SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-9
Solicitation/Recommendation Statement
Pursuant to Section 14(d)(4) of the
Securities Exchange Act of 1934
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SCOTTSDALE LAND TRUST LIMITED PARTNERSHIP
(Name of Subject Company)
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FFCA MANAGEMENT COMPANY LIMITED PARTNERSHIP
(Name of Person Filing Statement)
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ASSIGNED LIMITED PARTNERSHIP INTERESTS
(Title of Class of Securities)
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400749107
(CUSIP Number of Class of Securities)
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Dennis L. Ruben, Esq.
Franchise Finance Corporation of America
The Perimeter Center
17207 North Perimeter Drive
Scottsdale, AZ 85255
(Name, Address and Telephone Number of Person Authorized to Receive Notice and
Communications on Behalf of the Person(s) Filing Statement)
-----------------------
Copy to:
Paul E. Belitz
Brian V. Caid
Kutak Rock
717 17th Street, Suite 2900
Denver, Colorado 80202
<PAGE>
Item 1. Security and Subject Company.
The name of the subject company is Scottsdale Land Trust Limited
Partnership, a Delaware limited partnership (the "Partnership"), and the address
of its principal executive offices is The Perimeter Center, 17207 North
Perimeter Drive, Scottsdale, Arizona 85255. The general partner of the
Partnership is FFCA Management Company Limited Partnership, a Delaware limited
partnership (the "General Partner"). This statement relates to the units of
assigned limited partnership interest of the Partnership (the "Units").
Item 2. Tender Offer of the Bidder.
This statement relates to the offer of SV Fairfield II, L.L.C., a
Connecticut limited liability company (the "Purchaser"), disclosed in the Tender
Offer Statement on Schedule 14D-1, dated November 22, 1996 (the "Schedule
14D-1"), to purchase up to 22,500 of the outstanding Units of the Partnership,
upon the terms and conditions set forth in the Offer to Purchase dated November
22, 1996 (the "Offer to Purchase") contained in the Schedule 14D-1, the
Assignment of Limited Partnership Units, and the related Letter to Unitholders
dated November 22, 1996 (which together constitute the "Offer"). There are
currently 50,000 Units of the Partnership outstanding. The tender offer price
per Unit stated in the Offer to Purchase is $400, subject to adjustment under
certain circumstances as described therein. The offer, withdrawal rights and
proration period will expire at 12:00 midnight, New York City time, on December
20, 1996, unless extended.
The Offer to Purchase states that the managing member of the Purchaser
is SCG Investors II, L.L.C., a recently formed Connecticut limited liability
company ("SCG"), and that the other member of the Purchaser is Starwood
Opportunity Fund IV, L.P., a recently formed Delaware limited partnership ("SOF
L.P."). The general partner of SOF L.P. is SOFI IV Management, L.L.C., a
recently formed Connecticut limited liability company, the managing member of
which is Starwood Capital Group, L.L.C. ("Capital"). Barry S. Sternlicht is the
managing member of, and controlling interest holder in, SCG, and is the
President, Chief Executive Officer and General Manager of, and controlling
interest holder in, Capital. According to the Offer to Purchase, the principal
executive offices of the Purchaser and SCG are located at Three Pickwick Plaza,
Suite 250, Greenwich, Connecticut 06830. The Purchaser is not affiliated with
the General Partner or the Partnership.
Item 3. Identity and Background.
(a) This statement is being filed by the General Partner of the
Partnership. The name and business address of the General Partner is: FFCA
Management Company Limited Partnership, The Perimeter Center, 17207 North
Perimeter Drive, Scottsdale, Arizona 85255.
(b) The General Partner was also the general partner of Guaranteed
Hotel Investors 1985, L.P., a Delaware limited partnership ("GHI"). On April 26,
1996, GHI sold substantially all of its assets, consisting of three hotels
located in Irving, Texas, Fort Lauderdale, Florida and Tampa, Florida, to
affiliates of the Purchaser, pursuant to a Purchase Agreement dated October 27,
1995 as amended (the "Purchase Agreement"), by and between GHI and Starwood
Lodging Trust through its affiliate, SLT Realty Limited Partnership. The
Purchase Agreement and
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the purchase price of approximately $73 million were negotiated through
arm's-length negotiations. Starwood Lodging Trust and SLT Realty Limited
Partnership are affiliates of the Purchaser. A copy of the Purchase Agreement
and related amendments are filed as exhibits hereto and the information
contained therein is incorporated herein by reference.
Item 4. The Solicitation or Recommendation.
(a) The General Partner recommends that the holders of the Units (the
"Unitholders") reject the Purchaser's Offer and not tender any of their Units to
the Purchaser pursuant to the Offer.
(b) In reaching its conclusion with respect to the Purchaser's Offer,
the General Partner determined that the tender offer price per Unit is
inadequate based on recent land sales by the Partnership. In 1996, the
Partnership has sold three parcels of land, totaling approximately 18 acres, for
a purchase price per square foot ranging from approximately $5.00 to $5.50. The
Partnership currently has approximately 25 acres of land under contract for sale
for a purchase price per square foot ranging from approximately $5.50 to $6.50.
In addition, the Partnership has entered into agreements with three separate
companies which give such companies an option to acquire approximately 17 acres
of land from the Partnership, for a purchase price per square foot ranging from
approximately $5.00 to $9.00, over a period of approximately 2 years. There can
be no assurance that the properties under contract for sale or the properties
subject to option will be sold.
The Purchaser's offer of $400 net per Unit results in an implied offer
for all assets of the Partnership of $20 million (50,000 outstanding Units
multiplied by $400). The significant assets of the Partnership are as follows:
(i) approximately 7.7 million square feet of land available for sale
(which includes the land currently subject to contracts for sale and option
agreements),
(ii) a first mortgage real estate loan in the outstanding principal
amount of $8.5 million to Franchise Finance Corporation of America, a New York
Stock Exchange-listed real estate investment trust ("FFCA"), which matures on
May 1, 2000, and bears interest at an annual rate of 10%, and
(iii) net cash reserves of approximately $1.38 million as of September
30, 1996, portions of which may be distributed to Unitholders from time to time.
Subtracting items (ii) and (iii) in the amount of approximately $9.88
million from the $20 million offer implied by the Purchaser's offer results in a
balance attributable to the remaining land available for sale of approximately
$10.12 million. This amount does not include any additional interest, the amount
of which is not readily determinable at this time, to which the Unitholders may
be entitled upon the maturity of the FFCA mortgage loan described in (ii) above.
If the $10.12 million is divided by the square footage of the remaining land for
sale, which is approximately 7.7 million square feet, the resulting per square
foot price of the Purchaser's offer is approximately $1.31. As stated above,
this amount is significantly less than
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the per square foot price ranging from approximately $5.00 to $5.50 which the
Partnership has received in recent land sales. However, the timing and sales
prices of future land sales by the Partnership is uncertain and will likely
occur over several years.
In addition, the General Partner believes that if a substantial number
of Units are tendered to the Purchaser pursuant to the Offer, the Partnership
likely will be deemed a publicly traded partnership under the Internal Revenue
Code of 1986, as amended (the "Code"), which may negatively affect Unitholders
who invested in the Partnership for the purpose of using income from the
Partnership to offset passive losses from other sources. In general, publicly
traded partnerships are taxed as corporations for federal income tax purposes
under the Code. Publicly traded partnerships are those the interests in which
are traded on an established securities market or are readily tradeable on a
secondary market or the substantial equivalent thereof. Notwithstanding the
foregoing, a publicly traded partnership will not be taxed as a corporation
under the Code if, in each of its taxable years, at least 90% of its gross
income is derived from certain passive sources, including interest and gains
from the sale of real property. If a publicly traded partnership is not taxed as
a corporation under the foregoing provision, its income will be treated in a
manner similar to that of portfolio income under the passive loss rules. Thus,
the income from a publicly traded partnership which is not taxed as a
corporation may not be used by a partner to offset passive losses from other
sources.
The General Partner believes that with respect to each of the
Partnership's prior taxable years, at least 90% of its gross income has been
derived from passive sources, including interest and gains from the sale of real
property. The General Partner cannot predict whether the Partnership will
continue to derive its income from such passive sources; however, if the
Partnership were deemed publicly traded and in any taxable year less than 90% of
the Partnership's gross income were derived from such sources, the Partnership
would be taxed as a corporation for federal income tax purposes. In addition, if
the Partnership were deemed publicly traded under the Code, Unitholders would
not be entitled to use income from the Partnership to offset passive losses from
other sources, even if the Partnership were not taxed as a corporation.
If a Unitholder desires immediately liquidity, the General Partner
believes that the Purchaser's Offer is within the range of recent prices for the
Units in the secondary market, which is an illiquid and informal market.
Therefore, the General Partner believes that the acceptance of the Purchaser's
Offer by Unitholders would provide a substantially similar price to the prices
currently available in the secondary market.
