment to those available
from an alternative underwriter, Xxxxxx shall give due
consideration to Salomon Brothers Inc's proposal but, subject to
the remaining provisions of this Section 15.1, shall have the
sole and absolute discretion to determine whether or not to
choose Salomon Brothers Inc as the principal underwriter.
Notwithstanding the foregoing, if Xxxxxx after giving such due
consideration wishes to accept an offer from an alternative
43
underwriter (the "Alternative Underwriter") in connection with
any Equity Offering, Xxxxxx shall provide at least five (5)
Business Days' prior written notice (the "Right of First Refusal
Period") of same to Salomon Brothers Inc (at the address for
Sellers set forth herein). Provided that within the Right of
First Refusal Period, Salomon Brothers Inc shall submit a written
proposal to Xxxxxx with respect to such underwriting which is
substantially similar to the terms, pricing, fee structure and
any other pertinent business terms of the offer of the
Alternative Underwriter (the "Matching Offer)", Xxxxxx shall
accept the Matching Offer of Salomon Brothers Inc to be the
principal underwriter. If Salomon Brothers Inc does not provide
Xxxxxx with a Matching Offer during the Right of First Refusal
Period, Xxxxxx shall be entitled to enter into an underwriting
commitment with the Alternative Underwriter within thirty (30)
days after the expiration of the Right of First Refusal Period,
provided that the underwriting commitment entered into with the
Alternative Underwriter is no more favorable to the Alternative
Underwriter (in its terms, pricing, fee structure and any other
pertinent business terms which shall be specified therein) than
the Alternative Underwriter's offer as aforesaid. If, at the end
of such 30 day period, Xxxxxx shall not have entered into such
underwriting commitment agreement with the Alternative
Underwriter, Xxxxxx shall again be obligated to comply with the
provisions of this Section 15.1 (and to provide Salomon Brothers
Inc the aforesaid right of first offer and right of first
refusal) with respect to any Equity Offering. Xxxxxx acknowledges
that the rights granted to Salomon Brothers Inc hereunder
constitute material consideration and inducement to Sellers to
enter into this transaction. Salomon Brothers Inc shall be a
third party beneficiary under this Section 15.1 but shall not
have any obligation or liability whatsoever under this Agreement.
For the purposes hereof, any form or type of equity offerings of
Xxxxxx shall not include any type of mortgage, line of credit,
bond or debenture financing.
15.2. Xxxxxx hereby covenants with Sellers that from
and after the Closing, any public announcements or disclosures
made by Xxxxxx with respect to this Agreement or the transactions
contemplated hereby (including, without limitation, the Shares,
the Note, the Purchase Price or the Premises) shall first be sent
to Sellers for their review and approval. Until such approval has
been given to Xxxxxx by Sellers, Xxxxxx shall refrain from making
such public disclosures or announcements.
44
15.3. (a) Xxxxxx hereby covenants with Sellers that,
in the event a Closing takes place hereunder, Xxxxxx shall
immediately commence the preparation and filing of a registration
statement registering the Shares for sale with the SEC as more
particularly set forth below. Xxxxxx shall diligently prosecute
the registration and shall register the Shares no later than one
hundred eighty (180) days after the Closing and shall take any
and all actions necessary to maintain the effectiveness of the
registration, including post-effective amendments, if necessary,
until Sellers have disposed of all of the Shares. To this end,
following the Closing Date, Xxxxxx shall file with the SEC a
registration statement under the Securities Act for the offering
on a continuous or delayed basis in the future of all of the
Shares (this and subsequent filings of registration statements
provided hereinafter, the "Shelf Registration)". The Shelf
Registration shall be on an appropriate form and the Shelf
Registration and any form of prospectus included therein or
prospectus supplement relating thereto shall reflect such plan of
distribution or method of sale as Sellers may from time to time
notify Xxxxxx, including the sale of some or all of the Shares in
a public offering or, if requested by Sellers, subject to receipt
by Xxxxxx of such information (including information relating to
purchasers) as Xxxxxx reasonably may require, (i) in a
transaction constituting an offering outside the United States
which is exempt from the registration requirements of the
Securities Act in which Xxxxxx undertakes to effect registration
after the completion of such offering in order to permit such
shares to be freely tradeable in the United States, (ii) in a
transaction constituting a private placement under Section 4(2)
of the Securities Act in connection with which Xxxxxx undertakes
to effect a registration after the conclusion of such placement
to permit such shares to be freely tradeable by the purchasers
thereof, or (iii) in a transaction under Rule 144A of the
Securities Act in connection with which Xxxxxx undertakes to
effect a registration after the conclusion of such transaction to
permit such shares to be freely tradeable by the purchasers
thereof. Xxxxxx shall use its best efforts to keep the Shelf
Registration continuously effective for the period beginning on
the date on which the Shelf Registration is declared effective
and ending on the first date that there are no Shares remaining
in the possession of Sellers (the "Registration Period)" and in
the event that notwithstanding Xxxxxx'x best efforts, Xxxxxx
fails to keep the Shelf Registration effective, Xxxxxx shall file
with the SEC another Shelf Registration, such that a Shelf Reg-
45
istration is continually in effect during the Registration
Period. During the Registration Period, Xxxxxx shall supplement
or make amendments to the Shelf Registration, if required by the
Securities Act or if reasonably requested by Sellers or an
underwriter of Registrable Securities, including to reflect any
specific plan of distribution or method of sale, and shall use
its reasonable best efforts to have such supplements and
amendments declared effective, if required, as soon as
practicable after filing.
(b) Until sixty (60) days following the beginning of
the Registration Period, Xxxxxx and E. Xxxxxxx Xxxxxx covenant
that E. Xxxxxxx Xxxxxx acting in his individual capacity shall
not sell any shares of Xxxxxx Common Stock other than under and
pursuant to Rule 144 of the Securities Act. E. Xxxxxxx Xxxxxx has
executed this Agreement below in his individual capacity to
confirm his agreement to such covenant.
15.4. If, at any time from and after the Closing Date
and until commencement of the Registration Period, Xxxxxx shall
propose to prepare on its own behalf or on behalf of any of its
shareholders (other than Sellers) a registration statement in
connection with an underwritten public offering of any securities
of Xxxxxx, Xxxxxx shall give Sellers notice at least 20 days
before the anticipated filing date of such registration
statement. Should Sellers desire to have any Shares owned by
Sellers included in such registration statement, Sellers shall so
advise Xxxxxx no later than 15 days after Xxxxxx'x notice is
given, setting forth the number or amount of Shares which Sellers
request to be included in the registration statement, and Xxxxxx
shall include the Shares specified in such request in such
registration statement and keep such registration statement in
effect and maintain relevant compliance with each federal and
state law and regulation. Notwithstanding the foregoing, (i)
Xxxxxx shall not be required to give notice or include such
Shares in any such offering if the proposed registration relates
solely to the sale of securities to participants in a dividend
reinvestment plan, is to be made on Form S-4 and relates to a
business combination or similar transaction permitted to be
registered on such Form S-4, is to be made on Form S-8 and
relates solely to the sale of securities to participants in a
stock or employee benefit plan, or is permitted under Rule 462
promulgated under the Securities Act and registers additional
securities of the same class as were included in an earlier
46
registration statement for the same offering and declared
effective; and (ii) Xxxxxx may, in its sole discretion, withdraw
such registration statement and abandon the proposed offering.
15.5. To the extent required from time to time to
enable Sellers to sell Shares without registration under the
Securities Act within the limitation of the exemptions provided
by Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC, Xxxxxx will file in a
timely manner (taking into account any extensions granted by the
SEC), information, documents and reports in compliance with the
Exchange Act and will, at its expense, forthwith upon the request
of Sellers, deliver to Sellers a certificate, signed by Xxxxxx'x
principal financial officer, stating (a) Xxxxxx'x name, address
and telephone number (including area code), (b) Xxxxxx'x Internal
Revenue Service identification number, (c) Xxxxxx'x SEC file
number, (d) the number of shares of Xxxxxx'x common stock and the
number of shares of any preferred stock of Xxxxxx outstanding as
shown by the most recent report or statement published by Xxxxxx,
and (e) whether Xxxxxx has filed the reports required to be filed
under the Exchange Act for a period of at least 90 days prior to
the date of such certificate and in addition has filed the most
recent annual report required to be filed thereunder. If at any
time Xxxxxx is not required to file reports in compliance with
either Section 13 or Section 15(d) of the Exchange Act, Xxxxxx
will, at its expense, forthwith upon the written request of
Sellers, make available adequate current public information with
respect to Xxxxxx within the meaning of paragraph (c)(2) of Rule
144 of the General Rules and Regulations promulgated under the
Securities Act.
15.6. (a) Following the registration of the Shares as
provided herein, the parties understand that Sellers may dispose
of the Shares using several different methods, which may include
an underwritten offering. In the event that Sellers elect to
utilize an underwriter, Xxxxxx shall enter into a customary
underwriting agreement providing for customary indemnities for
the underwriters and the selling security holders. Xxxxxx shall
pay all costs and expenses of whatsoever nature which arise from
or relate to the registration or sale of the Shares as aforesaid,
except that the seller of the Shares shall be responsible for any
underwriting discounts or commissions.
47
(b) In the event that Sellers shall elect to dispose
of the Shares in a transaction or series of transactions not
involving an underwriting Xxxxxx and Sellers shall enter into a
customary indemnity agreement providing for an indemnity to each
party for statements or information in the registration statement
pertaining to or provided by the indemnifying party.
15.7. (a) Xxxxxx shall, if so requested by Sellers
within five (5) Business Days after the expiration of the
Feasibility Period, appoint and maintain, commencing on the
Closing Date and for as long as Sellers hold any Shares, an
observer of Xxxxxx'x Board of Directors, designated by Sellers,
who shall be invited to attend all meetings of the Board of
Directors and shall be compensated in the same manner as are
non-employee directors of Xxxxxx. Such observer shall be
indemnified by Xxxxxx against all claims and liabilities arising
out of his or her participation in the meetings of the Board of
Directors.
(b) Alternatively, from and after the Closing Date,
Sellers shall have the right (but not the obligation) to have on
the board of directors of Xxxxxx (the "Board") one director (such
director and any other person made a director of the Board
pursuant to this Section 15.8, the "Sellers Nominee)", and Xxxxxx
shall promptly cause Sellers Nominee to become a member of the
Board. If necessary to effectuate the placement of the Sellers
Nominee on the Board, Xxxxxx shall, at its sole option, (i)
expand the size of the Board or (ii) solicit the resignation of
one of its directors, in either case, to the extent necessary to
permit the Sellers Nominee to serve. Until such time that Sellers
no longer own the Shares, Sellers shall have the right to
maintain a Sellers Nominee on the Board. Sellers agree to
indicate to Purchaser within five (5) Business days after the
expiration of the Feasibility Period whether they will request a
Sellers Nominee to be placed on the Board immediately following
Closing.
(c) If Sellers elect to exercise their option in
Section 15.7(b) above, Xxxxxx will support the nomination of, and
Xxxxxx'x nominating committee (or any other committee exercising
a similar function) shall recommend to the Board, the election of
any Sellers Nominee to the Board, and Xxxxxx will exercise all
authority under applicable law to cause such Sellers Nominee to
be elected to the Board. Without limiting the generality of the
foregoing, with respect to each meeting of shareholders of Xxxxxx
at which directors are to be elected, Xxxxxx shall use its
48
reasonable efforts to solicit from the shareholders of Xxxxxx
eligible to vote in the election of directors proxies in favor of
such Sellers Nominee.
(d) In the event that any Sellers Nominee shall cease
to serve as a director for any reason other than the fact that
Sellers no longer have a right to nominate a director, as
provided in subsection (b), the vacancy resulting thereby shall,
if Sellers so choose in their sole discretion, be filled by a
Sellers Nominee designated by Sellers.
