<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
Quarterly Report Under Section 13 or 15(d) of the Securities Exchange Act of
1934
For Quarter Ended: March 31, 1997 Commission File Number: 0-16840
-------------- -------
PSH MASTER L.P. I
- - --------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Delaware 31-1204568
- - --------------------------------------------------------------------------------
(State of Organization) (IRS Employer Identification Number)
P.O. Box 18035, Columbus, OH 43218
- - --------------------------------------------------------------------------------
(Address of Principal Executive Offices, including Zip Code)
(614) 227-4235
- - --------------------------------------------------------------------------------
(Registrant's Telephone Number, including Area Code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
X Yes No
---- ----
The number of outstanding Units of Limited Partner Interest in the Registrant,
as represented by Depository Receipts at May 15, 1997 was 3,110,000.
<PAGE> 2
PSH MASTER L.P.I
REPORT ON FORM 10-Q
FOR THE QUARTER ENDED MARCH 31, 1997
Index
-----
<TABLE>
<CAPTION>
Page
Number
------
<S> <C> <C>
Part I. Financial Information
Item 1: Financial Statements:
Balance Sheets 3
Statements of Operations 5
Statements of Cash Flows 6
Notes to Financial Statements 7
Item 2: Management's Discussion and Analysis of
Financial Condition and Results of Operation 10
Part II. Other Information
Items 1 through 6. 14
Signatures 15
</TABLE>
2
<PAGE> 3
PSH MASTER L.P.I
BALANCE SHEETS
(UNAUDITED)
<TABLE>
<CAPTION>
Assets March 31, 1997 December 31, 1996
- - ------ -------------- -----------------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 2,760,593 $ 1,586,070
Accounts receivable, trade 1,289,011 1,095,968
Inventories 109,709 119,462
Prepaid expenses and other 484,882 401,083
Cash held in escrow 464,084 268,907
------------ ------------
Total current assets 5,108,279 3,471,490
------------ ------------
Property and equipment:
Land 3,780,000 3,780,000
Leasehold interest in land 7,440,000 7,440,000
Hotels 36,499,582 36,401,424
Furniture, fixtures and equipment 12,189,070 12,139,268
------------ ------------
Total 59,908,652 59,760,692
Less accumulated depreciation and amortization
(24,906,989) (24,367,593)
------------ ------------
Total property and equipment, net 35,001,663 35,393,099
------------ ------------
Other assets:
Replacement reserve fund 111 49,111
China, glass, linen and silver, net 781,590 781,590
Deferred financing fees, organization costs
and other, net 90,485 129,404
------------ ------------
Total other assets 872,186 960,105
------------ ------------
Total assets $ 40,982,128 $ 39,824,694
============ ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
3
<PAGE> 4
PSH MASTER L.P.I
BALANCE SHEETS
(UNAUDITED)
<TABLE>
<CAPTION>
Liabilities and Partners' Deficit March 31, 1997 December 31, 1996
- - --------------------------------- -------------- -----------------
<S> <C> <C>
Current liabilities:
Current portion of mortgage notes payable $ 45,422,230 $ 45,502,185
Accounts payable 963,305 1,542,608
Due to affiliates 65,859 43,212
Accrued expenses:
Payroll and related taxes 725,200 524,870
Real estate and other taxes 421,378 115,370
Interest 4,271 4,271
Other 373,992 172,103
------------ ------------
Total current liabilities 47,976,235 47,904,619
------------ ------------
Note payable 500,000 500,000
------------ ------------
Partners' Deficit:
General Partner - 1% interest (256,551) (263,067)
Limited Partners - 99% interest
(3,110,000 units authorized and outstanding) (7,237,556) (8,316,858)
------------ ------------
Total partners' deficit (7,494,107) (8,579,925)
------------ ------------
Total liabilities and partners' deficit $ 40,982,128 $ 39,824,694
============ ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
4
<PAGE> 5
PSH MASTER L.P.I
STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
Quarter Ended Quarter Ended
March 31, 1997 March 31, 1996
-------------- --------------
Revenues:
<S> <C> <C>
Suites $5,949,641 $5,127,145
Other 1,522,132 1,448,676
---------- ----------
Total revenues 7,471,773 6,575,821
---------- ----------
Operating costs and expenses:
Direct operating:
Suites 1,108,388 1,005,767
Other 982,111 966,185
Other operating:
Sales, general and administrative 1,421,402 1,330,259
Energy and maintenance 532,590 493,039
Rents, taxes and other 527,444 528,829
Partnership administrative 68,877 55,852
Depreciation and amortization 578,316 552,063
---------- ----------
Total operating costs and expenses 5,219,128 4,931,994
---------- ----------
Income from operations 2,252,645 1,643,827
Interest income 13,277 23,813
Interest expense 1,180,103 1,187,862
---------- ----------
Net income $1,085,819 $ 479,778
========== ==========
Net income per unit of
limited partnership interest $ 0.35 $ 0.15
========== ==========
</TABLE>
The accompanying notes are an integral part of these financial statements.
5
<PAGE> 6
PSH MASTER L.P.I
STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
Quarter Ended Quarter Ended
March 31, 1997 March 31, 1996
-------------- --------------
<S> <C> <C>
Cash provided (used) by operations:
Net income $ 1,085,819 $ 479,778
Changes not requiring cash:
Depreciation and amortization 578,316 552,063
Working capital changes:
Increase in accounts receivable, trade (193,043) (520,965)
Increase in inventories,
prepaid expenses and other (74,046) (39,499)
Increase (decrease) in accounts payable and
accrued expenses 128,924 (155,367)
Increase in accrued interest payable 0 4,271
Increase in due to affiliates 22,647 20,296
----------- -----------
Cash provided by operations 1,548,617 340,577
----------- -----------
Investment and other transactions:
(Increase) decrease in replacement reserve fund 49,000 (164,862)
Increase in cash escrow for real estate taxes (195,177) (197,400)
Additions to property and equipment (147,962) (101,479)
Payments of mortgages (79,955) (72,198)
----------- -----------
Cash used by investment and other transactions (374,094) (535,939)
----------- -----------
Increase (decrease) in cash and cash equivalents
$ 1,174,523 $ (195,362)
=========== ===========
Supplemental disclosure of cash flow information--
cash paid for interest $ 1,180,103 $ 1,189,746
=========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
6
<PAGE> 7
NOTES TO THE FINANCIAL STATEMENTS
(1) BASIS OF PRESENTATION
The accompanying financial statements of PSH Master L.P.I (the Partnership)
have been prepared on a going concern basis which contemplates the realization
of assets and the satisfaction of liabilities in the normal course of business.
The Partnership has incurred net losses since its inception and at March 31,
1997, the Partnership had a partners' deficit of $7,494,107.
The final payment on the Partnership's real estate mortgage notes due on August
1, 1997 (see Note 5), the accumulated Partners' deficits and the uncertainty of
the Partnership's ability to refinance the first mortgage debt on maturity,
raise substantial doubt about the Partnership's ability to continue as a going
concern for a reasonable period of time. The financial statements do not include
any adjustments relating to the recoverability and classification of recorded
asset amounts or the amounts and classification of liabilities that might be
necessary should the Partnership be unable to continue as a going concern.
Please see Note 8 regarding the proposed sale of the Partnership hotels. In
connection with the proposed sale, the outstanding debts referred to above and
in Note 5 will be paid in full.
(2) ORGANIZATION AND BUSINESS
The Partnership is a Delaware limited partnership which owns three all-suite
hotels located in Tampa, Florida; WALT DISNEY WORLD(R) Village in Lake Buena
Vista, Florida; and in the Research Triangle area near Raleigh/Durham, North
Carolina.
(3) SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation:
In the opinion of Management, the accompanying financial statements contain all
adjustments (all of which are normal and recurring in nature) necessary to
present fairly the financial position of the Partnership at March 31, 1997 and
December 31, 1996 and the results of its operations for the quarters ended March
31, 1997 and 1996. The Partnership has considered Statement of Financial
Accounting Standard Number 109 "Accounting for Income Taxes" and, given the
cumulative operating losses, has concluded that this standard will have no
impact on the Partnership's financial statements.
(4) RELATED PARTIES
The General Partner, an affiliate, is generally empowered by the Partnership
Agreement to conduct, direct and exercise full control over all activities of
the Partnership.
Total fees charged by DoubleTree to the Partnership for management, advertising,
reservation and accounting services were $646,934 and $541,005 during the first
quarter of 1997 and 1996, respectively. Nuho Company, a successor to PH
Management Company (a previous management company) pursuant to the bankruptcy
plan, received residual management fees of $176,969 and $153,195 during the
first quarter of 1997 and 1996, respectively.
7
<PAGE> 8
(5) REAL ESTATE MORTGAGE NOTES
The nonrecourse notes are secured by the first mortgages on the hotels,
including the ground lease at the Disney hotel. The Partnership makes monthly
payments of principal and interest based upon a 30-year amortization schedule. A
final payment, including interest, is due on August 1, 1997. Accordingly, the
total principal amount due has been classified as a current liability at March
31, 1997. The lender will also receive appreciation interest equal to 25% of the
net proceeds, as defined, at sale of the hotels, or net proceeds based upon
market value if the hotels are refinanced rather than sold prior to the maturity
of the loan.
On October 26, 1994, the Partnership borrowed $500,000 from DoubleTree for
capital improvements. This nonrecourse note is secured by second mortgages on
the hotels and is due at the termination of the management agreement with
DoubleTree. Interest is computed at 10.25% and payment is equal to the lesser of
the monthly computed interest due or monthly available cash flow from the
Partnership.
(6) PARTNERSHIP DISTRIBUTIONS AND ALLOCATIONS
Pursuant to the terms of the renegotiated debt, the Partnership is precluded
from making cash distributions to the partners until such time as the interest
capitalized by the lender has been repaid. Such repayment is expected to occur
on or before the maturity of the first mortgage loans on August 1, 1997 in
connection with the sale or refinancing of the hotels.
For financial statement reporting purposes, net income (loss) is allocated 99
percent to the Unitholders and 1 percent to the General Partner. The net income
allocated to the Unitholders for the quarter ended March 31, 1997 and 1996 was
$1,074,961 or $.35 per unit, and $474,980, or $.15 per unit, respectively.
(7) INCOME TAXES
The Revenue Act of 1987 included a provision which will treat publicly-traded
partnerships, such as the Partnership, as corporations for Federal income tax
purposes beginning January 1, 1998. The effect of treating publicly-traded
partnerships as corporations will be to tax the income of the partnership at the
entity level and reflect distributions to partners as dividends. Additional
costs to the Partnership for such taxes would reduce the amount available for
distribution to the partners.
8
<PAGE> 9
(8) SUBSEQUENT EVENTS
On May 9, 1997 the Partnership announced that it had entered into a purchase and
sale agreement to sell all three of the hotels to FelCor Suites Limited
Partnership, an affiliate of FelCor Suite Hotels, Inc. for $64,800,000. FelCor
Suites Hotels, Inc., located in Irving, Texas, is one of the largest
publicly-traded hotel REITS.
The transaction requires the approval by the unit holders of a majority of the
outstanding units of the Partnership and by the land lessor of the property at
Lake Buena Vista, Florida. FelCor's board of directors has already approved the
transaction. A proxy statement, containing a detailed description of the
transaction, will be sent to each Limited Partner in the near future.
The sale, which is expected to occur before the end of July, will result in a
liquidation of PSH Master L.P. I and a distribution to unit holders of all net
proceeds. The anticipated payout will be in a range of $5.00 to $5.50 per each
partnership unit.
9
<PAGE> 10
PART I. FINANCIAL INFORMATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATION
LIQUIDITY AND CAPITAL RESOURCES
The Partnership has incurred net losses since its inception and at March 31,
1997, the Partnership had a partners' deficit of $7,494,107. The Partners'
accumulated deficits and the uncertainty of the Partnership's ability to
refinance the first mortgage debt on maturity (see Note 5) raise substantial
doubt about the Partnership's ability to continue as a going concern for a
reasonable period of time. Because of the possible material effects of this
uncertainty the independent auditors did not express an opinion on the financial
statements as of December 31, 1996. However, as discussed in the auditors'
report, the financial statements do not include any adjustments relating to the
recoverability and classification of recorded asset or liability amounts that
might be necessary should the Partnership be unable to continue as a going
concern.
On May 9, 1997 the Partnership announced that it had entered into a purchase and
sale agreement to sell all three of the hotels to FelCor Suites Limited
Partnership, an affiliate of FelCor Suite Hotels, Inc. for $64,800,000. FelCor
Suites Hotels, Inc., located in Irving, Texas, is one of the largest
publicly-traded hotel REITS.
The transaction requires the approval by the unit holders of a majority of the
outstanding units of the Partnership and by the land lessor of the property at
Lake Buena Vista, Florida. FelCor's board of directors has already approved the
transaction. A proxy statement, containing a detailed description of the
transaction, will be sent to each Limited Partner in the near future.
The sale, which is expected to occur before the end of July, will result in a
liquidation of PSH Master L.P.I and a distribution to unit holders of all net
proceeds. The anticipated payout will be in a range of $5.00 to $5.50 per each
partnership unit.
During the first quarter of 1997, the Partnership made monthly payments of
principal and interest on its first mortgage debt based upon a 30-year
amortization schedule at the contract rate of 10.25%, in accordance with the
restructured loans. Cash from operations, after funding replacement reserves,
exceeded the required debt service by $1,284,971, significantly improving the
Partnership's working capital and current ratio positions. This excess amount is
expected to decline in later quarters due to the seasonal business of the
hotels. Based upon anticipated revenue levels, Management is of the opinion that
cash from operations will be sufficient to meet expected cash requirements
during the next twelve months, with the exception of the required balloon
payment on the existing first mortgage debt.
10
<PAGE> 11
Hotel operations are the Partnership's primary and on-going source of cash to
pay its operating expenses, to meet its reserve requirements and to make cash
distributions to its partners. Hotel occupancy is seasonal by nature. Cash flows
track this seasonality closely due to the nature of trade receivables. Other
trade receivables include wholesale and travel agent accounts, and corporate and
group billings, the majority of which are collected within 30 days. The
Partnership earns interest income from its various operating cash accounts
including the balances held in the Replacement Reserve Funds.
In addition to its hotel operations, the Partnership will receive a final
payment in 1997 on its unsecured claim against the General Partner, which in
1991 filed for protection against its creditors under Chapter 11 of the U.S.
Bankruptcy Code. An unsecured claim in the amount of $5,038,658 was filed in the
bankruptcy case on behalf of the Partnership due to the General Partner's
default under the Performance and Break-even Guaranty (the Guaranty Agreement).
Total payments received to date by the Partnership against its unsecured claim
total $757,870. The Partnership expects to receive total payments of
approximately $2,000,000, including amounts previously received. This amount
includes operating profits and sale proceeds from a hotel owned by the General
Partner. Due to the remaining variables in the Plan, however, there are no
assurances as to the actual amount to be received. The Plan also provides that
PC Development Limited Partnership will continue as the General Partner of the
Partnership.