For the foregoing reasons, the General Partner recommends against
tendering Units to the Purchaser pursuant to the Offer.
Item 5. Persons Retained, Employed or to be Compensated.
Neither the General Partner nor any person acting on its behalf has or
currently intends to employ, retain or compensate any person or class of persons
to make solicitations or recommendations to Unitholders on its behalf concerning
the Offer.
Item 6. Recent Transactions and Intent with Respect to Securities.
(a) No transactions in the Units have been effected during the past 60
days by the General Partner, or to the best of its knowledge, by any executive
officer, director, affiliate or subsidiary of the General Partner.
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(b) To the best of the General Partner's knowledge, none of the persons
listed in Item 6(a) above intends to tender any Units which are held of record
or beneficially by such person pursuant to the Offer.
Item 7. Certain Negotiations and Transactions by the Subject Company.
(a) None.
(b) None.
Item 8. Additional Information to be Furnished.
None.
<TABLE>
Item 9. Material to be Filed as Exhibits.
<S> <C>
Exhibit 1 Letter to Unitholders dated December 6, 1996.
Exhibit 2(a) Purchase Agreement dated October 27, 1995, between
Guaranteed Hotel Investors 1985, L.P. and SLT Realty Limited
Partnership.
Exhibit 2(b) First Amendment to Purchase Agreement between Guaranteed
Hotel Investors 1985, L.P. and SLT Realty Limited Partnership,
dated November 7, 1995.
Exhibit 2(c) Second Amendment to Purchase Agreement between Guaranteed
Hotel Investors 1985, L.P. and SLT Realty Limited Partnership,
dated December 13, 1995.
Exhibit 2(d) Third Amendment to Purchase Agreement between Guaranteed
Hotel Investors 1985, L.P. and SLT Realty Limited Partnership,
dated December 22, 1995.
Exhibit 2(e) Fourth Amendment to Purchase Agreement between Guaranteed
Hotel Investors 1985, L.P. and SLT Realty Limited Partnership,
dated April 26, 1996.
</TABLE>
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: December 6, 1996 FFCA MANAGEMENT COMPANY
LIMITED PARTNERSHIP, General Partner
of Scottsdale Land Trust Limited Partnership
By: PERIMETER CENTER MANAGEMENT
COMPANY, Corporate General Partner
By: /s/ Morton H. Fleischer
----------------------------------
Morton H. Fleischer, President and
Chief Executive Officer
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EXHIBIT 1
FFCA MANAGEMENT COMPANY LIMITED PARTNERSHIP
17207 North Perimeter Drive
Scottsdale, Arizona 85225-5402
December 6, 1996
To Unitholders of Scottsdale Land
Trust Limited Partnership
On November 22, 1996, SV Fairfield II, L.L.C., a Connecticut limited
liability company (the "Purchaser"), announced a conditional offer to purchase
up to 22,500 of the outstanding Units of Scottsdale Land Trust Limited
Partnership (the "Partnership") for $400 per Unit (the "Offer"). Unless extended
by the Purchaser, the Offer is effective until midnight, New York City time, on
Friday, December 20, 1996. FFCA MANAGEMENT COMPANY LIMITED PARTNERSHIP, AS
GENERAL PARTNER OF THE PARTNERSHIP (THE "GENERAL PARTNER") HAS CONCLUDED THAT
THE OFFER IS INADEQUATE AND SHOULD BE REJECTED.
In reaching this conclusion, the General Partner determined that the
Purchaser's tender offer price per Unit is inadequate based on recent land sales
by the Partnership. In 1996, the Partnership has sold three parcels of land,
totaling approximately 18 acres, for a purchase price per square foot ranging
from approximately $5.00 to $5.50. The Partnership currently has approximately
25 acres of land under contract for sale for a purchase price per square foot
ranging from approximately $5.50 to $6.50. In addition, the Partnership has
entered into agreements with three separate companies which give such companies
an option to acquire approximately 17 acres of land from the Partnership, for a
purchase price per square foot ranging from approximately $5.00 to $9.00, over a
period of approximately 2 years. There can be no assurance that the properties
under contract for sale or the properties subject to option will be sold.
The Purchaser's offer of $400 net per Unit results in an implied offer
for all assets of the Partnership of $20 million (50,000 outstanding Units
multiplied by $400). The significant assets of the Partnership are as follows:
(i) approximately 7.7 million square feet of land available for sale
(which includes the land currently subject to contracts for sale and option
agreements),
(ii) a first mortgage real estate loan in the outstanding principal
amount of $8.5 million to Franchise Finance Corporation of America, a New York
Stock Exchange-listed real estate investment trust ("FFCA"), which matures on
May 1, 2000, and bears interest at an annual rate of 10%, and
(iii) net cash reserves of approximately $1.38 million as of September
30, 1996, portions of which may be distributed to Unitholders from time to time.
Subtracting items (ii) and (iii) from the $20 million offer implied by
the Purchaser's offer results in an implied offer for the remaining land
available for sale of approximately $10.12
<PAGE>
million, or approximately $1.31 per square foot. This amount is significantly
less than the prices which the Partnership has received in recent land sales,
the prices it has negotiated for the land parcels under contracts for sale, and
the prices it has negotiated for the land parcels subject to options. The timing
and sales prices of future land sales by the Partnership, however, is uncertain
and will likely occur over several years.
Unitholders may also be negatively impacted if, due to a substantial
number of Units being tendered to the Purchaser, the Partnership is deemed a
publicly traded partnership under the Internal Revenue Code of 1986, as amended.
In general, publicly traded partnerships are taxed as corporations for federal
income tax purposes or have their income treated in a manner similar to
portfolio income, unless such partnerships meet certain criteria which is
discussed in more detail in the accompanying Schedule 14D-9. In addition, it is
possible that income from the Partnership could be classified as portfolio
income and therefore passive income from the Partnership would not be available
to offset passive losses from other sources.
If a Unitholder desires immediate liquidity, the General Partner
believes that the Purchaser's Offer is within the range of recent prices for the
Units in the secondary market, which is an illiquid and informal market.
Therefore, the General Partner believes that the acceptance of the Purchaser's
Offer by Unitholders would provide a substantially similar price to the prices
currently available in the secondary market.
FOR THE FOREGOING REASONS, THE GENERAL PARTNER URGES YOU TO REJECT THE
PURCHASER'S OFFER.
The accompanying Schedule 14D-9 contains additional information
regarding the Purchaser, the Offer, the tax implications of the Offer, and the
General Partner's conclusions and recommendations. If you have any questions,
please call William S. Parker, Investor Services, FFCA Management Company
Limited Partnership, at (602) 585-4500.
Thank you for your continued interest in Scottsdale Land Trust Limited
Partnership.
Very truly yours,
FFCA MANAGEMENT COMPANY LIMITED
PARTNERSHIP, General Partner of Scottsdale Land Trust
Limited Partnership
By: PERIMETER CENTER MANAGEMENT COMPANY,
Corporate General Partner
By:/s/ Morton Fleischer
---------------------------------------
Morton Fleischer, President and
Chief Executive Officer
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made as of October 27,
1995, by and between GUARANTEED HOTEL INVESTORS 1985, L.P., a Delaware limited
partnership ("Seller"), whose address is 17207 North Perimeter Drive,
Scottsdale, Arizona 85255, and SLT REALTY LIMITED PARTNERSHIP, a Delaware
limited partnership ("Buyer"), whose address is Three Pickwick Plaza, Suite 250,
Greenwich, CT 06830.
PRELIMINARY STATEMENT
Seller is the owner of the Hotel Properties. Buyer desires to purchase
the Hotel Properties from Seller, and Seller desires to sell the Hotel
Properties to Buyer, on the terms and conditions set forth in this Agreement.
Unless otherwise expressly provided herein, all defined terms used in this
Agreement shall have the meanings set forth in Section 1.
AGREEMENT
In consideration of the mutual covenants and provisions of this
Agreement, the parties agree as follows:
1. Definitions. The following terms shall have meanings set forth in
this Section 1 for all purposes of this Agreement:
"Additional Earnest Money" means the sum of $500,000.00 which is to be
deposited in immediately available funds by Buyer with Title Company pursuant to
Section 3.
"Affiliate" means any entity or person, as applicable, controlling,
controlled by or under common control with any other person or entity.
"Assignment Agreements" means, collectively, the assignment agreements
to be executed and delivered by Buyer and Seller for each of the Hotel
Properties. The Assignment Agreements will provide for the assignment to and
assumption by Buyer of Seller's rights and obligations accruing under the
Documents from and after the Closing Date, and all other rights of Seller in the
Hotel Properties which will not otherwise be transferred to Buyer by the Special
Warranty Deeds or Bills of Sale. The Assignment Agreements shall be in a form
reasonably acceptable to Seller and Buyer, but in any event subject to the
limitation of liability set forth in Section 16.