15.8. The rights and benefits of Sellers set forth in
Sections 15.3(a), 15.4, 15.5 and 15.6 hereunder shall inure to
the benefit of any of Sellers' successors, assigns or transferees
who obtain a legal or beneficial interest in the Shares, other
than in connection with the sale thereof pursuant to the
registration described in Section 15.3(a) or 15.4.
15.9. Each of the covenants contained in this Section
15 shall survive the Closing until Sellers no longer own any of
the Shares.
Section 16. BINDING EFFECT; MISCELLANEOUS.
16.1. This Agreement shall be binding upon and shall
inure to the parties hereto, their respective heirs, successors,
legal representatives and assigns. This Agreement sets forth the
entire Agreement between the parties hereto and no other prior
written or oral statement or agreement or understanding shall be
recognized or enforced. All modifications or amendments shall be
in writing and signed by the parties. This Agreement is to be
construed according to the laws of the State of New York, and any
legal action or proceeding with respect to or in connection with
this Agreement must be brought in the Supreme Court of the State
of New York within the First Judicial Department, 1st District,
New York City, or the Federal Courts for the Southern District of
New York, and by execution hereof each party accepts the
jurisdiction of such courts. This Agreement may be executed in
two or more counterparts all of which shall constitute one and
the same instrument. Each of the twelve (12) individual Sellers
is hereby acknowledged to be a separate and distinct legal
entity, wholly independent from the other Sellers, and each of
the Sellers shall be liable only for such claims or demands made
by Purchaser with respect to the Property (and other related
49
aspects of the Premises) owned by such Seller and the
representations, warranties and covenants made by such Seller
with respect to such Property, and it is specifically agreed by
and between Purchaser and each of the individual Sellers hereto
that liability of the Sellers under this Agreement is and shall
be individual only and is not and shall not be joint and several
with other Sellers.
16.2. Purchaser shall not be permitted to assign this
Agreement to any third party, except that, with Sellers' prior
written consent (which consent shall not be unreasonably withheld
and, in any event, shall be granted if the conditions set forth
in clauses (i) through (iii) below are satisfied), Purchaser
shall be permitted to assign this Agreement to another directly
or indirectly wholly-owned subsidiary of Xxxxxx provided that (i)
such assignment does not adversely affect Sellers (in connection
with the matters set forth in Section 3.5 or otherwise), (ii) the
assignee shall assume all of Purchaser's obligations hereunder
pursuant to an assumption agreement approved as to form and
substance by sellers, and (iii) such assignment shall not release
Purchaser or Xxxxxx from their obligations hereunder.
16.3. As used herein, the "Date of this Agreement"
shall mean the date noted below as the date upon which this
Agreement was executed by the parties hereto. As used herein, the
term "Business Day" shall mean any day other than a Saturday, a
Sunday or a bank holiday in New York, N.Y.
16.4. No delay or omission in the exercise of any
right or remedy accruing to Sellers or Purchaser upon any breach
under this Agreement shall impair such right or remedy or be
construed as a waiver of any such breach theretofore or
thereafter occurring. The waiver by Sellers or Purchaser of any
breach of any term, covenant or condition herein stated shall not
be deemed to be a waiver of any other breach, or of a subsequent
breach of the same or any other term, covenant or condition
herein contained. All rights, powers, options or remedies
afforded to Sellers or Purchaser either hereunder or by law shall
be cumulative and not alternative, and the exercise of one right,
power, option or remedy shall not bar other rights, powers,
options or remedies allowed herein or by law, unless expressly
provided to the contrary herein.
50
16.5. All exhibits and schedules referred to in this
Agreement and attached hereto are hereby incorporated in this
Agreement by reference.
16.6. Article headings and article and section numbers
are inserted herein only as a matter of convenience and in no way
define, limit or prescribe the scope or intent of this Agreement
or any part thereof and shall not be considered in interpreting
or construing this Agreement.
16.7. Time is of the essence as to all matters
contained in the Agreement. If the final day of any time period
or limitation set out in any provision of this Agreement falls on
a Saturday, Sunday or legal holiday under the laws of the State
of New York or the federal government, then and in such event
such period shall be extended to the next day which is not a
Saturday, Sunday or legal holiday.
16.8. In addition to the acts, deeds, instruments and
agreements recited herein and contemplated to be performed,
executed and delivered by Purchaser and Sellers, Purchaser and
Sellers shall perform, execute and deliver or cause to be
performed, executed and delivered at the Closing or after the
Closing, any and all further acts, deeds, instruments and
agreements and provide such further assurances as the other party
may reasonably require to consummate the transaction contemplated
hereunder. However, the foregoing shall not be deemed to require
Sellers to expend any money or incur liability, obligations or
exposure in excess of that which is provided for herein.
16.9. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provision hereof, and this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had never
been contained herein.
16.10. Purchaser shall be jointly and severally
responsible with Xxxxxx for Xxxxxx'x performance of and liability
under Xxxxxx'x covenants, representations and warranties
hereunder. Any breach or default by Xxxxxx hereunder shall
constitute a breach or default by Purchaser.
51
16.11. In order to assist Purchaser with its due
diligence, Sellers shall provide to Purchaser within five (5)
Business Days after the Date of this Agreement a letter which
shall summarize the acquisition of the Premises by Sellers
through foreclosures and deeds-in-lieu of foreclosure from Motels
of America in connection with a bankruptcy and litigation
relating to Motels of America.
52
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of September 27, 1996.
SELLERS: SB MOTEL RICHMOND CORP.
By: \s\ Xxxx X. Xxxx
----------------------
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL DURHAM-RESEARCH
TRIANGLE PARK CORP.
By: \s\ Xxxx X. Xxxx
---------------------
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL XXXX CORP.
By: \s\ Xxxx X. Xxxx
--------------------
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL STATESVILLE CORP.
By: \s\ Xxxx X. Xxxx
--------------------
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL WILMINGTON CORP.
By: \s\ Xxxx X. Xxxx
--------------------
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL COLUMBIA CORP.
By: \s\ Xxxx X. Xxxx
--------------------
Name: Xxxx X. Xxxx
Title: Vice President
53
SB MOTEL CHARLESTON CORP.
By: \s\ Xxxx X. Xxxx
----------------------
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL ALBANY CORP.
By: \s\ Xxxx X. Xxxx
---------------------
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL VIRGINIA BEACH CORP.
By: \s\ Xxxx X. Xxxx
--------------------
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL XXXXXX-XXXX CORP.
By: \s\ Xxxx X. Xxxx
--------------------
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL RALEIGH CORP.
By: \s\ Xxxx X. Xxxx
--------------------
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL CHARLOTTE 1-85 CORP.
By: \s\ Xxxx X. Xxxx
--------------------
Name: Xxxx X. Xxxx
Title: Vice President
54
PURCHASER: XXXXXX HOTELS PROPERTIES CORP.
By: \s\ Xxxx X. Xxxx
------------------------
Name: E. Xxxxxxx Xxxxxx
Title: Chairman and Chief
Executive Officer
XXXXXX: XXXXXX HOTELS CORPORATION
By: \s\ E. Xxxxxxx Xxxxxx
------------------------
Name: E. Xxxxxxx Xxxxxx
Title: Chairman and Chief
Executive Officer
ESCROW AGENT: LAWYERS TITLE INSURANCE
CORPORATION
By:________________________
Name:
Title:
E. Xxxxxxx Xxxxxx is executing
this Agreement in his individual
capacity solely in order to make
the covenant set forth in
Section 15.3(b)
\s\ E. Xxxxxxx Xxxxxx
----------------------------
E. Xxxxxxx Xxxxxx
Escrow Agent is executing
this agreement solely to
acknowledge its obligations
as Escrow Agent hereunder
LAWYERS TITLE INSURANCE CORPORATION
By: \s\
------------------------
55
Name:
Title:
56
EXHIBITS A-1 THROUGH A-12
[Legal Descriptions]
57
EXHIBIT A-1
ALL that certain lot, piece or parcel of land with all
improvements thereon and appurtenances thereunto belonging,lying
and being in Henrico County, Virginia, and being more
particularly described as follows to-wit:
BEGINNING at a rod in the eastern right of way line of Broad
Street Road, said rod being the southwest corner of that tract
now or formerly owned by Xxxxx X. Xxxxxxxxx; and running thence
from said beginning rod along the southern boundary line of Xxxxx
X. Xxxxxxxxx, North 72 degrees 33 minutes 58 seconds East 277.81
feet; and North 53 degrees 41 minutes 13 seconds East 277.00 feet
to an iron pipe in the western right of way line of Bowler
Street; thence along the western right of way line of Bowler
Street the two (2) following courses and distances: South 43
degrees 00 minutes 47 seconds East 115.51 feet; and South 41
degrees 57 minutes 55 seconds East 219.53 feet to a stone; thence
along the northern boundary line of Xxxxx and Xxxx X. Xxxxxxx,
South 59 degrees 03 minutes 47 seconds West 381.50 feet to a
stone; thence North 72 degrees 46 minutes 02 seconds West 51.75
feet to a rod; thence South 17 degrees 13 minutes 58 seconds West
25.00 feet to a rod; thence North 72 degrees 46 minutes 02
seconds West 51.75 feet to a rod; thence South 17 degrees 13
minutes 58 seconds West 25.00 feet to a rod; thence North 72
degrees 46 minutes 02 seconds West 128.70 feet to a PK nail;
thence South 66 degrees 44 minutes 08 seconds West 124.10 feet to
a xxxx in the eastern right of way line of Broad Street Road;
thence along the eastern right of way line of Xxxxx Xxxxxx Xxxx,
Xxxxx 00 degrees 15 minutes 52 seconds West 235.10 feet to the
point and place of beginning, same containing 3.988 acres, more
or less, and being those same premises surveyed and platted by
Xxxxxx & Xxxxxx, P.C., on March 1, 1989.
BEING the same real estate conveyed to Motels of America, Inc., a
Delaware Corporation, by deed from Turnpike Properties, Inc., a
North Carolina Corporation, dated July 28, 1989, recorded August
4, 1989, in the Clerk's Office of the Circuit Court, Henrico
County, Virginia, in Deed Book 2201 at Page 651.
58
EXHIBIT A-2
LYING AND BEING in Triangle Township, Durham County, State
of North Carolina:
BEGINNING at a point in the western right of way line of
the Durham and Southern R.R. at its intersection with Interstate
40, as shown on the plat hereinafter referred to; and running
thence North 8l degrees 44' 38" West 321.52 feet to a stake in
the east right of way line of N.C. Highway #55; thence along the
east right of way line of N.C. Highway #55 North 06 degrees 08'
18" East 163.29 feet to a stake; thence continuing along the east
right of way line of N.C. Xxxxxxx #00 Xxxxx x0 degrees 18' 22"
East 124.08 feet to a stake; thence continuing along the east
right of way line of N.C. Highway #55 North 14 degrees 19' 01"
East 23.17 feet to a stake, the intersection of N.C. Highway #55
and the south line of Pitcairn Place; thence along and with the
south line of Pitcairn Place South 89 degrees 40' East 315.38
feet to a point in the west right of way line of the Durham and
Southern R.R.; thence along and with the west right of way of
said railroad, South 08 degrees 13' 35" West 356.70 feet to the
point and place of BEGINNING, containing 2.4588 acres, more or
less, and being that same property surveyed and platted by Xxxxxx
X. Love, Jr., R.L.S. on the 2nd day of February, 1989. See also
Plat Book 102, Page 117, Durham County Registry.
