FORM 8-K/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
Amendment No. 1
To Form 8-K filed January 14, 1998
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
December 30, 1997
-----------------
Date of Report
(Date of earliest event reported)
Metric Partners Growth Suite Investors, L.P.
--------------------------------------------
(Exact name of registrant as
specified in its charter)
0-17660 California 94-3050708
------- ---------- ----------
(Registration (State or Other (IRS Employer
File Jurisdiction of Identification
Number) Incorporation) Number)
One California Street, San Francisco, California 94111-5415
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(415) 678-2000
(800) 347-6707 Wats line for all states
<PAGE>
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
Exhibit a ) This Agreement for Purchase and Sale made and entered into as of
December 19, 1997 by and between Metric Partners Growth Suite
Investors, L.P., a California limited partnership ("Seller"), and
Innskeepers USA Limited Partnership, a Virginia limited partnership
("Buyer").
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, Registrant
has duly caused this Report to be signed on its behalf by the undersigned,
thereunto duly authorized.
METRIC PARTNERS GROWTH SUITE INVESTORS, L.P
a California Limited Partnership
By: /s/ William A. Finelli
----------------------------------------------
William A. Finelli
Chief Financial Officer
Date: June 25, 1998
--------------------------------------------
AGREEMENT FOR PURCHASE AND SALE
OF
EIGHT RESIDENCE INNS
December 19, 1997
Exhibit A - List of Hotels
Exhibit B - List of Management Agreements
Exhibit C - List of Operating Agreements
Exhibit D - List of Preliminary Title Reports
Exhibit E - Form of Bill of Sale
Exhibit F - Form of Assignment of Intangible Property
Exhibit G - Form of Assignment of Management Agreement
Exhibit H - Inquiry Memorandum
<PAGE>
AGREEMENT FOR PURCHASE AND SALE
OF
EIGHT RESIDENCE INNS
THIS AGREEMENT FOR PURCHASE AND SALE is made and entered into as of
December 19, 1997 by and between METRIC PARTNERS GROWTH SUITE INVESTORS, L.P., a
California limited partnership ("Seller"), and INNKEEPERS USA LIMITED
PARTNERSHIP, a Virginia limited partnership ("Buyer").
RECITALS
--------
A. Seller is the owner of the Hotels (as hereinafter defined).
B. Seller desires to sell and Buyer desires to purchase the Hotels
on the terms and conditions hereinafter set forth.
AGREEMENT
---------
IN CONSIDERATION of the mutual covenants set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
expressly acknowledged, the parties hereto agree to enter into this Agreement on
the terms and conditions hereinafter set forth.
ARTICLE I
BASIC DEFINITIONS
-----------------
"Closing Date" shall mean the date provided for in Section 7.6
below for the consummation of the purchase and sale of the Hotels.
"Contract Period" shall mean the period from the date of this
Agreement through and including the Closing Date.
"Hotel" or "Hotels" shall mean any one or all of the hotels,
totaling 840 guest suites in the aggregate, described on Exhibit A to this
Agreement consisting, with respect to each Hotel, of the Land, the Improvements,
the Personal Property, the Inventory, and the Intangible Property.
"Improvements" shall mean, with respect to each Hotel, the
buildings, improvements and fixtures constructed or installed on the Land,
including, without limitation, a hotel facility containing guest suites, meeting
rooms and registration building, a parking lot and other physical improvements
to the Land.
"Inspection Period" shall mean a period commencing on the date
of this Agreement and ending at 5:00 p.m. Pacific Time on December 19, 1997.
"Intangible Property" shall mean, with respect to each Hotel,
the Seller's interest in all property (other than the Management Agreement, the
Personal Property, Inventory, Land and the Improvements), which is used in
connection with the Hotel, or the business conducted in connection with the
Hotel, including, but not limited to, all contract rights pertaining solely to
the Hotel, the rights to advance reservations and bookings for any period after
the Closing Date, any and all governmental licenses, permits and approvals held
by Seller relating to the occupancy or use of the Hotel which are transferable
to Buyer, any and all existing warranties and guaranties held by Seller and
given by third parties with respect to the Hotel, and Seller's right and
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interest in and to the Operating Agreements, general intangibles, business
records, plans and specifications, and surveys pertaining to the Land.
Notwithstanding the foregoing, the Intangible Property does not include the
trade names, trademarks and service marks in use at the Hotels, including,
without limitation, the names "Marriott," "Residential Inn," "Residence Inn By
Marriott" or "Gatehouse" or any goodwill associated therewith.
"Inventory" shall mean, with respect to each Hotel, all of
Seller's interest as of the Closing Date in all inventory located at the Hotel,
including without limitation (1) mattresses, pillows, linen and towels, (2)
china, glassware and silverware, (3) foodstuffs, alcoholic beverages and other
beverages which are saleable to guests and (4) other consumable items and
miscellaneous inventory purchased for use in the operation of the Hotel,
including but not limited to office, cleaning, engineering and laundry supplies,
guest supplies, paper goods, uniforms, advertising and promotional materials.
"Land" shall mean, with respect to each Hotel, the real
property, exclusive of the Improvements, described in the Preliminary Title
Report for the Hotel, together with all easements, rights, privileges,
remainders, reversions and appurtenances thereunto belonging or in any way
appertaining, and all of the estate, right, title, interest, claims or demand
whatsoever of Seller therein, in the streets and ways adjacent thereto and in
the bed, thereof, either at law or in equity, in possession or expectancy, now
or hereafter acquired.
"Management Agreement" shall mean, with respect to each Hotel,
the Management Agreement between Operator and Seller more particularly described
on Exhibit B to this Agreement.
"Operating Agreements" shall mean all service and supply
contracts, equipment leases, capital leases, space leases and other agreements,
if any, in effect with respect to the ownership, operation, occupancy or
maintenance of the Hotels. A list of the Operating Agreements in effect with
respect to each Hotel is set forth on Exhibit C to this Agreement.
"Operator" shall mean Residence Inn by Marriott, Inc.
"Permitted Exceptions" shall mean, with respect to each Hotel,
(1) those exceptions to title shown in the Preliminary Title Report which are
approved by Buyer pursuant to Section 3.3, (2) overnight occupancy rights of any
Hotel guests, and (3) matters disclosed by the survey of the Land approved by
Buyer pursuant to Section 3.3.
"Personal Property" shall mean, with respect to each Hotel,
all appliances, apparatus, machinery, furnishings, equipment and other tangible
personal property affixed to, attached to, placed upon or within or used in
connection with the Land and the Improvements, but excluding such items to the
extent they are included within Inventory and excluding those items owned by
third parties.
"Preliminary Title Reports" shall mean the preliminary title
reports described in Exhibit D to this Agreement with respect to the Land upon
which each Hotel is situated.
"Title Company" shall mean Chicago Title Company, 388 Market
Street, Suite 1300, San Francisco, California 94111 (Escrow Officer: Mary Hart).
ARTICLE II
PURCHASE AND SALE
-----------------
2.1 Purchase and Sale. Seller agrees to sell the Hotels to Buyer, and
Buyer agrees to purchase the Hotels from Seller upon all of the terms, covenants
and conditions set forth in this Agreement.
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2.2 Purchase Price. The purchase price for the Hotels (the "Purchase
Price") shall be the sum of $59,500,000, and shall be payable by Buyer to Seller
on the Closing Date through the escrow described in Section 7.1 below, as
follows:
(a) Buyer shall be credited in escrow with the amount of the Deposit
described in Article VI below; and
(b) The balance of the Purchase Price (approximately $58,500,000)
shall be paid in cash.
2.3 Allocation of Purchase Price. The Purchase Price shall be allocated
among the Hotels in the amounts set forth on Exhibit A to this Agreement
opposite the name of each Hotel.
2.4 Instruments of Conveyance.
(a) Seller shall deliver to Buyer on the Closing Date special
or limited warranty deeds to the Land and Improvements for
each Hotel (the "Deeds").
(b) Seller shall deliver to Buyer on the Closing Date a bill
of sale with respect to the Inventory and the Personal
Property for each Hotel, in the form attached to this
Agreement as Exhibit E (the "Bills of Sale").
(c) Seller shall deliver to Buyer on the Closing Date an
assignment of Seller's interest in the Intangible Property for
each Hotel, in the form attached to this Agreement as Exhibit
F (the "Assignments of Intangible Property"). Buyer shall
assume all obligations of Seller in connection with the
Operating Agreement arising on and after the Closing Date.
(d) If Buyer elects to assume Seller's obligations under the
Management Agreements, Seller shall also deliver to Buyer on
the Closing Date an assignment of Seller's interest in the
Management Agreements for each Hotel, in the form attached to
this Agreement as Exhibit G (the "Assignments of Management
Agreement").
2.5 Employees at Hotels. Buyer acknowledges that the employees employed
in connection with the operation of the Hotels are employees of Operator.
2.6 Assumption or Termination of Management Agreements. Buyer may elect
either to assume as of the Closing Date all of Seller's obligations under the
Management Agreements or to cause a termination of the Management Agreements
effective as of the Closing Date, provided that, in either event, Seller shall
be required to bear no costs and to incur no liability to Operator other than
the obligation to pay all management fees and to reimburse Operator for all
reimbursable expenses attributable to the period prior to the Closing Date.
Seller's obligations shall include the obligation to fund all 1997 capital
expenditures, including without limitation the Altamonte Springs Hotel room
renovations but excluding any ADA-related upgrades included in the 1997 Capital
Improvement Plans but not actually completed in 1997. If Buyer elects to assume
the Management Agreements, Seller's obligation to close the transaction shall be
conditioned upon receipt of a written release by Operator releasing Seller from
all obligations under the Management Agreements from and after the Closing Date
as provided in Section 4.1(b)(3). Seller shall be entitled to a return of, or a
credit at closing for, all funds in the Reserve Accounts for the Hotels not
required to pay for 1997 capital improvements. If Buyer elects to terminate the
Management Agreements, Buyer shall pay all termination fees or other costs
associated with such termination. In all events, Buyer shall be responsible for
any product improvements required by Operator as a condition to Buyer's
assumption of the Management Agreements or the execution of new management
agreements for the Hotels other than 1997 capital improvements.
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ARTICLE III
DUE DILIGENCE
-------------
3.1 Buyer's Review
(a) Seller has delivered to Buyer, or has made available at
each Hotel for Buyer's review,copies of each of the following:
(1) Seller's approved operating and capital
budgets for 1997 and, if available, proposed operating and capital
budgets for 1998 and operating and expense statements and other
financial statements of operations for all periods from January 1, 1995
to date;
(2) All occupancy, ADR, Rev PAR and STAR
reports for each Hotel for all periods from January 1, 1995 to date, to
the extent such items are in Seller's possession;
(3) all engineering and physical inspection
reports, including any environmental inspection reports, soils reports
and/or Marriott inspection reports for the last 24-month period which
are in Seller's possession;
(4) the most recent real property tax bill
and, if available, property tax assessment for each Hotel;
(5) the Preliminary Title Reports and
copies of all exceptions listed therein;
(6) all Operating Agreements;
(7) utility bills for each Hotel for the
past twelve months;
(8) all plans and specifications for the
Hotels in Seller's possession, some or all of which plans may be the
proprietary property of Residence Inn by Marriott, Inc. under the terms
of the existing Management Agreement for the Hotel;
(9) a current as-built and boundary survey
of each of the Hotels;
(10) the Management Agreements; and
(11) a current list of the employees at each
of the Hotels, showing department and job responsibility, date of hire,
salary or wage rate and, if available, average hours worked.
Buyer shall have until the expiration of the Inspection Period in which to
approve or disapprove in writing the foregoing documents. Buyer's failure to
respond in writing prior to expiration of the foregoing period shall be deemed a
disapproval of such items. Buyer's disapproval of any item other than the
documents listed in subparagraph (5), which shall be governed by Section 3.3,
shall constitute a failure of the condition set forth in Section 4.1(a)(1), and
this Agreement shall terminate in accordance with the provisions of Section 4.2.
(b) In addition, during the Inspection Period Buyer shall be
permitted to make a complete physical inspection of each Hotel and to review
and copy such other documents and information maintained in the files of each
Hotel as Buyer may deem material to its purchase of the Hotels. Buyer may also
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obtain, at its sole option and expense, reports regarding the condition of the
Hotels. Seller shall permit Buyer reasonable access to each Hotel during the
Contract Period and shall cooperate with Buyer in the making of the foregoing
investigations but shall not be obligated to incur any expense in connection
therewith. Buyer shall indemnify and defend Seller against and hold Seller
harmless from any and all loss, cost, liability and expense (including
reasonable attorneys' fees) arising out of Buyer's activities at the Hotels
during the Contract Period. Buyer shall have until the expiration of the
Inspection Period to approve or disapprove in writing all physical
environmental, economic and legal matters relating to the Hotels. Buyer's
failure to respond in writing prior to expiration of the Inspection Period shall
be deemed a disapproval of such matters. Buyer's disapproval of such matters
shall constitute a failure of the condition set forth in Section 4.1(a)(2) and
this Agreement shall terminate in accordance with Section 4.2.
(c) Buyer reserves the right to approve or disapprove any of
the matters set forth in Section 3.1(a), 3.1(b) and 3.3 in its sole and absolute
discretion.