"Bills of Sale" means, collectively, the special warranty bills of sale
to be executed and delivered by Seller for the Hotel Properties providing for
the conveyance to Buyer of all of the Fort Lauderdale Personal Property, Irving
Personal Property and Tampa Personal Property AS IS and without representation
or warranty other than Seller's special warranty as to title to such personal
property (which special warranty shall be as to matters created by Seller, but
none other), which Bills of Sale shall be in a form reasonably acceptable to
Seller and Buyer. The Bills of Sale shall be subject to the limitation of
liability set forth in Section 16.
"Closing" shall have the meaning set forth in Section 4.
"Closing Date" means the date specified as the closing date in Section
4.
"Code" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101 et
seq., as amended.
"Confidential Information" means this Agreement and the terms and
conditions of this Agreement, the information described in that certain
Confidentiality Agreement previously executed between Seller and Buyer with
respect to the Hotel Properties, the Purchase Price or other material terms of
this transaction, and all information and reports produced by Buyer in
connection with its examinations and investigations of the Hotel Properties.
"Documents" means, collectively, the Fort Lauderdale Documents, the
Irving Documents and the Tampa Documents.
"Doubletree" means Doubletree Partners (fka Guest Quarters Hotels
Partnership), a Delaware partnership.
"Due Diligence Period" means the period commencing with the date of
this Agreement and ending at 5 P.M. (Phoenix time) on the thirtieth business day
following the date of this Agreement.
"Earnest Money" means the Initial Earnest Money and the Additional
Earnest Money actually received by Title Company pursuant to Section 3. The
definition of Earnest Money shall include all interest accruing on the Initial
Earnest Money and the Additional Earnest Money. Buyer shall be solely
responsible for instructing Title Company to invest the Earnest Money in an
interest bearing account and for taking all actions and paying all charges
resulting from such investment.
"Fort Lauderdale Documents" means those contracts, documents and
instruments listed and/or described on the list to be delivered by Seller to
Buyer within five business days after the date of this Agreement.
"Fort Lauderdale Hotel Property" means, collectively, the Fort
Lauderdale Real Property, the Fort Lauderdale Personal Property and the Fort
Lauderdale Intangible Property.
"Fort Lauderdale Intangible Property" means all of Seller's right,
title and interest, to the extent assignable, in all trade names, trademarks and
all other intangible property used in connection with the operation or use of
the Fort Lauderdale Hotel Property, including, without limitation, the list of
intangible property to be reasonably agreed to by Seller and Buyer during the
Due Diligence Period; provided, however, that the foregoing shall not include
the trade names or trademarks of the franchisor/manager of the Hotel Properties.
"Fort Lauderdale Personal Property" means all of Seller's right, title
and interest in all of the:
(i) equipment, trade fixtures, inventory, supplies,
furnishings and other items of tangible personal property situated on
or about or used in connection with the Fort Lauderdale Hotel Property,
including, without limitation, the list of items of tangible personal
property to be reasonably agreed to by Seller and Buyer during the Due
Diligence Period;
(ii) motor vehicles used in connection with the Fort
Lauderdale Hotel Property, including, without limitation, the list of
vehicles to be reasonably agreed to by Seller and Buyer during the Due
Diligence Period;
(iii) to the extent assignable, warranties, guaranties,
indemnities, claims and governmental licenses and permits pertaining to
the current ownership, operation or use of the Fort Lauderdale Hotel
Property, including, without limitation, the list of licenses,
guarantees, warranties and permits to be reasonably agreed to by Seller
and Buyer during the Due Diligence Period; and
(iv) deposits in the form of cash or receivables, including,
without limitation, credit card receivables, held by Seller as of the
Closing Date with respect to the rental of guest rooms and meeting
rooms and food service for periods of time from and after the Closing
Date.
"Fort Lauderdale Real Property" means the parcel or parcels of real
estate located in Fort Lauderdale, Broward County, Florida, legally described in
Exhibit A-1 attached hereto, all rights, privileges and appurtenances associated
therewith, and all buildings, fixtures and other improvements now located
thereon.
"Hotel Properties" means, collectively, the Fort Lauderdale Hotel
Property, the Irving Hotel Property and the Tampa Hotel Property.
"Initial Earnest Money" means the sum of $200,000.00 which is to be
deposited in immediately available funds by Buyer with Title Company pursuant to
Section 3.
"Irving Documents" means those contracts, documents and instruments
listed and/or described on the list to be delivered by Seller to Buyer within
five business days after the date of this Agreement.
"Irving Hotel Property" means, collectively, the Irving Real Property,
the Irving Personal Property and the Irving Intangible Property.
"Irving Intangible Property" means all of Seller's right, title and
interest, to the extent assignable, in all trade names, trademarks and all other
intangible property used in connection with the operation or use of the Irving
Hotel Property, including, without limitation, the list of intangible property
to be reasonably agreed to by Seller and Buyer during the Due Diligence Period;
provided, however, that the foregoing shall not include the trade names or
trademarks of the franchisor/manager of the Hotel Properties.
"Irving Personal Property" means all of Seller's right, title and
interest in all of the:
(i) equipment, trade fixtures, inventory, supplies,
furnishings and other items of tangible personal property situated on
or about or used in connection with the Irving Hotel Property,
including, without limitation, the list of items of tangible personal
property to be reasonably agreed to by Seller and Buyer during the Due
Diligence Period;
(ii) motor vehicles used in connection with the Irving Hotel
Property, including, without limitation, the list of vehicles to be
reasonably agreed to by Seller and Buyer during the Due Diligence
Period;
(iii) to the extent assignable, warranties, guaranties,
indemnities, claims and governmental licenses and permits pertaining to
the current ownership, operation or use of the Irving Hotel Property,
including, without limitation, the list of licenses, guarantees,
warranties and permits to be reasonably agreed to by Seller and Buyer
during the Due Diligence Period; and
(iv) deposits in the form of cash or receivables, including,
without limitation, credit card receivables, held by Seller as of the
Closing Date with respect to the rental of guest rooms and meeting
rooms and food service for periods of time from and after the Closing
Date.
"Irving Real Property" means the parcel or parcels of real estate
located in Irving, Dallas County, Texas, legally described in Exhibit A-2
attached hereto, all rights, privileges and appurtenances associated therewith,
and all buildings, fixtures and other improvements now located thereon.
"Management Agreements" means those certain Management Agreements for
each of the Hotel Properties between Seller and Doubletree dated as of February
16, 1994 with respect to the Irving Hotel Property and the Fort Lauderdale Hotel
Property and November 3, 1993 with respect to the Tampa Hotel Property.
"Non-Foreign Seller Certificate" means the certificate to be delivered
by Seller prior to or at the Closing pursuant to which Seller shall certify to
Buyer that Seller is neither a nonresident alien, a foreign partnership, a
foreign trust or a foreign estate, as those terms are used in the Internal
Revenue Code.
"Permitted Exceptions" has the meaning set forth in Section 9.
"Purchase Price" means the amount specified in Section 3.
"Sale Termination Fee" has the meaning set forth in each of the
Management Agreements.
"Special Warranty Deeds" means the special or limited warranty deeds
(limited to matters created by Seller, but none other) to be executed and
delivered by Seller at the Closing for each of the Hotel Properties, which
Special Warranty Deeds shall be subject to the Permitted Exceptions and
otherwise in a form to be reasonably agreed to by Seller, Buyer and Title
Company. The Special Warranty Deeds shall be subject to the limitation of
liability set forth in Section 16.
"Tampa Documents" means those contracts, documents and instruments
listed and/or described on the list to be delivered by Seller to Buyer within
five business days after the date of this Agreement.
"Tampa Hotel Property" means, collectively, the Tampa Real Property,
the Tampa Personal Property and the Tampa Intangible Property.
"Tampa Intangible Property" means all of Seller's right, title and
interest, to the extent assignable, in all trade names, trademarks and all other
intangible property used in connection with the operation or use of the Tampa
Hotel Property, including, without limitation, the list of intangible property
to be reasonably agreed to by Seller and Buyer during the Due Diligence Period;
provided, however, that the foregoing shall not include the trade names or
trademarks of the franchisor/manager of the Hotel Properties.
"Tampa Personal Property" means all of Seller's right, title and
interest in all of the:
(i) equipment, trade fixtures, inventory, supplies,
furnishings and other items of tangible personal property situated on
or about the Tampa Hotel Property, including, without limitation, the
list of items of tangible personal property to be reasonably agreed to
by Seller and Buyer during the Due Diligence Period;
(ii) motor vehicles used in connection with the Tampa Hotel
Property, including, without limitation, the list of vehicles to be
reasonably agreed to by Seller and Buyer during the Due Diligence
Period;
(iii) to the extent assignable, warranties, guaranties,
indemnities, claims and governmental licenses and permits pertaining to
the current ownership, operation or use of the Tampa Hotel Property,
including, without limitation, the list of licenses, guarantees,
warranties and permits to be reasonably agreed to by Seller and Buyer
during the Due Diligence Period; and
(iv) deposits in the form of cash or receivables, including,
without limitation, credit card receivables, held by Seller as of the
Closing Date with respect to the rental of guest rooms and meeting
rooms and food service for periods of time from and after the Closing
Date.