59
EXHIBIT A-3
All of that certain tract or parcel of land lying and being
situate in Xxxx Township, Wake County, North Carolina and being
more particularly described as follows: Beginning at a point in
the southern right of way line of the Cary-Macedonia Road, said
point of beginning having North Carolina grid coordinates
N=732,824.88 and E=2,074,786.44. THENCE, FROM SAID POINT OF
BEGINNING, SO LOCATED, South 69 degrees 53' 25" East, along and
with the southern right of way line of the Cary-Macedonia Road,
138.58 feet to a point, said point being the northwestern corner
of the property owned now or formerly by Xxxxxx X. Xxxxx; thence,
continuing along and with the western line of the property owned
now or formerly by Xxxxxx X. Xxxxx and the tract owned by Xxxxxx
X. Xxxxx and Xxxx X. Xxxxx, South 26 degrees 18' 09" West 878.96
feet to an existing iron pipe in the line of the property owned
now or formerly by Xxxxx X. Xxxxxxx; thence, North 63 degrees 38'
41" West, along and with the northern line of the property owned
now or formerly by Xxxxxxx, 534.24 feet to an existing iron pipe;
thence, North 4l degrees 33' 02" East 592.22 feet; thence, South
67 degrees 46' 16" East 241.31 feet; thence, North 26 degrees 18'
09" East 275.00 feet to the point or place of beginning.
The above-described tract or parcel of land is conveyed expressly
subject to, but together with, a non-exclusive easement of
ingress, egress and regress over, upon and across a tract or
parcel of land fifty (50) feet in width, the western most line of
said easement fifty (50) in width being described as follows:
Beginning at a point in the southern right of way line of the
Cary-Macedonia Road, said point of beginning being the
northeastern corner of the tract or parcel of land
above-described and said point having North Carolina grid
coordinates N=732,824.88 and E=2,074,786.44. THENCE, FROM SAID
POINT OF BEGINNING, SO LOCATED, South 26 degrees 18' 09" West 275
feet.
Being those same premises surveyed and platted by Runa X. Xxxxxx,
R.L.S. on the 27th day of February, 1989.
60
EXHIBIT A-4
Leasehold estate created by the terms of that certain
lease, a Memorandum of which is as follows: Memorandum of Lease
dated February 20, 1984, from Interstate Development Company, a
North Carolina corporation, to Turnpike Properties, Inc. for a
maximum term of 50 years including extensions and renewals, which
Memorandum of Lease appears in Book 696 at Page 475 in the Office
of the Register of Deeds of Iredell County, North Carolina, and
having been amended by the terms of that document entitled
"Amendment of Lease" dated March 30, 1984, and recorded in Book
698 at Page 589 in the Office of the Register of Deeds of Iredell
County, North Carolina.
LYING AND BEING in Statesville Inside Township, County of
Iredell, State of North Carolina:
Beginning at an iron at the northeast corner of property of Xxxxx
X. Xxxxxx, et al described in deed recorded in Book 551, Page
515, Iredell County, North Carolina Registry (also being the
northwest corner of property of Xxxxxxx X. Xxxxxx, Xx. described
in deed recorded in Book 689, page 987, Iredell County, North
Carolina Registry); running thence with the north line of said
Xxxxxx property North 79 degrees 30' West 128.73 feet to an iron
at the edge of pavement of the Newtowne Plaza Shopping Center
paved parking lot; thence with the edge of said pavement North 06
degrees 35' l0" East 356.02 feet to an iron at the edge of said
pavement; thence South 87 degrees 16' 30" East 211.33 feet to an
iron; thence South 38 degrees 17' 00" East 60.96 feet to an iron;
thence South 02 degrees 43' 30" West 344.78 feet to a nail;
thence North 82 degrees 27' West 148.87 feet to an iron; thence
South 10 degrees 00' West 2.00 feet to the point and place of
Beginning, containing 2.23805 acres as shown on plat entitled
"CRICKET INN, Statesville, Iredell County, N.C." prepared by
Sprinkle Surveying Company dated February 15, 1984, revised March
20, 1984.
61
EXHIBIT A-5
BEGINNING at an iron pipe, the southwest intersection of
Market Street (50 feet from centerline) and Lullwater Drive (30
feet from centerline); and running thence along the western right
of way line of Lullwater Drive South 02 degees 28' East 587.80
feet to an iron pipe, the northeast corner of X. X. Xxxxxx;
thence along the northern boundary line of Xxxxxx the two (2)
following courses and distances: South 65 degrees 02' West 130.00
feet; and South 87 degrees 32' west 136.67 feet to an iron pipe
in the eastern boundary line of Xxxxxxx Xxxxxxx; thence North 03
degrees 47' East 621.31 feet to an iron pipe in the southern
right of way line of Market Street; thence along said right of
way line North 81 degrees 27' East 190.14 feet to the point and
place of BEGINNING, same containing 3.13 acres, more or less, and
being those same premises surveyed and platted by Xxxxxx X.
Xxxxxx, R.L.S., February, 1989.
62
EXHIBIT A-6
All that certain piece, parcel or tract of land, together with
any improvements thereon, situate, lying and being at the
easternmost intersection of right-of-way for Xxx Xxx Xxxxx Xxxx
xxx Xxxxxxxxxx Xxxxxxx 00, said property containing 4.191 acres,
more or less, and being more fully shown as Tract 2 on a Plat
prepared for Commercial Title Agency, Inc., dated April 29, 1987,
by X.X. Xxxxxx & Associates, Inc., and recorded in the RMC Office
for Richland County in Plat Book 51 at page 8819; said property
having the following courses, measurements, metes and boundaries
as shown on the aforesaid plat, to-wit:
BEGINNING at an iron located at the northernmost corner of
the subject property which iron is at the southernmost
corner of the intersection of Old Two Notch Road (formerly
U.S. Highway #1) and property designated on the aforesaid
plat as Proposed Xxxxxxxx Road Extension; thence from said
point of beginning S37 degrees l2'35"E for 423.70 feet to
an iron; thence turning and running along the northern
boundary of the right-of-way for Seaboard System Railroad
for the following distances: S50 degrees 48'05"W for 198.70
feet to an iron; S49 degrees 28'42"W for 106.00 feet to an
iron; S49 degrees 28'42"W for 112.38 feet to an iron; said
iron located at the intersection of the right-of-way for
Interstate No. 77; thence turning and running along the
right-of-way for Interstate No. 77 for the following
distances: N37 degrees l7'22" for 415.20 feet to an iron;
N48 degrees 48'33"W for 1.33 feet to a concrete monument;
N48 degrees 46'33"W for 34.90 feet to a point whereat said
property corners with property designated as Tract 1 on the
aforesaid plat; thence turning and running from along
property designated as Tract N52 degrees 42'38"E for 314.75
feet to an iron; thence turning and running along a common
maintenance area for pavement as designated on the
aforesaid plat S4l degrees 35'05"E for 11.05 feet to an
iron; thence turning and running along the right-of-way for
U.S. Highway No.1 (Two Notch Road) N48 degrees 24'55"E for
28.96 feet to an iron; thence turning and continuing along
said right-of-way N52 degrees 08'54"E for 80.00 feet to an
iron; this being the POINT OF BEGINNING.
63
Being the same premises surveyed and platted by Xxxxxxx
Xxxxxxxx, Registered Surveyor, on the 28th day of February,
1989.
Also, all rights, title and interest in and to those
easements and rights-of-way retained by Turnpike
Properties, Inc. under the terms of that certain Special
Warranty Deed granted unto Notch, which deed is recorded in
Book D0859, Page 922.
64
EXHIBIT X-0
XXXXXX X XXX XX - XXXXXXXXXX XXXXXX:
All that certain piece, parcel or tract of land, together with
any improvements thereon, situate, lying arid being in the City
of North Charleston, County of Charleston, State of South
Carolina, containing 1.52 acres, more or less, on the
southwestern boundary of the right-of-way of Northforest Drive,
said property being more fully shown and delineated as a 1.52
acre tract on a plat for Crickett Inn dated August 6, 1986, and
recorded in the RMC Office for Charleston County in Plat Book BK
at page 59; said property having the following courses,
measurements, metes arid boundaries, as shown on the aforesaid
plat, to-wit:
BEGINNING at an iron located at the northeasternmost corner
of the subject property, which iron is located on the
southern boundary of the right-of-way for Northforest
Drive, thence from said point of beginning S56 degrees
23'04"W for a distance of 70.49 feet to a point; thence
turning and running S10 degrees 51'11"E for a distance of
185.00 feet along property heretofore conveyed to the
Grantee herein by Deed of Sanderling Partners dated as of
September 3, 1986; thence turning and running N79 degrees
08'49"W for a distance of 291.49 feet to a point; thence
turning arid running N02 degrees 20'l8"E for 24.30 feet to
an iron; thence turning and running N01 degrees 56'39"E for
114.95 feet to an iron; thence turning and running N02
(degree) 54'l8"E for 74.51 feet to an iron; thence turning
arid running N62 (degree) 56'44"E for 257.08 feet to an
iron located on the western boundary of the right-of-way
for Northforest Drive; thence turning and running in a
general southeastern direction along the curve of the
right-of-way for Northforest Drive (said curve having an
arc distance of 100.00 feet and a radius of 67.00 feet) to
an iron, this being the POINT OF BEGINNING.
TMS No. 000-00-00-000
ALL that certain piece, parcel or tract of land, together
with any improvements thereon, situate, lying arid being in
the City of Xxxxx Xxxxxxxxxx, Xxxxxx xx Xxxxxxxxxx, Xxxxx
of
65
South Carolina, containing 2.95 acres, more or less, at the
southwestern corner of the intersection of Northside Drive
arid Northforest Drive, said property being more fully
shown and delineated on a plat entitled Cricket Inn
prepared by E.M. EXHIBIT A-7 (continued)
Seabrook, Jr., Inc., dated August 6, 1986, and recorded in
the RMC Office for Charleston County in Plat Book BK at
page 59; said property having the following courses,
measurements, metes arid boundaries, as shown on the
aforesaid plat, to- wit:
BEGINNING at a point located on the western boundary of the
right-of-way for Northside Drive whereon the same corners
with the southern boundary of the right-of-way for
Northforest Drive, thence from said point of beginning S10
(degrees) 5l'11"E for 184.00 feet to a point; thence
turning arid running along properties designated on the
aforesaid plat as McDonalds, Bojangles, and Northwoods
Limited Partnership, S79 (degrees) 08'49"W for 611.96 feet
to a point; thence turning and running Nl0 (degrees)
5l'll"W for 185.00 feet to a point; thence turning and
running N56 (degrees) 23'04" for 70.49 feet to a point on
the southern boundary of the right-of-way for Northforest
Drive; thence turning and running along the southern
boundary of the right-of-way for Northforest Drive in an
eastern direction along a curve for a distance of 6.10 feet
(said curve having a radius of 67.00 feet) to a point;
thence turning and continuing along the southern boundary
of the right-of-way for Northforest Drive N79 (degrees)
08'49"E for 512.86 feet to a point; thence turning and
continuing in an eastern and southeastern direction along
the right-of-way for Northforest Drive along a curve for a
distance of 43.98 feet (said curve having a radius of 28.00
feet) to a point on the western boundary of the
right-of-way for Northside Drive, this being the POINT OF
BEGINNING.
TMS NO.: 000-00-00-000 and a portion of 000-00-00-000
The two above-described parcels of land being combined upon
that survey prepared by X.X. Xxxxxxxx, Xx., South Carolina
Civil Engineer and Land Surveyor, on the 20th day of
February, 1989.
66
DERIVATION: Master's Deed by Xxxxx X. Xxxxxx, as Master in
Equity for Charleston County, recorded June 23, 1993 in the
Office of the RMC for Charleston County in Book O228 at page
019.
67
EXHIBIT A-8
TRACT I. All that tract or parcel of land lying and being in the
City Albany, Xxxxxxxxx County, Georgia, and being more
Particularly described as follows:
Begin at the intersection of the North right of way line of
the Seaboard Airline Railroad and the East right of way line of
Xxxxxxx Drive, and run thence North 05" 05' West along the East
right of way of Xxxxxxx Drive for a distance of 32.68 feet to a
point run thence South 88" 52' East a distance of 90.0 feet to a
point3 run thence South 0l" 08' West for a distance of 95.28 feet
to a point on the North right of way line of the Seaboard Airline
Railroad, run thnce North 52"57'15" West along the North right of
way line of the Seaboard Airline Railroad for a distance of
106.73 feet to the point of beginning. Said property is a portion
of Lot 48 of the Palmyra Pecan Grove Subdivision "C" and more
particularly described on a plat entitled "Turnpike Properties,
Inc." prepared by Xxxxxxx Xxxxxxx, R.L.S. on the 6th day of
March, 1989.