3.2 Seller's Disclaimers.
(a) Except as otherwise expressly provided in this Agreement
and in the documents executed by Seller and delivered to Buyer at closing (the
"Closing Documents"), Seller disclaims the making of any representations or
warranties, express or implied, regarding the Hotels or matters affecting the
Hotels, including, without limitation, the physical condition of each Hotel,
title to or the boundaries of the Land, pest control matters, soil condition,
hazardous waste, toxic substance or other environmental matters, compliance with
building, health, safety, land use and zoning laws, regulations and orders,
structural and other engineering characteristics, traffic patterns, economic
projections, and all other information pertaining to each Hotel. Buyer hereby
agrees that the waiver or satisfaction of the conditions set forth in Section
4.1(a)(1) and (2) below shall constitute an acknowledgment that Seller has given
Buyer every opportunity to consider, inspect and review to its satisfaction the
physical, environmental, economic and legal condition of the Hotels and all
files and information in Seller's possession or control which Buyer deems
material to the purchase of the Hotels. Buyer, moreover, acknowledges (1) that
Seller did not develop or construct the Hotels, (2) that Buyer has entered into
this Agreement with the intention of making and relying upon its own
investigation of the physical, environmental, economic and legal condition of
the Hotels and (3) that Buyer is not relying upon any statements,
representations or warranties, other than those specifically set forth in this
Agreement and the Closing Documents, made by Seller or anyone acting or claiming
to act on Seller's behalf concerning the Hotels, including any Hotel employees
or other employees of the Operator. Buyer further acknowledges that it has not
received from Seller any accounting, tax, legal, architectural, engineering,
property management or other advice with respect to this transaction and is
relying solely upon the advice of its own accounting, tax, legal, architectural,
engineering, property management and other advisors. Subject to the provisions
of Section 8.1 of this Agreement, Buyer shall purchase each Hotel in its "as is"
condition on the Closing Date and assumes the risk that adverse physical,
environmental, economic or legal conditions may not have been revealed by its
investigation. Nothing in this Section, however, shall be deemed a limitation on
any representation, warranty, covenant, indemnity or agreement expressly made by
Seller in this Agreement or in the Closing Documents.
(b) Except with respect to any claims arising out of any
breach of covenants, representations or warranties set forth in this Agreement
and the Closing Documents, Buyer, for itself and its agents, affiliates,
successors and assigns, hereby releases and forever discharges Seller, its
agents, affiliates, successors and assigns from any and all rights, claims and
demands at law or in equity, whether known or unknown at the time of this
agreement, which Buyer has or may have in the future, arising out of the
physical, environmental, economic or legal condition of the Hotels.
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Buyer hereby specifically acknowledges that Buyer has carefully
reviewed this Section and discussed its import with legal counsel and that the
provisions of this Section are a material part of this Agreement.
/s/ Mark Murphy
---------------------
Buyer
3.3 Approval of Title Exceptions. Seller shall deliver to Buyer, as
provided in Section 3.1(a), the Preliminary Title Reports and copies of all
exceptions described therein and a current as-built and boundary survey of each
of the Hotels. Buyer shall be responsible for obtaining, at Buyer's cost, any
additional surveys Buyer may desire. Buyer shall advise Seller in writing prior
to the expiration of the Inspection Period of Buyer's disapproval of any title
or survey exception shown on the materials delivered by Seller. All exceptions
not disapproved in writing shall be deemed "Permitted Exceptions". In the event
Buyer disapproves of any such exception, Seller may elect to eliminate the
disapproved exception prior to closing, to provide affirmative insurance
reasonably acceptable to Buyer insuring over the disapproved exception or to
terminate this Agreement; provided, however, Seller shall be obligated to remove
on or before the Closing Date (i) all mortgages or deeds of trust of record on,
or agreed to by Seller after, the date of this Agreement and (ii) delinquent
real estate taxes and assessments. Seller shall give Buyer written notice of its
intended course of action within five business days following receipt of Buyer's
disapproval. In the event Seller is unwilling to remove the disapproved
exception and elects to terminate this Agreement, Buyer shall have five business
days following receipt of Seller's notice in which to accept the disapproved
exception, in which case Seller's notice of termination shall be void and the
previously disapproved exception shall be deemed a "Permitted Exception", or to
concur in Seller's termination of the Agreement. In no event shall Seller be
required to expend any monies to remove any disapproved exception, except as
otherwise expressly provided in this Section 3.3. If Buyer elects to undertake
an additional survey of the Land and Improvements for any or all of the Hotels
and such survey discloses title defects not previously disclosed to Buyer, Buyer
shall have until expiration of the Inspection Period in which to disapprove any
newly disclosed title defect. In the event of any such disapproval, the
procedures described above shall apply.
3.4 The Seller's Certificate. Seller shall deliver to Buyer on the
Closing Date a certificate (the "Seller's Certificate") updating the
representations and warranties of Seller set forth in Section 5.1 below through
the Closing Date; provided, however, that if Seller becomes aware during the
Contract Period of any matters which make any of such representations or
warranties untrue, Seller shall promptly disclose such matters to Buyer. In the
event that Buyer otherwise becomes aware during the Contract Period of any
matters which make any of Seller's representations or warranties untrue as of
the Closing Date, then Buyer shall notify Seller promptly of such matters. In
the event the Seller discloses any such matters to Buyer, or Buyer becomes aware
during the Contract Period of any such matters, and such matters are materially
adverse to Buyer, then Buyer shall have the option of terminating this Agreement
by written notice of such election to Seller on or before the Closing Date. If
any such matters disclosed by Seller or discovered by Buyer do not materially
and adversely affect the Buyer, then Buyer shall waive such matters and complete
the purchase of the Hotels in accordance with the terms of this Agreement. For
the purposes of this Section 3.4, "Buyer becomes aware" shall mean such matter
was expressly disclosed in any of the documents delivered or made available to
Buyer pursuant to Section 3.1(a), expressly described in any written report
obtained by Buyer from a third party or within the actual knowledge of any of
Jeffrey Fisher, Fred Shaw or Mark Murphy prior to the Closing Date.
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ARTICLE IV
CONDITIONS PRECEDENT
--------------------
4.1 Conditions.
(a) Notwithstanding anything in this Agreement to the
contrary, Buyer's obligation to purchase the Hotels shall be subject to and
contingent upon the satisfaction or waiver of the following conditions
precedent:
(1) Buyer's inspection and approval, within the
Inspection Period, of each of the documents described in Section 3.1
above;
(2) Buyer's inspection and approval, within the
Inspection Period, of all other physical, environmental, economic and
legal matters relating to the Hotels, pursuant to Section 3.1(b) above,
(3) the willingness of Title Company to issue, upon
the sole condition of the payment of its regularly scheduled premium,
its standard American Land Title Association owners form policy of
title insurance for the Hotel ("Buyer's Title Policies"), insuring
Buyer in the amount of the Purchase Price allocated to such Hotel that
title to the Land and Improvements for each Hotel is vested of record
in Buyer on the Closing Date, subject only to the printed conditions
and exclusions of such policy and the Permitted Exceptions;
(4) the continued operation of the Hotels during the
Contract Period in accordance with the provisions of Section 5.2;
(5) the approval of this transaction by the Board of
Trustees of Innkeepers USA Trust, which approval shall be deemed given
by Buyer's execution of this Agreement;
(6) Seller shall have delivered to Buyer on or before
the Closing Date, all of the documents and other information required
of Seller under Sections 3.1(a) and 7.1;
(7) Seller shall have delivered to Buyer a written
waiver by Operator of any requirement to complete on or before the
Closing Date upgrades to the rooms at the Columbus East Hotel known as
the "Generation V Package";
(8) Seller's representations and warranties set forth
in Section 5.1 shall be true and correct in all material respects as of
the date hereof and as of the Closing Date and Seller shall have
performed in all material respects its covenants and other obligations
under this Agreement; and
(9) Seller shall have delivered to Buyer, or shall be
prepared to deliver to Buyer at each Hotel immediately following the
closing:
(A) Certificate(s)/Registration of Title for any
vehicle owned by the Seller and used in connection with the
Hotels;
(B) All certificates of occupancy for the Hotels
which are in Seller's possession; and
(C) All books, records, operating reports,
Operating Agreements, files and other materials in Seller's
possession or control which are necessary to maintain
continuity of operation of the Hotels.
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(b) Notwithstanding anything in this Agreement to
the contrary, Seller's obligation to sell the Hotels shall be subject to
and contingent upon the satisfaction or waiver of the following conditions
precedent:
(1) the approval of this Agreement by Seller's
Investment Committee, which approval shall be deemed given by Seller's
execution of the Agreement;
(2) Buyer's timely approval of the conditions set
forth in Sections 4.1(a)(1) and (2); and
(3) either the delivery to Seller of a written
release by Operator of all obligations under the Management Agreements
from and after the Closing Date or satisfactory assurances that Seller
will incur no liability in connection with the termination of the
Management Agreements other than the obligation to pay management fees
and to reimburse expenses of Operator attributable to the period prior
to the Closing Date.
4.2 Failure or Waiver of Conditions Precedent. In the event any of the
conditions set forth in Section 4.1 are not fulfilled or waived, this Agreement
shall terminate, all rights and obligations hereunder of each party shall be at
an end and Seller shall instruct the Title Company to return the Deposit and all
interest accrued thereon to Buyer. Either party may, at its election, at any
time or times on or before the date specified for the satisfaction of the
condition, waive in writing any of the conditions for the benefit of such party
set forth in Section 4.1(a) and 4.1(b) above. In any event, Buyer's consent to
the close of escrow pursuant to this Agreement shall waive any remaining
unfulfilled conditions.
ARTICLE V
COVENANTS, WARRANTIES AND REPRESENTATIONS
-----------------------------------------
5.1 Seller's Warranties and Representations. Seller hereby represents
and warrants to Buyer as follows:
(a) Seller has full power and lawful authority to enter into
and carry out the terms and provisions of this Agreement and to execute and
deliver all documents which are contemplated by this Agreement and all actions
of Seller and of its general partner(s) necessary to confer such power and
authority upon the persons executing this Agreement and all documents which are
contemplated by this Agreement on behalf of Seller have been taken;
(b) This Agreement has been duly authorized by all necessary
action on the part of Seller, has been duly executed and delivered by Seller and
constitutes the valid and binding agreement of Seller.
(c) No person or entity other than Seller has an ownership
interest in the Hotels, nor is the consent of any person or entity required in
connection with Seller's performance of its obligations hereunder which has not
been obtained.
(d) There are no outstanding agreements (written or oral)
pursuant to which Seller has agreed to sell or has granted an option or right of
first refusal to purchase the Hotels or any part thereof.
(e) To Seller's knowledge, Seller has received no written
notice of any special taxes or assessments relating to the Hotels or any part
thereof or any planned public improvements that may result in a special tax or
assessment against any of the Hotels.
(f) To Seller's knowledge, Seller has received no written
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notice within the past three years of any violation of any provision of any
applicable building, zoning, subdivision, environmental or other governmental
ordinance, resolution, statute, rule, order or regulation, including but not
limited to those of environmental agencies or insurance boards of underwriters,
with respect to the ownership, operation, use, maintenance or condition of the
Hotels or any part thereof, or requiring any repairs or alterations other than
those that have been made prior to the date hereof.
(g) To Seller's knowledge, Seller has provided to Buyer true
and correct copies of each of the Operating Agreements in the form provided to
Seller by Operator.
(h) To Seller's knowledge, Seller has received no written
notice of any condemnation or eminent domain proceeding pending or threatened
against the Hotels or any part thereof or of any change or proposed change in
the route, grade or width of, or otherwise affecting, any street or road
adjacent to or serving the Hotels
(i) To Seller's knowledge, Seller has received no written
notice of any action, suit or proceeding pending or threatened against Seller in
any court, before any arbitrator or before or by any governmental body other
than the Nelson litigation previously disclosed to Buyer and litigation which is
fully covered by insurance.
(J) Seller has no employees at the Hotels.
(k) To Seller's knowledge, all books and records and financial
statements provided to Buyer ("Financial Information") are correct and complete
copies of the Financial Information provided to Seller by Operator and present
accurately the results of the operations of the Hotels for the periods
indicated.
(l) All of the Personal Property, Intangible Property and
Inventory being conveyed by Seller to Buyer will be free and clear on the
Closing Date of all liens created by Seller and, to Seller's knowledge, Seller
has good, merchantable title thereto and the right to convey same in accordance
with the terms of the Agreement.
(m) No act of bankruptcy has occurred with respect to the
Seller or any of the general partners of Seller
For the purposes of this Section 5.1, "Seller's knowledge" shall mean
the actual knowledge of Minton Newell or Lorenz Menrath, after making inquiry by
means of the Inquiry Memorandum attached to this Agreement as Exhibit H of the
individuals listed thereon, each of whom responded to such Inquiry Memorandum.
5.2 Seller's Covenants. Seller hereby covenants and agrees as follows:
(a) During the Contract Period, Seller shall not, and shall
direct Operator (except as otherwise permitted by the Management Agreements) not
to, enter into any new management agreement, maintenance or repair contract,
supply contract, lease or other agreements with respect to the Hotels or any
agreements modifying the Operating Agreements, unless (i) any such agreement or
modification will not bind Buyer or the Hotels after the Closing Date or (ii)
Seller or Operator has obtained Buyer's prior written consent to such agreement
or modification.
(b) During the Contract Period, Seller shall not, and shall
direct Operator (except as otherwise permitted by the Management Agreements) not
to, release or modify any warranties or guarantees, if any, of manufacturers,
suppliers and installers relating to the Improvements and the Personal Property
or any part thereof, except with the prior written consent of Buyer.
(c) During the Contract Period, Seller shall direct Operator
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to pay the premium on, and not cancel or voluntarily allow to expire, any of the
currently existing insurance coverages pertaining to any of the Hotels unless
such insurance is replaced, without any lapse of coverage, by another policy or
policies providing coverage at least as extensive as the policy or policies
being replaced.