"Tampa Real Property" means the parcel or parcels of real estate
located in Tampa, Hillsborough County, Florida, legally described in Exhibit A-3
attached hereto, all rights, privileges and appurtenances associated therewith,
and all buildings, fixtures and other improvements now located thereon.
"Title Company" means Lawyers Title Insurance Corporation, Phoenix
National Division, 40 E. Mitchell Drive, Phoenix, Arizona, 85012, Attention: M.
Duane Smith.
"Trust and Escrow Agreement" means that certain Trust and Escrow
Agreement to be entered into among Seller, Buyer and Trustee with respect to the
disposition of the Trust Funds.
"Trust Funds" means the sum of $2,000,000 from the proceeds of the
Purchase Price to be deposited by Seller into an interest bearing trust account
with Trustee pursuant to the Trust and Escrow Agreement. The term "Trust Funds"
shall include all interest accruing thereon.
"Trustee" means Norwest Bank Arizona, N.A., 3300 North Central Avenue,
Phoenix, Arizona 85012.
2. Transaction. On the terms and subject to the conditions set forth
herein, Seller shall sell and Buyer shall purchase the Hotel Properties and
Seller shall assign and Buyer shall assume the liabilities and obligations of
Seller accruing under the Documents from and after the Closing Date. The sale
and purchase of the Hotel Properties and the assignment and assumption of the
liabilities and obligations of Seller accruing under the Documents from and
after the Closing Date are intended to be an integrated and simultaneous
transaction, and Seller's obligations under this Agreement are contingent upon
all of the Hotel Properties, and all of the obligations under the Documents
accruing from and after the Closing Date, being purchased and assumed,
respectively, by Buyer and Seller being released from further liabilities and
obligations under the Documents. The transaction described in this Agreement
involves only the sale of the Hotel Properties and the assumption of liabilities
and obligations of Seller accruing under the Documents from and after the
Closing Date and does not include any assets of Seller not expressly included
within the definitions of Hotel Properties and Documents. Without limiting the
foregoing, Seller shall not transfer to Buyer any of Seller's cash, except that
Buyer shall receive a credit at Closing for the deposits included within the
definitions of Hotel Properties. Seller's liability to Buyer in connection with
the sale and conveyance of the Hotel Properties shall be limited as set forth in
Section 16.
3. Purchase Price. The purchase price for the Hotels (the "Purchase
Price") shall be in the aggregate amount of $73,250,000.00, which amount shall
be allocated among the Hotel Properties (including an allocation with respect to
each of the Hotel Properties between the real property and the personal
property) in good faith by Seller and Buyer during the Due Diligence Period. If
Seller and Buyer are unable to agree in good faith during the Due Diligence
Period as to such allocations, such failure shall not be a basis for terminating
this Agreement, but Seller and Buyer shall submit the matter to binding
arbitration in Phoenix, Arizona pursuant to the Uniform Arbitration Act then in
effect in the State of Arizona. Such determination shall be made by a panel of
two arbitrators not having an interest in the transaction contemplated by this
Agreement, one selected by Seller and one selected by Buyer. The determination
of such arbitrators shall be final and conclusive upon the parties, and a
judgment based upon that determination may be entered in the appropriate court.
If the two chosen arbitrators are unable to reach a decision as to the
allocations, they shall select a third arbitrator, who shall review the matter
and make a decision. The determination of such arbitrator shall be final and
conclusive upon the parties, and a judgment based upon that determination may be
entered in the appropriate court. The parties will bear the expenses of the
arbitration equally.
The Purchase Price shall be net to Seller except as otherwise provided
herein, and shall be paid as follows:
(i) on or prior to the date of this Agreement, Buyer shall
deliver to Title Company the Initial Earnest Money;
(ii) if this Agreement is not terminated by Buyer prior to the
expiration of the Due Diligence Period, within three business days
after the expiration of the Due Diligence Period Buyer shall deliver to
Title Company the Additional Earnest Money. If the transaction
described in this Agreement is consummated, the Earnest Money shall be
paid to Seller at the Closing; otherwise, the Earnest Money shall be
paid to Seller or Buyer as contemplated by this Agreement; and
(iii) the remaining balance of the Purchase Price shall be
paid by Buyer to Seller at the Closing in immediately available funds,
subject to any prorations and adjustments required by this Agreement.
4. Closing; Escrow Agent. (a) The purchase and sale of the Hotel
Properties shall be closed (the "Closing") within 15 days after the satisfaction
or waiver of all of the conditions and requirements set forth in this Agreement,
including, without limitation, the Proxy Consent (as defined in Section 10(b)
below), but in no event later than April 30, 1996, or such later date mutually
agreed to by the parties (the "Closing Date"). The Closing shall occur at the
offices of Kutak Rock, 3300 North Central Avenue, Phoenix, Arizona 85012. The
Closing documents shall be dated as of the Closing Date.
(b) On or prior to the Closing Date, the parties hereto shall deposit
with Title Company all documents and moneys necessary to comply with their
obligations under this Agreement. Title Company shall not cause the transaction
to close unless and until it has received written instructions from Buyer and
Seller to do so. Seller and Buyer hereby engage Title Company to act as escrow
agent in connection with this transaction. Seller and Buyer will deliver to
Title Company all documents, pay to Title Company all sums and do or cause to be
done all other things necessary or required by this Agreement, in the reasonable
judgment of Title Company, to enable Title Company to comply herewith and to
enable any title insurance policy provided for herein to be issued. Title
Company is authorized to pay, from any funds held by it for Buyer's or Seller's
respective credit, all amounts necessary to procure the delivery of such
documents and to pay, on behalf of Buyer and Seller, all charges and obligations
payable by them, respectively. Seller and Buyer will pay all charges payable by
them to Title Company. Title Company is authorized, in the event any conflicting
demand is made upon it concerning these instructions or the escrow, at its
election, to hold any documents and/or funds deposited hereunder until an action
shall be brought in a court of competent jurisdiction to determine the rights of
Seller and Buyer or to interplead such documents and/or funds in an action
brought in any such court. Deposit by Title Company of such documents and funds,
after deducting therefrom its charges and its expenses and attorneys' fees
incurred in connection with any such court action, shall relieve Title Company
of all further liability and responsibility for such documents and funds. Title
Company's receipt of this Agreement and opening of an escrow pursuant to this
Agreement shall be deemed to constitute conclusive evidence of Title Company's
agreement to be bound by the terms and conditions of this Agreement pertaining
to Title Company. Disbursement of any funds shall be made by check, certified
check or wire transfer, as directed by Buyer and Seller. Title Company shall be
under no obligation to disburse any funds represented by check or draft, and no
check or draft shall be payment to Title Company in compliance with any of the
requirements hereof, until it is advised by the bank in which such check or
draft is deposited that such check or draft has been honored. Title Company is
authorized to act upon any statement furnished by the holder or payee, or a
collection agent for the holder or payee, of any lien on or charge or assessment
in connection with the Premises, concerning the amount of such charge or
assessment or the amount secured by such lien without liability or
responsibility for the accuracy of such statement. The engagement of Title
Company as escrow agent shall not affect any rights of subrogation under the
terms of any title insurance policy issued pursuant to the provisions thereof.
(c) At the Closing, Seller shall deliver to Title Company or Buyer, as
applicable, or cause Title Company to issue, as applicable, the following:
(1) a Special Warranty Deed for each of the Hotel Properties;
(2) a Bill of Sale for each of the Hotel Properties;
(3) an Assignment Agreement for each of the Hotel Properties;
(4) Title Company's unconditional commitment (which may take
the form of "marked-up commitments" to issue an Owner's Policy of Title
Insurance for each of the Hotel Properties (collectively, the "Title
Policies")) in the standard state form, dated as of the Closing Date,
insuring Buyer's fee simple title to the Fort Lauderdale Real Property,
Irving Real Property and Tampa Real Property, respectively, as good and
indefeasible, deleting all exceptions and requirements, except the
Permitted Exceptions, in the full amount of the Purchase Price as
allocated pursuant to Schedule I among the Fort Lauderdale Hotel
Property, the Irving Hotel Property and the Tampa Hotel Property;
(5) possession of the Hotel Properties, subject only to the
rights of transient rental guests of the Hotel Properties and the third
parties to the Documents, and the Permitted Exceptions;
(6) the Non-Foreign Seller Certificate as required by Section
1445(b)(2), Internal Revenue Code of 1986, as amended;
(7) evidence of its capacity and authority for the closing of
this transaction;
(8) all other documents reasonably required by Buyer or Title
Company to close this transaction;
(9) estoppel letters from tenants of the Hotel Properties
pursuant to the Documents, if any, which letters shall be in form and
substance reasonably acceptable to Buyer and Seller; provided, however,
Seller shall only be obligated to deliver such letters to the extent
the applicable Documents obligate the tenants thereunder to deliver
such letters;
(10) if Buyer elects as contemplated by Section 9 to assume
the Management Agreements, estoppel letters from Doubletree with
respect to the Management Agreements in form and substance reasonably
acceptable to Buyer and Seller; and
(11) letters to tenants under the Documents, as applicable,
and other applicable entities under the Documents advising them of the
sale of the Hotel Properties and the new address to remit payments due
under such Documents, if applicable.