The Partnership is required by its Management Agreement to maintain Replacement
Reserve Fund balances of specified amounts to facilitate operating the Hotels as
"first-class" suite accommodations. Separate Replacement Reserve Funds have been
established for replacements, substitutions and additions to furniture and
equipment and these were funded at the rate of 4% of total revenues during the
first quarter of 1997.
In addition, the Partnership borrowed $500,000 from DoubleTree to be used for
capital improvements on October 26, 1994. Interest is computed at 10.25%,
payable monthly in arrears.
The Partnership deposits cash each month into escrow for the payment of real and
personal property taxes, as required by the lender. The monthly deposits to the
escrow account are sufficient to meet these tax obligations as they come due.
The Partnership's mortgage obligations mature on August 1, 1997, requiring a
balloon payment of approximately $45,400,000. Accordingly, the total principal
amount due has been classified as a current liability at March 31, 1997. In
addition, the lender will receive 25% of the net proceeds, as defined, upon sale
of the hotels, or net proceeds based upon market value if the hotels are not
sold prior to the maturity of the loan, as appreciation interest.
11
<PAGE> 12
RESULTS OF OPERATIONS
The Tampa and Disney hotels opened in April 1986 and March 1987, respectively,
and the Durham hotel opened in December 1987. The following table summarizes
combined operating information for the hotels:
<TABLE>
<CAPTION>
Quarter Ended Quarter Ended
March 31, 1997 March 31, 1996
-------------------------------
<S> <C> <C>
Available suites 57,150 57,785
Occupancy percentage 80.62% 79.17%
Average daily rate $129.12 $112.07
Direct operating costs as a percent of revenues:
Suites 18.63% 19.62%
Other 64.52% 66.69%
Total 27.98% 30.00%
</TABLE>
THREE MONTHS ENDED MARCH 31, 1997
Total revenues increased $895,952 or 13.6% during the first three months of
1997. Suite revenues increased $822,496 or 16.0% from the first quarter of 1996,
based upon a 15.2% increase in average daily rate and a 1.8% increase in
occupancy. Occupancy increased due to strong volume increases at the Disney
hotel. Occupancy at the Tampa and Raleigh/Durham hotels remained steady, while
volumes at Disney increased 5.2%. Average daily rates increased at each of the
hotels, with the largest gains being recorded by the Disney hotel. Food,
beverage and other revenues increased $73,456 or 5.1% over the prior year. Based
upon both higher volumes and price increases, food and beverage revenue
increased $85,195 or 8.0%. Other revenue increases include higher movie rentals,
space rentals and no shows.
Direct operating costs increased $118,547 or 6.0%, in the first three months,
compared to the same period of 1996. Costs in the suites department increased
$102,621 or 10.2% of which $73,924 resulted from increased payroll to meet
volume and service needs and $48,310 reflects an increase in room commissions
paid to travel agents. Cost increases in the suites department were offset by
reductions totaling $18,413 in laundry, linen replacements, guest supplies and
complimentary food for guests.
Other direct operating expenses increased $15,926 or 1.7% of which $34,213
represents increases in payroll expense in 1997. The increases in payroll were
partially offset by a $20,606 reduction in food, beverage and telephone
expenses. The biggest reductions were in contracted services, supplies and
uniforms in the food department, and, equipment and miscellaneous costs in the
telephone department. Food and beverage cost of sales increased $13,800 or 4.8%
due to higher volumes. Food and beverage payroll accounted for $32,954 of the
total other direct operating payroll increase.
12
<PAGE> 13
Sales, general and administrative expenses were up $91,143, or 6.9%. This
increase reflects higher payroll expenses of $49,032 associated with staffing
additions in the sales departments of each hotel and increases in revenue-driven
expenses, including management fees and credit-card commissions, which increased
$42,458 and $18,009, respectively. Other increases that were not tied to
revenues include accounting and professional fees, up $10,204 and employee
recognition, up $7,760. Offsetting these higher expenses in the three-month
period were reductions in recruiting and relocation costs of $15,524, a
reduction in advertising and promotional expenses of $7,477 and lower print
expense of $10,464. Cost control measures also helped reduce general expense
levels in the current quarter.
Energy and maintenance costs increased $39,551 or 8.0% in the first three months
of which $19,573 reflects increased payroll expense. Energy costs increased
$20,499 or 8.2% due to higher usage at the Florida hotels.
Rents, taxes and other expenses decreased $1,385 or 0.3% in the first quarter of
1997. The slight decrease includes reductions in Disney transportation, down
$14,235; property taxes, reduced by $2,325; and furniture and records storage,
down $2,938. Those reductions were offset by an increase in Disney land rent, up
$21,441, driven by revenue and volume increases.
Partnership administrative expenses consist primarily of quarterly and annual
report costs, tax processing and transfer agent charges, and legal and audit
fees.
13
<PAGE> 14
PART II. OTHER INFORMATION
ITEMS 1 THROUGH 6
Except as provided below, information required in Items 1 through 6 is not
applicable to the Registrant for the quarter ended March 31, 1997.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits: The following exhibits are filed herewith:
(i) Exhibit 2: Contract for Purchase and Sale
of Hotels
First Amendment to Contract for
Purchase and Sale of Hotels
Second Amendment to Contract for
Purchase and Sale of Hotels
Third Amendment to Contract for Purchase
and Sale of Hotels
(ii) Exhibit 27: Financial Data Schedule (only for
filings via EDGAR)
(b) Reports on Form 8-K: No current reports on Form 8-K were
filed by the Partnership during the
quarter ended March 31, 1997.
14
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Security Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PSH MASTER L.P.I
(Registrant)
By: PC Development Limited Partnership,
General Partner
By: PH Management Company,
General Partner
By: /s/ James V. Pickett 05/15/97
--------------------------------- --------------
James V. Pickett, Chairman Date
By: /s/ Stephen C. Denz 05/15/97
--------------------------------- --------------
Stephen C. Denz, Controller Date
(Principal Financial Officer)
15
<PAGE> 1
CONTRACT FOR PURCHASE AND SALE OF HOTELS
----------------------------------------
This Contract for Purchase and Sale of Hotel (the "Contract") is made
and entered into as of April 22, 1997 (the "Effective Date"), by and between
PSH Master L.P. I, a Delaware limited partnership (the "Seller"), and FelCor
Suites Limited Partnership, a Delaware limited partnership (the "Buyer").
In consideration of the mutual agreements herein set forth, the parties
hereto agree as follows:
1. DEFINITIONS. The following terms when used in this Contract shall
have the following meanings:
1.1 ACCEPTANCE DATE. Ten business days after delivery of signed
contract to Seller.
1.2 ASSIGNMENT. The Assignment of Lease which conveys all of
Seller's right, title and interest under the Lease to Buyer.
1.3 ATTORNEYS' FEES. All reasonable fees charged by an attorney
for his services and the services of any paralegals, legal assistants or law
clerks, including without limitation fees charged for representation at the
trial level and in all appeals.
1.4 BUYER'S ADDRESS. 545 East John Carpenter Freeway, Suite 1300,
Irving, Texas 75062. Telephone: (972) 444-4900; Telecopy: (972) 444-4949.
1.5 BUYER'S ATTORNEY. Robert W. Dockery. Buyer's attorney's
address is: Bracewell & Patterson LLP, Lincoln Plaza, 500 North Akard Street,
Suite 4000, Dallas, Texas 75201-3387. Telephone: (214) 740-4000; Telecopy: (214)
740-4010.
1.6 CASH TO CLOSE. The Purchase Price plus all of Buyer's closing
costs specified herein, subject to the adjustments and prorations set forth
herein, less the Deposit.
1.7 CLOSING. The delivery of the Assignment and the Deeds to
Buyer concurrently with the delivery of the Purchase Price to Seller.
1.8 CLOSING DATE. The date which is 10 business days after Seller
notifies Buyer that Seller is prepared for Closing, provided that (a) the
Closing Date shall not be earlier than 45 days after the Effective Date or later
than 90 days after the Effective Date, and (b) all conditions to Seller's and
Buyer's obligations under Sections 7.1 and 7.3 are satisfied.
1.9 DEEDS. Collectively, (a) the special warranty deeds by which
Seller conveys the Tampa Land and the Durham Land, together with the respective
Improvements thereon to Buyer, and (b)
<PAGE> 2
the quit-claim deed by which Seller conveys all of its right, title and interest
in and to the Improvements on the Lake Buena Vista Land to Buyer.
1.10 DEPOSIT. Either, at Buyer's sole option, (i) an irrevocable
letter of credit, in form and from a bank acceptable to Seller, in the amount of
$1,500,000, or (ii) the sum of $1,500,000 cash, together with all interest
earned on said sum while it is held in escrow by Escrow Agent in accordance with
this Contract. Except as specifically provided elsewhere herein, any interest
earned on the Deposit shall be paid to Buyer at Closing.
1.11 EFFECTIVE DATE. The date this Contract is fully executed by
all parties hereto (including the Escrow Agent) and a fully executed counterpart
thereof is delivered to Buyer and Buyer's Attorney.
1.12 ESCROW AGENT. The Title Company.
1.13 GOVERNMENTAL AUTHORITY. Any federal, state, county,
municipal or other governmental department, entity, authority, commission,
board, bureau, court, agency or any instrumentality of any of them.
1.14 GOVERNMENTAL REQUIREMENT. Any law, statute, code, ordinance,
rule, regulation, permit, certificate, license, authorization, agreement, or
requirement now existing of any Governmental Authority.
1.15 HAZARDOUS MATERIAL. Any flammable or explosive materials,
petroleum or petroleum products, oil, crude oil, natural gas or synthetic gas
usable for fuel, radioactive materials, asbestos, polychiorinated biphenyls
(PCB's), hazardous wastes or substances or toxic wastes or substances,
including, without limitation, any substances now or hereafter defined as or
included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," "toxic materials" or "toxic substances" under any
applicable Governmental Requirement.
1.16 HOTELS. Collectively, the existing (i) 229-room Hotel
together with all amenities thereto located on the Lake Buena Vista Land, (ii)
203-room Hotel together with all amenities thereto located on the Tampa Land,
and (iii) 203-room Hotel together with all amenities thereto located on the
Durham Land.
1.17 IMPROVEMENTS. The Hotels together with and including all
structures, fixtures or other improvements on, over or beneath the Land.
1.18 LAND. Collectively, the real property located in (i) Lake
Buena Vista, Orange County, Florida (the "Lake Buena Vista Land"), more
particularly described in the attached Exhibit A-1,
-2-
<PAGE> 3
(ii) Hillsborough County, Florida (the "Tampa Land"), more particularly
described in the attached Exhibit A-2, and (iii) Triangle Township, Durham
County, North Carolina (the "Durham Land"), more particularly described in the
attached Exhibit A-3.
1.19 LANDLORD. Lake Buena Vista Communities, Inc., a Delaware
corporation, its successors or assigns, as landlord under the Lease.
1.20 LEASE. That certain Ground Lease dated March 10, 1986
between Lake Buena Vista Communities, Inc., a Delaware corporation, as landlord,
and Pickett Buena Vista/Hotel Plaza Limited Partnership, an Ohio limited
partnership, as tenant, a memorandum of which is recorded in Official Records
Book 3759, page 492, Public Records of Orange County, Florida, as assigned to PC
Development Limited Partnership, an Ohio limited partnership, by instrument
recorded in Official Records Book 3856, page 4661 of said records, as further
assigned to Seller by instrument recorded in Official Records Book 3907, page
4996 in said records.
1.21 LEASEHOLD INTEREST. All rights, titles and interests as
"tenant" or "lessee" under the Lease.
1.22 MANAGEMENT AGREEMENT. The Management Agreement dated May 1,
1997, between Seller, as owner, and Pickett Hotel Company, predecessor to
Doubletree Partners, a Delaware general partnership ("Doubletree"), as manager,
as amended by amendments dated November 16, 1989, April 19, 1992, and May 24,
1993.
1.23 MANAGER. Doubletree.
1.24 PERMITTED EXCEPTIONS. The title exceptions described on the
attached Exhibits B-1 through B-3.
1.25 PERSONAL PROPERTY. All items of personal property located on
the Land or owned by Seller and used in connection with the operation of the
Hotels, but excluding therefrom the personal property that belongs to Manager,
tenants, guests, contracting parties under the Service Contracts and vending
arrangements, and employees. Such items of personal property shall include, but
not be limited to: (i) all fixtures, furnishings, building materials, machinery,
equipment, telephones, televisions, computers, glass, tools, silver, china,
glassware, utensils, towels, linens, signs, transferable licenses and permits,
telephone numbers, tradename, motor vehicles, inventories, food and beverages in
process and all other articles of personal property now or hereafter attached or
appurtenant to the Land and Improvements or used in connection with the use or
operation therewith, including any Property Records, drawings, as-built plans
and specifications and all permits and warranties in the possession of Seller or
Manager; (ii) all attachments, appliances, fittings, lighting fixtures, doors,
cabinets, elevators, flagpoles, sprinkler, plumbing, heating, air
-3-
<PAGE> 4
conditioning, electrical, ventilating, lighting, incinerating, vacuum cleaning,
refrigerating and cooling systems, vaults, safes, carpets, floor coverings,
together with all parts and supplies pertaining thereto; and (iii) the Property
Records.
1.26 PROPERTY. The Leasehold Interest, the Tampa Land, the Durham
Land, the Improvements on the Tampa Land and Durham Land, all of Seller's right,
title and interest to the Improvements on the Lake Buena Vista Land, and the
Personal Property.
1.27 PROPERTY RECORDS. The Property Records shall be each of the
following, to the extent such is in the Seller's possession or in the possession
of Manager:
(a) All operating statements (including income and expense
statements) and financial statements (for the most recent three (3) year
period), existing operating capital expenditure budgets and other books
and records for the Property, including all guest registration cards,
guest transcripts, guest histories and all other available guest
information;
(b) All engineering and architectural plans, specifications and
drawings and as-built plans pertaining to the Property (the "Plans");
(c) All advance reservations and trade-out agreements for hotel
rooms, meetings, conventions, and the use of facilities for banquets,
parties, affairs and the like which extend to a period beyond the
Closing Date;
(d) Copies of all assignable guarantees and warranties issued or
made in connection with the construction, improvement, alteration,
equipment and repair of any improvements comprising a part of the
Property, schedule of work currently in progress and expected completion
dates;
(e) Copies of all certificates of occupancy, licenses, permits,
authorizations, and approvals required by law for the current operation
of the Property, and issued by all Governmental Authorities having
jurisdiction and copies of all certificates issued by the local board of
fire underwriters (or other body exercising similar functions);
(f) Copies of all material contracts and agreements which affect
the ownership or operation of the Property, including, but not limited
to Service Contracts and management agreements, including all contracts
and agreements to which Buyer will be legally bound after Closing; and
-4-
<PAGE> 5
(g) All existing environmental audits, engineering reports, ADA
compliance reports, similar studies, notices and information concerning
the condition of the Improvements and any Hazardous Material on or about
the Property.
1.28 PURCHASE PRICE. The sum of Sixty-Four Million Eight Hundred
Thousand and No Dollars ($64,800,000.00).