TRACT II. All that tract or parcel of land lying in the
City of Albany, Xxxxxxxxx County, Georgia, and being more
particularly described as follows:
Beginning at a point in e the southern right of way line of
a Seaboard Airline Railroad side track, said point being South 88
(degrees) 52' East 275.00 feet from Xxxxxxx Drive at its point of
intersection with said side track right of way; and running
thence from said beginning point along the southern and western
right of way line of said side track right of way the five (5)
following courses and distances: South 88 (degrees) 52' East
146.25 feet, the PC of a curve; thence to a southeasterly
direction, along a curve with a radius of 296.31 feet, for a
distance of 465.11 feet to the PT of curve; South 88 (degrees)
42' East 6.0 feet; South 01 (degrees) 12' West 257.33 feet to the
PC of a curvee; and in a Southeasterly direction, along a curve
with the radius of 391.51 feet for a distance of 136.45 feet to
the North right of way line of the Seaboard Airline Railroad;
thence along the northern right of way line of the Seaboard
Airline Railroad North 52~ 57' 15" West 582.32 feet to a point;
thence North 01~ OS' East 345.44 feet to the point and place of
68
the beginning, and being that same property surveyed and plated
by Xxxxxxx Xxxxxxx, R.L.S. on the 6th day of March, 1989.
EXHIBIT A-8 (continued)
NOTE: The following described easments: granted by Xxxxxxx Xxxxx
to Turnpike Properties, Inc. are appurtenances of Tract II:
(a) A perpetual easement for ingress and egress from
Xxxxxxx Drive over and across all that tract or parcel of land
lying and being in the City of Albany, Xxxxxxxxx County, Georgia,
being more particularly described as follows: All that tract or
parcel of land lying and being a part of Tract 48 Subdivision
"G", Palmyra Pecan Xxxxxx, and being more particularly described
as follows: COMMENCE at the intersection of the East right of way
line of Xxxxxxx Drive and the north right of way line of the
Seaboard Airline Railroad in Albany, Georgia, and run thence
North 05.05' West for a distance of 32.68 feet to the point of
beginning. From said point of beginning continuethence North 05
(degrees) 05' West along the East right of way line of Xxxxxxx
Drive for a distance of 30.07 feet to a point; run thence South
88 (degrees) 52' East for a distance of 264.54 feet to a point;
run thence South 01 (degrees) 08' West for a distance of 30.0
feet to a point; run thence North 88 (degrees) 52' West for a
distance of 261.27 feet to the point of beginning, and being the
same property surveyed and plated by Xxxxxxx Xxxxxxx, R.L.S. as
shown upon that certain plat entitled "Turnpike Properties, Inc."
dated March 6, 1989.
(b) A perpetual easement for the purpose of installing both
underground and overhead, utility line and mains, including but
not limited to, water, gas, sewer, electrical, and telephone
lines and mains, over and across that certain 2O-foot strip of
property more particularly described as follows: COMMENCE at the
intersection of the East right of way line of Xxxxxxx Drive and
the North right of way line of Seabord Airline Railroad in
Albany, Georgia, and run thence South 52 (degrees) 57' 15" East a
distance of 106.73 feet along the North right of way line of the
Seaboard Airline Railroad to the point of beginning; continue
thence South 52 (degrees) 57' 15" East a distance of 211.45 feet
along the North right of way line of the Seabord Airline Railroad
to a point; run thence North 01 (degrees) 08' East a distance of
69
24.69 feet to a point; run thence North 52 (degrees) 57' 15" West
along a line parallel to the North right of way line of the
Seabord Airline Railroad for a distance of 211.45 feet to a
point; run thence South 01 (degrees) 08' West for a distance of
24.69 feet to the point of beginning. Said strip of land is
located in Lots 48 and 66 of Palmyra Pecan Grove Subdivision "C"
and being the sane property surveyed and
70
plated by Xxxxxxx Xxxxxxx, R.L.S. and shown upon that certain
plat entitled "Turnpike Properties, Inc." dated March 5, 1989.
71
EXHIBIT A-9
ALL THAT certain tract, piece or parcel of land, with the
buildings and improvements thereon and the appurtenances
thereunto belonging, lying, situated and being in Bayside
Borough, Virginia Beach, Virginia, fronting on Northampton
Boulevard and Xxxxx Road, and described by reference to a certain
plat and survey thereof, made by Xxxxx X. Xxxxxxx, Xx. and
Associates, Surveyors and Engineers, marked "Subdivision of
Property for Shell Oil Company:, dated October, 1967, and
recorded in the Clerk's Office of the Circuit Court of the City
of Virginia Beach, Virginia, in Map Book 30, page 8, which said
property is more particularly described as follows:
BEGINNING at a pin on the southeast corner of Xxxxx Road and
Northampton Boulevard; thence along the southern line of
Northampton Boulevard, N 51 (degrees) 00' 00 (degrees) E 191.50
feet to a pin at the dividing line between Parcel A and Parcel B,
the pint of beginning of this description and from said point of
beginning rnnning thence along the southern side of Northampton
Boulevard, N 51 (degrees) 00' 001 E. 135.41 feet to a pin at the
western line of "Property now or formerly Xxxx X. Xxxxxx", S 38
(degrees) 57' 00 E 171.84 feet to a pin; thence continuing along
the said line the following courses and distances; N 51 (degrees)
03' 00 (degrees) E 150.00 feet to a pin; thence turning and
running S 9 (degrees) 50'00E 407.50 feet to a pin; thence turning
and running S 76 (degrees) 20' 0 (degrees) W 511.94 feet to a pin
on the east side of Xxxxx Road; thence along the eastern side of
Xxxxx Road N 07 degrees 20' 19" W 199.87 feet to a pin on the
dividing line between Parcel A and Parcel B; thence turning and
running along said dividing line the following courses and
distances; N 82 (degrees) 38' 00 E 49.86 feet to a pin; thence N
51 (degrees) 00' 00 E 228.57 feet to a pin; thence turning and
running N 38 (degrees) 57' 00 (degrees) W 165.00 feet to a pin,
the point of beginning; the above described Parcel "B" containing
3.34 acres.
LESS AND EXCEPT those strips of land conveyed to the Commonwealth
of Virginia in Deed Book 2716, Page 1323 and Deed Book 2750, Page
1387.
Being that same property platted by Xxxxxxx & Xxxxx, Ltd. on the
9th day of February,
1989.
72
73
EXHIBIT A-10
0000 Xxxx Xxxxxx:
LYING AND BEING in Xxxxxx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxx xx Xxxxx
Xxxxxxxx, and beginning at an iron stake at the point of
intersection of the southern right of way line of rider Street
with the western right of way line of Xxxxxx Street, said iron
stake being South 66 (degrees) 19' 13" East 61.71 feet from the
point of intersection of the center line of rider Street with the
center line of Xxxxxx Street; and running thence from said
beginning iron stake, along the southern right of way line of
Elder Street, North 89 (degrees) 46' 52" East 200.76 feet to an
iron stake; thence South 01 (degrees) 09' 09" West 219.43 feet to
an iron stake in the northern right of way line of Xxxx Street;
thence along the northern right of way line of Xxxx Street North
89 (degrees) 59' 46" West 197.54 feet to an iron stake; thence
along the western right of way line of Xxxxxx Street the three
(3) following courses and distances: North 41 (degrees) 41' 04"
West 26.66 feet; North 00 (degrees) 37' 05" East 180.00 feet; and
North 42 (degrees) 13' 46" East 25.27 feet to the point and place
of the beginning, same being that same property surveyed and
platted by Xxxxx X. Xxxxxx, R.L.S. on the 14th day of February,
1989, and being the majority of that certain property as set out
upon that plat and survey entitled "Property of Turnpike
Properties, Inc." dated February 4, 1983, revised October 19,
1983, and recorded in Plat Book 104 at Page 107 in the Office of
the Register of Deeds of Durham County, North Carolina.
000 Xxx Xxxxxx:
LYING AND BEING in Xxxxxx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxx xx Xxxxx
Xxxxxxxx, and beginning at a stake at the point of intersection
of the South side of Xxxxx Street with the West side of Elf
Street, as shown on plat and survey hereinafter referred to, and
running thence along and with the West side of Elf Street South 0
(degrees) 57' 0" West 176.04 feet to a stake in the northern
right of way of Elder Street; running thence along and with the
northern right of way of Elder Street South 89 (degrees) 48' 0"
West 99.88 feet to a stake; running thence North 0 (degrees) 58'
0" East 173.10 feet to a stake in the southern right of way of
Xxxxx Street; running thence along and with the southern right of
way of Xxxxx Street North 88 (degrees) 07' on East 99.93 feet to
a stake, the point and place of beginning, and being that same
74
property surveyed and platted by Xxxxx X. Xxxxxx, R.L.S. on the
14th day of February, 1989.
EXHIBIT A-II
LYING AND BEING in Raleigh Township, Wake County, State of North
Carolina:
BEGINNING at a point in the Southwest line of Navaho Drive,
said stake marking the northwest corner of Tract 1 according to
the plat hereinafter referred to; runs thence South 25 (degrees)
14' 55" West 305.98 feet along the West line of Tract 1 to an
iron stake, the Southwest corner of Tract 1; runs thence South 64
(degrees) 46' 05" East 142.45 feet along the South line of Tract
1 to an iron stake in the Northwest line of the right of way of
Wake Forest Road; runs thence 131.10 feet along the curve of the
Northwest right of way line of Wake Forest Road, said curve
having a radius of 2,826.47 feet to the right to an iron stake;
thence continuing with the Northwest line of the right of way of
Wake Forest Road South 31 (degrees) 13' 55" West 65.97 feet to an
iron stake in said right of way; thence North 67 (degrees) 24"
47" West 561.32 feet along the right of way of the entrance ramp
for U.S. Highways 1 and 64 to a stone monument; thence continuing
with said right of way of said entrance ramp North 67 (degrees)
15' 53" West 119.39 feet to an iron stake, the Southeast corner
of Tract 3 according to the plat hereinafter referred to; runs
thence North 25 (degrees) 13' 55" East 227.37 feet along the
Eastern line of Tract 3 to an iron stake; runs thence South 64
(degrees) 46' 05" East 525.12 feet to an iron stake, the same
marking the Southeast corner of Lot A according to a plat
recorded in Book of Maps 1974, Page 165; runs thence North 25
(degrees) 14' 55" East 312.94 feet to an iron stake in the
Southwest line of Navaho Drive; runs thence South 5l (degrees)
42' 5" East 30.80 feet with the Southwest line of Navaho Drive to
an iron stake, the point and place of BEGINNING, being all of
Tract 2 and containing 155,239 square feet or 3.65 acres
according to a plat entitled "Property of B & W Associates,
Raleigh, N.C.", prepared by Xxxx X. Xxxxxxx and Company,
Consulting Engineers, dated March 8, 1983, and recorded in Book
of Maps 1983, Page 379, Wake County Registry.
In addition to said tract, the Grantors hereby convey to
the Grantee, its successors and assigns, a perpetual easement for
ingress and egress over that 30-foot portion of Tract 3
(described on the plat mentioned above) extending from the
75
Northwest corner of said Tract 2 Westwardly and Northerly to the
South line of Navaho Drive, said land being shown by dotted lines
and being designated "Easement 'D'/private drive" on said
recorded plat.
76
All of the above was surveyed and platted by Xxxx X.
Xxxxxxx, Xx., R.L.S. on the 6th day of March, 1985, and
recertified on the 14th day of February, 1989.