(d) At the Closing, Buyer shall deliver to Title Company the following:
(1) the Purchase Price in immediately available funds (reduced
by the amount of the Earnest Money), adjusted for prorations and
credits as provided for in this Agreement;
(2) an Assignment Agreement for each of the Hotel Properties;
(3) evidence of its capacity and authority for the closing of
the transaction contemplated herein;
(4) evidence satisfactory to Seller that the third party or
parties to each Document acknowledge(s) that Buyer, from and after the
Closing Date, is solely responsible for the payment and performance of
the obligations which were previously those of Seller under the
Documents, and that Seller is released from further liability or
obligation under such Documents;
(5) either the Sale Termination Fee for each of the Hotel
Properties, a receipt from Doubletree evidencing the payment of the
Sale Termination Fee for each of the Hotel Properties, or an agreement
in form and substance satisfactory to Seller executed by Buyer and
Doubletree pursuant to which Buyer assumes all of Seller's obligations
accruing under the Management Agreements from and after the Closing
Date and Doubletree acknowledges such assumption and releases Seller
from all liabilities and obligations under the Management Agreements
(the "Doubletree Agreement"). Seller shall execute the Doubletree
Agreement at the Closing to evidence its assignment of the Management
Agreements to Buyer; and
(6) all other documents reasonably required by Seller or Title
Company to close this transaction.
(e) Upon receipt of the foregoing items, Title Company shall pay (i)
the Purchase Price, including the Earnest Money, to Seller, (ii) the Sale
Termination Fees, if any, deposited with it pursuant to this Section to
Doubletree, and (iii) all other sums deposited with Title Company by Buyer to
those third-parties or Title Company entitled to payment as set forth in the
settlement statements prepared by Title Company and signed by Seller and Buyer,
respectively, in connection with the Closing, and record the Special Warranty
Deeds in the applicable real property records.
5. Closing Costs; Prorations. (a) Except as otherwise provided in this
Agreement, Buyer shall be responsible for the payment of all costs and expenses
of the transaction described in this Agreement, including, without limitation:
(i) the cost of all analyses of the Hotel Properties
conducted by Buyer, including, without limitation, all environmental
assessments (including the Reports (as defined in Section 9)),
engineering assessments and mechanical assessments;
(ii) the fees and expenses of Buyer's attorneys;
(iii) the premiums for the Title Policies, including, without
limitation, all title search charges, the premium for all endorsements
to the Title Policies, all lender's policies, the cost of the
modification of the survey exception, if applicable, and UCC search
charges;
(iv) all applicable documentary stamps taxes, filing, mortgage
and/or recording taxes, except that Seller shall pay for the cost of
removing from the real property records all liens for which it is
required pursuant to this Agreement to remove;
(v) the cost of the Surveys (as defined below);
(vi) the fees and charges imposed by third-parties in
connection with obtaining all required consents and approvals to the
assignment to and assumption by Buyer of the Documents; and
(vii) the fees and charges of Title Company in its capacity as
escrow agent;
provided, however, if Buyer terminates this Agreement prior to the end
of the Due Diligence Period as contemplated by Section 9 or pursuant to
Section 11(b), Seller shall be responsible for the payment of the costs
and expenses described in sub-items (iii)(with respect to the Title
Policies, Seller shall be responsible for payment of all cancellation
and termination fees, if any), (v) and (vii) and the costs and expenses
of the Reports; otherwise, the foregoing costs and expenses shall be
paid by Buyer whether or not the transaction described in this
Agreement closes. Seller shall be solely responsible for the payment of
its attorneys's fees and expenses and all costs and expenses incurred
in connection with soliciting the Proxy Consent, whether or not the
transaction described in the Agreement closes.
(b) All income, rent (to the extent paid), costs, expenses, Taxes (as
defined in sub-item (i) below) and obligations relating to the operation of the
business conducted at the Hotel Properties and/or the Hotel Properties
themselves shall be prorated between Seller and Buyer as of midnight of the day
preceding the Closing Date. Seller shall receive all income from the Hotel
Properties accruing prior to the Closing Date and Buyer shall receive all income
accruing from and after the Closing Date. Seller shall be responsible for the
payment of all costs, expenses and obligations from the Hotel Properties
accruing prior to the Closing Date and Buyer shall assume such costs, expenses
and obligations accruing from and after the Closing Date. The Assignment
Agreements shall contain the agreement of (i) Seller to indemnify and hold
harmless Buyer with respect to such costs, expenses and obligations accruing
prior to the Closing Date, subject, however, to the limitation of Seller's
liability set forth in Section 16; and (ii) Buyer to indemnify and hold harmless
Seller with respect to such costs, expenses and obligations accruing from and
after the Closing Date. Seller may retain, and Buyer shall promptly upon receipt
pay over to Seller, any credits or refunds of, or contractual rights to receive
reimbursements for, any real estate taxes, assessments and water, sewer and
utility charges that were paid by Seller prior to the Closing and are
attributable to the period of time prior to the Closing Date. Without limiting
the generality of the foregoing, the following items shall be prorated, adjusted
or paid as of the Closing Date in the manner indicated:
(i) any and all real estate, personal property, ad valorem and
related taxes, levies and charges and those assessments which are of
record ("Taxes") shall be prorated by and between Seller and Buyer at
and as of the Closing. The parties shall reprorate the Taxes, if
necessary, upon issuance of the final tax bill (if same are not
available at the Closing);
(ii) all charges for utilities used at the Hotel Properties
shall be paid by Seller up to and including the day immediately prior
to the Closing Date. In such event, if necessary and obtainable, final
meter readings shall be made on the day immediately prior to the
Closing Date. Seller shall be entitled to receive all security deposits
it has made with utility companies and third-party vendors (other than
as contemplated with respect to the Documents in subitem (iv));
(iii) any and all installments of general or special
assessments due and payable on or prior to the Closing Date , whether
or not such assessments are of record as of the Closing Date, shall be
paid by Seller prior to or at Closing. Buyer shall be responsible for
all other general or special assessments imposed against the Hotel
Properties; and
(iv) security deposits (and accrued interest to the extent
such security deposits are required by the applicable Documents to be
held in interest bearing accounts) held by Seller under the applicable
Documents, if any, shall be credited against the Purchase Price, and
Buyer shall reimburse Seller for all security deposits made by Seller
under the Documents which will continue to be held by the applicable
third-parties as security deposits subsequent to the Closing.
A final closing adjustment shall be made by Buyer and Seller within
forty-five (45)) days after the Closing, and to the extent that any additional
payment or repayment is indicated on the final closing adjustment, the payment
or repayment shall be made within five (5) days after the final adjustment is
made. The terms of this Section shall survive Closing.
6. Representations and Warranties of Buyer. The representations and
warranties of Buyer contained in this Section are being made to induce Seller to
enter into this Agreement and consummate the transaction contemplated herein,
and Seller has relied, and will continue to rely, upon such representations and
warranties. Buyer represents and warrants to Seller as follows:
A. Organization of Buyer. Buyer has been duly formed, is
validly existing and has taken all necessary action to authorize the
execution, delivery and performance by Buyer of this Agreement and the
other documents, instrument and agreements provided for herein.
B. Authority of Buyer. The person who has executed this
Agreement on behalf of Buyer is duly authorized so to do.
C. Enforceability. Upon execution by Buyer, this Agreement and
the other documents, instruments and agreements to be executed in
connection with this Agreement shall constitute the legal, valid and
binding obligations of Buyer, enforceable against Buyer in accordance
with their respective terms.
D. Consents. Buyer has obtained all necessary consents and
approvals required to execute this Agreement and to undertake all of
the obligations of Buyer arising prior to the end of the Due Diligence
Period.
E. Availability of Funds. Buyer has sufficient funds to
consummate the transaction described in this Agreement.
All representations and warranties of Buyer made in this Agreement
shall be and will remain true and complete as of the Closing Date as if made and
restated in full as of such date, and shall survive Closing. As of Closing,
Buyer represents and warrants that it has obtained all necessary consents and
approvals required to perform Buyer's obligations hereunder.