(d) Seller shall direct Operator, during the Contract Period
and consistent with the terms of the Management Agreements, to (i) operate the
Hotels only in the usual, regular and ordinary manner consistent with the
Seller's prior practice, (ii) maintain its books of account and records in the
usual, regular and ordinary manner, in accordance with sound accounting
principles applied on a basis consistent with the basis used in keeping its
books in prior years and (iii) use all reasonable efforts to preserve intact its
present business organization, keep available the services of its present
management personnel assigned to the Hotels and preserve its relationships with
suppliers and others having business dealings with the Hotels. Except as
otherwise permitted hereby, during the Contract Period, Seller shall not take,
and shall direct Operator not to take, any action or fail to take action the
result of which (i) would have a material adverse effect on the Hotels or the
Buyer's ability to continue the operation thereof after the Closing Date in
substantially the same manner as presently conducted, (ii) would reduce or cause
to be reduced any room rents or other charges, or (iii) would cause any of the
representations and warranties contained in this Agreement to be untrue as of
the Closing Date. Seller shall deliver to Buyer or direct Operator to deliver to
Buyer during the Contract Period copies of all reports generated by Operator
showing the income and expenses of the Hotels and all departments thereof,
together with such periodic information with respect to occupancy, average daily
rate, revenue per available room, room reservations and other bookings as
Operator customarily prepares for its own or Seller's use.
(e) Seller shall use its best efforts to cause Operator to
complete prior to the Closing Date, and, in any event, shall pay all costs
associated with, the refurbishment of 29 rooms at the Altamonte Springs Hotel
which is currently in progress.
(f) For a period of one year following the Closing Date,
Seller shall provide access by Buyer's representatives to Seller's accountants
and to all financial and other information relating to the Hotels in its
possession, in each case as would be reasonably required to evaluate and/or
prepare audited financial statements in conformity with Regulation S-X of the
SEC and to prepare a registration statement, report or disclosure statement for
filing with the SEC. Seller shall, if requested, provide to Buyer's
representatives a signed representative letter for use in rendering an opinion
on the financial statements related to the Hotels and Seller shall use
reasonable efforts to assist Buyer in obtaining (i) access to any Operator
maintained records, and (ii) a signed representative letter from the Operator
for use in rendering an opinion. Seller shall, if requested, authorize and
direct Seller's accountants, at Buyer's expense, to cooperate with Innkeepers
USA Trust in providing to them reports and consents relating to financial
statements prepared or to be prepared by such accountants relating to the Hotels
and included in whole or in part in SEC filings, including but not limited to
registration statements.
5.3 Buyer's Warranties and Representations. Buyer hereby represents and
warrants to Seller that (a) Buyer and any entity to which Buyer may assign this
Agreement pursuant to Section 8.4 hereof have, and as of the Closing Date shall
have, full power and lawful authority to enter into and carry out the terms and
conditions of this Agreement and to execute and deliver all documents which are
contemplated by this Agreement, and (b) all actions necessary to confer such
power and authority upon the persons executing this Agreement and all documents
which are contemplated by this Agreement to be executed on behalf of Buyer or
its assignee have been taken.
5.4 Limitations. The parties agree that (a) Seller's warranties and
representations contained in this Agreement and in any document (including any
estoppel or other certificate) executed by Seller pursuant to this Agreement
shall survive Buyer's purchase of the Hotels and the delivery of the Deeds only
for a period of 365 days after the Closing Date (the "Limitation Period"), and
(b) Buyer shall provide actual written notice to Seller of any breach of such
warranties or representations discovered by Buyer during the Limitation Period
and shall allow Seller 30 days within which to cure such breach, or, if such
breach cannot reasonably be cured within 30 days, an additional reasonable time
10
<PAGE>
period not to exceed 90 days, so long as such cure has been commenced within
such 30 days and diligently pursued. If Seller fails to cure such breach after
actual written notice and within such cure period, Buyer's sole remedy shall be
an action at law for damages as a consequence thereof, which must be commenced,
if at all, within the Limitation Period; provided, however, that if within the
Limitation Period Buyer gives Seller written notice of such a breach and Seller
commences to cure and thereafter terminates such cure effort, Buyer shall have
an additional 30 days from the date Buyer is notified in writing of such
termination or 120 days following expiration of the Limitation Period, whichever
occurs first, within which to commence an action at law for damages as a
consequence of Seller's failure to cure. The Limitation Period referred to
herein shall apply to known as well as unknown breaches of such warranties or
representations. The parties acknowledge that, pursuant to the provisions of
Section 2.8 above, Buyer's consent to the close of escrow in this transaction
shall constitute a waiver of any breach of representations or warranties arising
out of matters of which Buyer becomes aware (as that phrase is defined in
Section 3.1(a)) prior to the Closing Date.
ARTICLE VI
DEPOSIT
-------
Contemporaneously with the execution of this Agreement, Buyer has
deposited in the escrow established with the Title Company for this transaction
cash or certified funds in the amount of $500,000 (the "Initial Deposit"). In
the event Buyer terminates this Agreement prior to expiration of the Inspection
Period, the full amount of the Initial Deposit shall be returned to Buyer. In
the event Buyer elects to proceed with the transaction, Buyer shall deposit with
the Title Company prior to expiration of the Inspection Period cash or certified
funds in the additional amount of $500,000 (with the Initial Deposit, the
"Deposit"). All portions of the Deposit shall be held by the Title Company in an
interest bearing account pursuant to instructions from Buyer and Seller, with
the interest thereon earned for the account of Buyer. In the event that (a) the
conditions precedent set forth in Section 4.1 above shall have been satisfied or
waived, (b) Seller shall have performed fully or tendered performance of its
obligations hereunder and (c) Buyer shall be unable or fail to perform its
obligations hereunder, then the entire amount of the Deposit, plus accrued
interest, shall be retained by Seller. BUYER AND SELLER HEREBY ACKNOWLEDGE AND
AGREE THAT SELLER'S DAMAGES IN THE EVENT OF SUCH A BREACH OF THIS AGREEMENT BY
BUYER WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE AMOUNT OF THE
DEPOSIT PLUS ACCRUED INTEREST IS THE PARTIES' BEST AND MOST ACCURATE ESTIMATE OF
THE DAMAGES SELLER WOULD SUFFER IN THE EVENT THE TRANSACTION PROVIDED FOR IN
THIS AGREEMENT FAILS TO CLOSE, AS A RESULT OF BUYER'S BREACH, AND THAT SUCH
ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS
AGREEMENT. BUYER AND SELLER AGREE THAT SELLER'S RIGHT TO RETAIN THE DEPOSIT PLUS
ACCRUED INTEREST SHALL BE THE SOLE REMEDY OF SELLER AT LAW IN THE EVENT OF A
BREACH OF THIS AGREEMENT BY BUYER.
ACCEPTED AND AGREED TO:
/s/ Minton J. Newell /s/ Mark Murphy
----------------------------- ------------------------------
Seller Buyer
In the event that this transaction is consummated as contemplated by this
Agreement, then the entire amount of the Deposit shall be credited against the
Purchase Price. The entire amount of the Deposit, plus accrued interest, shall
be returned immediately to Buyer in the event that (a) the conditions precedent
set forth in Section 4.1 above shall have been satisfied or waived, (b) Buyer
shall have performed fully or tendered performance of its obligations hereunder
and (c) Seller shall be unable or fail to perform its obligations under this
Agreement.
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ARTICLE VII
ESCROW AND CLOSING
------------------
7.1 Escrow Arrangements. An escrow for the purchase and sale
contemplated by this Agreement has been opened by Seller with Title Company.
Seller and Buyer shall each deliver escrow instructions to the Title Company
consistent with this Article VII and the parties shall deposit in escrow the
following funds and documents:
(a) Seller shall deposit:
(1) the duly executed and acknowledged Deeds;
(2) the duly executed Bills of Sale;
(3) duly executed counterparts of the Assignments of
Intangible Property;
(4) if applicable, duly executed counterparts of
the Assignments of Management Agreement;
(5) the duly executed Seller's Certificate;
(6) a certificate from Seller certifying the
information required by ss. 1445 of the Internal Revenue Code and the
regulations issued thereunder to establish, for the purposes of
eliminating Buyer's tax withholding obligations, that Seller is not a
"foreign person" as defined in Internal Revenue Code ss. 1445(f)(3)
(the "FIRPTA Certificate"); and
(7) any other documents or instruments reasonably
requested by Buyer or required to close this transaction in accordance
with the terms of this Agreement.
(b) Buyer shall deposit:
(1) cash in an amount equal to the balance of the
Purchase Price ("Seller's Funds"), plus sufficient additional cash to
pay Buyer's share of all escrow costs and closing adjustments and
expenses;
(2) duly executed counterparts of the Assignments of
Intangible Property;
(3) if applicable, duly executed counterparts of the
Assignments of Management Agreement;
(4) a certificate duly executed by Buyer in favor of
Seller confirming the waivers and acknowledgments set forth in Section
3.2 above (the "Buyer Certificate"); and
(5) any other documents or instruments reasonably
requested by the Seller or required to close this transaction in
accordance with the terms of this Agreement.
7.2 Closing. Title Company shall close escrow by:
(a) recording the Deeds;
(b) issuing Buyer's Title Policies to Buyer;
(c) delivering to Buyer the Bill of Sale, the FIRPTA
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Certificate, the Seller's Certificate and the counterparts of the Assignments of
Intangible Property and, if applicable, Assignments of Management Agreement
executed by Seller; and
(d) delivering to Seller the counterparts of the Assignments
of Intangible Property and, if applicable, Assignments of Management Agreement
executed by Buyer, the Buyer's Certificate and Seller's Funds (after adjusting
for prorations and credits as described below).
7.3 Closing Adjustments.
(a) Unless otherwise provided herein, the following items shall be
adjusted between Buyer and Seller as of the cut-off time for Operator's
accounting period on January 2, 1998 (the "Cut-Off Time"):
(1) Buyer shall be credited with any deposits or
advance payments for room reservations or functions for any period
after the Cut-Off Time. Seller shall be credited with any refundable
deposits held by any utility, governmental agency or service contractor
with respect to any of the Hotels which the utility, agency or
contractor verifies in writing are transferable to Buyer or are held in
the name of the Hotel. Buyer shall be obligated to substitute its own
bond for any bond held by a utility with respect to any of the Hotels.
(2) Net guest room revenue of each Hotel, whether in
cash or in accounts receivable, arising from occupancy for the night
beginning on January 2, 1998 and ending on January 3, 1998 shall be
credited to Seller.
(3) Seller shall retain all room rent receivables
existing as of the Cut-Off Time. Buyer and Seller shall cooperate with
Operator as reasonably required to collect such receivables after the
Cut-Off Time. Buyer shall direct Operator to pay to Seller all such
receivable amounts immediately upon receipt by Operator. All amounts
collected shall be applied to the invoice designated by the payor or,
if not designated, the oldest receivable then outstanding for the same
account party.
(4) Real estate taxes and assessments and personal
property taxes shall be pro-rated in escrow as of the Closing Date.
Gross receipts taxes or other occupancy taxes, however denominated,
imposed by any taxing authority on any of the Hotels shall be prorated
between Buyer and Seller as of the Cut-Off Time.
(5) Block protect turned off here.All other items of
income and expense including, without limitation, room rents
receivable from current guests of each Hotel as set forth in the guest
ledger for periods prior to the night preceding the Cut-Off Time,
water, sewer, electricity and gas charges, management fees,
reimbursements to Operator under the Management Agreements, items of
expense under maintenance contracts, service contracts,equipment and
other capital leases, rental contracts or equipment or telephone
contracts, advertising contracts and cleaning contracts for all
periods prior tothe Cut-Off Time shall be paid to or by Seller, as
appropriate. Buyer shall be entitled to receive all such items of
income and shall pay all such expensesattributable to the period on
and after the Cut-Off Time.
(b) Seller shall be entitled to all cash, bank account
balances (including, without limitation, all funds in any capital reserve
accounts) and vending machine receipts relating to the Hotel in existence as of
the Cut-Off Time. Buyer shall be responsible for establishing its own bank
accounts for the Hotel.
(c) Buyer shall receive a credit at closing in the amount of
$10,000 for the purpose of upgrades to the front entrance to the Ontario Hotel.
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(d) In the event the closing occurs on a date prior to
January 2, 1998, Buyer shall receive an estimated net income credit of $20,000
for each day elapsed from and after the Closing Date to and including January 2,
1998. In the event the closing occurs after January 2, 1998, Seller shall
receive an estimated net income credit of $20,000 for each day elapsed from and
after January 2, 1998 to and including the Closing Date. The actual amount of
the net income credit will be determined as part of the post-closing adjustment
described in subsection (e) below.
(e) The provisions of this section 7.3 may not specify all
adjustments properly to be made in a transaction of this nature. Representatives
of Buyer and Seller shall perform all of the adjustments, including any not
specifically referred to herein, which are appropriate and usual. The
adjustments hereunder shall be calculated or paid in an amount based upon a fair
and reasonable estimated accounting performed and agreed to by representatives
of Seller and Buyer at the closing. Subsequent final adjustments and payments
shall be made in cash or other immediately available funds as soon as
practicable after the Closing Date, based upon an agreed accounting performed by
representatives of Seller and Buyer. In the event the parties have not agreed
with respect to the adjustments required to be made pursuant to this section 7.3
within such 120-day period, upon application by either party, Pannell, Kerr &
Forster shall determine any such adjustments which have not theretofore been
agreed to between the parties, and such determination shall be final and binding
between Seller and Buyer. The charges of Pannell, Kerr & Forster shall be borne
in equal shares by Seller and Buyer.