77
EXHIBIT A-12
Lying and being in Charlotte Township; Mecklenburg County,
State of North Carolina:
PARCEL I
Beginning at an iron pin located at the westernmost corner
of that property conveyed to X. X. Xxxxx by deed recorded in Book
4548 at Page 782 in the Mecklenburg Public Registry; and running
thence with the south boundary of the Xxxxx property (now or
formerly) South 80 (degrees) 49' 2201 East 144.24 feet to an iron
pin in the western right of way line of the 0-00 Xxxxxxx Xxxx;
thence along the western right of way line of the 0-00 Xxxxxxx
Xxxx in a southerly direction along a circular curve to the left
having a radius of 388.10 feet and an arc distance of 84.00 feet
to an iron pin; thence continuing along said right of way line
South 11 (degrees) 07' 30" East 222.67 feet to an iron pin;
thence continuing along said right of way line as it curves to
the right in a southerly and westerly direction with the arc of
the circular curve having a radius of 147.81 feet and an arc
distance of 260.73 feet to an iron pin; thence continuing along
said right of way line South 89 (degrees) 56' 26" West 138.44
feet to an iron pin at the beginning of the intersection of the
north right of way line of the 0-00 Xxxxxxx Xxxx with the east
right of way line of Sugar Creek Road; thence North 44 (degrees)
24' 25" West 15.36 feet to an iron pin in the eastern right of
way line of Sugar Creek Road; thence along said right of way line
the two (2) following courses and distances: North 00 (degrees)
08' 43" West 413.97 feet to a concrete monument; and North 53
(degrees) 15' 42" East 127.99 feet to the point and place of
beginning, same containing 2.939 acres, more or less, and being
that same property surveyed and platted by X. X. Xxxxx &
Associates, P.A. on the 21st day of February, 1989, and revised
March 8, 1989.
PARCEL II
Beginning at an iron located at the northeast corner of
that property conveyed to TBAA, Inc. by deed recorded in Book
4593 at Page 180 in the Mecklenburg Public Registry, and running
thence from said beginning point partially with the North
boundary of the TBAA, Inc. property (now or formerly), South S9
(degrees) 56' 26" West 350.22 feet to a concrete monument in the
south margin
78
of the I-95 Service Road right of way; thence with the south
margin of said right of way, four (4) lines as follows: (1) North
56 (degrees) 35'47" East 133.66 feet to an iron pin, (2) in a
northerly direction with the arc of a circular curve to the left
having a radius of 207.81 feet, an arc distance of 248.16 feet to
an iron pin, (3) North 1l (degrees) 07' 30" West 222.67 feet to a
point, and (4) in a northerly direction, with the arc of a
circular curve to the right having a radius of 328.1 feet, an arc
distance of 62.67 feet to an iron; thence with a southerly
boundary of Property conveyed to Sree Incorporated by deed
recorded in Book 4407 at Page 971 in the Mecklenburg Public
Registry, South 80 (degrees) 49' 22" East 6.85 feet to an iron;
thence South 18 (degrees) 25' 22" East 597.95 feet to the iron at
the point of beginning, same containing 1.194 acres, more or
less, and being that same property surveyed and platted by X. X.
Xxxxx & Associates, P.A. on the 21st day of February, 1989, and
revised March 8, 1989.
PARCEL III
All the right, title and interest of Grantor in and to that
property lying within the I-85 Service Road right of way which
separates Parcels I and II, above, and in and to the right of way
of that portion of the Sugar Creek Road right of way which
adjoins Parcel I on the west side of said tract, both of which
streets or roads are shown on survey prepared by X. X. Xxxxx &
Associates, P.A. dated February 21, 1989, and revised March 8,
1989.
79
EXHIBIT B
[List of Contracts]
80
FAIRFIELD INN RICHMOND
CONTRACTS/LEASES
VENDOR SERVICE COST
Lodgenet Free to guest television program $311/mo.
Lodgenet Pay per view movies 5% profit
share plus
television
maintenance
Exit Information Advertising $3,327/yr
Guide
Xxxxxx'x Service Grounds Maintenance $789/mo.
Terminix Pest Control $126/mo.
IBM/Marriott PMS service contract $1,341
AAA Advertising $4,173/yr
Xxxxxxxxx-Xxxxxx Rubbish Hauling $242/mo.
DSEA Reservations shopping reports $105/mo.
Equifax Check guarantee service $60/yr plus
$12/mo and
1.35% of
check value
ADP Payroll Processing $100 per pay
period
General Electric, HVAC repairs Varies with
Consumer task, see
Services agreement
Hotelecom Phone system consultant % of revenue,
see agreement
CANCELLATION STATUS
81
April, 2002 Salomon has copy
April, 2002 Salomon has copy
Annual renewal Already pd thru June 1997
30 day notice Copy included
30 day notice XXXX
Franchise required With franchise agreement, no contract
Annual renewal Already pd thru 1997
30 day notice Verbal, no contract
30 day notice XXXX
30 day notice XXXX
30 day notice XXXX
60 days written
or 10 days by Copy included
G.E. w/change
of ownership
30 days notice Agreement still pending,
will copy upon execution
00
XXXXXXXXX XXX XXXXXX XXX
CONTRACTS/LEASES
VENDOR SERVICE COST
Lodgenet Free to guest television program $255.42/mo.
Lodgenet Pay per view movies 5% profit
share plus
television
maintenance
Cape Fear Paging Pager air time $11.40/mo.
NC Dept. of Highway sign advertising $882/yr.
Transportation
Turf Service Grounds Maintenance $560.00
Terminix Pest Control $96/mo.
IBM/Marriott PMS service contract $1,296/yr.
AAA Advertising $3,645/yr.
Waste Industries Rubbish Hauling $105.50/mo.
Hotelecom Telephone consultant % of revenue,
see agreement
Dover Electronics Elevator service contract $158.77/mo.
DSEA Reservations Shopping report $105/mo.
Equifax Check guarantee service $60/yr plus
$12/mo and
1.35% of
check value
ADP Payroll processing $100 per pay
period
General Electric HVAC Services prices vary,
see agreement
83
CANCELLATION STATUS
April, 2002 Salomon has copy
April, 2002 Salomon has copy
30 day notice Monthly billing like phone xxxx
30 day notice Copy included
30 day notice Copy included
30 day notice Copy included, XXXX
Franchise With Franchise agreement,
required no contract
Annual renewal Already pd thru 1997
90 day notice Copy included
prior to end of
term of contract
which is 1/19/01
30 day notice Agreement still pending,
copy will be sent when executed
5 yr contract Copy included
last renewed
1988, 90 day
written notice
30 day notice XXXX
30 day notice XXXX
30 day notice XXXX
60 day notice Copy included
84
FAIRFIELD INN XXXX
CONTRACTS/LEASES
VENDOR SERVICE COST
Lodgenet Free to guest television program $382.58/mo.
Lodgenet Pay per view movies 5% profit
share plus
television
maintenance
A-Plus Pager $23.90/mo
Communication
Cape Fear Paging Pager $17.96/mo.
NC Dept. of Highway sign advertising $588/yr.
Transportation
General Electric HVAC service and replacement $753.51/mo.
#133-0812328
Turf Service Grounds Maintenance $767/mo
IBM/Marriott PMS service contract $1,296/yr
every June
AAA Advertising $3,648/yr.
BMI Rubbish Hauling $364.55/mo.
Hotelcom Telephone Consultant % of revenue,
see agreement
DSEA Reservations Shopping reports $105/mo.
Equifax Check guarantee service $60/yr. plus
$12/mo. and
1/35% of
check value
ADP Payroll processing $100 per pay
period
85
Terminix Pest Control $126/mo.
CANCELLATION STATUS
April, 2002 Salomon has copy
April, 2002 Salomon has copy
30 day notice air time only, monthly xxxx,
like phone xxxx no contract
30 day notice Copy included
Annual renewal Copy included
July, 1998 Contract copy requested from provider
30 day notice Copy included
Franchise with franchise agreement,
required no contract
Annual renewal Already pd thru 97
30 day notice
30 day notice agreement pending will copy when executed
30 day notice XXXX
30 day notice XXXX
30 day notice XXXX
30 day notice XXXX
86
FAIRFIELD INN XXXX
CONTRACTS/LEASES
VENDOR SERVICE COST
Lodgenet Free to guest television program $539.09/mo.
Lodgenet Pay per view movies 5% profit
share plus
television
maintenance
Appalachian Billboard $595/mo.
Appalachian Billboard $920/mo.
General Electric HVAC service and replacement $744.52/mo.
Exit Information Advertising $3,311/yr
Guide
Terminix Pest Control $121/mo.
IBM/Marriott PMS service contract $1,298/yr.
AAA Advertising $4,184/yr.
Xxxxxx Security Security $9.00/hr.
Container Corp. Rubbish Hauling $121.12/mo.
Hotelecom Telephone Consultant % of revenue,
see agreement
DSEA Reservations Shopping reports $105/mo.
Equifax Check Guarantee service $60/yr. plus
$12/mo. and
1.35% of
check value
ADP Payroll processing $100 per pay
period
87
CANCELLATION STATUS
July, 2002 Salomon has copy
July, 2002 Salomon has copy
60 day notice Copy included
60 day notice Copy included
60 day notice Copy included
February, 1998 Copy included
Annual renewal Already pd thru 6/97
30 day notice XXXX
Franchise With franchise agreement, no contract
required
Annual renewal, Already pd through 6/97
pd 6/96
30 day notice Copy included, price increase
was in January 1996
60 day notice in Copy included
advance of
contract end,
9/5/97
30 day notice Agreement still pending,
Will upon execution
30 day notice XXXX
30 day notice XXXX
30 day notice XXXX
00
XXXXXXXXX XXX XXXXXXXXXX
CONTRACTS/LEASES
VENDOR SERVICE COST
Lodgenet Free to guest television program $319/mo.
Lodgenet Pay per view movies 5% profit
share plus
television
maintenance
Page South Pager air time & equipment rental $76/mo
Whiteco Billboard $595/mo
General Electric, HVAC service & replacement $749.10/mo
Exit Information Advertising $3,576
Guide
Wilsons Grounds Maintenance $850/mo
Orkin Pest Control $122/mo
IBM/Marriott PMS service contract $1,296/yr
AAA Advertising $3,648/yr
Waste Industries Rubbish Hauling $294/mo.
Hotelecom Telephone consultant % of revenue,
see agreement
DSEA Reservations shopping reports $105/mo.
Equifax Check guarantee service $60/yr plus
$12/mo and
1.35% of
check value
ADP Payroll Processing $100 per pay
period
89
CANCELLATION STATUS
April, 2002 Salomon has copy
April, 2002 Salomon has copy
30 day notice, Copy included
prior to the end
of contract
period which end
2/26/97. Penalty
of $50.00 per
pager if cancelled
earlier.
60 day notice Copy included
July, 1998 Copy included
Annual renewal Already pd thru 6/97
30 day notice Copy requested from vendor
30 day notice XXXX
Franchise With Franchise agreement,
required no contract
Annual renewal Already pd thru 19/97
30 day notice Copy included
30 day notice agreement pending, will
copy upon execution
30 day notice XXXX
30 day notice XXXX
30 day notice XXXX
00
XXXXXXXXX XXX XXXXXXXX
CONTRACTS/LEASES
VENDOR SERVICE COST
Lodgenet Free to guest television program $339.98/mo.
Lodgenet Pay per view movies 5% profit
share plus
television
maintenance
A+ Communic Pager air time $102.92/mo
Outdoor East Billboard I20 $850/mo
Outdoor East Billboard I77 $800/mo
3M National Billboard I20 East $650/mo
Kingstowne Billboard I20 ex 74 $500/mo
Xxxxxx Billboard $560/mo
General Electric HVAC services and replacement $758.87
Exit Information Advertising $2,845/yr
Guide
Greenscape Grounds Maintenance $500/mo.