7. Representations and Warranties of Seller. The representations and
warranties of Seller contained in this Section are being made to induce Buyer to
enter into this Agreement and consummate the transaction contemplated herein,
and Buyer has relied, and will continue to rely, upon such representations and
warranties. Seller represents and warrants to Buyer as follows:
A. Organization of Seller. Seller is duly formed, validly
existing and has taken all necessary action to authorize the execution,
delivery and performance of this Agreement and the other documents,
instruments and agreements provided for herein.
B. Authority of Seller. Subject to receipt of the Proxy
Consent, the persons who have executed this Agreement on behalf of
Seller are duly authorized so to do.
C. Enforceability of Documents. Subject to receipt of the
Proxy Consent, upon execution by Seller, this Agreement and the other
documents, instruments and agreements to be executed in connection with
this Agreement, shall constitute the legal, valid and binding
obligations of Seller enforceable against Seller in accordance with
their respective terms.
D. Consents. Subject to receipt of the Proxy Consent, Seller
has obtained all consents and approvals required to execute this
Agreement and perform Seller's obligations hereunder.
E. Title to Hotel Properties. Seller owns the Hotel Properties
free and clear of all monetary liens created by Seller, but none other.
F. Notices. Seller has not received written notice of (i) any
pending improvement liens to be made by any governmental authority with
respect to the Hotel Properties; (ii) except as disclosed by Seller to
Buyer in writing, any violations of building codes and/or zoning
ordinances or other governmental regulations with respect to the Hotel
Properties and their current use; (iii) any pending or threatened
lawsuits, administrative actions, claims or investigations with respect
to the Hotel Properties and their current use, except those which will
be satisfied or bonded at or prior to Closing; or (iv) any pending or
threatened condemnation proceedings with respect to the Hotel
Properties. Except as disclosed in writing by Seller to Buyer within
five business days after the date of this Agreement, Seller has not
received any written notices from any governmental or
quasi-governmental authorities or agencies with respect to a violation
of or failure to comply with any applicable federal, state or local
law, rule, regulation, court or administrative order or decree of any
governmental or quasi-governmental authority, instrumentality or agency
or any private agreement pertaining to environmental matters or
hazardous substances/materials or environmental issues affecting the
Hotel Properties. In the event Seller receives any of the foregoing
described notices prior to the Closing, Seller shall, upon receipt,
promptly deliver such notice to Buyer.
G. No Other Contracts, Options or Preferential Rights. Seller
has not entered into any other contracts for the sale of the Hotel
Properties and no other person or entity has any options or other
preferential rights to purchase the Hotel Properties.
H. Employees. All employees currently employed under the
Management Agreements are employed by Doubletree under the terms
thereof. In connection with the operation of the Hotel Properties,
Seller, to the extent applicable to Seller, has complied in all
material respects with all applicable laws, rules and regulations
relating to the employment of labor, including those relating to wages,
hours, collective bargaining and the payment and withholding of taxes
and other sums as required by appropriate governmental authorities.
I. Document Obligations. All reasonably anticipated
obligations of Seller arising and/or accruing under the Documents have
been paid in the ordinary course of business, and all accrued but
unpaid obligations of Seller under the Documents as of the Closing Date
will be prorated between Seller and Buyer as contemplated by Section 5.
Seller has not received any written notice that the terms of any of the
liquor licenses issued with respect to the Hotel Properties , or any of
the laws, rules and regulations pertaining thereto, have been violated.
Seller has not entered into any employment agreements, service
contracts, maintenance agreements, management agreements, leases or
other written agreements in effect with respect to the Hotel Properties
that cannot be assigned to Buyer or terminated on thirty days prior
written notice, except for the Documents and the Management Agreements.
J. Management Agreements. The Management Agreements are in
full force and effect. FFCA has not received any written notices of
default from Doubletree with respect to the Management Agreements, nor
has FFCA delivered any written notices of default to Doubletree with
respect to the Management Agreement. FFCA has no knowledge of any
events which, with the passage of time, may result in a default by
Doubletree under the Management Agreements.
All representations and warranties of Seller made in this Agreement
shall be and will remain true and complete as of the Closing Date as if made and
restated in full as of such date, and shall survive Closing for a period of one
year only; provided, however, Buyer's sole recourse as a result of a breach of
the foregoing representations and warranties shall be as set forth in Section
16.
8. "As Is" Nature of Sale. BUYER AGREES THAT IT WILL EXAMINE AND
INVESTIGATE THE HOTEL PROPERTIES PRIOR TO THE EXPIRATION OF THE DUE DILIGENCE
PERIOD AND THAT BUYER WILL RELY SOLELY UPON SUCH EXAMINATIONS AND
INVESTIGATIONS, AND NOT ON ANY REPRESENTATIONS OR WARRANTIES OF SELLER AS TO THE
CONDITION OF THE HOTEL PROPERTIES, IN PURCHASING THE HOTEL PROPERTIES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IT IS
EXPRESSLY UNDERSTOOD AND AGREED THAT BUYER IS PURCHASING THE HOTEL PROPERTIES
"AS IS", AND THAT SELLER IS MAKING NO REPRESENTATIONS OR WARRANTIES, WHETHER
EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE
QUALITY, PHYSICAL CONDITION OR VALUE OF THE HOTEL PROPERTIES, OR THE INCOME OR
EXPENSES FROM OR OF THE HOTEL PROPERTIES. WITHOUT LIMITING THE FOREGOING, IT IS
UNDERSTOOD AND AGREED THAT SELLER MAKES NO WARRANTY OF HABITABILITY,
SUITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER MAKES
NO REPRESENTATION OR WARRANTY REGARDING ENVIRONMENTAL MATTERS OR THE AMERICANS
WITH DISABILITIES ACT OR STATE DISABILITIES LAWS, OR OTHER REPRESENTATION OR
WARRANTY REGARDING THE HOTEL PROPERTIES, THE CONDITION THEREOF, THE SUITABILITY
OF THE HOTEL PROPERTIES FOR ANY PARTICULAR USE, OR OTHERWISE, EXCEPT AS SET
FORTH IN SECTION 7 OF THIS AGREEMENT.
BUYER REPRESENTS AND WARRANTS TO SELLER THAT BUYER HAS KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE BUYER TO EVALUATE THE
MERITS AND RISKS OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT. FURTHERMORE,
BUYER ACKNOWLEDGES THAT IT IS NOT IN A DISPARATE BARGAINING POSITION RELATIVE TO
SELLER WITH RESPECT TO THIS AGREEMENT. TO THE EXTENT APPLICABLE AND PERMITTED BY
LAW, BUYER HEREBY WAIVES THE PROVISIONS OF THE TEXAS DECEPTIVE TRADE
PRACTICES-CONSUMER PROTECTION ACT, CHAPTER 17, SUBCHAPTER E, SECTIONS 17.41,
INCLUSIVE.
9. Inspection; Title/Survey Review. (a) Inspection of Hotel Properties.
Buyer shall have until the end of the Due Diligence Period within which to, at
Buyer's sole expense, make such physical investigations and examinations of the
Hotel Properties as Buyer deems appropriate, including, without limitation,
those dealing with the condition of the Hotel Properties and any environmental
hazards relating to the Hotel Properties (the "Physical Investigations"). Buyer
shall have until the end of the fifteenth business day after the delivery by
Seller to Buyer of the last of the lists of the Fort Lauderdale Documents,
Irving Documents and Tampa Documents (the "Document Review Period") to review
and approve or disapprove the Documents, the Management Agreements (Buyer
acknowledges that Seller has delivered to Buyer the Documents and Management
Agreements prior to or as of the date of this Agreement, with the Management
Agreements certified to be true, correct and complete by Seller) and the books
and records of and other financial information pertaining to the Hotel
Properties (which Seller agrees to make immediately available at FFCA's offices
in Scottsdale, Arizona). Buyer acknowledges that Seller shall be responsible for
ordering Phase I Environmental Reports (individually, a "Report") for each of
the Hotel Properties and that Buyer shall have seven business days following the
delivery of each report to approve or disapprove such Report (the "Phase I
Review Period"). Buyer or its designated agents may enter upon the Hotel
Properties during normal business hours (9:00 a.m. to 5:00 p.m., Monday through
Friday) during the Due Diligence Period for purposes of analysis or other tests
and inspections which may be deemed necessary or desirable by Buyer to conduct
its examinations and investigations of the Hotel Properties. Buyer must be
accompanied by Seller's manager for the respective Hotel Property, or other
representative authorized by Seller, prior to entering upon the Hotel Property
in connection with Buyer's due diligence. Seller agrees to cooperate with Buyer
in enabling Buyer to carry out such tests and inspections. Seller also agrees to
promptly provide such due diligence materials with respect to the Hotel
Properties and the Documents reasonably requested by Buyer which Seller has in
its possession; provided, however, Seller shall not be required to incur any
financial obligations in delivering such due diligence materials. Buyer shall
not materially alter the physical condition of the Hotel Properties without
notifying Seller of its requested tests and obtaining the written consent of
Seller to any material physical alteration of the Hotel Properties. All
investigations and examinations by Buyer of the Hotel Properties shall be done
so as to minimize the disruption of business at the Hotel Properties.