7.4 Closing Costs. Buyer shall pay (a) the recording costs and any
governmental filing fees for this transaction, (b) the premiums and any related
title search for Buyer's Title Policies, including the cost of any endorsements
requested by Buyer, (c) all costs associated with Seller's termination or
assumption of the Management Agreements (other than management fees and expense
reimbursements attributable to the period prior to the Cut-Off Time), (d)
Buyer's due diligence costs and attorneys fees and (e) the Title Company's
escrow fee. Buyer shall also reimburse Seller at closing for the cost of the
surveys and the Phase I environmental reports delivered pursuant to Section
3.1(a). Seller shall pay to all governmental documentary transfer or transaction
taxes or fees due on transfer of the Hotels to Buyer, (y) all capital gains and
other income taxes assessed against Seller by any federal, state or local taxing
authority as a result of this transaction, and (z) Seller's attorneys fees. In
addition, Buyer shall pay any sales or use taxes determined to be payable in
connection with this transaction.
7.5 Insurance. Seller shall cancel Seller's existing blanket fire and
extended coverage insurance policy, as it affects the Hotels, as of the Closing
Date, and Seller shall receive any premium refund due thereon.
7.6 Closing Date. The Title Company shall close escrow on the Closing
Date which shall be the date upon which the conditions precedent set forth in
Article IV of this Agreement have been timely met or waived, provided that the
Closing Date shall be no later than December 30, 1998 unless extended in a
writing executed by both parties.
ARTICLE VIII
MISCELLANEOUS
-------------
8.1 Damage or Destruction; Condemnation.
(a) Subject to the provisions of subsection (b) below, Buyer
shall be bound to purchase the Hotels for the Purchase Price as required by the
terms of this Agreement without regard to the occurrence during the Contract
Period of any damage to or destruction of any of the Improvements ("Contract
Period Damage") or the institution or maintenance of any condemnation or similar
proceeding with respect to any of the Hotels ("Condemnation"). Buyer shall
receive a credit in escrow in the amount of any insurance or condemnation
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proceeds (net of reasonable costs incurred in securing such proceeds) collected
by Seller prior to the Closing Date as a result of any Contract Period Damage or
Condemnation and not expended by Seller on repair, replacement or restoration of
the damaged Hotel pursuant to subsection (c) below, plus the amount of any
deductible in connection with such insurance. Seller shall assign to Buyer at
closing the right to receive any such insurance or condemnation proceeds and
shall promptly deliver to Buyer any such proceeds as shall be collected by
Seller following the Closing Date.
(b) Notwithstanding the foregoing, if the cost of repair,
replacement or restoration of any Hotel attributable to any Contract Period
Damage exceeds 15% of the Purchase Price allocated to such Hotel or in the event
any Condemnation proceedings are instituted, either party may elect to terminate
this Agreement by written notice to the other given not more than 10 days
following the event of damage or destruction or notification of the Condemnation
and not later than one day prior to the Closing Date. If the Contract Period
Damage arises out of an uninsured risk, Seller shall elect, by written notice
given within such 10-day period, either to terminate this Agreement or to close
escrow as contemplated in this Agreement with a reduction in the Purchase Price
equal to the cost of repair, replacement or restoration of the damaged Hotel.
Upon termination of this Agreement pursuant to this paragraph, Seller shall
return to Buyer the Deposit and all rights and obligations hereunder of each
party shall be at an end. In the event neither party timely elects to terminate
this Agreement pursuant to this subsection, the provisions of subsection (a)
above shall be applicable.
(c) Upon the occurrence of any Contract Period Damage, Seller
may, but shall not be obligated to, use any insurance proceeds collected with
respect to such Contract Period Damage to repair, replace or restore the damaged
Hotel to the extent reasonably feasible prior to the Closing Date. Seller's
election to commence the repair, replacement or restoration of the Hotel prior
to the Closing Date shall in no way imply that Seller has made any
representation or warranty with respect to any work performed in connection with
such repair, replacement or restoration ("Seller's Repairs"). The plans,
materials, choice of contractor and all other material aspects of the
performance of Seller's Repairs shall be subject to Buyer's review and approval
(which shall not be unreasonably withheld) and to the general disclaimer set
forth in Section 2.4 above. In the event that Buyer does not approve any aspect
of Seller's Repairs in writing within 5 days following Seller's request for such
approval, Seller may, at its option, terminate this Agreement by written notice
delivered to Buyer on or before the Closing Date. Upon termination of this
Agreement pursuant to this paragraph, Seller shall return to Buyer the Deposit
and all rights and obligations hereunder of each party shall be at an end.
(d) Notwithstanding anything in this Agreement to the
contrary, the insurance proceeds to be credited or delivered to Buyer pursuant
to this Section 8.1 shall exclude business interruption or rental loss insurance
proceeds, if any, allocable to the period through the Closing Date, which
proceeds shall be retained by Seller.
8.2 Brokerage Commissions and Finder's Fees.
(a) Each party to this Agreement warrants to the other and to
the general partner(s) of the other that, except as expressly set forth below,
no person or entity can properly claim a right to a real estate commission, real
estate finder's fee, real estate acquisition fee or other real estate
brokerage-type compensation (collectively, "Real Estate Compensation") based
upon the acts of that party with respect to the transaction contemplated by this
Agreement. Each party hereby agrees to indemnify and defend the other party and
the general partner(s) of the other party against and to hold the other harmless
from any and all loss, cost, liability or expense (including but not limited to
attorneys' fees and returned commissions) resulting from any claim for Real
Estate Compensation by any person or entity based upon such acts.
(b) Seller shall pay Hodges Ward Eliott, Inc. ("Broker") a
real estate commission pursuant to a separate agreement, and Broker shall pay
Sage Hospitality a commission as a co-operating broker. Buyer acknowledges that
Seller or any of its general partners may also pay SSR Realty Advisors, Inc.
and/or any of its affiliates a real estate brokerage commission at Seller's or
such general partner's expense.
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8.3 Successors and Assigns. Buyer may assign Buyer's rights or duties
hereunder without the prior written consent of Seller to any entity controlled
by Buyer or by Innkeepers USA Trust, but may not assign its rights or duties
hereunder to any other person or entity without Seller's prior written consent.
Any such assignment shall be made without any increase in the purchase price
payable to Buyer or the payment of any fees or commissions not approved in
writing to Seller. Any permitted assignment shall not relieve Buyer of its
obligations hereunder. This Agreement shall inure to the benefit of and be
binding upon the parties to this Agreement and their respective permitted
successors and assigns.
8.4 Notices. All written notices required to be given pursuant to the
terms hereof shall be either personally delivered or deposited in the United
States express mail or first class mail, registered or certified return receipt
requested, postage prepaid, and addressed as follows:
To Seller: Metric Partners Growth Suite
Investors, L.P.
c/o SSR Realty Advisors, Inc.
1 California Street, Suite 1400
San Francisco, California 94111
Attention: Mr. Minton Newell
with a copy to: SSR Realty Advisors, Inc.
One California St., Suite 1400
San Francisco, CA 94111
Attention: Herman H. Howerton, Esq.
and to: Sheppard, Mullin, Richter & Hampton
4 Embarcadero Center, 17th Floor
San Francisco, California 94111
Attention: Joan H. Story, Esq.
To Buyer: Innkeepers USA Limited Partnership
306 Royal Poinciana Way
Palm Beach, FL 33480
Attention: Mr. Jeffrey H. Fisher
with a copy to: Hunton & Williams
1900 K Street, N.W.
Washington, D.C. 20006
Attention: John M. Ratino, Esq.
The foregoing addresses may be changed from time to time by
written notice. Notices shall be deemed received upon the earlier of actual
receipt or three business days following mailing.
8.5 Time. Time is of the essence of every provision contained in this
Agreement.
8.6 Possession. Possession of each Hotel shall be delivered to Buyer on
the Closing Date, subject to the rights of guests in possession.
8.7 Incorporation by Reference. All of the exhibits attached to this
Agreement or referred to herein and all documents in the nature of such
exhibits, when executed, are by this reference incorporated in and made a part
of this Agreement.
8.8 No Deductions or Off-Sets. Buyer acknowledges that the Purchase
Price to be paid for the Hotels pursuant to this Agreement is a net amount and
shall not be subject to any off-sets or deductions (other than closing
adjustments made in accordance with Section 7.3).
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8.9 Attorneys' Fees. In the event any dispute between Buyer and Seller
should result in litigation, the prevailing party shall be reimbursed for all
reasonable costs incurred in connection with such litigation, including, without
limitation, reasonable attorneys' fees.
8.10 Construction. The parties acknowledge that each party and its
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments or exhibits hereto.
8.11 No Merger. The provisions of this Agreement shall not merge with
the delivery of the Deeds but shall, except as otherwise provided in this
Agreement, survive the close of escrow.
8.12 Governing Law. This Agreement shall be construed and interpreted
in accordance with and shall be governed and enforced in all respects according
to the laws of the State of California.
8.13 Disclosure of Information.
(a) Certain Definitions. For purposes of this Section 8.13, the
following terms shall have the respective meanings assigned to them in this
subsection (a):
(1) "Affiliate" shall mean: any person or entity directly or
indirectly controlling, controlled by or under common control with the
subject person or entity; any person or entity owning or controlling
10% or more of the outstanding voting securities of the subject entity;
any officer, director or partner of the subject entity; and any entity
for which the subject person or entity acts in the capacity of officer,
director or partner;
(2) "Buyer Group" shall mean Buyer and its Affiliates, and
the directors, officers, employees, partners, agents and
representatives of such parties;
(3) "Metric" shall mean Metric Realty, an Illinois general
partnership; and
(3) "Disclosure Document" shall mean any offering circular,
prospectus, report, advertisement, correspondence or other promotional
document which names or refers in any manner, directly or indirectly,
to Metric, any of its Affiliates or Seller.
(b) Restrictions on Disclosure. Buyer agrees that, unless Buyer
has obtained the prior written consent of Metric, Buyer shall not release,
publish or otherwise distribute, and shall not authorize or permit any person or
entity (including without limitation any member of the Buyer Group) to release,
publish or otherwise distribute, to any person or entity other than Metric or
any of its Affiliates, any Disclosure Document. The foregoing shall not prevent
Buyer from issuing such press releases as Buyer, in its sole discretion, shall
determine appropriate, provided that neither Seller nor any of its Affiliates
are named in the press release.
(c) Indemnification. Buyer and Buyer's principals shall indemnify
and hold harmless Metric, its Affiliates and Seller, and all directors,
officers, employees, partners, agents and representatives of such parties,
against and from any and all liability, losses, damages, costs and obligations
whatsoever (including without limitation attorneys' fees and costs) which arise
out of or relate in any way to the release, publishing or other distribution of
any Disclosure Document by Buyer or by any person or entity (including without
limitation any member of the Buyer Group) whom Buyer has authorized or permitted
to release, publish or otherwise distribute such Disclosure Document.
8.14 Liability. Buyer agrees that any liability of Seller under any
claim brought prior to the Closing Date Pursuant to this Agreement or any
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document or instrument delivered simultaneously or in connection with, or
pursuant to this Agreement, shall be limited to actual damages in an amount not
to exceed $1,000,000. With respect to any such claim brought following the
Closing Date, any liability of Seller shall be limited solely to the assets of
Seller, and shall in no event exceed the amount of $7,500,000. In no event shall
Buyer seek satisfaction for any such obligation from any of the general or
limited partners or agents of Seller, provided that Seller reserves from the
cash proceeds of sale distributed to Seller's partners at any time during the
Limitation Period not less than $7,500,000. Buyer specifically waives any right
to seek specific performance of Seller's obligations under this Agreement and
acknowledges that its only remedy in the event of a breach of this Agreement by
Seller shall be the right (as limited by this Section 8.14) to seek money
damages at law.
8.15 Right of First Offer. Seller hereby agrees, as an additional
inducement to Buyer to enter into this Agreement, that in the event Seller
elects to sell its leasehold interest in the Residence Inn located in Nashville,
Tennessee (the "Nashville Hotel"), Seller shall give written notice thereof to
Buyer, which notice shall state the price at which Seller is prepared to sell.
Buyer and Seller shall then have a period of 30 days in which to negotiate in
good faith a definitive Purchase Agreement setting forth the terms upon which
Buyer would be obligated to purchase the Nashville Hotel from Seller. If Buyer
and Seller do not enter into a mutually acceptable Purchase Agreement within
such 30 day period, Seller may thereafter sell the Nashville Hotel to a third
party for a price not less than 92% of the price offered to Buyer and otherwise
on such terms and conditions as Seller, in Seller's sole discretion, shall agree
to accept. The foregoing right of first offer shall not apply to any transfer or
other conveyance of the Nashville Hotel pursuant to a court-ordered sale or as
part of a settlement of the pending Nelson and/or Hardage litigations. Buyer
acknowledges that it has been advised that any sale of the Nashville Hotel
requires the prior written approval by the ground lessor of the proposed
transferee.
8.16 Captions. Captions or titles contained in this Agreement are
inserted only as a matter of convenience and for reference only, and in no way
limit, define or extend the provisions of this Agreement. No Other
Beneficiaries. Buyer and Seller acknowledge that this Agreement is solely for
their own benefit, that of the general partners of Seller, and, subject to
Section 8.3, that of their successors and assigns, and that no other party shall
have any rights or claims arising hereunder.