1.29 SELLER'S ADDRESS. c/o James V. Pickett, 150 East Gay Street,
24th Floor, Columbus, Ohio 43215. Telephone (614) 217-1600; Telecopy (614)
217-0113.
1.30 SELLER'S ATTORNEY. Kevin H. Connor. Seller's Attorney's
mailing address is: Baker & Hostetler LLP, 65 East State Street, Suite 2100,
Columbus, Ohio 43215. Telephone: (614) 462-2657; Telecopy (614) 462-2616.
1.31 SERVICE CONTRACTS. The service contracts, leases,
installment sales contracts, maintenance agreements, employment agreements, and
other agreements listed on the attached Exhibit C.
1.32 TITLE COMPANY. Commonwealth Land Title Insurance
Corporation, 14643 Dallas Parkway, Suite 101, LB 61, Dallas Texas 75240,
Attention: Rick Wilson.
2. PURCHASE AND SALE. On the terms and subject to the conditions set
forth herein, Seller agrees to sell and convey the Property to Buyer and Buyer
agrees to purchase and acquire the Property from Seller.
3. PURCHASE PRICE. The Purchase Price shall be paid as follows:
3.1 DEPOSIT. Concurrently with the execution of this Contract by
Buyer, Buyer shall deliver to Escrow Agent the Deposit, together with a
completed and executed W-9 Form for the Buyer. Provided Buyer has not terminated
this Contract under Section 4.2.1 on or before the last day of the Review
Period (as defined below), the Deposit shall be non-refundable unless any one
of the conditions set forth in Section 7.1 of this Contract is not satisfied or
waived as provided therein.
3.2 CASH TO CLOSE. The Cash to Close shall be paid to Seller in
accordance with the closing procedure hereinafter set forth.
3.3 ALLOCATIONS. Subject to adjustments in accordance with the
terms of this Contract, the Purchase Price shall be allocated by Seller and
Buyer at Closing as reflected on Exhibit D attached hereto.
-5-
<PAGE> 6
4. SELLER'S DELIVERIES; BUYER'S DUE DILIGENCE.
4.1 PROPERTY RECORDS. Seller has previously delivered or cause to
be delivered to Buyer the items described on the attached Exhibit E (the
"Delivered Records") which items have been received by Buyer. If Seller obtains
or becomes aware of any additional Property Records, Seller shall promptly
deliver or make available such additional Property Records to Buyer.
4.2 INSPECTION OF HOTELS, MANAGEMENT AGREEMENTS. During the
period from the Execution Date through and including May 7, 1997 (the "Review
Period"), Buyer and Buyer's agents and representatives (a) shall be given
reasonable access to the Hotels during normal business hours and shall have the
right to physically inspect the Hotels and to conduct soil tests and other
non-destructive inspections (so long as such tests and inspections do not
unreasonably interfere with the use and occupancy of the Hotels by Seller, by
guests or patrons of the Hotels, or by tenants), and (b) may negotiate with
Manager (or any subsidiary of Manager) in order to obtain a commitment from
Manager (or its subsidiary) to manage the Hotels after Closing under one or more
management agreements acceptable to Buyer in its sole discretion. The costs and
expenses of Buyer's investigation shall be borne solely by Buyer. In the event
that the transaction contemplated by this Contract does not close for any
reason, Buyer shall have the obligation to restore the Hotels to their condition
prior to Buyer's entry, which obligation shall survive any termination of this
Contract. The terms of this Contract and all information furnished by Seller to
Buyer in accordance with the provisions of this Contract or obtained by Buyer in
the course of its investigations shall be treated as confidential information by
Buyer, except that Buyer may disclose such information to prospective investors
and lenders, as well as attorneys and other parties assisting or representing
Buyer in connection with the subject transaction. The foregoing obligation to
treat such information as confidential shall survive any termination of this
Contract but shall not survive Closing. Buyer covenants and agrees that the
Hotels shall not be damaged or impaired in any way as the result of its
activities on the Hotels' premises, and hereby agrees to indemnify and hold
Seller harmless from and against any claims, causes of action, damages and
expenses (including attorneys' fees) to the extent incident to, resulting from
or in any way arising out of the presence in, on or about the Hotels of Buyer,
or Buyer's agents or representatives, or out of any such test or inspection
conducted by Buyer on the Hotels' premises. Such indemnity shall survive the
Closing or any termination of this Contract and not be merged therein.
4.2.1 PROCEDURE FOR BUYER'S OBJECTIONS. Buyer shall have until
the end of the Review Period to notify Seller in writing of (a) Buyer's failure
to obtain the commitment described in Section 4.2(b), or (b) any objections
Buyer may have to the results of
-6-
<PAGE> 7
Buyer's inspections of the Hotels or the Delivered Records. If, on or before the
end of the Review Period, Buyer shall notify Seller of any objections to Buyer's
inspections of the Hotels or the Delivered Records, Seller may elect to cure
such objections within 10 days from the date on which Seller received Buyer's
objections. Buyer may terminate this Contract by giving written notice of
termination to Seller at any time within (i) the Review Period, if such
termination is based on Buyer's failure to obtain the commitment described in
Section 4.2(b), and (ii) 10 days after the end of the Review Period, if such
termination is based upon Buyer's dissatisfaction, in Buyer's sole discretion,
with the results of any cure efforts undertaken by Seller in response to
Buyer's objection(s). If Buyer fails to notify Seller of any such objections
or failure on or before the end of the Review Period, Buyer shall be deemed to
have approved all such matters and to have waived its right to terminate this
Contract under this Section 4.2.1. If Buyer terminates this Contract pursuant
to this section, Seller shall be entitled to retain and, to the extent it has
not already done so, Buyer shall deliver to Seller all reports and studies
relating to the Hotels resulting from the inspection of the Hotels (or the
portions thereof which are specific to the Hotels) and all documents delivered
to Buyer pursuant to Section 4.1 hereof. The Deposit shall be returned to Buyer
within 5 days after any such termination and neither party shall have any
further rights or obligations one to the other, except for the indemnity set
forth in Section 4.2. If Buyer does not terminate this Contract as provided
herein, Buyer shall be deemed to have waived the right to terminate this
Contract under this section and shall be deemed to have accepted and approved
the condition of the Hotels, subject to the remaining terms of this Contract.
4.3 ESTOPPEL CERTIFICATES. Seller shall employ reasonable good
faith efforts to obtain from each tenant under any space lease affecting the
Hotels (but not from current or prospective occupants of hotel rooms and suites
within the Hotels), and to deliver to Buyer not less than 5 days before the
Closing Date, an estoppel letter substantially in the form attached to this
Contract as Exhibit F. In the event that Seller is unable to obtain an estoppel
letter from any such tenant by said date, Seller shall deliver to Buyer a
certificate in which Seller certifies, to the best of Seller's actual knowledge,
the information required by the form of estoppel letter attached to the Contract
as Exhibit F.
4.4 ACCESS TO HOTELS. After the Review Period, Buyer and Buyer's
authorized representatives and employees shall have the right, at Buyer's sole
cost, risk and expense, from time to time to enter upon and pass through the
Hotels during normal business hours and upon reasonable notice to Seller to view
the physical condition of the Hotels solely for the purpose of confirming the
satisfaction of the conditions described in Sections 7.1.1 and 7.1.3. Buyer and
its representatives and employees shall not unreasonably interfere
-7-
<PAGE> 8
with the operation of the Hotels or the right to privacy of guests of the
Hotels. Nothing contained herein is deemed to create a right to terminate after
the Review Period is over.
4.5 ACCESS TO FINANCIAL INFORMATION. Buyer's representatives
shall have access to all financial and other information relating to the Hotels
to enable them to prepare at Buyer's expense audited financial statements in
conformity with Regulation S-X of the Securities and Exchange Commission (the
"SEC") and to enable them to prepare a registration statement, report or
disclosure statement for filing with the SEC on behalf of FelCor Suite Hotels,
Inc., Buyer's general partner. Seller shall also provide to Buyer's
representatives a signed representation letter sufficient to enable an
independent public accountant to render an opinion on the financial statements
related to the Hotels.
5. SELLER'S REPRESENTATIONS.
5.1 Seller hereby represents and warrants to Buyer as follows:
5.1.1 SELLER'S EXISTENCE. Seller is a Delaware limited
partnership, validly existing and in good standing under the laws of Delaware
and is authorized to do business in the State of Florida and North Carolina.
Seller has full partnership power and authority to sell the Property and to
comply with the terms of this Contract.
5.1.2 AUTHORITY. The execution and delivery of this
Contract by Seller and the consummation by Seller of the transaction
contemplated by this Contract are within Seller's capacity.
5.1.3 LITIGATION. Except as set forth on Exhibit G, there
are no actions, suits, proceedings or investigations (including condemnation
proceedings) pending or, to the knowledge of Seller, threatened against Seller
or the Property and Seller is not aware of any facts which might result in any
such action, suit or proceeding. If Seller is served with process or receives
notice that litigation may be commenced against it, Seller shall promptly notify
Buyer.
5.1.4 HAZARDOUS MATERIAL. Except for (i) those matters
specified in Seller's existing environmental report which is a part of the
Delivered Records; and (ii) the handling, use and storage of Hazardous Material
in the ordinary course of operating the Hotels, which in each instance has been
and shall be in material compliance with all applicable Governmental
Requirement, (a) Seller has received no written notice, and has no knowledge, of
any discharge, spill, or disposal of any Hazardous Material on or under the
Property; and (b) Seller has received no written notice
-8-
<PAGE> 9
from any Governmental Authority or any other party, and has no knowledge, of any
Hazardous Material violations concerning the Property or any portion thereof.
5.1.5 NO RIGHTS TO PURCHASE. No other person, firm,
corporation, or other entity has any right of first refusal or option to acquire
the Property or any portion thereof or lease any space therein, except that
Doubletree Partners ("Doubletree") has a right of first offer under its existing
management agreement with Seller, but has waived such right with respect to the
transactions contemplated by this Contract.
5.1.6 SERVICE CONTRACTS. The schedule of Service Contracts
attached to this Contract as part of the Delivered Records constitutes a list of
all of the agreements, leases, or other contracts affecting the Property and
there are no other agreements, leases or other contracts with respect to the
Property, except the existing management agreements with Doubletree which shall
be terminated at Closing at Buyer's sole expense subject to the terms of Section
7.1.6 below. All of the agreements, leases, or other contracts are in full force
and effect, and to the best of Seller's knowledge, there is no default by any
party under any Service Contract and no event has occurred that, with the giving
of notice or passage of time, or both, would constitute a default thereunder.
Seller has received no notice that any party to any Service Contract intends to
cancel or terminate its Service Contract.
5.1.7 LEASE. The copy of the Lease delivered to Buyer as a
part of the Delivered Records is a true, accurate and complete copy of the Lease
and all amendments thereto. The Lease is in full force and effect, there is no
default by either party thereunder, and no event has occurred which, with the
passage of time, the giving of notice, or both, would constitute a default
thereunder.
5.1.8 NOTICES. Seller has received no written notice from
any Governmental Authority, any insurer, or any other party (a) that either the
Property or the use or operation thereof is currently in violation of any zoning
or other land use regulations; (b) that Seller is currently in violation, or
with the passage of time will be in violation of the requirements of any
ordinance, law, regulation or order of any Governmental Authority affecting the
Property or that any investigation has commenced or is contemplated regarding
any such possible violation; or (c) asserting that Seller is required to perform
work at the Property.
5.1.9 PARTIES IN POSSESSION. Except (a) hotel guests, (b)
as shown on the survey delivered as part of the Delivered Records or (c) as
described in the Delivered Records,
-9-
<PAGE> 10
there are no parties other than Seller in possession of any portion of the Land
or Improvements as lessees, tenants at sufferance or trespassers.
5.1.10 COMMITMENTS TO GOVERNMENTAL AUTHORITIES. Except as
set forth in the Property Records, no commitments relating to the Property have
been made to any Governmental Authority, utility company, school board, church
or other religious body or any homeowner or homeowners association, merchant's
association or any other organization, group or individual which would impose an
obligation upon Buyer or its successors or assigns to make any contribution or
dedication of money or land or to construct, install or maintain any
improvements of a public or private nature on or off the Land; and except as set
forth in the Property Records, no Governmental Authority has imposed any
requirement that any owner of the Land pay directly or indirectly any special
fees or contributions or incur any expenses or obligations in connection with
the Land.
5.2 SURVIVAL OF REPRESENTATIONS. All of the representations and
warranties of the Seller set forth in this Contract shall be true and correct in
all material respects as of the Effective Date; shall be deemed to be repeated
at and as of the Closing Date, and shall be true and correct in all material
respects as of the Closing Date, except as disclosed; and all of the
representations, warranties and agreements of the Seller set forth in this
Contract shall expressly survive the Closing for a period of six (6) months from
and after the Closing Date and shall specifically not merge into the Closing and
delivery of the Deeds and Assignment.
5.3 NO OTHER REPRESENTATIONS AND WARRANTIES BY SELLER. As used
herein, the phrases "knowledge," "to the best of Seller's knowledge" and similar
phrases shall mean the present, actual knowledge of Seller as of the Effective
Date without independent investigation other than inquiry of Seller's on-site
manager. Buyer acknowledges that except as specifically stated in this Contract:
(a) Seller has not made any warranties or representations concerning the
Property or any component thereof, including without limitation, the operation,
the existence, location, quantity or condition of the Personal Property; the
completion, status of completion or soundness of the Improvements; the zoning or
other land use restrictions affecting the Property; the enforceability of any
contract or other agreement or right assigned hereunder; the compliance of the
Property or any part thereof with any Governmental Requirement; or the use or
existence or prior use or existence of Hazardous Material on the Property; (b)
Buyer has conducted (or has had the opportunity to make) its own inspection and
examination of the Property and all components thereof; and (c) Buyer
acknowledges that it will accept, subject to the terms hereof, the Property in
an "AS IS" physical condition as of the Effective Date (normal wear and tear
excepted). EXCEPT AS
-10-
<PAGE> 11
SPECIFICALLY PROVIDED FOR HEREIN, THERE ARE NO EXPRESSED OR IMPLIED WARRANTIES
GIVEN TO BUYER IN CONNECTION WITH THE SALE OF THE PROPERTY. EXCEPT AS
SPECIFICALLY PROVIDED FOR HEREIN, SELLER DOES HEREBY DISCLAIM ANY AND ALL
WARRANTIES OF MERCHANTABILITY, HABITABILITY AND FITNESS THAT MAY BE DUE FROM
SELLER TO BUYER, WHETHER IN REGARD TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY.
THIS SECTION 5.3 SHALL SURVIVE THE CLOSING.
6. SELLER'S COVENANTS AND AFFIRMATIVE OBLIGATIONS.
6.1 MAINTENANCE OF PROPERTY. From and after the Effective Date,
Seller shall not perform any construction or removal of any Improvements, or
make any other change or improvement on or about the Property, except in the
ordinary course of business or as necessary to protect and preserve the
Property, without the prior written consent of Buyer. Between the Effective Date
and the Closing Date, Seller shall maintain and operate the Property in
substantially the same condition and manner as the Property is now maintained by
the Seller. All building supplies, maintenance materials, food and beverage in
process, linens and equipment, if any, located at the Property on the Closing
Date will be delivered and transferred to the Buyer. The Seller agrees to
provide or maintain normal inventories of such items up to the Closing Date,
including at least a 3-par inventory of linens and towels.