Orkin Pest Control $130/mo
IBM/Marriott PMS service contract $1,296/yr
AAA Advertising $4,184/yr
Waste Management Rubbish Hauling $111.20/mo.
Ampro Security $9.13/hr.
Property Telephone Maint $333.50
Technologies
91
Hotelecom Telephone Consultant % of revenue,
see agreement
DSEA Reservations Shopping Reports $105/mo.
Equifax Check guarantee service $60/yr plus
$12/mo and
1.35% of
check value
ADP Payroll processing $100 per pay
period
CANCELLATION STATUS
July, 2002 Salomon has copy
July, 2002 Salomon has copy
30 day notice Copy included
1/15/97 60 day Copy included
notice
1/25/97 60 day Copy included
notice
1/18/97 60 day Copy included
notice
1/5/97 60 day Copy included
notice
Cancelled Letter attached
12/31/95
July, 1998 Copy included
Annual renewal Already paid thru 6/97
30 day notice Copy included
30 day notice XXXX
92
Franchise With Franchise agreement,
required no contract
Annual renewal Already pd thru 1997
30 day notice Verbal contract
30 day notice Copy included
Expired 8/3/96 Copy included
30 day notice Agreement ending, will send copy upon execution
30 day notice XXXX
30 day notice XXXX
30 day notice XXXX
93
FAIRFIELD INN CHARLESTON
CONTRACTS/LEASES
VENDOR SERVICE
Lodgenet Free to guest television program
Lodgenet Pay per view movies
3M National Billboard
3M National Billboard
General Electric HVAC service and replacement
Exit Information Advertising
Guide
Nancy's Grounds Maintenance
Terminix Pest Control
IBM/Marriott PMS service contract
AAA Advertising
Pegasus Security
F??? Rubbish Hauling
Hotelecom Telephone Consultant
DSEA Reservations Shopping reports
Equifax Check guarantee service
ADP Payroll processing
Milia Copier lease
COST CANCELLATION
$317/mo. April, 2002
94
5% profit share plus television April, 2002
maintenance
$1,575/mo. 60 day notice
$1,800/mo. 60 day notice
$744.52/mo. July, 1998
$2,845/yr. Annual renewal
$550/mo. 30 day notice
$112/mo. 30 day notice
$1,296/yr. every June Franchise required
$3,648/yr. Annual renewal
$412/wk. 30 day notice
$180.10/mo. 30 day notice
% of revenue see agreement 30 day notice
$105/mo. 30 day notice
$60/yr. plus $12/mo. and 1.35% of check 30 day notice
value
$100 per pay period 30 day notice
$57.52 36 month, end 8/9/99
STATUS
Salomon has copies
Salomon has copies
copy attached
copy attached
95
copy attached
Already pd thru 6/97
copy attached
XXXX
part of franchise agreement, no contract
Already pd thru 1997
copy attached
copy attached
contract still pending, will forward upon execution
XXXX
copy attached, XXXX
XXXX
copy included
00
XXXXXXXXX XXX XXXXXX
CONTRACTS/LEASES
VENDOR SERVICE
Lodgenet Free to guest
television program
Lodgenet Pay per view movies
Radiofono of GA Pager air time
Franklin Advertising Billboard
All Star Int'l Trucks Billboard
Tri-State Systems Billboard
General Electric HVAC service and
replacement (???)
133-0812331
Exit Information Guide Advertising
Xxxxxxx, Inc. Grounds Maintenance
Terminix Pest Control
IBM/Marriott PMS service contract
AAA Advertising
Hotelcom Telephone Consultant
DSEA Reservations Shopping
reports
Equifax Check guarantee service
ADP Payroll processing
COST CANCELLATION
97
$525.82/mo July, 2002
5% profit share plus television July, 2002
maintenance
$17/mo. 30 day notice
$275/mo. 60 day notice
$588/yr. 60 day notice
$407.66/mo. 60 day notice
$742.73/mo. July, 1998
$1,365/yr. Annual renewal
$550/mo. 30 day notice
$122/mo. 30 day notice
$1,296/yr. every June Franchise required
$3,648/yr. Annual renewal
% of revenue see agreement 30 day notice
$105/mo. 30 day notice
$60/yr. plus $12/mo. and 1/35% of stock 30 day notice
value
$100 per pay period 30 day notice
STATUS
Salomon has copy
Salomon has copy
verbal, like phone xxxx
Copy included
98
Contract attached
Contract attached
Contract not available, we have requested copy
Already pd thru 6/97
Verbal, 30 day out
XXXX
with franchise agreement, no separate agreement
Already pd through 1997
Agreement pending, will copy upon execution
XXXX
XXXX
XXXX
99
CRICKET INN VIRGINIA BEACH
CONTRACTS/LEASES
VENDOR SERVICE
World Cinema Free to Guest television
program
Metro-Call Pager air time &
equipment rental
Exit Information Guide Advertising
Tidewater Landworks Grounds Maintenance
Orkin Pest Control
Command Force Security
BFI Rubbish Hauling
JC Penney Reservations system
Hotelecom Telephone Consultant
SQS Guest Satisfaction
survey/report
DSEA Reservations shopping
report
Equifax Check guarantee service
ADP Payroll processing
General Electric HVAC maintenance
Consumer Services
COST CANCELLATION
$655.56/mo. 11/13/96 with 90 day
notice, or with 90
100
days notice prior to the
end of any current contract
year
$26.90/mo. 30 day notice
$4,547/yr. Annual renewal
$825/mo. 30 day notice
$147.80/mo. 30 day notice
$441/wk. 30 day notice
$608.97/mo. 60 day notice
Based on the number of calls
% of revenue, see agreement 30 day notice
$110/mo. 30 day notice
$105/mo. 30 day notice
$60/yr plus $12/mo. and 1.35% of check 30 day notice
value
$100 per pay period 30 day notice
Varies with task, see
agreement 60 days
notice by either
party, 10 days
notice by GE upon
ownership change
STATUS
Copy included
Copy included
Already pd thru 6/97
101
Copy included
XXXX
Copy included
Copy included
Agreement pending, will copy upon execution
XXXX
XXXX
XXXX
XXXX
Copy included
000
XXXXXXX XXX XXXXXX XXXX
CONTRACTS/LEASES
VENDOR SERVICE
Lodgenet Free to guest television
program
Lodgenet Pay per view movies
Cape Fear Paging Pager air time
3M Billboard
Xxxxx Billboard
Billboards
Orkin Pest Control
National Guest Systems PMS interface service
AAA Advertising
Waste Management Rubbish Hauling
Xxxxxx Security Security
JC Penney Reservations System
Hotelecom Telephone consultant
Dover Elevator Elevator service contract
Sprint Cellular Renting space on roof for
antenna
SQS Guest Satisfaction
survey/report
DSEA Reservations Shopping
Report
Equifax Check guarantee service
103
ADP Payroll Processing
Bond Publishing Advertising, Hosp.
Directory
Teacher @ work Landscaping
GE Consumer HVAC repair
COST CANCELLATION
$358/mo. October, 2002
5% profit share plus television October, 2002
maintenance
$40/mo. 30 day notice
$936/mo. 60 day notice
$988/mo. 60 day notice
$151/mo. 30 day notice
$179/mo. 30 day notice
$4,264/yr. Annual renewal
$190/mo. 60 day notice prior
to renewal date
11/7/96
$600/mo. 30 day notice
Based on number of calls
% of revenue, see agreement 30 day notice
$605/mo. 90 day notice prior
to March, 1997
$500/mo. revenue January, 2016
104
$110/mo. 30 day notice
$105/mo. 30 day notice
$60/yr plus $12/mo. and 1.35% of check 30 day notice
value
$100 per pay period 30 day notice
$3100/year pd through 7/97
task billed 30 days
varies, see agreement 60 days/non-tranferrable
STATUS
Copy included
Copy included
Copy included
Copy included
Copy requested from vendor
XXXX
Copy included
Already pd thru 1997
Copy included
Copy included
agreement pending, will copy when executed
105
Copy included
Copy included
XXXX
XXXX
XXXX
XXXX
Copy included
verbal
Copy included
CRICKET INN RALEIGH
CONTRACTS/LEASES
VENDOR SERVICE
Lodgenet Free to guest television
program
Lodgenet Pay per view movies
Cape Fear Paging Pagers
Xxxxxx Advertising Billboard
General Electric HVAC service and
replacement,???
133-0812316
Orkin Pest Control
Wackenhut Security Security
BFI Rubbish Hauling
JC Penney Reservation System
106
Hotelecom Telephone Consultant
The Griffon Military newspaper
advertisement
SQS Guest Satisfaction
survey/report
DSEA Reservations shopping
reports
Equifax Check guarantee service
ADP Payroll processing
COST CANCELLATION
$352.98/mo. October, 2002
5% profit share plus television October, 2002
maintenance
$48.09/mo. 30 day notice after
8/10/96
$947.50/mo. 30 days upon sale of
hotel
$896.66/mo June, 1998
$150/mo. 30 day notice
$8.50/hr. Approx. $1,130 mo. 30 day notice
$264.14
Based on the number of calls
% of revenue, see agreement 30 day notice
$440 in April Annual renewal
$440 in August
107
$110/mo 30 day notice
$105/mo. 30 day notice
$60/yr plus $12/mo. and 1.35% of check 30 day notice
value
$100 per pay period 30 day notice
STATUS
Copy included
Copy included
monthly billing
Copy included
Copy requested from vendor
XXXX
Copy requested from vendor
Copy requested from vendor
agreement pending, copy to be sent upon execution
Copy included
XXXX
XXXX
XXXX
XXXX
000
XXXXXXX XXX XXXXXXXXX
CONTRACTS/LEASES
VENDOR SERVICE
Time Warner Cable Free to guest television
program
Page South Pager air time &
Equipment Rental
3M National Billboards
Horizon Billboards
Xxxxx Billboards
General Electric HVAC service
Exit Information Guide Advertising
Carolina Landscape Grounds Maintenance
Terminix Pest Control
Charlotte Police Dept. Security
General Emergency Security monitor
Monitor
Container Corp. Rubbish Hauling
JC Penney Reservation System
Hotelecom Telephone Consultant
DSEA Reservations Shopping
Reports
Equifax Check guarantee service
ADP Payroll processing
109
COST CANCELLATION
$1,039.50/mo. 30 day notice
$45.58/mo. 30 day notice
$1,360/mo. 60 day notice
$1,200/mo. 60 day notice
$1,843/mo. 60 day notice
$928.87/mo. July, 1997
$2,845/yr. Annual renewal/pd through
June 1997
$450/mo. 30 day notice
$132/mo. 30 day notice
$15.50/hr. @ 8 hours per day 30 day notice
$60/qtr. 30 day notice
$282.04/mo. 180 day notice prior to
end of term which is 3/20/01
Based on number of calls
% of revenue, see agreement 30 day notice
$105/mo. 30 day notice
$60/yr. plus $12/mo. and 1.35% of check 30 day notice
value
$100 per pay period 30 day notice
STATUS
Copy included
110
Copy included
Copy included
Copy included
Copy included
Copy included
Copy included
Copy included
Copy included, XXXX
Verbal agreement, contract individual labor
Verbal, no contract
Copy included
agreement pending, will forward when executed
XXXX
XXXX
XXXX
111
EXHIBIT C
EXCLUDED ASSETS
1. The management contract between Sellers and American General
Hospitality Inc. ("Manager").
2. World Cinema and Lodgenet television decoders.
3. Any and all vending machines, including, without limitation,
newspaper vending machines.
4. Any and all pagers used by employees of Manager.
5. Manager's manuals and forms relating to the management of, or
located at, each of the Properties.
6. Credit card processing equipment.
7. Manager's computer software and any and all other property of
Manager.
8. Property belonging to hotel guests, invitees or licensees.
9. Property owned by the lessor under the Statesville Ground Lease.
10. Any and all contracts, licenses, permits, etc. which, by their
terms, are not assignable.