8.17 No Other Beneficiaries. Buyer and Seller acknowledge that this
Agreement is solely for their own benefit, that of the general partners of the
Seller, and, subject to Section 8.3, that of their successors and assigns, and
that no other party shall have any rights or claims arising hereunder.
8.18 Counterparts. This Agreement may be executed in one or more
counterparts. All counterparts so executed shall constitute one contract,
binding on all parties, even though all parties are not signatory to the same
counterpart.
8.19 Entire Agreement. This Agreement and the exhibits which are
attached hereto and all documents in the nature of such exhibits, when executed,
contain the entire understanding of the parties and supersede any and all other
written or oral understanding.
8.20 Further Assurances. The parties hereto agree to execute and
deliver such documents, and to take such other actions, as may be necessary to
carry out the intent and purposes of this Agreement.
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IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of
the day and year first above written.
SELLER:
METRIC PARTNERS GROWTH SUITE INVESTORS, L.P., a California
limited partnership
By: Metric Realty, an Illinois general partnership, its
managing general partner
By: SSR Realty Advisors, Inc., a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
--------------------------------------
Minton J. Newell, Director of Sales
BUYER:
INNKEEPERS USA LIMITED PARTNERSHIP
By: Innkeepers Financial Corporation
By /s/ Mark A. Murph
-------------------------------------
Mark A Murphy, Vice-President
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<TABLE>
EXHIBIT A
---------
LIST OF HOTELS
--------------
<CAPTION>
- ------------------------------------------------------------- ---------------------- -----------------------------------
Name and Address No. of Units Purchase Price Allocation
- ------------------------------------------------------------- ---------------------- -----------------------------------
<S> <C> <C>
Altamonte Springs Residence Inn 128 $8,862.000.00
270 Douglas Avenue
Altamonte Springs, Florida 32714
- ------------------------------------------------------------- ---------------------- -----------------------------------
Columbus East Residence Inn 80 $4,832,000.00
2084 South Hamilton Road
Columbus, Ohio 43232
- ------------------------------------------------------------- ---------------------- -----------------------------------
Fort Wayne Residence Inn 80 $5,011,000.00
4919 Lima Road
Ft. Wayne, Indiana 46808
- ------------------------------------------------------------- ---------------------- -----------------------------------
Indianapolis Residence Inn 88 $5,261,000.00
3553 Founders Road
Indianapolis, Indiana 46268
- ------------------------------------------------------------- ---------------------- -----------------------------------
Lexington Residence Inn 80 $7,129,000.00
1080 Newtown Pike
Lexington, Kentucky 40511
- ------------------------------------------------------------- ---------------------- -----------------------------------
Louisville Residence Inn 96 $10,064,000.00
120 North Hurstbourne Lane
Louisville, Kentucky 40222
- ------------------------------------------------------------- ---------------------- -----------------------------------
Ontario Residence Inn 200 $12,511,000.00
2025 East D Street
Ontario, California 91764
- ------------------------------------------------------------- ---------------------- -----------------------------------
Winston-Salem Residence Inn 88 $5,830,000.00
7835 Northpoint Blvd.
Winston-Salem, North Carolina 27106
- ------------------------------------------------------------- ---------------------- -----------------------------------
</TABLE>
20
<PAGE>
EXHIBIT B
---------
LIST OF MANAGEMENT AGREEMENTS
-----------------------------
1. Orlando Altamonte Springs, Florida Residence Inn Management Agreement
between Operator and Seller, dated as of December 13, 1995.
2. Columbus East, Ohio Residence Inn Amended and Restated Management
Agreement between Operator and Seller, dated as of December 13, 1995.
3. Ft. Wayne, Indiana Residence Inn Amended and Restated Management
Agreement between Operator and Seller, dated as of December 13, 1995.
4. Indianapolis North, Indiana Residence Inn Amended and Restated
Management Agreement between Operator and Seller, dated as of December
13, 1995.
5. Lexington North, Kentucky Amended and Restated Management Agreement
between Operator and Seller, dated as of December 13, 1995.
6. Louisville, Kentucky Residence Inn Amended and Restated Management
Agreement between Operator and Seller, dated as of December 13, 1995.
7. Ontario, California Residence Inn Management Agreement between Operator
and Seller, dated as of December 13, 1995.
8. Winston-Salem, North Carolina Residence Inn Amended and Restated
Management Agreement between Operator and Seller, dated as of December
13, 1995.
21
<PAGE>
EXHIBIT C
---------
LIST OF OPERATING AGREEMENTS
----------------------------
List of Operating Agreements not included with this Amendment. The Registrant
agrees to provide the Securities and Exchange Commission copies of said
Operating Agreements upon request.
EXHIBIT D
---------
LIST OF PRELIMINARY TITLE REPORTS
---------------------------------
1. Altamonte Springs Residence Inn Commitment for Title Insurance,
Commitment No. 509710500LW, issued as of February 28, 1997 by Chicago
Title Insurance Company, as amended by Endorsement 1, dated as of
September 10, 1997.
2. Columbus East Amended Commitment for Title Insurance, Commitment No.
97160117, issued as of September 9, 1997 by Chicago Title Insurance
Company.
3. Fort Wayne Residence Inn Commitment for Title Insurance, Commitment No.
97002696, as amended by an Endorsement dated as of September 8, 1997,
issued by Chicago Title Insurance Company.
4. Indiana Residence Inn Commitment for Title Insurance, Commitment No.
251-570, as amended by an Endorsement dated as of August 1, 1997,
issued by Chicago Title Insurance Company.
5. Lexington Residence Inn Commitment for Title Insurance, Commitment No.
BK67-30062, dated as of September 9, 1997, issued by Chicago Title
Insurance Company.
6. Louisville Residence Inn ALTA Commitment No. 100031, issued as of March
18, 1997 by Chicago Title Insurance Company and amended by an
Endorsement, dated as of September 10, 1997.
7. Ontario Residence Inn First Amended Preliminary Title Report, Order No.
7223074, issued as of August 20, 1997 by Chicago Title Company.
8. Winston-Salem Residence Inn Commitment for Title Insurance, Commitment
No. 9700390, issued as of March 10, 1997 by Chicago Title Insurance
Company, as amended by Endorsement No. 1 dated as of September 5, 1997.
22
<PAGE>
EXHIBIT E - 1
BILL OF SALE
------------
( Altamonte Springs Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Seller") hereby assigns, transfers, and
conveys to INNKEEPERS RI ALTAMONTE, L.P., a Virginia limited partnership
("Buyer"), all of Seller's right, title and interest in and to all Personal
Property and Inventory, as those terms are defined in that certain Purchase and
Sale Agreement between Seller and Buyer dated December 19, 1997 (the
"Agreement"), used in connection with that certain real property commonly known
as Altamonte Springs Residence Inn. The Personal Property and the Inventory is
being sold to and shall be accepted by Buyer in its "AS IS" condition and WITH
ALL FAULTS and without any representations or warranties except as expressly set
forth in the Agreement.
Seller covenants and warrants that it has full legal title to the
Personal Property and Inventory and that the Personal Property and Inventory is
free and clear of any and all security agreements, financing statements, or
other liens and encumbrances whatsoever.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of
December 30, 1997
METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P.,
a California limited partnership
By: Metric Realty, an Illinois
general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
--------------------
Its Director of Sales
-----------------
23
<PAGE>
EXHIBIT E - 2
BILL OF SALE
------------
( Columbus East Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Seller") hereby assigns, transfers, and
conveys to INNSKEEPERS RI GENERAL, L.P., a Virginia limited partnership
("Buyer"), all of Seller's right, title and interest in and to all Personal
Property and Inventory, as those terms are defined in that certain Purchase and
Sale Agreement between Seller and Buyer dated December 19, 1997 (the
"Agreement"), used in connection with that certain real property commonly known
as Columbus East Residence Inn. The Personal Property and the Inventory is being
sold to and shall be accepted by Buyer in its "AS IS" condition and WITH ALL
FAULTS and without any representations or warranties except as expressly set
forth in the Agreement.
Seller covenants and warrants that it has full legal title to the
Personal Property and Inventory and that the Personal Property and Inventory is
free and clear of any and all security agreements, financing statements, or
other liens and encumbrances whatsoever.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of
December 30, 1997
METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P.,
a California limited partnership
By: Metric Realty, an Illinois
general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
--------------------
Its Director of Sales
-----------------
24
<PAGE>
EXHIBIT E - 3
BILL OF SALE
------------
( Fort Wayne Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Seller") hereby assigns, transfers, and
conveys to INNSKEEPERS RI GENERAL, L.P, a Virginia limited partnership
("Buyer"), all of Seller's right, title and interest in and to all Personal
Property and Inventory, as those terms are defined in that certain Purchase and
Sale Agreement between Seller and Buyer dated December 19, 1997 (the
"Agreement"), used in connection with that certain real property commonly known
as Fort Wayne Residence Inn. The Personal Property and the Inventory is being
sold to and shall be accepted by Buyer in its "AS IS" condition and WITH ALL
FAULTS and without any representations or warranties except as expressly set
forth in the Agreement.
Seller covenants and warrants that it has full legal title to the
Personal Property and Inventory and that the Personal Property and Inventory is
free and clear of any and all security agreements, financing statements, or
other liens and encumbrances whatsoever.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of
December 30, 1997
METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P.,
a California limited partnership
By: Metric Realty, an Illinois
general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
--------------------
Its Director of Sales
-----------------
25
<PAGE>
EXHIBIT E - 4
BILL OF SALE
------------
( Indianapolis Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Seller") hereby assigns, transfers, and
conveys to INNSKEEPERS RI GENERAL, L.P, a Virginia limited partnership
("Buyer"), all of Seller's right, title and interest in and to all Personal
Property and Inventory, as those terms are defined in that certain Purchase and
Sale Agreement between Seller and Buyer dated December 19, 1997 (the
"Agreement"), used in connection with that certain real property commonly known
as Indianapolis Residence Inn. The Personal Property and the Inventory is being
sold to and shall be accepted by Buyer in its "AS IS" condition and WITH ALL
FAULTS and without any representations or warranties except as expressly set
forth in the Agreement.
Seller covenants and warrants that it has full legal title to the
Personal Property and Inventory and that the Personal Property and Inventory is
free and clear of any and all security agreements, financing statements, or
other liens and encumbrances whatsoever.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of
December 30, 1997
METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P.,
a California limited partnership
By: Metric Realty, an Illinois
general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
--------------------
Its Director of Sales
-----------------
26
<PAGE>
EXHIBIT E - 5
BILL OF SALE
------------
( Lexington Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Seller") hereby assigns, transfers, and
conveys INNSKEEPERS RI GENERAL, L.P, a Virginia limited partnership ("Buyer"),
all of Seller's right, title and interest in and to all Personal Property and
Inventory, as those terms are defined in that certain Purchase and Sale
Agreement between Seller and Buyer dated December 19, 1997 (the "Agreement"),
used in connection with that certain real property commonly known as Lexington
Residence Inn. The Personal Property and the Inventory is being sold to and
shall be accepted by Buyer in its "AS IS" condition and WITH ALL FAULTS and
without any representations or warranties except as expressly set forth in the
Agreement.
Seller covenants and warrants that it has full legal title to the
Personal Property and Inventory and that the Personal Property and Inventory is
free and clear of any and all security agreements, financing statements, or
other liens and encumbrances whatsoever.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of
December 30, 1997
METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P.,
a California limited partnership
By: Metric Realty, an Illinois
general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
--------------------
Its Director of Sales
-----------------
27
<PAGE>
EXHIBIT E - 6
BILL OF SALE
------------
(Louisville Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Seller") hereby assigns, transfers, and
conveys to INNSKEEPERS RI GENERAL, L.P, a Virginia limited partnership
("Buyer"), all of Seller's right, title and interest in and to all Personal
Property and Inventory, as those terms are defined in that certain Purchase and
Sale Agreement between Seller and Buyer dated December 19, 1997 (the
"Agreement"), used in connection with that certain real property commonly known
as Louisville Residence Inn. The Personal Property and the Inventory is being
sold to and shall be accepted by Buyer in its "AS IS" condition and WITH ALL
FAULTS and without any representations or warranties except as expressly set
forth in the Agreement.
Seller covenants and warrants that it has full legal title to the
Personal Property and Inventory and that the Personal Property and Inventory is
free and clear of any and all security agreements, financing statements, or
other liens and encumbrances whatsoever.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of
December 30, 1997
METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P.,
a California limited partnership
By: Metric Realty, an Illinois
general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
--------------------
Its Director of Sales
-----------------
28
<PAGE>
EXHIBIT E - 7
BILL OF SALE
------------
(Ontario Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Seller") hereby assigns, transfers, and
conveys INNSKEEPERS RI GENERAL, L.P, a Virginia limited partnership ("Buyer"),
all of Seller's right, title and interest in and to all Personal Property and
Inventory, as those terms are defined in that certain Purchase and Sale
Agreement between Seller and Buyer dated December 19, 1997 (the "Agreement"),
used in connection with that certain real property commonly known as Ontario
Residence Inn. The Personal Property and the Inventory is being sold to and
shall be accepted by Buyer in its "AS IS" condition and WITH ALL FAULTS and
without any representations or warranties except as expressly set forth in the
Agreement.