6.2 SERVICE CONTRACTS. After the Effective Date, Seller shall not
enter into any new Service Contract or extend, replace, renew or terminate any
Service Contract without the prior written consent of Buyer, not to be
unreasonably withheld.
6.3 NO FURTHER ENCUMBRANCES. After the Effective Date, Seller
shall not create or incur any mortgage, lien, pledge or other encumbrance
affecting the Property other than the Permitted Exceptions.
6.4 COMPLIANCE WITH OBLIGATIONS. Seller will perform all of its
material obligations under the Service Contracts, permits and Warranties, and
will comply in all material respects with all Governmental Requirements
affecting the Property and its use until the Closing Date.
6.5 NOTICE OF CHANGE IN GOVERNMENTAL REQUIREMENTS. Seller shall,
upon notice, or upon becoming aware of any such changes, notify Buyer promptly
of any change in any applicable Governmental Requirements which might materially
affect the value or use of the Property to Buyer.
6.6 INSURANCE. Seller shall maintain in full force and effect all
of its existing insurance until the Closing Date.
-11-
<PAGE> 12
6.7 LIQUOR LICENSE. The Buyer shall make and prosecute an
application for approval of the transfer of all liquor licenses and alcoholic
beverage licenses necessary to operate the restaurants, bars and lounges
presently located within the Property, from the Seller to the Buyer (or for the
issuance of new licenses in favor of the Buyer). The parties agree each with
the other that they will promptly execute all transfer forms, applications and
other documents required by the liquor authorities in order to effect such
transfer at the earliest date in time possible consistent with the laws of the
State in order that said liquor licenses may be transferred from the Seller to
the Buyer at the earliest possible time after the Closing Date. Seller will
cooperate with the Buyer in keeping open the bars and lounges and liquor
facilities of the Hotel between the Closing Date and the time when such liquor
license transfers actually become effective, by exercising management and
supervision of such facilities under the existing liquor license, provided,
however that (i) the Buyer shall indemnify and hold the Seller harmless from any
liability, damages or claims encountered in connection with such operations
during said period of time, and the Buyer shall procure and pay for dram shop
liability insurance naming the Buyer and Seller as insured thereunder, and (ii)
the obligation of Seller to cooperate and keep open the liquor facilities of the
Hotel shall terminate 120 days after the Closing of the transaction contemplated
hereby, or earlier, if the Buyer obtains its liquor licenses at an earlier date.
Buyer acknowledges that it may be required to enter into a management agreement
and lease agreement with Doubletree in order to continue operating under the
current liquor license.
6.8 SELLER'S INDEMNITY. Subject to the terms of Section 5.3,
Seller agrees to indemnify and hold Buyer harmless of and from all liabilities,
losses, damages, costs, expenses (including reasonable attorney's fees) which
the Buyer may suffer or incur by reason of any act or cause of action occurring
or accruing prior to the Closing Date and arising from the operation of the
Hotels prior to the Closing Date.
6.9 BUYER'S INDEMNITY. Buyer agrees to indemnify and hold Seller
harmless of and from all liabilities, losses, damages, costs, expenses
(including reasonable attorney's fees) which the Seller may suffer or incur by
reason of any act or cause of action occurring or accruing on or after to the
Closing Date and arising from the operation of the Hotels after the Closing
Date.
7. CONDITIONS.
7.1 CONDITIONS TO BUYER'S OBLIGATION TO CLOSE. Buyer shall not be
obligated to close unless and until each of the following conditions are either
fulfilled or waived, in writing, by Buyer:
-12-
<PAGE> 13
7.1.1 COMPLIANCE WITH COVENANTS. Seller shall have
performed in all material respects all covenants, agreements and obligations and
complied in all material respects with all conditions required by this Contract
to be performed or complied with by Seller prior to the Closing Date;
7.1.2 DELIVERY OF DOCUMENTS. Seller shall be prepared to
deliver all instruments and documents to be delivered at the Closing pursuant to
Sections 9.1 and 10.2 of this Contract;
7.1.3 REPRESENTATIONS AND WARRANTIES. All of Seller's
representations and warranties shall be true and correct in all material
respects as of the Closing Date without any supplementation or deliveries being
made after the Effective Date;
7.1.4 APPROVAL OF LANDLORD. Seller shall have obtained and
delivered to Buyer the written consent of Landlord to the sale of the Leasehold
Interest and related Improvements and Personal Property to Buyer pursuant to
this Contract.
7.1.5 ESTOPPEL. Seller shall have delivered to Buyer an
estoppel certificate signed by Landlord and dated not earlier than 10 days prior
to Closing stating:
(a) That the Lease is then in full force and effect and modified
only as previously disclosed to Buyer;
(b) That Seller is not in default in the payment of rent or any
additional charges to Landlord;
(c) That so far as the Landlord knows, neither party to the Lease
is in default in the performance or observance or any other covenant or
condition to be performed or observed under the Lease;
(d) That so far as the Landlord knows, no event has occurred
which authorizes, or with the lapse of time will authorize, Landlord or
Seller to terminate the Lease;
(e) That so far as the Landlord knows, neither Landlord nor
Seller has any offsets, counterclaims or defenses; and
(f) The dates to which rents and other amounts payable by Seller
under the Lease have been paid.
7.1.6 MANAGEMENT AGREEMENT. Buyer shall have received on
or before the end of the Review Period from Doubletree an agreement regarding a
termination of the Management Agreement on terms acceptable to Buyer. All costs
related to such termination shall be paid by Buyer, subject to Buyer's approval
as provided in the preceding sentence.
-13-
<PAGE> 14
7.1.7 APPROVAL OF LENDER. On or before the end of the
Review Period, Buyer shall have received from The Chase Manhattan Bank written
consent to the assumption of the Lease by Buyer pursuant to this Contract.
7.2 REMEDIES. Buyer shall have until the end of the Review Period
to satisfy or waive the conditions described in Sections 7.1.6 and 7.1.7, and
may terminate this Contract by notice delivered to Seller on or before the end
of the Review Period stating that Buyer has elected to terminate the Contract
for failure of one or both of such conditions. If Buyer fails to deliver notice
to Seller of the failure of one or both of such conditions on or before the end
of the Review Period, Buyer shall be deemed to have satisfied both of such
conditions for all purposes under this Contract, including without limitation
for the purpose of the following sentence, and to have waived its right to
terminate the Contract for failure of such conditions. If any of the conditions
to Buyer's obligations have not been satisfied (or deemed satisfied) on or
before the Closing Date, Buyer shall have the option to terminate this Contract,
receive the Deposit with any interest earned thereon, and pursue its remedies
against Seller as elsewhere provided in this Contract in the event of a default
by Seller hereunder.
7.3 CONDITIONS TO SELLER'S OBLIGATION TO CLOSE. Seller shall not
be obligated to close unless and until each of the following conditions are
either fulfilled or waived by Seller:
7.3.1 COMPLIANCE WITH COVENANTS. Buyer shall have
performed in all material respects all covenants, agreements and obligations and
complied in all material respects with all conditions required by this Contract
to be performed or complied with by Buyer prior to the Closing Date;
7.3.2 DELIVERY OF DOCUMENTS AND CASH TO CLOSE. Buyer shall
be prepared to deliver all Cash to Close and all instruments and documents to be
delivered by Buyer at the Closing pursuant to Sections 10.1, 10.2, 11.1 and 11.2
of this Contract;
7.3.3 MANAGEMENT AGREEMENT. Seller shall have received
from Doubletree a termination of the Management Agreement on terms acceptable to
Buyer and Seller. All costs related to such termination shall be borne by Buyer
in accordance with Buyer's agreement described in Section 7.1.6.
7.3.4 SELLER'S MORTGAGE. Seller shall have obtained an
agreement from Seller's mortgagee that the total Agreed Value (as that term is
defined in the three Consolidated and Renewal Promissory Notes (the "Notes")
from Seller to Aetna Life Insurance Company, dated January 1, 1992) for the
Property is not greater than $66,745,000.00. Seller shall have the right to
satisfy the mortgages securing the Notes (and any other lien on the
-14-
<PAGE> 15
Property) by obtaining evidence of the amount of principal and accrued interest
through the Closing Date that is due in connection therewith and deducting such
amount from the proceeds due Seller at Closing. So long as such arrangements are
made prior to Closing by Seller and the Title Company agrees to remove such
liens from Buyer's Title Policy as of the Closing Date, the existence of such
liens shall not be considered objectionable hereunder.
7.3.5 APPROVAL OF LANDLORD. Seller shall have received the
written consent of Landlord to the sale of the Leasehold Interest and related
Improvements and Personal Property to Buyer pursuant to this Contract.
7.4 REMEDIES. If any of the conditions to Seller's obligations
have not been satisfied on or before the Closing Date, Seller shall have the
option to terminate this Contract and pursue its remedies against Buyer as
elsewhere provided in this Contract in the event of a default by Buyer
hereunder.
8. CLOSING. Subject to all of the provisions of this Contract, Buyer and
Seller shall close this transaction on the Closing Date commencing at 10:00 a.m.
The Closing shall take place in Dallas, Texas at the Title Company's offices, or
at such other location mutually agreed to by the parties.
9. CLOSING DOCUMENTS.
9.1 SELLER'S CLOSING DOCUMENTS. At Closing, Seller shall execute
and deliver (or cause to be executed and delivered by Manager, as applicable)
the following documents ("Seller's Closing Documents") in accordance with
Section 11.2:
9.1.1 DEEDS AND ASSIGNMENT. The Deeds and the Assignment,
which shall be duly executed and acknowledged by Seller so as to convey to Buyer
good and marketable title to the Property described therein free and clear of
all liens, encumbrances and other conditions of title other than the Permitted
Exceptions.
9.1.2 SELLER'S AFFIDAVITS. Affidavits from Seller in form
and content reasonably satisfactory to Buyer and the Title Company to facilitate
the deletion of those standard exceptions on the Title Company's title insurance
commitments which may be deleted solely by delivery of an affidavit.
9.1.3 BILLS OF SALE. Absolute bills of sale with full
warranty of title conveying the Personal Property to Buyer or its designee free
and clear of all liens, encumbrances and security interests.
9.1.4 GENERAL ASSIGNMENT. An assignment of all Service
Contracts, permits, warranties, and as-built plans and specifications, if any,
used in the operation of the Property,
-15-
<PAGE> 16
assigning to Buyer all of Seller's right, title and interest in and to the
foregoing to the extent such rights exist and are assignable and containing
Buyer's assumption of all obligations thereunder arising on or after the
Closing.
9.1.5 CLOSING STATEMENT. A closing statement setting forth
the Purchase Price and all credits, adjustments and prorations between Buyer and
Seller, and the net Cash to Close due from Buyer.
9.1.6 AUTHORIZING RESOLUTIONS. Certificates of such
resolutions in form and content as the Title Company may reasonably request
evidencing Seller's existence, power and authority to consummate the transaction
herein contemplated, including copies of all partnership documents or other
reasonable evidence of partnership authority.
9.1.7 FIRPTA. A FIRPTA Non-Foreign Transferor Certificate
in accordance with Section 1445 of the Internal Revenue Code.
9.1.8 PROPERTY RECORDS. The originals, if available,
otherwise copies, of each of the Property Records to the extent not otherwise
covered in this Section.
9.1.9 VEHICLE TITLES. The necessary certificates of titles
duly endorsed for transfer together with any required affidavits and other
documentation necessary for the transfer of title from Seller to Buyer of any
motor vehicles owned by Seller and used in connection with the Hotels'
operations.
9.1.10 LIQUOR AGREEMENT. The Liquor License Agreement
referred to in Section 6.7, if necessary.
9.1.11 MANAGEMENT - AGREEMENT TERMINATION. Evidence that
the existing management agreement has been terminated pursuant to the terms of
the agreement referenced in Section 7.1.6.
9.2 BUYER'S CLOSING DOCUMENTS. At Closing, Buyer shall execute
and deliver the following documents ("Buyer's Closing Documents") in accordance
with Section 11.2:
9.2.1 ASSUMPTION DOCUMENTS. All documents under Section 9
to be executed by Buyer.
9.2.2 CORPORATE RESOLUTION. Certificate of Resolution of
Buyer in form and content as the Title Company may reasonably request evidencing
authorizing the entering into and execution of this Contract and the
consummation of the transaction herein contemplated.
-16-
<PAGE> 17
10. CLOSING PROCEDURE. The Closing shall proceed in the
following manner:
10.1 TRANSFER OF FUNDS. Buyer shall pay the Cash to Close to the
Escrow Agent by wire transfer to a depository designated by Escrow Agent.
10.2 DELIVERY OF DOCUMENTS. Seller shall deliver Seller's Closing
Documents and Buyer shall deliver Buyer's Closing Documents to the Escrow Agent.
10.3 DISBURSEMENT OF FUNDS AND DOCUMENTS. When Seller and Buyer
have delivered all documents and funds to Escrow Agent as provided in Sections
10.1 and 10.2, then Escrow Agent shall disburse the Cash to Close and Deposit,
less any interest earned thereon, to Seller; the Seller's Closing Documents to
Buyer; and the Buyer's Closing Documents to Seller.
11. PRORATIONS AND CLOSING COSTS.
11.1 PRORATIONS. Except as otherwise specified in clause (a)
below, the following items shall be prorated at the Closing as of midnight
preceding the Closing Date, without duplication:
(a) Certain costs and expenses relating to the Property shall be
adjusted as of the Closing Date between Seller and Buyer (the "Closing
Date Adjustment"). The Closing Date Adjustment shall constitute a
composite accounting of the different items described below in this
Section. The intent is to credit or charge, as the case may be, Seller
with all revenues and expenses respecting the Property which are
attributable to operations before the Closing Date and to credit or
charge as the case may be, Buyer with all such revenues and expenses
attributable to operations on and after the Closing Date. Unless
otherwise provided for herein, all revenues and expenses shall be
separately accounted for as between Seller and Buyer as of 12:01 a.m. on
the Closing Date. No later than sixty (60) days after the Closing Date,
Seller and Buyer shall review all the amounts and calculations made in
respect of the Closing Date Adjustment and any final corrections shall
be made to the Closing Date Adjustment, and Seller and Buyer at that
time shall settle any funds owed to each other. The following items
shall be accounted for in calculating the Closing Date Adjustment:
(i) Prepaid charges and fees for licenses and permits
transferred by Seller to Buyer shall be prorated as
between Seller and Buyer.
-17-
<PAGE> 18
(ii) Prepaid rents and all room and other deposits and advance
payments under booking arrangements and trade-out
agreements for use of the Property facilities after the
Closing Date shall be credited to Buyer.
(iii) With regard to food (other than food in process including
mini-bars and gift shops) and non-alcoholic and alcoholic
beverages (other than opened containers and unopened
containers outside of storage areas), Buyer shall be
charged with the costs of all food and non-alcoholic and
alcoholic beverages at the Property and at Seller's cost
based upon an inventory of such items performed as of
12:01 a.m. on the Closing Date.