11. Any and all tradenames, trademarks, intellectual property,
manuals and other property of the franchisors under the Franchise
Agreements.
112
EXHIBIT D
PROMISSORY NOTE
$___________ New York, New York
Dated: As of _________ ___, 1996
FOR VALUE RECEIVED, Xxxxxx Hotels Corporation, a New York
corporation with offices at Xxx Xxxxxxx Xxx, Xxxxx 000,
Xxxxxxxxx, Xxx Xxxx 00000 ("Borrower") promises to pay to [SB
Motel Richmond Corp., SB Motel Durham-Research Triangle Park
Corp., SB Motel Cary Corp., SB Motel Statesville Corp., SB Motel
Wilmington Corp., SE Motel Columbia Corp., SB Motel Charleston
Corp., SE Motel Albany Corp., SB Motel Virginia Beach Corp., SB
Motel Xxxxxx-Xxxx Corp., SB Motel Raleigh Corp. and SB Motel
Charlotte 1-85 Corp.] [Sellers shall have the right to name any
designee as the Lender at any time prior to the Closing]
(collectively, "Lender"), or order, at __________________ or at
such other place in the United States of America as may be
designated in writing by the holder of this note (this "Note"),
the sum of ______________________ ($_______) Dollars, together
with Interest as hereinafter provided, until the said principal
sum shall be fully paid, and to be due and payable as hereinafter
provided. The said principal sum, or the amount thereof
outstanding, together with accrued and unpaid interest and all
other unpaid sums payable hereunder, shall be due and payable on
the Maturity Date (as hereinafter defined) or as otherwise
expressly provided herein. Borrower may make voluntary
prepayments of principal in accordance with Section 3 hereof.
1. Definitions. The following terms, as used in this Note,
shall have the following meanings, which shall be applicable equally
to the singular and the plural of the terms defined:
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which federally insured depository
institutions in the State of New York are authorized or obligated
by law, governmental decree or executive order to be closed.
"Event of Default" shall mean (i) any failure of Borrower
to pay any amounts due and payable pursuant to this Note within
five (5) Business Days after the due date thereof, (ii) any
default by Borrower under the Senior Indebtedness (as hereinafter
defined) which shall
113
entitle Nomura Asset Capital Corporation (or any successors or
assigns thereof) to accelerate all principal indebtedness
evidenced by the Senior Indebtedness or (iii) financial
difficulties of Borrower or any subsidiary of Borrower as
evidenced by (x) the filing of a voluntary or involuntary
petition in bankruptcy or under any chapters of the Bankruptcy
Code or under any federal or state statute providing for relief
of debtors, (y) the making of an assignment for the benefit of
creditors or (z) the appointment of a receiver or trustee for all
or a major part of its property.
"Maturity Date" shall mean November 27, 1997.
2. Interest. (a) Interest at the rate of ten percent (l0%)
per annum on the unpaid principal ("Interest") shall be due and
payable in arrears on the first day of each month following the date
of this Note. Interest accruing under this Note shall be computed on
the basis of a 360-day year for the actual number of days elapsed.
(b) Borrower shall pay principal, Interest and all other
sums due hereunder in immediately available funds to Lender at
____________________ or otherwise as directed in writing by
Lender. Payments hereunder shall be due prior to 3:00 P.M.
(Eastern Standard Time) on the date on which payment shall be
due. Lender may apply payments received in respect of Borrower's
obligations in such manner as it may see fit in its sole
discretion.
(c) Notwithstanding anything to the contrary herein
contained, (i) upon and following the Maturity Date (if the
principal of, and any accrued Interest ong this Note are not paid
in full) or (ii) if an Event of Default shall occur, then, from
and after the date of the occurrence of such Event of Default and
during the continuance of such Event of Default, any unpaid
principal shall bear interest at a rate per annum (the "Default
Rate") equal to the lesser of (1) eighteen percent (1B~) per
annum, or (2) the maximum rate permitted by applicable law to be
charged to Borrower.
(d) It is not intended hereby to charge interest at a rate
in excess of the maximum legal rate of interest permitted to be
charged to Borrower under applicable law, but if, notwithstanding
the foregoing, interest in excess of said maximum legal rate
shall be paid hereunder, the excess shall be applied by Lender to
the payment of the unpaid principal due hereunder.
114
3. Voluntary Prepayment. Borrower shall have the right to
prepay any unpaid principal or other unpaid sums in connection
therewith in whole or in part without penalty or premium. Any
such prepayment of unpaid principal shall be accompanied by an
amount equal to unpaid Interest to the date of such prepayment on
the amount of principal being so prepaid. In the event of such
voluntary prepayment, Borrower shall give Lender written notice
of its intent to prepay at least ten (10) Business Days prior to
the date on which such prepayment is to be made, and shall
specify the amount of such prepayment. If any such notice is
given, the amount specified in such notice shall be due and
payable on the date specified therein.
4. Acceleration. In the case of the occurrence of any Event
of Default under this Note, Lender may, upon giving written
notice to Borrower, and in addition to exercising any other
available rights or remedies, accelerate all or any part of the
principal due hereunder, which shall therewith be immediately due
and payable by Borrower, together with Interest accrued to date
at the rate specified hereunder, together with all fees and other
charges payable by Borrower hereunder.
5. Waiver. (a) Borrower and any endorsers, sureties and
guarantors hereof or hereon hereby waive presentment for payment,
demand, protest, notice of non-payment or dishonor and of
protest, and agree to remain bound until the unpaid principal,
all accrued interest. and all other sums payable hereunder are
paid in full, notwithstanding any extensions of time for payment
which may be granted even though the period of extension be
indefinite, and notwithstanding any inaction by, or failure to
assert any legal right available to, Lender.
(b) It is further expressly agreed that any waiver by
Lender, other than a waiver in writing signed by Lender, of any
term or provision hereof or of any right, remedy or option under
this Note shall not be controlling, nor shall it prevent or estop
Lender from thereafter enforcing such term, provision, right,
remedy or option, and the failure or refusal of Lender to insist
in any one or more instances upon the strict performance of any
of the terms or provisions of this Note shall not be construed as
a waiver or relinquishment for the future of any such term or
provision, but the same shall continue in full force and effect,
it being understood and agreed that Lender's rights, remedies and
options under this Note are and shall be cumulative and are in
addition to all other rights,
115
remedies and options of Lender in law or in equity or under any other
agreement.
6. Late Charge. In addition to interest charged at the
Default Rate and Lender's other available remedies, in the event
any amount due and pa~able under this Note is not paid on the
date when due, a "late charge" of six cents for each dollar
overdue shall be charged by Lender and paid by Borrower for the
purpose, among other things, of covering the expenses incident to
handling a delinquent payment.
7. Costs of Collection. Borrower shall pay, when such costs
are incurred by Lender, all third party costs of collecting any
amount which is not paid by Borrower when due pursuant to the
terms of this Note, including, without limitation, the attorneys'
fees and disbursements of Lender's counsel, which costs may be
added to the indebtedness evidenced by this Note and paid
promptly on demand, together with interest thereon at the Default
Rate.
8. Subordination. The term "Senior Indebtedness" shall
mean: (i) the principal in an amount not to exceed $12,000,000,
plus any premiums, unpaid interest and any other sums, charges or
amounts which is or may become due and payable by Borrower to
Nomura Asset Capital Corporation, whether outstanding on the date
of execution of this Note or thereafter created, incurred,
assumed, issued or guaranteed, which indebtednss is, among other
things, for all or part of the consideration for the acquisition
of certain hotels being transferred from Lender to Borrower on
even date herewith pursuant to that certain Agreement of Purchase
Sale dated as of September 26, 1996, among Borrower, Lender and
Xxxxxx Hotels Properties Corp.; and any and all deferrals,
renewals or extensions of any such indebtedness or obligations.
This Note, including the principal hereof and Interest
hereon, is subordinate and junior in right of payment to the
Senior Indebtedness of Borrower. In the case of any bankruptcy,
insolvency, receivership, conservatorship, reorganization, or
arrangement with, or assignment for the benefit of creditors,
readjustment of debt, marshaling of assets and liabilities or
similar proceeding or any liquidation or winding- up of, or
relating to, Borrower, whether voluntary or involuntary, all such
obligations and rights, including interest at the Default Rate,
shall be entitled to be paid in full before any payment shall be
made on account of the principal, or Interest or premium, if any,
on this Note.
116
9. Waiver of Trial by Jury Borrower hereby irrevocably
waives all right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Note.
10. Miscellaneous. (a) Applicable Law. Borrower agrees that
this Note shall be governed by and construed and enforced in
accordance with the procedural and substantive laws of the State
of New York. Any legal action or proceeding with respect to this
Note must be brought in the courts of the State of New York
within the First Judicial Department 1st District, New York City
or of the United States of America for the Southern District of
New York, and, by execution and delivery of this Note, Borrower
hereby accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid
courts. Borrower further irrevocably consents to the service of
process out of any of the aforementioned courts in any such
action or proceeding by the delivery of copies thereof to
Borrower to the address of Borrower specified in the Preamble
hereof. Nothing herein shall affect the right of Lender to serve
process in any other manner permitted by ~aw or to commence legal
proceedings or otherwise proceed against Borrower in any other
jurisdiction.
(b) Amendments in Writing. No amendment or waiver of any
provision of this Note, nor consent to any departure by Borrower
therefrom, shall in any event be effective unless the same shall
be in writing and signed by Lender and Borrower and then such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
(c) Successors. Lender shall have the right to assign to
one or more banks or other persons or entities all or a portion
of its interest in this Note and to sell participations in or to
all or a portion of its interest in this Note. The term "Lender"
shall mean the then holder of this Note from time to time and its
successors and assigns. Notwithstanding any provision of this
Note, any assignee of all or a portion of the rights and
interests of Lender under this Note shall be entitled to the
benefits, and subject in all respects to the terms and
conditions, of this Note.
(d) Partial Invalidity. In the event that any provision of
this Note or the application thereof to Borrower or any
circumstance in any jurisdiction governing this Note shall, to
any extent, be invalid or unenforceable under any applicable
statute, regulation, or rule of law then such a provision shall
be deemed inoperative to the extent that
117
it may conflict therewith and shall be deemed modified to conform
to such statute, regulation or rule of law, and the remainder of
this Note and the application of any such invalid or
unenforceable provision to parties, jurisdictions, or
circumstances other than to whom or to which it is held invalid
or unenforceable, shall not be affected thereby nor shall the
same affect the validity or en-forceability of any other
provision of this Note.
(e) Time Is of the Essence. Time is of the essence as to
all dates set forth herein; provided, however, that whenever any
payment to be made hereunder shall be stated to be due on a day
other than a Business Day, such payment may be made on the next
succeeding Business Day.
(f) No Impairment of Rights. No act of commission or
omission of any kind or at any time upon the part of Lender or
its successors or assigns in respect of any matter whatsoever
shall in any way impair the rights of Lender to enforce any
right, power or benefit under this Note and no set-off,
counterclaim, reduction, or diminution of any obligation, or any
defense of any kind or nature, which Borrower has or may have
against Lender or any assignee or successor thereof, shall be
available hereunder to Borrower.
(g) Authority. Borrower has executed this Note with due and
proper authority to do so. This Note is valid and enforceable
against Borrower and evidences Borrower's lawful indebtedness to
Lender.
IN WITNESS WHEREOF, Borrower has caused the note to be
executed as of the date first above written.
Attest: XXXXXX HOTELS CORPORATION
______________________________ By:____________________________
Xxxx X. Xxxxxxxx, Secretary Name: E. Xxxxxxx Xxxxxx
Title: Chairman
118
EXHIBIT E
Purchase Price Allocation
SB Motel Albany Corp. $3,176,000
SB Motel Cary Corp. $6,008,000
SB Motel Charleston Corp. $5,938,000
SB Motel Charlotte 1-85 Corp. $3,291,000
SB Motel Columbia Corp. $5,811,000
SB Motel Xxxxxx-Xxxx Corp. $9,429,000
SB Motel Durham Research Triangle Park Corp. $4,945,000
SB Motel Raleigh Corp. $3,835,000
SB Motel Richmond Corp. $6,535,000
SB Motel Statesville Corp. $3,741,000
SB Motel Virginia Beach Corp. $2,286,000
SB Motel Wilmington Corp. $6,005,000
-----------
Total $61,000,000
119
EXHIBIT F
Mechanics Liens
(1) Approximately $25,000 claim/lien in connection with the Columbia
Property.