Seller covenants and warrants that it has full legal title to the
Personal Property and Inventory and that the Personal Property and Inventory is
free and clear of any and all security agreements, financing statements, or
other liens and encumbrances whatsoever.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of
December 30, 1997
METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P.,
a California limited partnership
By: Metric Realty, an Illinois
general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
--------------------
Its Director of Sales
-----------------
29
<PAGE>
EXHIBIT E - 8
BILL OF SALE
------------
( Winston-Salem Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Seller") hereby assigns, transfers, and
conveys to INNSKEEPERS RI GENERAL, L.P, a Virginia limited partnership
("Buyer"), all of Seller's right, title and interest in and to all Personal
Property and Inventory, as those terms are defined in that certain Purchase and
Sale Agreement between Seller and Buyer dated December 19, 1997 (the
"Agreement"), used in connection with that certain real property commonly known
as Winston-Salem Residence Inn. The Personal Property and the Inventory is being
sold to and shall be accepted by Buyer in its "AS IS" condition and WITH ALL
FAULTS and without any representations or warranties except as expressly set
forth in the Agreement.
Seller covenants and warrants that it has full legal title to the
Personal Property and Inventory and that the Personal Property and Inventory is
free and clear of any and all security agreements, financing statements, or
other liens and encumbrances whatsoever.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of
December 30, 1997
METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P.,
a California limited partnership
By: Metric Realty, an Illinois
general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
--------------------
Its Director of Sales
-----------------
30
<PAGE>
EXHIBIT F -1
------------
ASSIGNMENT OF INTANGIBLE PROPERTY
---------------------------------
(Altamonte Springs Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Assignor"), hereby assigns, transfers and
conveys to INNKEEPERS RI ALTAMONTE, L.P., a Virginia limited partnership
("Assignee"), all of Assignor's right, title and interest in and to the
Intangible Property, as that term is defined in that certain Agreement for
Purchase and Sale of Eight Residence Inns (the "Agreement") dated December 19,
1997 entered into by and between Assignor, as Seller, and Assignee, as Buyer,
pertaining to the Altamonte Springs Residence Inn located at 270 Douglas Avenue,
Altamonte Springs, Florida 32714.
Assignee hereby assumes and agrees to keep, perform and fulfill all
of Assignor's obligations as obligor under the contracts described in Schedule 1
to this Assignment (the "Assigned Contracts"). Assignee also agrees to
indemnify, protect, defend and hold Assignor harmless from and against any and
all claims, damages, losses, costs and expenses (including attorneys' fees)
arising in connection with the Assigned Contracts and relating to the period
after Closing.
Assignor hereby covenants and warrants that it has performed all of
the obligations to be performed by Assignor pursuant to and in accordance with,
or with respect to, the Assigned Contracts and agrees to indemnify, protect,
defend and hold Assignee harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys' fees) arising in connection
with the Assigned Contracts and relating to the period prior to Closing.
This Assignment of Intangible Property is given pursuant to the
Agreement.
31
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Intangible Property as of December 30, 1997.
ASSIGNEE: INNKEEPERS RI ALTAMONTE, L.P.,
a Virginia limited partnership
By: Innkeepers RI Altamonte, Inc.
a Virginia corporation,
its General Partner
By /s/ Mark Murphy
------------------------------
Its Vice President
------------------------------
ASSIGNOR: METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P., a California
limited partnership
By: Metric Realty, an Illinois
general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
---------------------
Its Director of Sales
32
<PAGE>
EXHIBIT F - 2
-------------
ASSIGNMENT OF INTANGIBLE PROPERTY
---------------------------------
(Columbus East Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Assignor"), hereby assigns, transfers and
conveys to INNKEEPERS RI GENERAL, L.P., a Virginia limited partnership
("Assignee"), all of Assignor's right, title and interest in and to the
Intangible Property, as that term is defined in that certain Agreement for
Purchase and Sale of Eight Residence Inns (the "Agreement") dated December 19,
1997 entered into by and between Assignor, as Seller, and Assignee, as Buyer,
pertaining to the Columbus East Residence Inn located at 2084 South Hamilton
Road, Columbus, Ohio 43232.
Assignee hereby assumes and agrees to keep, perform and fulfill all
of Assignor's obligations as obligor under the contracts described in Schedule 1
to this Assignment (the "Assigned Contracts"). Assignee also agrees to
indemnify, protect, defend and hold Assignor harmless from and against any and
all claims, damages, losses, costs and expenses (including attorneys' fees)
arising in connection with the Assigned Contracts and relating to the period
after Closing.
Assignor hereby covenants and warrants that it has performed all of
the obligations to be performed by Assignor pursuant to and in accordance with,
or with respect to, the Assigned Contracts and agrees to indemnify, protect,
defend and hold Assignee harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys' fees) arising in connection
with the Assigned Contracts and relating to the period prior to Closing.
This Assignment of Intangible Property is given pursuant to the
Agreement.
33
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Intangible Property as of December 30, 1997.
ASSIGNEE: INNKEEPERS RI GENERAL, L.P.,
a Virginia limited partnership
By: Innkeepers RI General, Inc.
a Virginia corporation,
By /s/ Mark Murphy
------------------------------
Its Vice President
------------------------------
ASSIGNOR: METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P., a California
limited partnership
By: Metric Realty, an Illinois
general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
---------------------
Its Director of Sales
34
<PAGE>
EXHIBIT F - 3
-------------
ASSIGNMENT OF INTANGIBLE PROPERTY
---------------------------------
(Fort Wayne Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Assignor"), hereby assigns, transfers and
conveys to INNKEEPERS RI GENERAL, L.P., a Virginia limited partnership
("Assignee"), all of Assignor's right, title and interest in and to the
Intangible Property, as that term is defined in that certain Agreement for
Purchase and Sale of Eight Residence Inns (the "Agreement") dated December 19,
1997 entered into by and between Assignor, as Seller, and Assignee, as Buyer,
pertaining to the Fort Wayne Residence Inn located at 4919 Lima Road, Ft. Wayne,
Indiana 46808.
Assignee hereby assumes and agrees to keep, perform and fulfill all
of Assignor's obligations as obligor under the contracts described in Schedule 1
to this Assignment (the "Assigned Contracts"). Assignee also agrees to
indemnify, protect, defend and hold Assignor harmless from and against any and
all claims, damages, losses, costs and expenses (including attorneys' fees)
arising in connection with the Assigned Contracts and relating to the period
after Closing.
Assignor hereby covenants and warrants that it has performed all of
the obligations to be performed by Assignor pursuant to and in accordance with,
or with respect to, the Assigned Contracts and agrees to indemnify, protect,
defend and hold Assignee harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys' fees) arising in connection
with the Assigned Contracts and relating to the period prior to Closing.
This Assignment of Intangible Property is given pursuant to the
Agreement.
35
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Intangible Property as of December 30, 1997.
ASSIGNEE: INNKEEPERS RI GENERAL, L.P.,
a Virginia limited partnership
By: Innkeepers RI General, Inc.
a Virginia corporation,
By /s/ Mark Murphy
------------------------------
Its Vice President
------------------------------
ASSIGNOR: METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P., a California
limited partnership
By: Metric Realty, an Illinois
general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
---------------------
Its Director of Sales
36
<PAGE>
EXHIBIT F - 4
-------------
ASSIGNMENT OF INTANGIBLE PROPERTY
---------------------------------
(Indianapolis Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Assignor"), hereby assigns, transfers and
conveys to INNKEEPERS RI GENERAL, L.P., a Virginia limited partnership
("Assignee"), all of Assignor's right, title and interest in and to the
Intangible Property, as that term is defined in that certain Agreement for
Purchase and Sale of Eight Residence Inns (the "Agreement") dated December 19,
1997 entered into by and between Assignor, as Seller, and Assignee, as Buyer,
pertaining to the Indianapolis Residence Inn located at 3553 Founders Road
Indianapolis, Indiana 46268.
Assignee hereby assumes and agrees to keep, perform and fulfill all
of Assignor's obligations as obligor under the contracts described in Schedule 1
to this Assignment (the "Assigned Contracts"). Assignee also agrees to
indemnify, protect, defend and hold Assignor harmless from and against any and
all claims, damages, losses, costs and expenses (including attorneys' fees)
arising in connection with the Assigned Contracts and relating to the period
after Closing.
Assignor hereby covenants and warrants that it has performed all of
the obligations to be performed by Assignor pursuant to and in accordance with,
or with respect to, the Assigned Contracts and agrees to indemnify, protect,
defend and hold Assignee harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys' fees) arising in connection
with the Assigned Contracts and relating to the period prior to Closing.
This Assignment of Intangible Property is given pursuant to the
Agreement.
37
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Intangible Property as of December 30, 1997.
ASSIGNEE: INNKEEPERS RI GENERAL, L.P.,
a Virginia limited partnership
By: Innkeepers RI General, Inc.
a Virginia corporation,
By /s/ Mark Murphy
------------------------------
Its Vice President
------------------------------
ASSIGNOR: METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P., a California
limited partnership
By: Metric Realty, an Illinois
general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
---------------------
Its Director of Sales
38
<PAGE>
EXHIBIT F - 5
-------------
ASSIGNMENT OF INTANGIBLE PROPERTY
---------------------------------
(Lexington Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Assignor"), hereby assigns, transfers and
conveys to INNKEEPERS RI GENERAL, L.P., a Virginia limited partnership
("Assignee"), all of Assignor's right, title and interest in and to the
Intangible Property, as that term is defined in that certain Agreement for
Purchase and Sale of Eight Residence Inns (the "Agreement") dated December 19,
1997 entered into by and between Assignor, as Seller, and Assignee, as Buyer,
pertaining to the Lexington Residence Inn located at 1080 Newtown Pike,
Lexington, Kentucky 40511.
Assignee hereby assumes and agrees to keep, perform and fulfill all
of Assignor's obligations as obligor under the contracts described in Schedule 1
to this Assignment (the "Assigned Contracts"). Assignee also agrees to
indemnify, protect, defend and hold Assignor harmless from and against any and
all claims, damages, losses, costs and expenses (including attorneys' fees)
arising in connection with the Assigned Contracts and relating to the period
after Closing.
Assignor hereby covenants and warrants that it has performed all of
the obligations to be performed by Assignor pursuant to and in accordance with,
or with respect to, the Assigned Contracts and agrees to indemnify, protect,
defend and hold Assignee harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys' fees) arising in connection
with the Assigned Contracts and relating to the period prior to Closing.
This Assignment of Intangible Property is given pursuant to the
Agreement.
39
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Intangible Property as of December 30, 1997.
ASSIGNEE: INNKEEPERS RI GENERAL, L.P.,
a Virginia limited partnership
By: Innkeepers RI General, Inc.
a Virginia corporation,
By /s/ Mark Murphy
------------------------------
Its Vice President
------------------------------
ASSIGNOR: METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P., a California
limited partnership
By: Metric Realty, an Illinois
general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
---------------------
Its Director of Sales
40
<PAGE>
EXHIBIT F - 6
-------------
ASSIGNMENT OF INTANGIBLE PROPERTY
---------------------------------
(Louisville Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Assignor"), hereby assigns, transfers and
conveys to INNKEEPERS RI GENERAL, L.P., a Virginia limited partnership
("Assignee"), all of Assignor's right, title and interest in and to the
Intangible Property, as that term is defined in that certain Agreement for
Purchase and Sale of Eight Residence Inns (the "Agreement") dated December 19,
1997 entered into by and between Assignor, as Seller, and Assignee, as Buyer,
pertaining to the Louisville Residence Inn located at 120 North Hurstbourne
Lane, Louisville, Kentucky 40222.
Assignee hereby assumes and agrees to keep, perform and fulfill all
of Assignor's obligations as obligor under the contracts described in Schedule 1
to this Assignment (the "Assigned Contracts"). Assignee also agrees to
indemnify, protect, defend and hold Assignor harmless from and against any and
all claims, damages, losses, costs and expenses (including attorneys' fees)
arising in connection with the Assigned Contracts and relating to the period
after Closing.
Assignor hereby covenants and warrants that it has performed all of
the obligations to be performed by Assignor pursuant to and in accordance with,
or with respect to, the Assigned Contracts and agrees to indemnify, protect,
defend and hold Assignee harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys' fees) arising in connection
with the Assigned Contracts and relating to the period prior to Closing.
This Assignment of Intangible Property is given pursuant to the
Agreement.
41
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Intangible Property as of December 30, 1997.
ASSIGNEE: INNKEEPERS RI GENERAL, L.P.,
a Virginia limited partnership
By: Innkeepers RI General, Inc.
a Virginia corporation,
By /s/ Mark Murphy
------------------------------
Its Vice President
------------------------------
ASSIGNOR: METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P., a California
limited partnership
By: Metric Realty, an Illinois
general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
---------------------
Its Director of Sales
42
<PAGE>
EXHIBIT F - 7
-------------
ASSIGNMENT OF INTANGIBLE PROPERTY
---------------------------------
(Ontario Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Assignor"), hereby assigns, transfers and
conveys to INNKEEPERS RI GENERAL, L.P., a Virginia limited partnership
("Assignee"), all of Assignor's right, title and interest in and to the
Intangible Property, as that term is defined in that certain Agreement for
Purchase and Sale of Eight Residence Inns (the "Agreement") dated December 19,
1997 entered into by and between Assignor, as Seller, and Assignee, as Buyer,
pertaining to the Ontario Residence Inn located at 2025 East D Street, Ontario,
California 91764.
Assignee hereby assumes and agrees to keep, perform and fulfill all
of Assignor's obligations as obligor under the contracts described in Schedule 1
to this Assignment (the "Assigned Contracts"). Assignee also agrees to
indemnify, protect, defend and hold Assignor harmless from and against any and
all claims, damages, losses, costs and expenses (including attorneys' fees)
arising in connection with the Assigned Contracts and relating to the period
after Closing.