(iv) All charges and prepayments relating to the Service
Contracts which are assumed by Buyer shall be separately
accounted for as between Seller and Buyer as of 12:01 on
the Closing Date.
(v) All cash in the operating accounts for the Hotel (it being
understood that such accounts refer to "house banks" and
not bank accounts) shall be paid over to Buyer at Closing
and Seller shall receive a credit therefor in the Closing
Date Adjustment.
(vi) With regard to the booking of guest rooms and the
provision of other services at the Property, the parties
agree that Seller shall be entitled to all of the revenue
generated by such operations through and including the
night before the Closing Date; provided that Buyer shall
be entitled to one-half of such revenue (including
applicable sales tax) for the night before the Closing
Date. Seller shall receive a credit for all accounts
receivable with respect to hotel guests then in occupancy,
net of any travel agent commissions, credit card
commissions, or other similar costs to collect such
revenue. Except as expressly provided for in this
subsection (vii), Seller shall own and be entitled to all
collections with respect to accounts receivable for the
period prior to the Closing Date. Buyer agrees, on a
prompt, but no less frequent than a monthly basis, to
deliver to Seller any payments and back-up received or
generated with respect to such accounts receivable. The
parties acknowledge that if Buyer receives a payment which
does not specify the invoice being paid, then all payments
shall be applied first to the current sums due Buyer, if
applicable. Buyer has no obligation, nor responsibility to
collect said accounts
-18-
<PAGE> 19
receivable, however, Buyer will cooperate with Seller in
such collection and shall give Seller rights to inspect
Buyer's books and records at reasonable times with respect
to such accounts receivable.
(vii) The parties shall arrange for hotel guests to sign new
deposit box or other appropriate receipts on the day
before the Closing with respect to baggage, personal
property, laundry, valet packages and other property of
hotel guests checked or left in the care of Seller by
transient hotel guests or tenants and, to the extent such
receipts are not obtained, such property shall be sealed,
listed in an inventory prepared and signed jointly by the
parties as of the Closing Date, and Buyer shall be
responsible from and after the Closing Date for all such
property listed in said inventory. Notwithstanding the
foregoing, to the extent a hotel guest has not signed a
new safe deposit box receipt, Seller shall continue to be
responsible for the contents thereof and shall indemnify
and hold Buyer harmless for any and all losses,
misappropriations, thefts, or otherwise improper removals
from said safe deposit boxes. The provisions of this
Paragraph shall expressly survive the Closing.
(viii) All accrued and unpaid obligations of the Seller and its
Manager under its salary and employee benefits
arrangements in place as of midnight before the Closing
for employees at the Property as of the Closing Date,
including without limitation, unemployment compensation
benefits, pension benefits, salaries, bonuses, sick leave,
vacation and other similar forms of compensation up to the
date of the Closing, including all employer taxes
associated with vacation and sick pay, shall be assumed by
Buyer and credited to Buyer, or at Seller's option,
Seller may pay in full such benefits direct to its Manager
and employees. Buyer acknowledges and agrees that: (a) all
employees employed at the Hotel are the employees of
Manager, and (b) no employee who elects to continue
employment at the Hotel will be terminated in violation
of, and accordingly no notices will be given pursuant to,
the Worker Adjustment Retraining Notification Act, 29
U.S.C.A. Section 2101, ET SEQ. ("WARN Act"). From and
after the Closing Date, Buyer shall be solely obligated
to provide all notices required by the WARN Act. Further,
Buyer agrees to indemnify, defend and hold Seller
harmless from and
-19-
<PAGE> 20
against any claim or expense (including but not limited to
court costs and attorney fees) which may be asserted
against or incurred by Seller due to or as a result of any
alleged failure to comply with any provisions of the WARN
Act which may be applicable to Seller. Buyer's agreements
in the preceding two sentences shall survive the Closing.
(b) Seller shall pay or credit on the Purchase Price any of the
following which are a lien on the Land or Improvements: (i) all (A)
special assessments relating to the Land and Improvements for work
completed or substantially completed as of the Effective Date, and (B)
all unpaid sales, occupancy, or real estate taxes for years prior to
Closing, together with any interest and penalties relating to any of the
foregoing, and (ii) a portion of the unpaid sales, occupancy, or real
estate taxes for the year of Closing, prorated through the date of
Closing. The proration of real estate taxes shall be based on a 365-day
year and on the most recently available tax rate and valuation and shall
be final.
(c) Seller shall notify the utility companies servicing the
Property prior to Closing that billing to Seller for such utilities
shall be discontinued at the end of the day preceding the Closing Date,
and Buyer shall arrange with such utilities to have such billings for
utility services charged to Buyer from and after the Closing Date and
Seller shall be entitled to the refunds of all deposits therefor. Seller
shall pay all charges with respect to such utilities for the period
prior to the Closing Date and utility charges since the date of the last
billing will be adjusted at Closing as of the Closing Date on the basis
of the last bill so rendered, with subsequent adjustment, if any, when
final bills are rendered.
(d) If there is a water meter on the Property, the Seller shall
furnish, at the Closing or as soon thereafter as practicable, a reading
to a date not more than thirty (30) days prior to the Closing Date, and
the unfixed meter charge, the unfixed sewer rent and/or unfixed water
charges, if any, based thereon for the intervening time shall be
apportioned on the basis of such last reading, subject to adjustment
upon receipt of the actual meter charge and sewer rent.
(e) All rents and other payments under the Lease shall be
prorated as of 12:01 a.m. on the Closing Date and the security deposit,
if any, held by Landlord shall be returned or paid, as the case may be,
to Seller.
(f) Other costs, expenses and charges which are a lien or may
become a lien against the Property and are of such a type as are usually
involved in and adjusted with regard to property similar to and located
in the locale of the Property.
-20-
<PAGE> 21
Prorations hereunder shall, where applicable, be made on the basis of a 365-day
year and, for any month, on the basis of the number of days elapsed. If any of
the foregoing cannot be apportioned at the Closing because of the unavailability
of the amounts which are to be prorated, unless otherwise provided for herein, a
reasonable estimation of the amount of such items shall be placed in escrow with
the Title Company, and such items shall be prorated as soon as practicable after
the Closing Date. The provisions of this Section 11.1 shall survive the Closing.
11.2 SELLER'S CLOSING COSTS. Seller shall pay for the following
items prior to or at the time of Closing:
. One-half (1/2) of the premium and other costs and fees (excluding
the cost of any special endorsement obtained by Buyer) payable in
connection with the Owner's or Leasehold Owner's Title Insurance
Policy, as the case may be, covering the Tampa Land, the
Leasehold Interest, and the Improvements related thereto.
. One-half (1/2) of the transfer taxes, conveyance fees, and
documentary stamp taxes related to the transfer of the Land and
the Improvements thereon.
. One-half (1/2) of all escrow fees and costs.
. Seller's attorney's fees.
. Fees of Banc One Capital Corporation.
11.3 BUYER'S CLOSING COSTS. Buyer shall pay for the following
items prior to or at the time of Closing:
. One-half (1/2) of the transfer taxes, conveyance fees and
documentary stamp tax related to the transfer of the Land and the
Improvements thereon.
. One-half (1/2) of the premium and other costs and fees payable in
connection with the Owner's or Leasehold Owner's Title Insurance
Policy, as the case may be, obtained by Buyer covering the Tampa
Land, the Leasehold Interest, and the Improvements related
thereto, plus the cost of all endorsements thereto.
. The premiums and other costs and fees payable in connection with
any Owner's Title Insurance Policy covering the Durham Land and
the Improvements thereon obtained by Buyer, plus the cost of all
endorsements thereto.
. One-half (1/2) of all escrow fees and costs. The costs of
recording all closing documents.
. Buyer's attorney's fees.
11.4 ACCOUNTS PAYABLE. Seller shall retain and be responsible
for the payment of all accounts payable relating to the Hotels accrued prior to
and as of the Closing and payable after the Closing. Buyer shall be responsible
for the particular accounts payable relating to the Hotels accruing after the
Closing.
-21-
<PAGE> 22
12. POSSESSION. Buyer shall be granted full possession of the Property
at Closing subject to Manager's rights under the Management Agreement, tenant's
rights under any space leases of the Property assumed by Buyer, and guests in
occupancy.
13. CONDEMNATION AND DAMAGE BY CASUALTY.
-----------------------------------
13.1 CONDEMNATION. In the event of the institution of any
proceedings by any Governmental Authority which shall relate to the proposed
taking of any portion of the Property by eminent domain prior to Closing, or in
the event of the taking of any portion of the Property by eminent domain prior
to Closing, Seller shall promptly notify Buyer and Buyer shall thereafter have
the right and option to terminate this Contract by giving Seller and Escrow
Agent written notice of Buyer's election to terminate within thirty (30) days
after receipt by Buyer of the notice from Seller. Seller hereby agrees to
furnish Buyer with written notice of a proposed condemnation within two (2)
business days after Seller's receipt of such notification. Should Buyer
terminate this Contract, Escrow Agent shall return to Buyer its Deposit and,
except as otherwise provided for herein, the parties hereto shall be released
from their respective obligations and liabilities hereunder. Should Buyer elect
not to terminate, the parties hereto shall proceed to Closing and Seller shall
assign all of its right, title and interest in all awards in connection with
such taking to Buyer.
13.2 DAMAGE BY CASUALTY. If, after the Effective Date but prior
to the Closing Date, any non-substantial damage occurs from fire, windstorm or
other casualty to the Property, Buyer shall be required to close this
transaction in accordance with the Contract, Seller shall assign unto Buyer any
and all insurance proceeds paid or payable with respect to such damage (other
than business interruption insurance for periods prior to the Closing Date) ,
and Buyer shall receive at Closing a credit in the amount of any deductible or
co-payment amount under such policy. In such event, Seller shall have no
additional obligation if such insurance proceeds are insufficient or
unavailable to repair such damage.
If, prior to Closing, there is any substantial loss or
damage to the Hotels, Buyer shall have the option to terminate this Contract
provided it delivers written notice to Seller and Escrow Agent of its election
so to terminate this Contract within 30 days after the date Seller has delivered
Buyer written notice of any such loss or damage, and in such event the Deposit
shall be delivered to Buyer and thereafter no party shall have any further
obligation or liability to the other under this Contract. "Substantial" or loss
or damage shall mean a loss in excess of $250,000 in value affecting any one
Hotel.
-22-
<PAGE> 23
14. DEFAULT.
--------
14.1 BUYER'S DEFAULT. In the event that this transaction fails to
close solely due to a default on the part of Buyer, the Deposit shall be
immediately paid to the Seller without prejudice to any other rights which
Seller may have against Buyer at law or in equity as a result of such default,
including without limitation the right of specific performance. Notwithstanding
the foregoing, Seller's damages with respect to a default by Buyer under this
agreement shall be limited to a total of $4,500,000 (including the Deposit),
provided Buyer pays, or causes to be paid, to Seller in cash the amount of
Seller's damages, not to exceed $4,500,000, within 60 days after (a) Seller's
damages become certain, and (b) Seller provides to Buyer Seller's calculation
thereof, which calculation shall be prepared in good faith, in reasonable
detail, and in accordance with the applicable laws of the State of Ohio
respecting such matters. Such statement, if prepared in accordance with this
Section, shall be prima facie evidence of Seller's damages, absent manifest
error, as to the amount thereof; provided, however that Buyer shall be permitted
to challenge the amount or calculation of such damages after the payment of such
amount to Seller in accordance with this Section. The payment of such sum, if
made in accordance with the terms of this Section, shall be considered
liquidated damages and Seller shall have no further rights against Buyer for
further damages or any other remedy notwithstanding the fact that Seller's
actual damages may exceed $4,500,000. If Buyer fails to pay Seller's calculated
damages within the 60-day time period in accordance with this Section, the
limitation on Seller's damages described this Section shall not apply and Seller
shall be entitled to recover from Buyer all of Seller's actual damages resulting
from Buyer's breach.
14.2 SELLER'S DEFAULT. In the event that this transaction fails
to close solely due to a default on the part of Seller, Buyer shall have the
right to either (i) terminate the Contract and receive back the Deposit; or (ii)
elect to close the within transaction notwithstanding Seller's default
hereunder. If Buyer elects the option set forth in (ii), the Closing shall not
be deemed a waiver by Buyer of Seller's default hereunder and Buyer may recover
damages from Seller for such breach. Further, if Buyer elects option (ii) and
Seller fails to close, Buyer may pursue any and all remedies against Seller
available at law or in equity, including without limitation, specific
performance of Seller's obligations hereunder, in which event the Escrow Agent
shall return the Deposit to Buyer upon notice.
15. REAL ESTATE AND OTHER COMMISSIONS AND FEES. Seller and Buyer each
represent and warrant to the other that there are no brokers, salespersons,
advisors or finders involved in this transaction by reason of agreement with
such representing party. The provisions of this Section shall survive the
Closing or termination of this Contract.
-23-
<PAGE> 24
Seller agrees to, and hereby does, indemnify and save harmless Buyer and
its affiliates and their respective successors and assigns against and from any
loss, liability or expense, including reasonable attorneys' fees, arising out of
any claim or claims for commissions or other compensation for bringing about
this Contract or the transactions contemplated hereby, or advice in connection
herewith, made by any broker, finder, consultant or like agent, including but
not limited to Banc One Capital Corporation, if such claim or claims made by
any such broker, finder, consultant or like agent are based in whole or in part
on any agreements entered into with such Seller or its representatives for a
commission or other compensation. Buyer agrees to, and hereby does, indemnify
and save harmless Seller, its affiliates and its successors and assigns against
and from any loss, liability or expense, including reasonable attorney's fees,
arising out of any claim or claims for commissions or other compensation for
bringing about this Contract or the transactions contemplated hereby, or advice
in connection herewith, made by any broker, finder, consultant or like agent if
such claim or claims by any such broker, finder, consultant or like agent are
based on any agreements entered into with Buyer or its representatives for a
commission or other compensation.
16. NOTICES. Any notice, request, demand, instruction or other
communication to be given to either party hereunder, except where required to be
delivered at the Closing, shall be in writing and shall be hand-delivered or
sent by Federal Express or a comparable overnight mail service, or mailed by
U.S. registered or certified mail, return receipt requested, postage prepaid, to
Buyer, Seller, Buyer's Attorney, Seller's Attorney, and Escrow Agent at their
respective addresses set forth in Section 1 of this Contract. Notice shall be
deemed to have been given upon receipt or refusal of delivery of said notice.
Notices may be given by confirmed telecopy provided a hard copy of such notice
is mailed in accordance with this Section on the next business day following
such telecopy delivery. The addressees and addresses for the purpose of this
paragraph may be changed by giving notice. Unless and until such written notice
is received, the last addressee and address stated herein shall be deemed to
continue in effect for all purposes hereunder.
17. ASSIGNMENT. This Contract may not be assigned by Buyer (except to an
affiliate of Buyer, in which event Buyer will not be relieved of its
obligations) without the prior written consent of Seller.