Buyer may elect to terminate this Agreement at any time prior to the
expiration of the (i) Due Diligence Period, if Buyer is not satisfied in its
sole discretion with the outcome of the Physical Investigations, (ii) the
Document Review Period, if Buyer is not satisfied in its sole discretion with
its review of the Documents, Management Agreements (but only if Buyer will
assume such Management Agreements) and books and records and other financial
information pertaining to the Hotel Properties, or (iii) Phase I Review Period
for each of the Hotel Properties, if Buyer is not satisfied in its sole
discretion with the Report for such Hotel Property. Buyer's election to
terminate this Agreement pursuant to the preceding sentence shall be exercised
by delivering a notice of termination to Seller, and upon such termination this
Agreement shall be of no further force and effect, neither party shall have any
further obligation to the other except with respect to the indemnity obligations
of Buyer set forth in this Section, and Title Company shall immediately return
the Initial Earnest Money to Buyer. In the absence of any such notice of
termination prior to the expiration of the Due Diligence Period, (i) Buyer shall
be deemed to have approved the condition of the Hotel Properties and waived its
right to terminate this Agreement pursuant to this Section, (ii) Buyer shall
deposit the Additional Earnest Money as contemplated by Section 3, and (iii) the
Initial Earnest Money, and the Additional Earnest Money upon deposit with Title
Company, shall be nonrefundable to Buyer except as otherwise expressly
contemplated by this Agreement. If Buyer does not terminate this Agreement,
prior to the end of the Due Diligence Period Buyer shall notify Seller whether
Buyer intends to assume the Management Agreements as of the Closing.
In the event this Agreement shall not close, Buyer shall restore the
Hotel Properties to its original condition if damaged or changed due to the
tests and inspections performed by Buyer, free of any mechanic's or
materialman's liens or other encumbrances arising out of any of the inspections
or tests, and shall provide Seller with a copy (which reasonable copy charges
shall be paid by Seller) of the results of all studies, tests and inspections of
the Hotel Properties made by Buyer, its agents, independent contractors,
servants and/or employees (collectively, "Buyer's Related Parties"). Buyer shall
keep confidential the results of all studies, tests and inspections made by
Buyer and Buyer's Related Parties and shall not disclose said results to any
third parties, other than Buyer's partners, employees and agents who shall
similarly keep such information confidential. Buyer shall indemnify and hold
Seller, its Affiliates and the partners, shareholders, employees, officers,
directors and agents of Seller and its Affiliates harmless from and against any
and all claims, costs, liabilities, losses, damages and expenses, including
attorneys' fees and expenses, incurred by Seller as a result of Buyer's
investigations and examinations of the Hotel Properties; provided, however, that
the foregoing indemnity shall not include claims, costs, liabilities, losses,
damages and expenses, arising solely as a result of Buyer merely discovering any
defective conditions in the Hotel Properties or the operation thereof.
(b) Title and Survey Review. Buyer acknowledges that Seller has
delivered to Buyer a current commitment for title insurance for each of the
Hotel Properties, including copies of all documents constituting exceptions to
Seller's title to the Hotel Properties (the "Commitments"), and ALTA surveys of
the Hotel Properties prepared for Seller at the time of Seller's acquisition of
the Hotel Properties (the "Surveys"). Buyer shall have until the end of the
tenth business days following the date of this Agreement (the "Title Review
Period") to review and to give Seller and the Title Company written notice of
any matter shown on the Commitments or the Surveys which is unacceptable to
Buyer, in Buyer's sole judgment (the "Title Notice"). Seller shall have no
obligation to cure any items to which Buyer may object. If Seller or Title
Company have not agreed in writing prior to the end of the tenth day following
the end of the Title Review Period (the "Cure Period") to satisfy and/or remove
any material title matter objected to by Buyer in the Title Notice, Buyer shall
have until 5:00 p.m. (Phoenix time) on the fifth day following the end of the
Cure Period to terminate this Agreement by delivering a notice of termination to
Seller, and upon such termination this Agreement shall be of no further force
and effect, neither party shall have any further obligation to the other except
with respect to the indemnity obligations of Buyer set forth in this Section,
and Title Company shall immediately return the Earnest Money to Buyer. If Buyer
does not elect to terminate this Agreement prior to the end of the Title Review
Period or the Due Diligence Period, the Hotel Properties shall be conveyed to
Buyer subject to those items set forth in the Commitments which the Seller or
Title Company have not agreed in writing to cause to be removed (the "Permitted
Exceptions"); provided, however, at or prior to Closing, Seller shall provide
for the release of all monetary liens encumbering the Hotel Properties other
than for taxes not yet delinquent and liens created by, through or under Buyer.
Seller shall cause each of the Surveys to be brought current and recertified to
Buyer. If the updated Surveys reveal title matters not previously depicted on
the Survey, and such title matters would have a material adverse affect on
Buyer's use and/or operation of the Hotel Properties, as determined by Buyer in
its reasonable discretion, Buyer shall have a period of five business days after
its receipt of each updated Survey to notify Seller and Title Company of its
objection to such matters, which objection shall be deemed a Title Notice and
solely for purposes of the objection(s) set forth in such Title Notice, the Cure
Period and Seller's rights following such Cure Period as described above shall
be applicable.
10. Conditions Precedent to Closing. (a) The obligation of Buyer to
consummate the transaction contemplated by this Agreement is subject to the
fulfillment or waiver of the condition that all obligations of Seller under this
Agreement shall have been fully performed and complied with, and no event shall
have occurred or condition shall exist which, would upon the Closing Date, or,
upon the giving of notice and/or passage of time, constitute a breach or default
by Seller hereunder.
(b) The obligation of Seller to consummate the transaction contemplated
by this Agreement is subject to the fulfillment or waiver of each of the
following conditions:
(i) Compliance With Representations, Warranties and Covenants;
Certification. All obligations of Buyer under this Agreement shall have
been fully performed and complied with, and no event shall have
occurred or condition shall exist which, would upon the Closing Date,
or, upon the giving of notice and/or passage of time, constitute a
breach or default by Buyer hereunder.
(ii) Proxy. Seller shall have received the consent to sell the
Hotel Properties from more than 50% of the interests in Seller held by
limited partners of Seller (the "Proxy Consent"). Such Proxy Consent
shall be received pursuant to a definitive proxy statement filed with
the Securities and Exchange Commission pursuant to Section 14(a) of the
Securities Exchange Act of 1934, as amended. Seller shall undertake in
good faith to obtain such Proxy Consent and shall promptly notify Buyer
upon Seller's receipt of such Proxy Consent. If such Proxy Consent is
not received by Seller before April 30, 1996, Seller shall have the
right to terminate this Agreement by delivering notice of the exercise
of such termination right to Buyer. Upon such termination, this
Agreement shall be of no further force and effect, neither party shall
have any further obligation to the other except with respect to the
indemnity obligations of Buyer set forth in Section 9, and Title
Company shall immediately return the Earnest Money to Buyer.