Assignor hereby covenants and warrants that it has performed all of
the obligations to be performed by Assignor pursuant to and in accordance with,
or with respect to, the Assigned Contracts and agrees to indemnify, protect,
defend and hold Assignee harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys' fees) arising in connection
with the Assigned Contracts and relating to the period prior to Closing.
This Assignment of Intangible Property is given pursuant to the
Agreement.
43
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Intangible Property as of December 30, 1997.
ASSIGNEE: INNKEEPERS RI GENERAL, L.P.,
a Virginia limited partnership
By: Innkeepers RI General, Inc.
a Virginia corporation,
By /s/ Mark Murphy
------------------------------
Its Vice President
------------------------------
ASSIGNOR: METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P., a California
limited partnership
By: Metric Realty, an Illinois
general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
---------------------
Its Director of Sales
44
<PAGE>
EXHIBIT F - 8
-------------
ASSIGNMENT OF INTANGIBLE PROPERTY
---------------------------------
(Winston-Salem Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Assignor"), hereby assigns, transfers and
conveys to INNKEEPERS RI GENERAL, L.P., a Virginia limited partnership
("Assignee"), all of Assignor's right, title and interest in and to the
Intangible Property, as that term is defined in that certain Agreement for
Purchase and Sale of Eight Residence Inns (the "Agreement") dated December 19,
1997 entered into by and between Assignor, as Seller, and Assignee, as Buyer,
pertaining to the Winston-Salem Residence Inn located at 7835 Northpoint Blvd.,
Winston-Salem, North Carolina 27106.
Assignee hereby assumes and agrees to keep, perform and fulfill all
of Assignor's obligations as obligor under the contracts described in Schedule 1
to this Assignment (the "Assigned Contracts"). Assignee also agrees to
indemnify, protect, defend and hold Assignor harmless from and against any and
all claims, damages, losses, costs and expenses (including attorneys' fees)
arising in connection with the Assigned Contracts and relating to the period
after Closing.
Assignor hereby covenants and warrants that it has performed all of
the obligations to be performed by Assignor pursuant to and in accordance with,
or with respect to, the Assigned Contracts and agrees to indemnify, protect,
defend and hold Assignee harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys' fees) arising in connection
with the Assigned Contracts and relating to the period prior to Closing.
This Assignment of Intangible Property is given pursuant to the
Agreement.
45
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Intangible Property as of December 30, 1997.
ASSIGNEE: INNKEEPERS RI GENERAL, L.P.,
a Virginia limited partnership
By: Innkeepers RI General, Inc.
a Virginia corporation,
By /s/ Mark Murphy
------------------------------
Its Vice President
------------------------------
ASSIGNOR: METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P., a California
limited partnership
By: Metric Realty, an Illinois
general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
---------------------
Its Director of Sales
---------------------
46
<PAGE>
EXHIBIT G - 1
-------------
ASSIGNMENT OF MANAGEMENT AGREEMENT
----------------------------------
(Altamonte Springs Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Assignor"), hereby assigns, transfers and
conveys to INNSKEEPERS RI ALTAMONTE, L.P., a Virginia limited partnership
("Assignee"), all of Assignor's right, title and interest in and to that certain
Management Agreement by and between Residence Inn By Marriott, Inc., as Manager,
and Assignor, as Owner, dated as of December 13, 1995, with respect to the
Altamonte Springs Residence Inn located at 270 Douglas Avenue, Altamonte
Springs, Florida 32714, a copy of which is attached hereto as Appendix I (the
"Management Agreement").
Assignee hereby assumes and agrees to keep, perform and fulfill all
of Assignor's obligations, as Owner, under the terms of the Management Agreement
from and after the Closing Date. Assignee also agrees to indemnify, protect,
defend and hold Assignor harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys fees) arising in connection with
the Management Agreement and relating to the period after Closing.
Assignor hereby covenants and warrants that it has performed all of
the obligations to be performed by Assignor pursuant to and in accordance with,
or with respect to, the Management Agreement and agrees to indemnify, protect,
defend and hold Assignee harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys fees) arising in connection with
the Management Agreement and relating to the period prior to Closing.
This Assignment of Management Agreement is given pursuant to that
certain Agreement for Purchase and Sale of Eight Residence Inns, dated as of
December 19, 1997 by and between Assignor, as Seller, and Assignee, as Buyer
(the "Agreement"). All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Agreement.
47
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Management Agreement as of December 30, 1997.
ASSIGNEE: INNKEEPERS RI ALTAMONTE, L.P.,
a Virginia limited partnership
By: Innkeepers RI Altamonte, Inc.,
its general partner
By /s/ Mark Murphey
------------------------------
Its Vice President
------------------------------
ASSIGNOR: METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P., a California
limited partnership
By: Metric Realty, an Illinois general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
---------------------
Its Director of Sales
---------------------
RESIDENCE INN BY MARRIOTT, INC. hereby acknowledges and consents to the
foregoing assignment of the Management Agreement and hereby agrees that
Assignee shall be liable for all obligations of "Owner" under the management
Agreement, except that Assignor shall remain as a beneficiary of the Management
Agreement and shall remain liable as the owner of the Inn (as defined in the
Management Agreement) for those obligations of the owner, if any, set forth in
the following sections of the Management Agreement: 1.02, 1.05, 2.01, 4.02.B,
4.30.C, 5.02, 5.03, 5.04, 6.01, 6.02, 6.03, 7.01, 8.01, 9.02, 9.03.D, 10.2.A,
10.2.B, 10.2.C, 11.02, 11.07, 11.09, 11.11.E, 11.13 and 11.15.
RESIDENCE INN BY MARRIOTT, INC.
By /s/ Ken M. Kimball
------------------
Its Vice President
--------------
Appendix I
The Management Agreement
------------------------
The Management Agreement not included with this Amendment. The Registrant agrees
to provide the Securities and Exchange Commission copies of said Management
Agreement upon request.
48
<PAGE>
EXHIBIT G - 2
-------------
ASSIGNMENT OF MANAGEMENT AGREEMENT
----------------------------------
(Columbus East Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Assignor"), hereby assigns, transfers and
conveys to INNSKEEPERS RI GENERAL, L.P., a Virginia limited partnership
("Assignee"), all of Assignor's right, title and interest in and to that certain
Management Agreement by and between Residence Inn By Marriott, Inc., as Manager,
and Assignor, as Owner, dated as of December 13, 1995, with respect to the
Columbus East Residence Inn located at 2084 South Hamilton Road, Columbus, Ohio
43232, a copy of which is attached hereto as Appendix I (the "Management
Agreement").
Assignee hereby assumes and agrees to keep, perform and fulfill all
of Assignor's obligations, as Owner, under the terms of the Management Agreement
from and after the Closing Date. Assignee also agrees to indemnify, protect,
defend and hold Assignor harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys fees) arising in connection with
the Management Agreement and relating to the period after Closing.
Assignor hereby covenants and warrants that it has performed all of
the obligations to be performed by Assignor pursuant to and in accordance with,
or with respect to, the Management Agreement and agrees to indemnify, protect,
defend and hold Assignee harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys fees) arising in connection with
the Management Agreement and relating to the period prior to Closing.
This Assignment of Management Agreement is given pursuant to that
certain Agreement for Purchase and Sale of Eight Residence Inns, dated as of
December 19, 1997 by and between Assignor, as Seller, and Assignee, as Buyer
(the "Agreement"). All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Agreement.
49
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Management Agreement as of December 30, 1997.
ASSIGNEE: INNKEEPERS RI GENERAL, L.P.,
a Virginia limited partnership
By: Innkeepers RI General, L.P.,
its general partner
By /s/ Mark Murphey
------------------------------
Its Vice President
------------------------------
ASSIGNOR: METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P., a California
limited partnership
By: Metric Realty, an Illinois general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
---------------------
Its Director of Sales
---------------------
RESIDENCE INN BY MARRIOTT, INC. hereby acknowledges and consents to the
foregoing assignment of the Management Agreement and hereby releases Assignor
from any and all obligations arising under the Management Agreement relating to
any period from and after the Closing Date, which obligations have been assumed
by Assignee herein.
RESIDENCE INN BY MARRIOTT, INC.
By /s/ Ken M. Kimball
------------------
Its Vice President
--------------
Appendix I
The Management Agreement
------------------------
The Management Agreement not included with this Amendment. The Registrant agrees
to provide the Securities and Exchange Commission copies of said Management
Agreement upon request.
50
<PAGE>
EXHIBIT G - 3
-------------
ASSIGNMENT OF MANAGEMENT AGREEMENT
----------------------------------
(Fort Wayne Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Assignor"), hereby assigns, transfers and
conveys to INNSKEEPERS RI GENERAL, L.P., a Virginia limited partnership
("Assignee"), all of Assignor's right, title and interest in and to that certain
Management Agreement by and between Residence Inn By Marriott, Inc., as Manager,
and Assignor, as Owner, dated as of December 13, 1995, with respect to the Fort
Wayne Residence Inn located at 4919 Lima Road, Ft. Wayne, Indiana 46808, a copy
of which is attached hereto as Appendix I (the "Management Agreement").
Assignee hereby assumes and agrees to keep, perform and fulfill all
of Assignor's obligations, as Owner, under the terms of the Management Agreement
from and after the Closing Date. Assignee also agrees to indemnify, protect,
defend and hold Assignor harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys fees) arising in connection with
the Management Agreement and relating to the period after Closing.
Assignor hereby covenants and warrants that it has performed all of
the obligations to be performed by Assignor pursuant to and in accordance with,
or with respect to, the Management Agreement and agrees to indemnify, protect,
defend and hold Assignee harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys fees) arising in connection with
the Management Agreement and relating to the period prior to Closing.
This Assignment of Management Agreement is given pursuant to that
certain Agreement for Purchase and Sale of Eight Residence Inns, dated as of
December 19, 1997 by and between Assignor, as Seller, and Assignee, as Buyer
(the "Agreement"). All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Agreement.
51
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Management Agreement as of December 30, 1997.
ASSIGNEE: INNKEEPERS RI GENERAL, L.P.,
a Virginia limited partnership
By: Innkeepers RI General, L.P.,
its general partner
By /s/ Mark Murphey
------------------------------
Its Vice President
------------------------------
ASSIGNOR: METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P., a California
limited partnership
By: Metric Realty, an Illinois general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
---------------------
Its Director of Sales
RESIDENCE INN BY MARRIOTT, INC. hereby acknowledges and consents to the
foregoing assignment of the Management Agreement and hereby agrees that Assignee
shall be liable for all obligations of "Owner" under the management Agreement,
except that Assignor shall remain as a beneficiary of the Management Agreement
and shall remain liable as the owner of the Inn (as defined in the Management
Agreement) for those obligations of the owner, if any, set forth in the
following sections of the Management Agreement: 1.02, 1.05, 2.01, 4.02.B,
4.30.C, 5.02, 5.03, 5.04, 6.01, 6.02, 6.03, 7.01, 8.01, 9.02, 9.03.D, 10.2.A,
10.2.B, 10.2.C, 11.02, 11.07, 11.09, 11.11.E, 11.13 and 11.15.
RESIDENCE INN BY MARRIOTT, INC.
By /s/ Ken M. Kimball
------------------
Its Vice President
--------------
Appendix I
The Management Agreement
------------------------
The Management Agreement not included with this Amendment. The Registrant agrees
to provide the Securities and Exchange Commission copies of said Management
Agreement upon request.
52
<PAGE>
EXHIBIT G - 4
-------------
ASSIGNMENT OF MANAGEMENT AGREEMENT
----------------------------------
(Indianapolis Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Assignor"), hereby assigns, transfers and
conveys to INNSKEEPERS RI GENERAL, L.P., a Virginia limited partnership
("Assignee"), all of Assignor's right, title and interest in and to that certain
Management Agreement by and between Residence Inn By Marriott, Inc., as Manager,
and Assignor, as Owner, dated as of December 13, 1995, with respect to the
Indianapolis Residence Inn located at 3553 Founders Road, Indianapolis, Indiana
46268, a copy of which is attached hereto as Appendix I (the "Management
Agreement").
Assignee hereby assumes and agrees to keep, perform and fulfill all
of Assignor's obligations, as Owner, under the terms of the Management Agreement
from and after the Closing Date. Assignee also agrees to indemnify, protect,
defend and hold Assignor harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys fees) arising in connection with
the Management Agreement and relating to the period after Closing.
Assignor hereby covenants and warrants that it has performed all of
the obligations to be performed by Assignor pursuant to and in accordance with,
or with respect to, the Management Agreement and agrees to indemnify, protect,
defend and hold Assignee harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys fees) arising in connection with
the Management Agreement and relating to the period prior to Closing.
This Assignment of Management Agreement is given pursuant to that
certain Agreement for Purchase and Sale of Eight Residence Inns, dated as of
December 19, 1997 by and between Assignor, as Seller, and Assignee, as Buyer
(the "Agreement"). All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Agreement.
53
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Management Agreement as of December 30, 1997.
ASSIGNEE: INNKEEPERS RI GENERAL, L.P.,
a Virginia limited partnership
By: Innkeepers RI General, L.P.,
its general partner
By /s/ Mark Murphey
------------------------------
Its Vice President
------------------------------
ASSIGNOR: METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P., a California
limited partnership
By: Metric Realty, an Illinois general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
---------------------
Its Director of Sales
---------------------
RESIDENCE INN BY MARRIOTT, INC. hereby acknowledges and consents to the
foregoing assignment of the Management Agreement and hereby agrees that Assignee
shall be liable for all obligations of "Owner" under the management Agreement,
except that Assignor shall remain as a beneficiary of the Management Agreement
and shall remain liable as the owner of the Inn (as defined in the Management
Agreement) for those obligations of the owner, if any, set forth in the
following sections of the Management Agreement: 1.02, 1.05, 2.01, 4.02.B,
4.30.C, 5.02, 5.03, 5.04, 6.01, 6.02, 6.03, 7.01, 8.01, 9.02, 9.03.D, 10.2.A,
10.2.B, 10.2.C, 11.02, 11.07, 11.09, 11.11.E, 11.13 and 11.15.