18. ESCROW AGENT.
18.1 DUTIES AND AUTHORIZATION. The payment of the Deposit, Cash
to Close and all other funds provided hereunder to the Escrow Agent is for the
accommodation of the parties to this Contract. The duties of the Escrow Agent
shall be determined
-24-
<PAGE> 25
solely by the express provisions of this Contract. In the event Escrow Agent
receives a written demand from either Seller or Buyer for the Deposit (which
demand shall include an explanation setting forth the factual basis for such
party's request for the Deposit), Escrow Agent shall give ten (10) days written
notice to the other party of such demand and of Escrow Agent's intention to
remit the Deposit to the party making the demand on the stated date. If Escrow
Agent does not receive a written objection within ten (10) days after such
notice, Escrow Agent is hereby authorized to so remit the Deposit. If, however,
Escrow Agent receives written objection from the other party within ten (10)
days after such notice, Escrow Agent shall continue to hold the Deposit until
otherwise directed by joint written instructions from Seller and Buyer, or
until a final judgment of an appropriate court is issued. Buyer and Seller
authorize the Escrow Agent, without creating any obligation on the part of the
Escrow Agent, in the event this Contract or the Deposit becomes involved in
litigation, to deposit the Deposit with the clerk of the court in which the
litigation is pending and thereupon the Escrow Agent shall be fully relieved and
discharged of any further responsibility under this Contract. Buyer and Seller
also authorize the Escrow Agent, if it is threatened with litigation, to
interplead all interested parties in any court of competent jurisdiction and to
deposit the Deposit with the clerk of the court and thereupon the Escrow Agent
shall be fully relieved and discharged of any further responsibility hereunder.
18.2 LIABILITY. The Escrow Agent shall not be liable for any
mistake of fact or error of judgment or any acts or omissions of any kind unless
caused by its own willful misconduct or gross negligence. The Escrow Agent shall
be entitled to rely on any instrument or signature believed by it to be genuine
and may assume that any person purporting to give any writing, notice or
instruction in connection with this Contract is duly authorized to do so by the
party on whose behalf such writing, notice, or instruction is given.
18.3 HOLD HARMLESS. Buyer and Seller will, and hereby agree to,
jointly and severally, indemnify the Escrow Agent for and hold it harmless
against any loss, liability, or expense, including Attorneys' Fees, incurred on
the part of the Escrow Agent arising out of or in connection with the acceptance
of, or the performance of, its duties under this Contract, as well as the costs
and expenses of defending against any claim or liability arising under this
Contract. This provision shall survive the Closing or earlier termination of
this Contract.
18.4 FDIC COVERAGE. The parties are informed that the Federal
Deposit Insurance Corporation (FDIC) coverage applies only to a maximum amount
of One Hundred Thousand Dollars ($100,000.00) for each individual depositor, and
that Escrow Agent assumes no responsibility for any loss occurring which arises
from the fact
-25-
<PAGE> 26
that the amount held by Escrow Agent in any account may cause the aggregate
amount of any individual depositor's accounts to exceed one Hundred Thousand
Dollars ($100,000.00) and that the excess amount is not insured by the Federal
Deposit Insurance Corporation.
19. MISCELLANEOUS.
19.1 COUNTERPARTS. This Contract may be executed in any number of
counterparts, any one and all of which shall constitute the contract of the
parties and each of which shall be deemed an original.
19.2 SECTION AND PARAGRAPH HEADINGS. The section and paragraph
headings herein contained are for the purposes or identification only and shall
not be considered in construing this Contract.
19.3 AMENDMENT. No modification or amendment of this Contract
shall be of any force or effect unless in writing executed by both Seller and
Buyer.
19.4 ATTORNEYS' FEES. If any party obtains a judgment against any
other party by reason of breach of this Contract, Attorneys' Fees and costs
shall be included in such judgment.
19.5 GOVERNING LAW. This Contract shall be interpreted in
accordance with the internal laws of the State of Ohio both substantive and
remedial.
19.6 ENTIRE CONTRACT. This Contract, including all Exhibits which
are incorporated by reference, sets forth the entire agreement between Seller
and Buyer relating to the Property and all subject matter herein and supersedes
all prior and contemporaneous negotiations, understandings and agreements,
written or oral, between the parties.
19.7 TIME OF THE ESSENCE. Time is of the essence in the
performance of all obligations by Buyer and Seller under this Contract.
19.8 COMPUTATION OF TIME. Any reference herein to time periods of
less than six (6) days shall exclude Saturdays, Sundays and legal holidays in
the computation thereof. Any time period provided for in this Contract which
ends on a Saturday, Sunday or legal holiday shall extend to 5:00 p.m. on the
next full business day.
19.9 SUCCESSORS AND ASSIGNS. This Contract shall inure to the
benefit of and be binding upon the permitted successors and assigns of the
parties hereto.
-26-
<PAGE> 27
19.10 ACCEPTANCE DATE. This Contract shall be null and void and
of no further force and effect unless a copy of same executed by Seller is
delivered to Buyer by the close of business on the Acceptance Date.
19.11 CONSTRUCTION OF CONTRACT. All of the parties to this
Contract have participated freely in the negotiation and preparation hereof;
accordingly, this Contract shall not be more strictly construed against any one
of the parties hereto.
19.12 GENDER. As used in this Contract, the masculine shall
include the feminine and neuter, the singular shall include the plural and the
plural shall include the singular as the context may require.
19.13 APPROVAL. In addition to any other condition set forth
herein, (a) Seller's obligations and liabilities under this Contract shall be
conditioned upon Seller obtaining all partner consents and approvals deemed
necessary by Seller in connection with this transaction on or before Closing,
and (b) Buyer's obligations and liabilities under this Contract shall be
conditioned upon Buyer obtaining the consent and approval of its Board of
Directors to the transaction contemplated by this Contract on or before May 7,
1997. If Buyer fails to notify Seller of the satisfaction or waiver of the
condition described in clause (b) on or before May 7, 1997, this Contract shall
automatically terminate for failure of such condition, the Deposit and all
interest earned thereon shall be returned to Buyer, and neither party shall have
any further rights against the other hereunder.
The parties have executed this Contract as of the dates indicated below.
SELLER:
-------
PSH MASTER L.P. I
By PC Development Limited
Partnership, General Partner
By P.H. Management Company,
General Partner
By /s/ James V. Pickett
--------------------------------
Its President
-------------------------------
Date: April 24, 1997
(signature lines continued on next page)
-27-
<PAGE> 28
BUYER:
------
FELCOR SUITES LIMITED PARTNERSHIP
By FelCor Suite Hotels, Inc., a
Maryland corporation, general
partner
By /s/ Lawrence D. Robinson
----------------------------------
Lawrence D. Robinson, Senior
Vice President
Date: April 22, 1997
ESCROW AGENT: (as to only those
sections of the Contract pertaining
to the Escrow Agent's rights and
responsibilities)
COMMONWEALTH LAND TITLE INSURANCE
CORPORATION
By /s/ LeAnn Turentine
-----------------------------------------
It Assistant Vice President
-----------------------------------------
Date: April 22, 1997
-28-
<PAGE> 29
EXHIBIT A-1
LAKE BUENA VISTA, FLORIDA
A parcel of land lying in Section 22, Township 24 South, Range 28 East, City of
Lake Buena Vista, Orange County, Florida, being more particularly described as
follows:
Commence at a 1 foot round concrete monument marking the Northwest corner of the
Southwest Quarter of the Southwest Quarter of said Section 22; thence run South
89 degrees 27 minutes 58 seconds East, along the North line of the Southwest
Quarter of the Southwest Quarter of said Section 22, 183.59 feet to a point on
the Easterly right-of-way line of Preview Boulevard, (Hotel Plaza Boulevard)
described in Official Records Book 2125, Page 311 (Parcel C) of the Public
Records of Orange County, Florida, for the POINT OF BEGINNING, said point being
a point on a curve concave Southeasterly, having a radius of 554.81 feet and a
central angle of 04 degrees 04 minutes 59 seconds; thence from a tangent bearing
of North 10 degrees 53 minutes 38 seconds East, run Northerly along the arc of
said curve 39.54 feet to a point on the Southerly line of a Florida Department
of Transportation 50 foot wide Lateral Ditch Easement as described in Official
Records Book 606, Page 435 of the Public Record of Orange County, Florida,
thence North 89 degrees 33 minutes 48 seconds East, along the South line of said
easement 272.14 feet; thence South 00 degrees 32 minutes 02 seconds West, 58.22
feet to the Southerly line of Munger Land Company Subdivision; 15 foot wide
right-of-way as recorded in Plat Book E, Pages 3, 7, 22 and 23, Public Records
of Orange County, Florida, said point also being the Northwest corner of a
Standard Oil Company parcel as described in Official Records Book 1618, Page
201, of the Public Records of Orange County, Florida; thence continue South 00
degrees 32 minutes 02 seconds West, 150.00 feet, along the West line of said
Standard Oil property to the Southwest corner thereof; thence South 89 degrees
27 minutes 58 seconds East, 312.12 feet along the South line of said Standard
Oil Company property to the Southeast corner thereof and a point on the
westerly right-of-way line of State Road 535 and State Road 400 (I-4) connector
(Department of Transportation Section 7528-413); thence South 04 degrees 05
minutes 45 seconds East, along said westerly right-of-way line, 503.26 feet to
the beginning of a curve concave Northwesterly, having a radius of 199.86 feet
and a central angle of 26 degrees 50 minutes 17 seconds; thence run Southerly
along the arc of said curve and said Westerly right-of-way 93.62 feet to the
point of tangency thereof; thence South 22 degrees 44 minutes 32 seconds West,
along said right-of-way 70.51 feet; thence North 90 degrees 00 minutes 00
seconds West, leaving said right-of-way, 107.14 feet; thence North 00 degrees
00 minutes 00 seconds East, 125.35 feet; thence North 90 degrees 00 minutes 00
seconds West, 137.00 feet; thence South 00 degrees 00 minutes 00 seconds West,
161.13 feet; thence North 90 degrees 00 minutes 00 seconds West, 242.37
Continued
<PAGE> 30
EXHIBIT A-1
(Continued)
FLORIDA
feet; thence North 72 degrees 43 minutes 32 seconds West, 70.89 feet to a point
on a curve on the aforesaid Easterly right-of-way line of Preview Boulevard,
said curve concave Westerly, having a radius of 1054.93 feet and a central angle
of 07 degrees 22 minutes 44 seconds; thence from a tangent bearing of North 03
degrees 27 minutes 19 seconds East, run Northerly along the arc of said curve
and said Easterly right-of-way, 135.86 feet to the point of tangency thereof;
thence North 03 degrees 55 minutes 25 seconds West, also along said Easterly
right-of-way, 566.02 feet to a point of curvature of a curve concave
Southeasterly having a radius of 554.81 feet and a central angle of 14 degrees
49 minutes 03 seconds; thence run Northerly along the arc of said curve and said
Easterly right-of-way 143.48 feet to the POINT OF BEGINNING.
EXCLUDING: Therefrom the following described parcel:
Commence at a 1 foot round concrete monument marking the Northwest corner or
the Southwest Quarter, of the Southwest Quarter of said Section 22; thence run
South 00 degrees 02 minutes 04 seconds West, along the West line of said Section
22, 846.04 feet; thence North 90 degrees 00 minutes 00 seconds East, 439.43 feet
to the POINT OF BEGINNING; thence North 00 degrees 00 minutes 00 seconds East,
18.00 feet; thence North 90 degrees 00 minutes 00 seconds East, 54.00 feet;
thence South 00 degrees 00 minutes 00 seconds West, 28.00 feet; thence North 90
degrees 00 minutes 00 seconds West, 10.00 feet North of and parallel to the most
Southerly line of the above described description, 54.00 feet; thence North 00
degrees 00 minutes 00 seconds East, 10.00 feet to the POINT OF BEGINNING.
<PAGE> 31
EXHIBIT A-2
TAMPA, FLORIDA
Lots 13, 14, 15 and 16 of ROCKY POINT OFFICE & COMMERCIAL PARK, according to the
map or plat thereof recorded in Plat Book 51, Page 57, of the public records of
Hillsborough County, Florida.
TOGETHER WITH that portion of Lot 17 of said ROCKY POINT OFFICE & COMMERCIAL
PARK, being further described as follows: Begin at the most Easterly corner of
said Lot 16; thence along the Northeast line of said Lot 17, South 36 deg 01
min 50 sec East, for 35.00 feet; thence leaving said Northeast line of Lot 17,
South 40 deg 32 min 28 sec West, for 135.00 feet for a point on the East line
of said Lot 16; thence along said East line of Lot 16, North 27 deg 09 min 43
sec East, for 147.12 feet to the Point of Beginning.
<PAGE> 32
RALEIGH/DURHAM SPACE LEASES
Colonial Storage Center Month to Month
Westport Storage Month to Month
<PAGE> 33
EXHIBIT B-I
-----------
LAKE BUENA VISTA, FLORIDA
1. Real estate taxes and assessments not yet due and payable;
2. Zoning and building laws, ordinances and regulations;
3. Terms and conditions of that certain lease by and between Lake Buena
Vista Communities, Inc., a Delaware corporation, and Pickett Buena
Vista/Hotel Limited Partnership, an Ohio partnership, a memorandum of
which dated March 10, 1986, was recorded March 11, 1986, in Official
Records Book 3759, Page 492; as assigned to PC Development Limited
Partnership, an Ohio limited partnership, in Official Records Book 3856,
Page 4661; and as further assigned in Official Records Book 3907, Page
4996, to Pickett Suite Hotel Master L.P.I, a Delaware limited
partnership;
4. Subject to the following reservations for the benefit of Lake Buena
Vista Communities, Inc., its successors and assigns as set out and
reserved in that Memorandum of Lease between Lake Buena Vista
Communities, Inc., a Delaware corporation, and Pickett Buena Vista/Hotel
Plaza Limited Partnership, recorded March 11, 1986, in Official Records
Book 3759, Page 492:
(1) A 50 foot wide Utility Easement along and parallel to the most
Easterly boundary of the above described parcel;
(2) A 20 foot wide Utility Easement described as follows: Comment at
a 1 foot round concrete monument marketing the Northwest corner
of the Southwest Quarter of the Southwest Quarter of Section 22,
Township 24 South, range 28 East; thence run South 00 degrees 20
minutes 04 seconds West, along the West line of said Section 22,
846.04 feet; thence North 90 degrees 00 minutes 00 seconds East,
214.61 feet to the POINT OF BEGINNING of a 20 foot wide Utility
Easement lying 10 feet on each side of the following described
centerline: From the POINT OF BEGINNING, run North 90 degrees 00
minutes 00 seconds East, 224.82 feet to the POINT OF TERMIINATION
of said centerline;
(3) A 10 foot wide Utility Easement described as follows: Commence at
a 1 foot round concrete monument marking the Northwest corner of
the Southwest Quarter of the Southwest Quarter of Section 22,
Township 24 South, Range 28 East; thence run South 00 degrees 02
minutes 04 seconds West, along the West line of said Section 22,
697.60 feet; thence South 73 degrees 50 minutes 24 seconds East,
225.19 feet to the POINT OF BEGINNlNG of a 10 foot wide Utility
Easement lying 5 feet on each side of the following described
centerline: From the POINT OF BEGINNING, run South
<PAGE> 34
73 degrees 50 minutes 24 seconds East, 243.48 feet to the POINT
OF TERMINATION of said centerline;
5. Decree incorporating the Reedy Creek Drainage District recorded
May 13, 1996, in Official Records Book 1542, Page 864, Public
Records of Orange County, Florida.