(2) Approximately $5,000 dispute with sealing Contractor in
connection with the Richmond Property.
120
EXHIBIT G
Xxxxxx'x Litigation Schedule
On October, 26, 1990, a complaint was filed in Xxxx Xxxxx
Xxxxxx Xxxxxxx Xxxxx, Xxxxxxx, by Seagate Beach Quarters, Inc., a
Florida corporation (Bearing Case #90-12358-AB), seeking damages
plus interest and costs, against Rochester Community Savings
Bank, ("RCSB"), a New York based bank, Shore Holdings, Inc.
("SHORE"), a subsidiary of RCSB and naming Xxxxxx as a
co-defendant. On December, 6, 1990, Delray Beach Hotel Properties
Limited, a Florida limited partnership controlled by Xxxxxx,
purchased the Seagate Hotel and Beach Club from RCSB's
subsidiary, SHORE. The purchase contract included an
indemnification of Xxxxxx against any action resulting from
previously negotiated contracts between RCSB's subsidiaries and
third-parties. Case #90-12358-AB contained allegations that
RCSB's subsidiary, SHORE, defaulted in its obligations under a
Contract for Purchase and Sale, dated August 16, 1990, and failed
to go forward with the transaction due to alleged tortious
negotiations between RCSB and Xxxxxx. On March 17, 1994, the
Court granted Summary Judgment in favor of RCSB and Xxxxxx which
judgment was appealed by Seagate. The Fourth District Court of
Appeal in Florida affirmed the summary judgment on RCSB and
reversed the summary judgment granted in favor of Xxxxxx,
remanding the action to Circuit Court for further consideration.
On August 15, 1994, Seagate proceeded to trial against SHORE in
case #90- 12358-AB. During the course of the trial, Seagate took
a voluntary dismissal of their action against SHORE. On September
8, 1994, Seagate ref iled its lawsuit against SHORE and joined
Delray Beach Hotel Properties Limited, through its general
partner, Delray Beach Hotel Corp. (bearing Case #94-6961-AF). The
new case against SHORE was brought essentially on the same facts
as stated above. The claim against Delray Beach Hotel Properties
Limited was identical to the conspiracy and tortious interference
with a business relationship claim currently existing against
Xxxxxx. On January 27, 1995, the Court issued an Order dismissing
the Amended Complaint as to Delray Beach Hotel Properties
Limited. The Circuit Court has consolidated the case against
Xxxxxx (Case #90-12358-AB) and the case against SHORE (Case
#94-6961-AF) and it is anticipated those suits will go to trial
during 1997.
121
On February 11, 1993, a complaint was filed in the Western
District of New York, United States District Court, by Xxxx
Xxxxxxx, Xxxxx Xxxxxxx and Xxxxxxxxxxx Xxxxxxx, seeking damages
and costs against Quality Inn International, Choice Hotels
International, and naming Xxxxxx as a co-defendant. The requested
relief in this case, Xxxx Xxxxxxx and Xxxxx Xxxxxxx and
Xxxxxxxxxxx Xxxxxxx vs. Quality Inns International Inc., Choice
Hotels International Inc., Ridge Road Hotel Properties, Ridge
Road Hotel Properties dibIa Comfort Inn, a/k/a Comfort Inn West,
Hudson, and Xxxxxxxx X. Xxxxxx, as Executrix of the Estate of
Xxxxx X. Xxxxxx, was based on allegations that Xxxx Xxxxxxx,
while staying at the Comfort Inn, stepped on a needle, and claims
negligence and lack of due care on the part of the defendants.
This case is being diligently defended by the insurance carrier
of Ridge Road Hotel Properties and Xxxxxx. Xxxxxx believes that
it has adequate insurance for any potential loss.
After taking into consideration legal Counsel's evaluation
of all such actions, management is of the opinion that the
outcome of each such proceeding or claim which is pending, or
known to be threatened (as described above), will not have a
significant effect on Xxxxxx'x financial statements.
On June 20, 0000, Xxxxxxxxx, Xxxxxxxx & Co., Inc. Xxxxxx'x
former investment bankers, filed a complaint in New York State
Supreme Court against Xxxxxx alleging breach of contract and
damages of $906,250 relating to Xxxxxx'x rescission of a warrant
granted to them in connection with the investment advisory
agreement. In February 1994, the Board of Xxxxxx determined that
Ladenburg had been otherwise adequately compensated for such
services as were actually performed, and voted to rescind the
warrant. Xxxxxx has answered the complaint, denying the relevant
allegations and asserting several affirmative defenses. Discovery
in the case has commenced and is continuing. The ultimate outcome
of the litigation cannot presently be determined. Accordingly, no
provision for any liability that may result has been made in the
financial statements.
On January 29, 1996, Xxxxxxx Xxxxx filed a complaint in the
Court of Common Please of Washington County, Pennsylvania,
against Xxxxxx, alleging breach of contract and damages of
$253,125 relating to Xxxxxx'x rescission of a warrant granted to
this individual in connection with establishing a relationship
with Ladenburg, Xxxxxxxx & Co., Inc. In February 1994, the Board
of Xxxxxx rescinded the warrant to Xxxxxxx Xxxxxx as a result of
terminating Xxxxxx'x relationship with Ladenburg, Xxxxxxxx & Co.,
Inc. On March 26, 1996, Xxxxxxx
122
Xxxxxx dismissed the complaint filed against Xxxxxx. As part of
the dismissal, Xxxxxx allowed him to exercise his warrants on a
cashless basis and issued 19,594 shares of Microtel common stock
as a result of this transaction.
123
EXHIBIT H
Environmental Reports
1. Phase I Site Assessment Report Update
Cricket Inn
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Prepared For: Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Prepared By: Xxxxx Environmental and Engineering Services
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Dated: November 12, 1993
2. Phase I Environmental Assessment
Cricket Inn Property Richmond, Virginia
Prepared For: Salomon New York, New York
Prepared By: SEC Xxxxxxx Inc. Greenville, South Carolina
Dated: July, 1992
3. Phase I Environmental Assessment
Cricket Inn Property
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxxxx
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Xxxxxxx Inc.
Greenville, South Carolina
Dated: July, 1992
4. Phase I Site Assessment Report Update
124
Cricket Inn
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxxxx
Prepared For: Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Prepared By: Xxxxx Environmental and Engineering Services
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dated: November 12, 1993
5. Phase I Environment Assessment
Cricket Inn Property Cary, North Carolina
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Xxxxxxx Inc. Greenville, South Carolina
Dated: July, 1992
6. Phase I Site Assessment Report Update
Cricket Inn
0000 Xxxxxx Xxxxxx
Xxxx, Xxxxx Xxxxxxxx 00000
Prepared For: Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Prepared By: Xxxxx Environmental and Engineering Services
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dated: November 12, 1993
7. Phase I Environmental Assessment
Cricket Inn Property
Statesville, North Carolina
Prepared For: Salomon Brothers Inc
000
Xxx Xxxx, Xxx Xxxx
Prepared By: SEC Xxxxxxx Inc.
Greenville, South Carolina
Dated: July, 1992
8. Phase I Site Assessment Report Update
Cricket Inn
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Prepared For: Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
126
Prepared By: Xxxxx Environmental and Engineering Services
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dated: November 12, 1993
9. Phase I Environmental Assessment
Cricket Inn Property
Wilmington, North Carolina
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Xxxxxxx Inc.
Greenville, South Carolina
Dated: July, 1992
10. Phase I Site Assessment Report Update
Cricket Inn
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Prepared For: Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Prepared By: Xxxxx Environmental and Engineering Services
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dated: November 12, 1993
11. Phase I Site Assessment Report Update
Cricket Inn
0000 Xxx Xxxxx Xxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Prepared For: Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Prepared By: Xxxxx Environmental and Engineering Services
127
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dated: November 12, 1993
12. Phase I Environmental Assessment
Cricket Inn Property
Columbia, South Carolina
128
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Xxxxxxx Inc.
Greenville, South Carolina
Dated: July, 1992
13. Limited Phase II Subsurface Investigation
Cricket Inn
Interstate 77 and Two Notch Road
Columbia, South Carolina
GWPD Site #A-40-AA-15401
Prepared For: Richfield Hotel Management, Inc.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Prepared By: Xxxxx Environmental and Engineering Services
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dated: February 26, 1993
14. Phase I Environmental Assessment
Cricket Inn Property Charleston, South Carolina
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Xxxxxxx Inc.
Greenville, South Carolina
Dated: July, 1992
15. Phase I Site Assessment Report Update
Cricket Inn
0000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Prepared For: Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
129
Prepared By: Xxxxx Environmental and Engineering Services
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dated: November 12, 1993
16. Phase I Environmental Assessment
Cricket Inn Property
Albany, Georgia
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Xxxxxxx Inc.
Greenville, South Carolina
Dated: July, 1992
17. Phase I Site Assessment
Report Update
Cricket Inn
0000 Xxxxx Xxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxx 00000
Prepared For: Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Prepared By: Xxxxx Environmental and Engineering Services
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dated: November 12, 1993
18. Phase I Site Assessment Report Update
Cricket Inn
0000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxx 00000
Prepared For: Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Prepared By: Xxxxx Environmental and Engineering Services
130
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dated: November 12, 1993
19. Limited Phase II Subsurface Investigation Cricket Inn Property
0000 Xxxxxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxx 00000
Prepared For: Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Prepared By: Xxxxx Environmental and Engineering Services
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dated: November 22, 1993
131
20. Phase I Environmental Assessment
Cricket Inn Property
Virginia Beach, Virginia
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Xxxxxxx Inc.
Greenville, South Carolina
Dated: July, 1992
21. Phase I Environmental Assessment
Cricket Inn Property
0000 XX Xxxxxxx 00
Xxxxxx, Xxxxx Xxxxxxxx
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Xxxxxxx Inc.
Greenville, South Carolina
Dated: July, 1992
22. Phase I Site Assessment Report Update
Cricket Inn
0000 XX Xxxxxxx 00
Xxxxxx, Xxxxx Xxxxxxxx 00000
Prepared For: Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
132
Prepared By: Xxxxx Environmental and Engineering Services
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dated: November 12, 1993
23. Phase I Environmental Assessment
Cricket Inn Property
Raleigh, North Carolina
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Xxxxxxx Inc.
Greenville, South Carolina
Dated: July, 1992
24. Phase I Site Assessment Report Update
Cricket Inn
0000 Xxx Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Prepared For: Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Prepared By: Xxxxx Environmental and Engineering Services
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dated: November 12, 1993
25. Phase I Environmental Assessment
Cricket Inn Property
Charlotte North Carolina
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Xxxxxxx Inc
Greenville, South Carolina
Dated: July, 1992
133
26. Phase I Site Assessment Report Update
Cricket Inn
0000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Prepared For: Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Prepared By: Xxxxx Environmental and Engineering Services
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dated: November 12, 1993
27. Limited Phase II Subsurface Investigation Cricket Inn
0000 Xxxx Xxxxx Xxxxx Xxxx Xxxxxxxxx, Xxxxx Xxxxxxxx
Prepared For: Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Prepared By: Xxxxx Environmental and Engineering Services
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dated: November 22, 1993
134
EXHIBIT I
Sellers' Litigation Schedule
1. Xxxx Xxxxxxx and Xxxxx Xxxxxx Xxxxx V. Hotel Renovations General
Hospitality, Inc., S.C. Ct. of Common Pleas, CA. No. 95-CP-40-
0773.
135