RESIDENCE INN BY MARRIOTT, INC.
By /s/ Ken M. Kimball
-------------------
Its Vice President
--------------
Appendix I
The Management Agreement
------------------------
The Management Agreement not included with this Amendment. The Registrant agrees
to provide the Securities and Exchange Commission copies of said Management
Agreement upon request.
54
<PAGE>
EXHIBIT G - 5
-------------
ASSIGNMENT OF MANAGEMENT AGREEMENT
----------------------------------
(Lexington Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Assignor"), hereby assigns, transfers and
conveys to INNSKEEPERS RI GENERAL, L.P., a Virginia limited partnership
("Assignee"), all of Assignor's right, title and interest in and to that certain
Management Agreement by and between Residence Inn By Marriott, Inc., as Manager,
and Assignor, as Owner, dated as of December 13, 1995, with respect to the
Lexington Residence Inn located at 1080 Newtown Pike, Lexington, Kentucky 40511,
a copy of which is attached hereto as Appendix I (the "Management Agreement").
Assignee hereby assumes and agrees to keep, perform and fulfill all
of Assignor's obligations, as Owner, under the terms of the Management Agreement
from and after the Closing Date. Assignee also agrees to indemnify, protect,
defend and hold Assignor harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys fees) arising in connection with
the Management Agreement and relating to the period after Closing.
Assignor hereby covenants and warrants that it has performed all of
the obligations to be performed by Assignor pursuant to and in accordance with,
or with respect to, the Management Agreement and agrees to indemnify, protect,
defend and hold Assignee harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys fees) arising in connection with
the Management Agreement and relating to the period prior to Closing.
This Assignment of Management Agreement is given pursuant to that
certain Agreement for Purchase and Sale of Eight Residence Inns, dated as of
December 19, 1997 by and between Assignor, as Seller, and Assignee, as Buyer
(the "Agreement"). All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Agreement.
55
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Management Agreement as of December 30, 1997.
ASSIGNEE: INNKEEPERS RI GENERAL, L.P.,
a Virginia limited partnership
By: Innkeepers RI General, L.P.,
its general partner
By /s/ Mark Murphey
------------------------------
Its Vice President
------------------------------
ASSIGNOR: METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P., a California
limited partnership
By: Metric Realty, an Illinois general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
---------------------
Its Director of Sales
---------------------
RESIDENCE INN BY MARRIOTT, INC. hereby acknowledges and consents to the
foregoing assignment of the Management Agreement and hereby releases Assignor
from any and all obligations arising under the Management Agreement relating to
any period from and after the Closing Date, which obligations have been assumed
by Assignee herein.
RESIDENCE INN BY MARRIOTT, INC.
By /s/ Ken M. Kimball
-------------------
Its Vice President
--------------
Appendix I
The Management Agreement
------------------------
The Management Agreement not included with this Amendment. The Registrant agrees
to provide the Securities and Exchange Commission copies of said Management
Agreement upon request.
56
<PAGE>
EXHIBIT G - 6
-------------
ASSIGNMENT OF MANAGEMENT AGREEMENT
----------------------------------
(Louisville Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Assignor"), hereby assigns, transfers and
conveys to INNSKEEPERS RI GENERAL, L.P., a Virginia limited partnership
("Assignee"), all of Assignor's right, title and interest in and to that certain
Management Agreement by and between Residence Inn By Marriott, Inc., as Manager,
and Assignor, as Owner, dated as of December 13, 1995, with respect to the
Louisville Residence Inn located at 120 North Hurstbourne Lane, Louisville,
Kentucky 40222, a copy of which is attached hereto as Appendix I (the
"Management Agreement").
Assignee hereby assumes and agrees to keep, perform and fulfill all
of Assignor's obligations, as Owner, under the terms of the Management Agreement
from and after the Closing Date. Assignee also agrees to indemnify, protect,
defend and hold Assignor harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys fees) arising in connection with
the Management Agreement and relating to the period after Closing.
Assignor hereby covenants and warrants that it has performed all of
the obligations to be performed by Assignor pursuant to and in accordance with,
or with respect to, the Management Agreement and agrees to indemnify, protect,
defend and hold Assignee harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys fees) arising in connection with
the Management Agreement and relating to the period prior to Closing.
This Assignment of Management Agreement is given pursuant to that
certain Agreement for Purchase and Sale of Eight Residence Inns, dated as of
December 19, 1997 by and between Assignor, as Seller, and Assignee, as Buyer
(the "Agreement"). All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Agreement.
57
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Management Agreement as of December 30, 1997.
ASSIGNEE: INNKEEPERS RI GENERAL, L.P.,
a Virginia limited partnership
By: Innkeepers RI General, L.P.,
its general partner
By /s/ Mark Murphey
------------------------------
Its Vice President
------------------------------
ASSIGNOR: METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P., a California
limited partnership
By: Metric Realty, an Illinois general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
---------------------
Its Director of Sales
---------------------
RESIDENCE INN BY MARRIOTT, INC. hereby acknowledges and consents to the
foregoing assignment of the Management Agreement and hereby agrees that Assignee
shall be liable for all obligations of "Owner" under the management Agreement,
except that Assignor shall remain as a beneficiary of the Management Agreement
and shall remain liable as the owner of the Inn (as defined in the Management
Agreement) for those obligations of the owner, if any, set forth in the
following sections of the Management Agreement: 1.02, 1.05, 2.01, 4.02.B,
4.30.C, 5.02, 5.03, 5.04, 6.01, 6.02, 6.03, 7.01, 8.01, 9.02, 9.03.D, 10.2.A,
10.2.B, 10.2.C, 11.02, 11.07, 11.09, 11.11.E, 11.13 and 11.15.
RESIDENCE INN BY MARRIOTT, INC.
By /s/ Ken M. Kimball
-------------------
Its Vice President
--------------
Appendix I
The Management Agreement
------------------------
The Management Agreement not included with this Amendment. The Registrant agrees
to provide the Securities and Exchange Commission copies of said Management
Agreement upon request.
58
<PAGE>
EXHIBIT G - 7
-------------
ASSIGNMENT OF MANAGEMENT AGREEMENT
----------------------------------
(Ontario Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Assignor"), hereby assigns, transfers and
conveys to INNSKEEPERS RI GENERAL, L.P., a Virginia limited partnership
("Assignee"), all of Assignor's right, title and interest in and to that certain
Management Agreement by and between Residence Inn By Marriott, Inc., as Manager,
and Assignor, as Owner, dated as of December 13, 1995, with respect to the
Ontario Residence Inn located at 2025 East D Street, Ontario, California 91764,
a copy of which is attached hereto as Appendix I (the "Management Agreement").
Assignee hereby assumes and agrees to keep, perform and fulfill all
of Assignor's obligations, as Owner, under the terms of the Management Agreement
from and after the Closing Date. Assignee also agrees to indemnify, protect,
defend and hold Assignor harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys fees) arising in connection with
the Management Agreement and relating to the period after Closing.
Assignor hereby covenants and warrants that it has performed all of
the obligations to be performed by Assignor pursuant to and in accordance with,
or with respect to, the Management Agreement and agrees to indemnify, protect,
defend and hold Assignee harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys fees) arising in connection with
the Management Agreement and relating to the period prior to Closing.
This Assignment of Management Agreement is given pursuant to that
certain Agreement for Purchase and Sale of Eight Residence Inns, dated as of
December 19, 1997 by and between Assignor, as Seller, and Assignee, as Buyer
(the "Agreement"). All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Agreement.
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<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Management Agreement as of December 30, 1997.
ASSIGNEE: INNKEEPERS RI GENERAL, L.P.,
a Virginia limited partnership
By: Innkeepers RI General, L.P.,
its general partner
By /s/ Mark Murphey
------------------------------
Its Vice President
------------------------------
ASSIGNOR: METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P., a California
limited partnership
By: Metric Realty, an Illinois general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
---------------------
Its Director of Sales
---------------------
RESIDENCE INN BY MARRIOTT, INC. hereby acknowledges and consents to the
foregoing assignment of the Management Agreement and hereby agrees that Assignee
shall be liable for all obligations of "Owner" under the management Agreement,
except that Assignor shall remain as a beneficiary of the Management Agreement
and shall remain liable as the owner of the Inn (as defined in the Management
Agreement) for those obligations of the owner, if any, set forth in the
following sections of the Management Agreement: 1.02, 1.05, 2.01, 4.02.B,
4.30.C, 5.02, 5.03, 5.04, 6.01, 6.02, 6.03, 7.01, 8.01, 9.02, 9.03.D, 10.2.A,
10.2.B, 10.2.C, 11.02, 11.07, 11.09, 11.11.E, 11.13 and 11.15.
RESIDENCE INN BY MARRIOTT, INC.
By /s/ Ken M. Kimball
-------------------
Its Vice President
--------------
Appendix I
The Management Agreement
------------------------
The Management Agreement not included with this Amendment. The Registrant agrees
to provide the Securities and Exchange Commission copies of said Management
Agreement upon request.
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<PAGE>
EXHIBIT G - 8
-------------
ASSIGNMENT OF MANAGEMENT AGREEMENT
----------------------------------
(Winston-Salem Residence Inn)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby expressly acknowledged, METRIC PARTNERS GROWTH SUITE INVESTORS, L.P.,
a California limited partnership ("Assignor"), hereby assigns, transfers and
conveys to INNSKEEPERS RI GENERAL, L.P., a Virginia limited partnership
("Assignee"), all of Assignor's right, title and interest in and to that certain
Management Agreement by and between Residence Inn By Marriott, Inc., as Manager,
and Assignor, as Owner, dated as of December 13, 1995, with respect to the
Winston-Salem Residence Inn located at 7835 Northpoint Blvd. Winston-Salem,
North Carolina 27106, a copy of which is attached hereto as Appendix I (the
"Management Agreement").
Assignee hereby assumes and agrees to keep, perform and fulfill all
of Assignor's obligations, as Owner, under the terms of the Management Agreement
from and after the Closing Date. Assignee also agrees to indemnify, protect,
defend and hold Assignor harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys fees) arising in connection with
the Management Agreement and relating to the period after Closing.
Assignor hereby covenants and warrants that it has performed all of
the obligations to be performed by Assignor pursuant to and in accordance with,
or with respect to, the Management Agreement and agrees to indemnify, protect,
defend and hold Assignee harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys fees) arising in connection with
the Management Agreement and relating to the period prior to Closing.
This Assignment of Management Agreement is given pursuant to that
certain Agreement for Purchase and Sale of Eight Residence Inns, dated as of
December 19, 1997 by and between Assignor, as Seller, and Assignee, as Buyer
(the "Agreement"). All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Agreement.
61
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment of Management Agreement as of December 30, 1997.
ASSIGNEE: INNKEEPERS RI GENERAL, L.P.,
a Virginia limited partnership
By: Innkeepers RI General, L.P.,
its general partner
By /s/ Mark Murphey
------------------------------
Its Vice President
------------------------------
ASSIGNOR: METRIC PARTNERS GROWTH SUITE
INVESTORS, L.P., a California
limited partnership
By: Metric Realty, an Illinois general partnership,
its managing general partner
By: SSR Realty Advisors, Inc.,
a Delaware corporation,
its managing general partner
By /s/ Minton J. Newell
---------------------
Its Director of Sales
---------------------
RESIDENCE INN BY MARRIOTT, INC. hereby acknowledges and consents to the
foregoing assignment of the Management Agreement and hereby releases Assignor
from any and all obligations arising under the Management Agreement relating to
any period from and after the Closing Date, which obligations have been assumed
by Assignee herein.
RESIDENCE INN BY MARRIOTT, INC.
By /s/ Ken M. Kimball
-------------------
Its Vice President
--------------
Appendix I
The Management Agreement
------------------------
The Management Agreement not included with this Amendment. The Registrant agrees
to provide the Securities and Exchange Commission copies of said Management
Agreement upon request.
62
<PAGE>
EXHIBIT H
INQUIRY MEMORANDUM
------------------
The Inquiry Memorandum, signed by Marj Patterson-Badke, Altamonte Springs
General Manager, Ron Shelton, Columbus East General Manager, Steve Walter, Ft.
Wayne General Manager, Bob Peper, Indianapolis General Manager, Dan Hebenstreit,
Lexington General Manager, Roxie Gilbert, Louisville General Manager, Jack
Jones, Ontario General Manager, Brooke Odenweider, Winston-Salem General
Manager, Sue Graves, Regional Manager for Columbus East, Ft. Wayne, Indianpolis,
Lexington and Louisville, Kandee Piercy, Regional Manager for Altamonte Springs,
Dale Athey, Regional Manager for Ontario, Diane Schneller, Regional Manager for
Winston-Salem, Herman H. Howerton, Legal, Hanne Marshall, Accounting, George
Fogelsong, Risk Management, Cindy Halicky, Operations Director, Ronald Zuzack,
Managing Director, Minton Newell, Director of Sales, Lorenz Menrath, Portfolio
Manager, not included with this Amendment. The Registrant agrees to provide the
Securities and Exchange Commission copies of said Limited Warranty Deed upon
request.
63