-2-
<PAGE> 35
EXHIBIT B-2
-----------
TAMPA, FLORIDA
1. Real estate taxes and assessments not yet due and payable;
2. Zoning and building laws, ordinances and regulations;
3. Reservation of oil, gas and other minerals in favor of Tampa Port
Authority, as set forth in Quit Claim Deed recorded December 8, 1971 in
O.R. Book 2403, Page 130, the right of entry and exploration having been
released by Release of Easement recorded in O.R. Book 4451, Page 1517;
4. Restrictions as set forth on the plat of Rocky Point Office & Commercial
Park recorded in Plat Book 51, Page 57;
5. 15 foot Utility Easement as set forth on the plat of Rocky Point Office
& Commercial Park recorded in Plat Book 51, Page 57;
6. Covenants, restrictions, future assessments and easements set forth in
Declaration of Covenants and Restrictions for Rocky Point Harbor
recorded in O.R. Book 3895, Page 1526; as amended by Supplemental
Declaration and Amendment to Declaration of Covenants and Restrictions
for Rocky Point Harbor recorded in O.R. Book 4131, Page 577;
7. Memorandum of Agreement executed by and between Pickett Suite Hotel
Master L.P.I., a Delaware limited partnership and APT Tampa/Orlando,
Inc., a Delaware corporation, recorded October 14, 1996 in O.R. Book
8317, Page 1111;
8. Riparian and/or littoral rights of others; and
9. Title to that portion of the subject property lying under navigable
waters of Tampa Bay.
<PAGE> 36
EXHIBIT B-3
-----------
NORTH CAROLINA
1. Real estate taxes and assessments not yet due and payable;
2. Zoning and building laws, ordinances and regulations;
3. Restrictions, reservation of easements, conditions (including party wall
rights, options, rights of first refusal and future assessments, if any)
contained in instrument recorded in Book 1235, Page 404 and modified to
release option to repurchase in Book 1420, Page 672, Durham County
Registry;
4. Sanitary Sewer easement forty (40) feet in width as shown on map
recorded in Plat Book 11, Page 127, Durham County Registry;
5. Duke Power Co. easement sixty-eight (68) feet in width as shown on map
recorded in Plat Book 108, Page 178, Durham County Registry; and
6. Electric Easement twenty (20) feet in width as shown on map recorded in
Plat Book 108, Page 180, Durham County Registry.
<PAGE> 37
EXHIBIT C - 11 pages
---------
RALEIGH/DURHAM SERVICE AND MAINTENANCE CONTRACTS
Interspace Airport Advertising April 1995 - April 2000
J & D Landscaping Year to Year
Simplex Year to Year
Schindler Elevator Corporation Year to Year
Wells Fargo Armored Service Year to Year
Carolina Telephone Year to Year
Lodgistix, Inc. Year to Year
Orkin Pest Control Year to Year
BMI Music Year to Year
Allied Security Year to Year
Systel Office Automation Year to Year
Xerox Year to Year
Emergency Generator Service Year to Year
Meridian Owner's Association Year to Year
<PAGE> 38
RALEIGH/DURHAM EQUIPMENT LEASES
Xerox December 1994 - December 1997
Xerox December 1994 - December 1999
Leasing Associates July 1995 - January 1997
Universal Gym Equipment February 1994 - February 1997
Pitney Bowes February 1996- August 2000
Systel January 1996 - January 1998
<PAGE> 39
RALEIGH/DURHAM EQUIPMENT LEASES
Xerox December 1994 - December 1997
Xerox December 1994 - December 1999
Leasing Associates July 1995 - January 1997
Universal Gym Equipment February 1994- February 1997
Pitney Bowes February 1996 - August 2000
Systel January 1996 - January 1998
<PAGE> 40
SERVICE AND MAINTENANCE CONTRACTS FOR DOUBLETREE GUEST SUITE
<TABLE>
<CAPTION>
INDEX TAMPA BAY
NUMBER VENDOR DESCRIPTION AMOUNT CANCELLATION POLICY RENEWAL DATE
- - ------ ------ ----------- ------ ------------------ ------------
<S> <C> <C> <C> <C> <C>
1.01 ON COMMAND VIDEO CABLE TELEVISION $668.30/MONTH 90 DAY WRITTEN NOTICE 1/1/96
1.02 ON COMMAND VIDEO IN-ROOM MOVIES REVENUE SHARED PROGRAM 90 DAY WRIT. NOTICE 11/1/97
1.03 ORIX LEASING ICE MACHINE LEASE $186 MONTH LAST PAYMENT 9/26/97
1.04
1.06 TROPICAL MUSIC SERV MUSIC & EOUIPMENT $88/MONTH 60 DAY WRITTEN NOTICE 5/25/97
1.06 BLUMBERG EQUIPMENT RENTAL 40% COMMISSION NO CONTRACT
1.07 GTE PUBLIC TELEPHONE 10% COMMISSION/HOTEL 1O DAY WRITTEN NOTICE 3/1/97
1.07.1 PAVARINI BUSINESS TELEPHONE MAINT WARANTEE 30 DAY WRITTEN NOTICE 8/1/97
1.08 RAINBOW MIDTOWN DRY CLEANERS 32% COMMISSION NO RENEW INFORMATION EXPIRED
CLEANERS E.O.C. COMP
1.08.1 WEISER SECURITY UNARMED SECURITY 8.63HR/12.95HOL 30 DAY WRITTEN NOTICE 3/25/97
(AVG MTH $2225)
1.09 EQUIFAX CHECK PROCESSING $5/MONTH MIN 30 DAY WRITTEN NOTICE COMPANY WIDE CONTRACT
1.10 JCA SERVICES MARBLE FLOOR POLISHER $523/MONTH
1.11 SOS TECHNOLOGIES OXYGEN SERVICE $720/YEAR
1.12 WELLS FARGO DEPOSITS TO BANK $272/MONTH NO RENEW INFORMATION EXPIRED
1.13 AIRTOUCH PAGING PAGERS $8.50 PER BEEPER
1.14 ACKERLEY AIRPORT AIRPORT SIGN/PHONE $392/MONTH 30 DAY WRITTEN NOTICE 4/G/97
1.15 SANWA LEASING 2SAVIN FAX MACHINES $70/$78MONTHLY LAST PAYMENT
1.16 SAVIN 2 FAX MACHINE MAINT $70 MONTHLY 30 DAY WRITTEN NOTICE 5/31/97
1.17 MASTERLEASE 2 SAVIN COPY MACHINES 171.08/222.40 MONTHLY LAST PAYMENT 4/00 &7/96
7640
1.18 SAVIN OF TAMPA BAY 2 COPY MACHINES $210 MONTH 30 DAY WRITTEN NOTICE 5/97
1.19 R.E. MCELROY TAX CONSULTANTS $900/YEAR
1.20 PlTNEY BOWES MAILING MACHINE $528 QUARTERLY LAST PAYMENT 5/98
POSTAGE METER/SCALE
1.21 MONTGOMERY ELEV ELEVATORS $1164/MONTH 90 DAY WRITTEN NOTICE 1/1/96
1.22 LIVING PLANTS INTERIOR PLANTS $449/MONTH 30 DAY WRITTEN NOTICE 4/30/97
1.22.1 LIVING PLANTS EXTERIOR PLANTS $85O/MONTH 30 DAY WRITTEN NOTICE 3/1/97
</TABLE>
<PAGE> 41
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
1.23 MCQUAY SERVICE AIR CONDITIONING $2825/MONTH 7/1/97
1.23.1 MARTINSON ELECTRIC GENERATOR SERVICE $300 YEAR 30 DAY WRITTEN NOTICE 10/97
1.24 STERITECH PEST CONTROL $506 MONTH 30 DAY WRITTEN NOT1CE 9/30/97
1.24.1 PEST ELIMIN-OUTSIDE 10/30/97
1.25 TIME MANAGEMENT SYSTEM TIME CLOCK $695/YEAR 30 DAY WRITTEN NOTICE 7/14/97
1.26 COMPUTER CONSULTANTS PMS HARDWARE $297/MONTH 60 DAY WRITTEN NOTICE 12/31/97
1.27 LODGISTIX PMS SOFTWARE $407.31/MONTH 30 DAY WRITTEN NOTICE
PRIOR TO RENEWAL DATE
1.27.1 MICROS POS EQUIPMENT WARANTEE 30 DAY WRITTEN NOTICE
1.27.2 SERVI-BAR HONOR BAR SERVICE REVENUE SHARE
1.26 ADT DIRECT WIRE FIRE ALARM $165/QUARTERLY 30 DAY WRITTEN NOTICE 8/97
1.29 SIMPLEX FIRE ALARM MAINT $879/QUARTERLY 30 DAY WRITTEN NOTICE 6/30/97
1.30 SUNCOAST FIRE AND FlRE SPRINKLER SYSTEM $305/YEAR
SPRlNKLER
1.31 CAPPUCCINO CO CAPPUCCINO MACHINE $123 MONTH
1.32 MED-X CONTAMINATED WASTE $17 MONTHLY
1.33 WASTE AID RECYCLE DUMPSTERS $95 MONTHLY 90 DAY NOTICE 4/1/97
WASTE AID CONTAINER SERVICE-WASTE MONTHLY BASED ON 60 DAY WRITTEN NOTICE 4/6/97
USAGE (AV $1500 MON) PRIOR TO RENEWAL
1.34 NUCO2 INC BULK C02 FOR THE LOUNGE $65 MONTHY 30 DAY WRITTEN NOTICE 12/31/97
1.36 SESAC MUSIC LICENSE AGREEMENT $275 ANNUAL 30 DAY WRITTEN NOTICE 2/02/97
</TABLE>
<PAGE> 42
SPACE LEASES FOR DOUDLETREE GUEST SUITES - TAMPA
<TABLE>
<CAPTION>
INDEX
NUMBER VENDOR DESCRIPTION AMOUNT RENEWAL DATE
- - ------ ------ ----------- ------ ------------
<S> <C> <C> <C> <C>
3.01 LINCOLN GIFT SHOP GIFT SHOP SPACE $400,00 THRU 12/31/96
$500,00 THRU 12/31/99
3.02 CLOUD HOPPERS DOCK SPACE $200,00 APRIL THRU DEC
$400,00 JAN THRU MAY
3.03 BUSINESS ARCHIVES OFF SITE STORAGE $275/MONTH 7 DAY WRITTEN NOTICE
3.04 AMERICAN PORTABLE TELECOM ROOF SPACE $8,400/YEAR THRU 12/31/02
(INCOME)
</TABLE>
<PAGE> 43
DISNEY SERVICE AND MAINTENANCE CONTRACTS
<TABLE>
<CAPTION>
VENDOR DESCRIPTION EXPIRATION RATE
<S> <C> <C> <C>
Blumberg Communications Audio Visual 30 day notice 30% discount
BMI Music License 12/31/98 $176 year
Brinks Armored Car 3/6/97 $270 per month
30 day notice
Central FL Fire Protection Inspection Service 30 day notice $600 year
Central Security Security 1lpm-7am 30 day notice $8.87 per hour
Comet Transportation Disney Transportation 6/1/99 $15,326 per month
Computer Consultant Computer/printers 5/1/97 $430.79 per month
(offices)IBM Series
one hardware
Environmental Care Interior Plants 6/1/97 $479.34 per month
30 day notice
Florida Landscape Exterior landscape 12/31/97 $2,970 per month
and fertilizer 30 day notice
Guest Informant Guest Informant 1998 0
Book in each suite
Hospitality linen Service Linen/Towels 30 day notice $.205 lb
Cleaning
Kronos Time Clock 7/1/97 $962.50 year
maintenance/software
Lodgistix Computer Software Before 01/01 of $9,145.43 year
any year.
McQuay Service Chillers/other 7/1/97 $26,832 year
refrigerated A/C 30 day notice
Millenium Pools Pool Chemicals 5/1 7/97 $400 per month
30 day notice
Miami Elevator Elevator Service 90 days before 6/97. $976.66
</TABLE>
<PAGE> 44
<TABLE>
<CAPTION>
VENDOR DESCRIPTION EXPIRATION RATE
<S> <C> <C> <C>
Pagenet Local pagers 12/11/96 $100.37 per month
30 day notice
Farisian Cleaners Guest Laundry/ 30 day notice 30% discount and 6 comps
Dry Cleaners
Radio Shop Radio Maintenance 30 day notice $60 per month
SESAC Music License 90 days before $389.52
12/1 of any year
Simplex Fire Alarm 30 days prior to $1,313.25 year
Maintenance anniversary date 4/30.
SteriTech Pest Control 2/28/97 $450 per month
Welcome Check Check Guarantee 30 days before $.20 or 1.19%
10/01 of any year. whichever is greater
</TABLE>
<PAGE> 45
DISNEY SPACE AND GROUND LEASES
<TABLE>
<CAPTION>
VENDOR DESCRIPTION EXPIRATION RATE
<S> <C> <C> <C>
Budget Rent A Car Booth/Car 30 day notice $2,000 per month rent,
plus car
C&S Novelty Gift Shop/Lobby 01/10/98 $1,300 per mo. rent
30 day notice
Lake Buena Vista Disney Gift Shop 9/30/2001 9% of gross receipts. Must
Communities equal to over $6,800 per year.
Lake Buena Vista Ground Lease March 2032 with Approximately 7% of hotel
Communities possible 25 year revenues paid to Disney
option.
Suncoast Representation Concierge Booth 7/97 or 30 days. $2,000 inclusive per month
Vistana Timeshare booth in 10/98 or 30 days $6,600 per month 1st year.
lobby 2nd year $7,260 (tax
inclusive).
World Company Official Hotel Status Year to year unless 0
cancelled 90 days
prior by either party.
Wometco Game room/cafeteria 30 day notice 50% of gross on games.
</TABLE>
<PAGE> 46
Equipment Leases
<TABLE>
<CAPTION>
VENDOR DESCRIPTION EXPIRATION RATE
<S> <C> <C> <C>
Comcast Muzak System 09/15/97 $226 per month
(90 days prior to)
Crystal Springs Water Cooler 30 day notice $6.75 per dispenser
$3.65 per/5 gallon water
Ecolab Dishwasher 06/10/97 $199.95 per month
Elsafe In Room Safes 06/97 or 0
30 day notice
On Command Video Televisions and cable 11/13/2002 $485.00 per month
channels/movie Must provide 60 day No commission due -
channels notice prior to this no adult movies allowed.
day if hotel will not
renew.
Pitney Bowes Postage/Postage 11/15/98 $254 per month
Meter
Stewart Oxygen Service 1 Oxygen Tank 30 days prior to $528 per year
02/28/97
Xerox Copy Machines Front office 10/98 $221.92 per month
Executive 4/98 $271.88 per month
</TABLE>
<PAGE> 47
EXHIBIT D
<TABLE>
<CAPTION>
Property % of Purchase Price
-------- -------------------
<S> <C> <C>
1. Buildings and Improvements 87
2. Land 10
3. Personal Property 3
---
Total 100%
</TABLE>
<PAGE> 48
EXHIBIT E
---------
Delivered Records
-----------------
TO BE PROVIDED BY SELLER TO BUYER ON OR BEFORE APRIL 25, 1997
<PAGE> 49
EXHIBIT F
---------
Estoppel Certificate
--------------------
WHEREAS, __________________, a _________ ("Landlord", as landlord, and
___________________ ("Tenant") , as tenant, entered into that certain lease (the
"Lease") , dated __________________, 199 - of certain premises more particularly
described in the Lease (the "Premises") in the office building (the "Building")
commonly known as ________________________ .
NOW, THEREFORE, Tenant hereby certifies as follows:
1. True and complete copies of the Lease and all agreements, amendments,
guarantees, side letters and other documents relating thereto are attached
hereto as Exhibit A and made a part hereof, and there are no other such
agreements or documents.
2. The Lease has not been modified (except pursuant to documents
attached hereto as part of Exhibit A) and is in full force and effect.
3. The Lease has not been assigned, mortgaged, pledged or otherwise
encumbered, nor has all or any portion of the Premises been sublet.
4. All rent, additional rent and other charges required to be paid under
the Lease have been paid through __________________ .
5. Tenant has accepted possession of and is now occupying the Premises.
6. To Tenant's knowledge, there exist no defaults on the part of
Landlord under the Lease; nor has any event occurred which, with the passage of
time or the giving of notice or both, would constitute a default by Landlord
thereunder.
7. To Tenant's knowledge, Tenant has no offset, defense, claim or
counterclaim, including, without limitation, claims to "free" rent, concessions,
rebates, or abatements in rent, under the Lease.
8. The expiration date of the term of the Lease is ______ ____________ ,
and except as set forth in the documents attached hereto as Exhibit A, Tenant
has no option to renew the Lease or otherwise extend the term of the Lease.
9. Tenant has no option to purchase the Building, the Premises or any
portion of the Building or the Premises.
10. Tenant has no option to lease any other space in the Hotel, except
as set forth in the Exhibit A documents.
<PAGE> 50
11. All work to be performed by Landlord under the Lease has been
completed in accordance with the Lease and has been accepted by Tenant and all
reimbursements and allowances due to Tenant under the Lease in connection with
any work have been paid in full.
12. Tenant has deposited the sum of $____________ with Landlord as
security for the performance of Tenant's obligations under the Lease.
13. This certificate is binding upon the undersigned and may be relied
upon by Landlord, by any prospective purchaser of the Building (including,
without limitation, FelCor Suites Limited Partnership, a Delaware limited
partnership) and by any lender making a loan to such purchaser secured by a
mortgage on the Building.
IN WITNESS WHEREOF, Tenant has duly executed this certificate this _____
day of _____________ , 1997.
TENANT:
-----------------------------------------
By
---------------------------------------
Name
-------------------------------------
Its
--------------------------------------
-2-
<PAGE> 51
EXHIBIT G
SCHEDULE OF ACTIONS, SUITS ETC.
-------------------------------
TO BE PROVIDED BY SELLER TO BUYER ON OR BEFORE APRIL 25, 1997
<PAGE> 52
forgoing terms and the applicable terms of the Agreement. Escrow Agent shall
also promptly provide to Seller a copy of such replacement Letter of Credit.
3. Except as amended herein, the Agreement shall continue in full force
and effect.
Executed as of May 8, 1997,
PHS MASTER L.P. I
By PC Development Limited
Partnership, General Partner
By PH Management Company, General
Partner
By /s/ James V. Pickett
-------------------------------------
Its President
------------------------------------
FELCOR SUITES LIMITED PARTNERSHIP
By FelCor Suite Hotels, Inc.,
general partner
By /s/ Lawrence D. Robinson
-------------------------------------------
Its Senior Vice President and General Counsel
------------------------------------------
COMMONWEALTH LAND TITLE INSURANCE
CORPORATION
By /s/ LeAnn Turentine
-----------------------------------------
It Assistant Vice President
-----------------------------------------
<PAGE> 53
EXHIBIT A-3
NORTH CAROLINA
Being all that certain parcel of land in Triangle Township, Durham
County, N.C., bounded on the north by the public right of way of Meridian
Parkway, on the east and south by Meridian Business Campus lots 1 and 2B, owned
by CMD Southeast, Inc., and on the west by Meridian Business Campus lot 3 owned
by CMD Southeast One, and being further described as:
To determine the True Point of Beginning, commence at a point located
at the intersection of the western right of way of N.C. 55 and the centerline
of Meridian Parkway;
Thence S 88 deg. 13' 56" w 690.16 feet to the True Point of
Beginning, being the northeast corner of lot 2A;
Thence the following courses and distances with the line of lot 2B:
S 38 deg. 03' 17" w, 304.90 feet to an iron pipe;
S 17 deg. 45' 00" w, 143.59 feet to an iron pipe;
S 15 deg. 45' 31" w, 243.26 feet to an iron pipe;
N 76 deg. 59' 07" w, 520.72 feet to a computed point in a lake;
Thence N 13 deg. 00' 53" E, 554.76 feet with the line of lot 3 and lot
4 to an existing iron pipe, the northwest corner of lot 2A;
Thence S 68 deg. 16' 54" E, 74.94 feet to a point;
Thence with a curve to the left having a delta of 32 deg. 30' 00", a
radius of 849.09 feet and an arc length of 481.63 feet, a chord distance of
475.20 feet, bearing S 84 deg. 31' 54" E to a point.
Thence with the southern right of way of Meridian Parkway N 79 deg. 13'
07" E, 140.02 feet to a point in the southern right of way of Meridian Parkway,
the True Point of Beginning, containing 7.094 acres more or less, being the
same lot 2A as shown on the Subdivision Plat and Easement Map of Meridian
Business Campus prepared by Philip Post and Associates, Inc., dated January 2,
1986 and recorded in Plat Book III, Page 127 in the Durham County Registry.
Together with all easement rights in and under that certain Perpetual
Easement Agreement from CMD Southeast, Inc. to Pickett Suite Hotel Master L.P.
I dated as of December 1, 1987 and recorded in Book 1420, page 663 in the
Durham County Registry to the Easement Area described below:
<PAGE> 54
EXHIBIT A-3
(Continued)
Description of Easement Area
----------------------------
Begin a part of that certain parcel of land located in Triangle
Township, Durham County, N.C., and known as lot 2B as shown on the Subdivision
Plat and Easement Map of Meridian Business Campus prepared by Philip Post and
Associates, Inc., dated January 2, 1986 and recorded at Plat Book III, page 127
in The Durham County Registry, such portion being further described as follows:
To determine the True Point of Beginning, commence at a point located
at the intersection of the western right of way of N.C. 55 and the centerline
of Meridian Parkway;
Thence S 88 deg. 13' 56" w 690.26 feet to a point, such point being the
northeast corner of lot 2A;
Thence the following courses and distances with the line of lot 2B:
S 38 deg. 03' 17" w, 304.90 feet to a new iron pipe;
S 17 deg. 45' 00" w, 143.59 feet to a new iron pipe;
S 15 deg. 45' 31" w, 243.26 feet to a new iron pipe;
N 76 deg. 59' 07" w, 228.10 feet to a point, being the True Point of
Beginning;
Thence continuing N 76 deg. 59' 07" w, 100.00 feet to a point;
Thence S 13 deg. 00' 53" w, 71.00 feet to a point;
Thence S 76 deg. 59' 07" E, 100.00 feet to a point;
Thence N 13 deg. 00' 53" E, 71 feet to a point, being the True
Point of Beginning, containing 0.163 acres, more or less.
<PAGE> 55
FIRST AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF HOTELS
-----------------------------------------------------------
This is the First Amendment to the Contract for Purchase and Sale of
Hotels (the "Agreement") by and between PSH Master L.P. I, a Delaware limited
partnership ("PSH"), and FelCor Suites Limited Partnership, a Delaware limited
partnership ("FelCor"), dated April 22, 1997.
For valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree that the date for the satisfaction
of the Buyer's conditions described in Sections 7.1.6 and 7.1.7 is hereby
extended to 5:00 p.m. EST, May 8, 1997. All other conditions to Buyer's
obligations which are to be satisfied on or before the end of the Review Period
(as defined in the Agreement), including without limitation the condition set
forth in Section 19.13(b) of the Agreement, have been satisfied. Seller
acknowledges that Buyer has not delivered the Deposit to Escrow Agent as of the
date of this first amendment. Seller does not waive such default, however,
provided Buyer delivers the Deposit to Escrow Agent on or before 5:00 p.m. EST,
May 9, 1997, Seller shall take no action to terminate the Agreement or seek
other recourse against Buyer as a result of such default by Buyer. Except as
amended hereby, the Agreement shall continue in full force and effect.
The capitalized terms used herein shall have the same meaning as given
in the Agreement.
Executed as of May 7, 1997.
PSH MASTER L.P. I
By PC Development Limited Partnership
By PH Management Company
By /s/ James V. Pickett
-----------------------------------------
James V. Pickett, President
FELCOR SUITES LIMITED PARTNERSHIP
By FelCor Suite Hotels, Inc.
By /s/ Lawrence D. Robinson
--------------------------------------------
Its Senior Vice President & General Counsel
-------------------------------------------
<PAGE> 56
SECOND AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF HOTELS
------------------------------------------------------------
This is the Second Amendment to the Contract for Purchase and Sale of
Hotels (the "Agreement") by and between PSH Master L.P. I, a Delaware limited
partnership ("Seller"), and FelCor Suites Limited Partnership, a Delaware
limited partnership ("Buyer"), dated April 22, 1997.
For valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree that the date for the satisfaction
of the Buyer's condition described in Section 7.1.7 is hereby extended to 5:00
p.m. EST, May 9, 1997. The condition to Buyer's obligations set forth in Section
7.1.6 has been satisfied. Except as amended hereby, the Agreement shall continue
in full force and effect.
The capitalized terms used herein shall have the same meaning as given
in the Agreement.
Executed as of May 8, 1997.
PSH MASTER L.P. I
By PC Development Limited Partnership
By PH Management Company
By /s/ James V. Pickett
-----------------------------------------
James V. Pickett, President
FELCOR SUITES LIMITED PARTNERSHIP
By FelCor Suite Hotels, Inc.
By /s/ Lawrence D. Robinson
--------------------------------------------
Its Senior Vice President & General Counsel
-------------------------------------------
<PAGE> 57
THIRD AMENDMENT TO
CONTRACT FOR PURCHASE AND SALE OF HOTELS
----------------------------------------
This is the Third Amendment to the Contract for Purchase and Sale of
Hotels by and between PSH Master L.P. I, a Delaware limited partnership
("Seller"), and FelCor Suites Limited Partnership, a Delaware limited
partnership ("FelCor"), dated April 22, 1997, and amended by a First Amendment
dated as of May 7, 1997 and a Second Amendment dated as of May 8, 1997 (the
"Agreement").
For valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree that the Agreement is amended as
follows:
1. All capitalized terms used herein shall have the same meaning as
given in the Agreement, unless otherwise noted.
2. Seller, Buyer and Escrow Agent hereby acknowledge that as of the
date of this Third Amendment, Buyer has delivered to Escrow Agent a letter of
credit, a true copy of which is attached hereto as Exhibit A (the "Letter of
Credit") to be held by the Escrow Agent as the Deposit. The Letter of Credit has
an expiration date of September 15, 1997 (the "Expiration Date"). In the event
that the Closing has not occurred on or before the date which is 10 days prior
to the Expiration Date (the "Replacement Date"), Buyer shall deliver to Escrow
Agent on or before the Replacement Date a replacement letter of credit in the
same amount and containing the same terms as the Letter of Credit, except that
the expiration date on the replacement letter of credit shall be a date which is
at least one year following the Expiration Date of the then-current Letter of
Credit. In such event, the replacement letter of credit shall be deemed the
"Letter of Credit" for all purposes under the Agreement and this Third
Amendment, the expiration date on such replacement Letter of Credit shall be
deemed the "Expiration Date" for all purposes under the Agreement and this Third
Amendment, and the Replacement Date shall be automatically adjusted to the date
which is 10 days prior to such new Expiration Date. Notwithstanding anything in
the Agreement to the contrary, in the event that Buyer has not delivered to
Escrow Agent a replacement Letter of Credit as required above on or before the
Replacement Date, then Escrow Agent shall, on the first banking day after the
Replacement Date (or as soon thereafter as possible but in any event prior to
the Expiration Date), draw upon the Letter of Credit in the full amount thereof
($1,500,000) and shall hold such funds in accordance with the terms of the
Agreement respecting the escrow and disbursement of the Deposit. Such action
shall be taken by Escrow Agent automatically and without the requirement of
notice to either Seller or Buyer, provided that Escrow Agent shall notify Seller
and Buyer of such drawing as soon as practical after such act. In the event that
prior to the Replacement Date, Escrow Agent receives a replacement Letter of
Credit upon the terms described above, Escrow Agent shall return the original
Letter of Credit to Buyer and shall hold the replacement Letter of Credit in
accordance with the
<PAGE> 58
foregoing terms and the applicable terms of the Agreement. Escrow Agent shall
also promptly provide to Seller a copy of such replacement Letter of Credit.
3. Except as amended herein, the Agreement shall continue in full force
and effect.
Executed as of May 9, 1997.
PSH MASTER L.P. I
By PC Development Limited
Partnership, General Partner
By PH Management Company, General
Partner
By /s/ James V. Pickett
------------------------------------------
Its President
------------------------------------------
FELCOR SUITES LIMITED PARTNERSHIP
By FelCor Suite Hotels, Inc.,
general partner
By /s/ Lawrence D. Robinson
-------------------------------------------
Its Senior Vice President and General Counsel
------------------------------------------
COMMONWEALTH LAND TITLE INSURANCE
CORPORATION (Escrow Agent)
By /s/ LeAnn Turentine
------------------------------------------
Its Assistant Vice President
-----------------------------------------
-2-
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000813897
<NAME> PSH MASTER L.P.I
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> MAR-31-1997
<CASH> 2,760,593
<SECURITIES> 0
<RECEIVABLES> 1,289,011
<ALLOWANCES> 0
<INVENTORY> 109,709
<CURRENT-ASSETS> 5,108,279
<PP&E> 59,908,652
<DEPRECIATION> 24,906,989
<TOTAL-ASSETS> 40,982,128
<CURRENT-LIABILITIES> 47,976,235
<BONDS> 500,000
<COMMON> 0
0
0
<OTHER-SE> (7,494,107)
<TOTAL-LIABILITY-AND-EQUITY> 40,982,128
<SALES> 7,471,773
<TOTAL-REVENUES> 7,485,050
<CGS> 0
<TOTAL-COSTS> 5,219,128
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,180,103
<INCOME-PRETAX> 1,085,819
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,085,819
<EPS-PRIMARY> .35
<EPS-DILUTED> .35
</TABLE>