(c) In consideration of the substantial time and effort to be spent by
Buyer in performing its due diligence with respect to the Hotel Properties,
Seller does hereby acknowledge, agree and covenant as follows:
(i) that the General Partner of Seller has reviewed the terms
of the purchase and sale transaction governed by this Agreement and has
determined that it shall recommend approval of this Agreement to the
limited partners of Seller;
(ii) that Seller shall suspend the solicitation of offers to
purchase the Hotel Properties and formally reject any other offers to
acquire the Hotel Properties which were received prior to execution of
this Agreement;
(iii) that in the event the Proxy Consent is not obtained on
or before April 30, 1996, Buyer shall be entitled to terminate this
Agreement and receive the return of the Earnest Money;
(iv) in the event that a competing offer to acquire the Hotel
Properties is received by Seller prior to obtaining the Proxy Consent,
then, as a condition precedent to the right of Seller to accept such
offer, Seller shall advise Buyer in writing of the manner in which the
terms of such offer are more favorable to Seller than those offered by
Buyer and shall allow Buyer a fifteen day period to agree to match the
terms offered pursuant to such subsequent offer, in which event Seller
shall submit Buyer's amended offer to the limited partners of Seller
for approval. In the event that Buyer does not agree to match such
subsequent offer, Seller shall be entitled to enter into a contract
with respect to such offer (the "Other Contract") upon the giving of
notice to Buyer. Promptly after Seller enters into such Other Contract,
Seller shall cause Title Company to return the Earnest Money to Buyer
and this Agreement shall be deemed terminated and of no further force
and effect. At the time of the closing of the Other Contract, Seller
shall pay to Buyer a sum of money in an amount equal to 3% of the
Purchase Price (the "Break-up Fee") as Buyer's sole and exclusive
remedy as a result of the termination of this Agreement due to the
Other Contract. The parties acknowledge that the lost opportunity costs
for Buyer as a result of the closing of the Other Contract is
substantial and, in certain respects, unremediable, and that the
calculation of actual damages to be incurred in such event would be
extremely difficult; therefore, the parties agree that the Break-up Fee
constitutes reasonable compensation in lieu of such actual damages and
shall be in the nature of liquidated damages and shall not constitute a
penalty. Notwithstanding the foregoing, if the Other Contract is
terminated and the Hotel Properties are not conveyed by Seller to the
buyer under the Other Contract, Seller shall promptly notify Buyer in
accordance with the notice provision of this Agreement of such
termination, and Buyer shall have a period of ten (10) business days
after receipt of Seller's notice to notify Seller and Title Company in
accordance with the notice provision of this Agreement of Buyer's
election to enter into a purchase agreement with Seller for the
purchase of the Hotel Properties on the terms and conditions set forth
in this Agreement, but with such adjustments to the time periods for
deliveries, reviews and closing as the parties shall in good faith
require. In the absence of Buyer's election to enter into such a
purchase agreement, Seller and Buyer shall have no further contractual
obligations with each other with respect to the Hotel Properties, other
than Buyer's indemnity obligation set forth in Section 9, Buyer shall
have no rights or interests with respect to the Hotel Properties, and
Seller shall be free to enter into any agreement with any other persons
or entities with respect to the Hotel Properties without any action or
acknowledgment by Buyer.
11. Default and Remedies. (a) In the event of a material breach by
Buyer of its representations, warranties or covenants set forth in this
Agreement, and Buyer fails to cure the same within ten days after Buyer's
receipt of notice of such material breach, and/or in the event that all of the
conditions to Buyer's obligation to close have been satisfied and Buyer fails to
close its purchase of the Hotel Properties, the Earnest Money (to the extent
paid) shall be paid to Seller and retained by it as liquidated damages as
Seller's sole and exclusive remedy hereunder; provided, however, such limitation
of damages shall not apply to Buyer's obligations to Seller pursuant to the
indemnity set forth in Section 9. The parties acknowledge that Seller's damages
caused by Buyer's material breach of its representations, warranties or
covenants set forth in this Agreement and/or Buyer's failure to close hereunder
would be difficult to determine, and agree that the amount of the Earnest Money
represents a reasonable estimate of Seller's damages.
(b) In the event of a material breach by Seller of its representations,
warranties or covenants set forth in this Agreement, and Seller fails to cure
the same within ten days after Seller's receipt of notice of such material
breach, and/or in the event that all conditions to Seller's obligation to close
have been satisfied and Seller fails to close its sale of the Hotel Properties
hereunder, Buyer, as its exclusive remedies, may either seek specific
performance of Seller's obligations under this Agreement or terminate this
Agreement, upon which termination Title Company shall immediately return the
Earnest Money to Buyer and Seller shall assume responsibility for the payment of
the costs of the Commitments and the Surveys. The parties acknowledge that
Buyer's damages caused by Seller's material breach of its representations,
warranties or covenants set forth in this Agreement and/or Seller's failure to
close hereunder would be difficult to determine, and agree that the exclusive
remedies contained herein are reasonable.
12. Operation of Hotel Properties Prior to Closing. From the date of
this Agreement until Closing, Seller shall (i) maintain and operate the Hotel
Properties in their current state and condition, ordinary wear and tear
excepted, (ii) continue all insurance policies relative to the Hotel Properties
in full force and effect, (iii) not remove any item of personal property unless
replaced by a comparable item of personal property, other than in the ordinary
course of business, (iv) not enter into any service contracts, leases,
maintenance agreements or other contracts affecting the Hotel Properties that
may not be terminated within 30 days after notice without penalty, and shall not
in any way amend or modify the Documents or the Management Agreements, (v) pay
and discharge its liabilities in the ordinary course of business, and (vi)
perform, when due, all of Seller's obligations under the existing licenses,
permits, contracts and agreements relating to the Hotel Properties and as
otherwise required by all applicable laws, statutes, ordinances, codes, rules
and regulations affecting the Hotel Properties. If Buyer elects to assume the
Management Agreements, Seller shall maintain the inventory and supplies in the
Hotel Properties at ordinary levels in order to operate such properties in the
ordinary course of business as of the Closing Date; if Buyer does not elect to
assume the Management Agreements, Seller shall only be obligated to maintain
such inventory and supplies at the Hotel Properties as is reasonably necessary
to facilitate on or about the Closing Date the change from Doubletree as the
operator/property manager to Buyer's operator/property manager.
Seller agrees to cooperate with Buyer on or before the Closing Date in
order to complete all applications and allow for all inspections required in
order to transfer all of the licenses and permits issued in connection with the
Hotel Properties, including, without limitation, the liquor licenses for each
Hotel Property, and shall promptly execute and return to Buyer all documentation
reasonably required in connection therewith.
Seller shall deliver the Hotel Properties at Closing in substantially
the same condition as existed on the date of this Agreement.
13. Condemnation. (a) If, prior to the Closing Date, condemnation
proceedings are commenced against any material portion of any of the Hotel
Properties and this Agreement has not terminated pursuant to an express
provision herein, then in such event Buyer may, at its option, elect to
terminate this Agreement by written notice to Seller within 20 days after
Seller's notification to Buyer of the commencement of such condemnation
proceedings, or at the Closing, whichever is earlier, in which case the Earnest
Money shall be refunded to Buyer, and neither party shall have any further
rights or obligations hereunder, other than Buyer's indemnity obligation as set
forth in Section 9. If Buyer does not make its election to terminate this
Agreement, then the Closing shall take place as provided herein without
reduction of the Purchase Price, and at Closing Seller shall assign to Buyer its
interest in and to any condemnation award.
(b) If, prior to the Closing Date, condemnation proceedings are
commenced against less than a material portion of any of the Hotel Properties,
then in any such event neither Buyer nor Seller shall have any right to
terminate its obligations under this Agreement, but, at Closing, Seller shall
assign to Buyer its interest in and to any condemnation award, and the Purchase
Price shall not be reduced.
(c) For the purposes of Section 13(a) and (b) above, "material portion"
of any Hotel Property shall mean any structural portion of the building located
on the Hotel Property, such portion of the parking areas which would render the
remaining parking areas insufficient under applicable ordinances or regulations
for the Hotel Property to lawfully operate, or such other portion of the Hotel
Property which, if taken, would, in the reasonable judgment of Buyer, have an
adverse effect on the ability of Buyer to use the Hotel Property for its
intended purpose.
(d) If, prior to the Closing Date, condemnation proceedings are
commenced, Seller shall notify Buyer of such proceedings. During the term of
this Agreement, Seller shall notify Buyer of material developments in such
condemnation proceedings and consult with Buyer regarding major decisions by
Seller in such proceedings; provided, however, Seller will have no obligation to
accept Buyer's counsel, but Seller shall not make any decisions which would have
a material adverse effect on the Hotel Properties.
14. Casualty. Seller agrees to give Buyer prompt notice of any fire or
other casualty affecting the Hotel Properties between the date of this Agreement
and the Closing. In the event of such fire or other casualty, Buyer shall, at
its option, elect one of the following:
(a) Accept an assignment of all insurance proceeds and accept
the Hotel Property in its existing condition, if the loss, as
determined by Seller's insurance adjuster, is FIVE MILLION DOLLARS
($5,000,000) or less, so long as Buyer reasonably determines that the
insurance proceeds are adequate to completely restore and repair the
Hotel Property to the condition prior to the damage, the Hotel Property
retains its non-conforming use status (if applicable) and Buyer
receives a credit against the Purchase Price of the amount of any
deductibles under the applicable insurance policies; or
(b) If the loss, as determined by Seller's insurance adjuster,
is greater than FIVE MILLION DOLLARS ($5,000,000), or less than such
amount but any of the conditions in the preceding subsection are not
satisfied, Buyer, in its sole and absolute discretion, shall have a
right to accept all of Seller's insurance proceeds and receive a credit
against the Purchase Price of the amount of any deductibles under the
applicable insurance policies, or terminate this Agreement within
twenty days of receipt of written notice of the damage or destruction,
in which event the Earnest Money shall be refunded to Buyer and this
Agreement shall be deemed terminated, other than Buyer's indemnity
obligation set forth in Section 9.
15. Nonrefundable Consideration. Contemporaneously with the execution
and delivery of this Agreement, Buyer has delivered to Seller and Seller hereby
acknowledges the receipt of a check in the amount of $100.00 ("Independent
Contract Consideration"), which amount the parties bargained for and agreed to
as consideration for Buyer's exclusive right to inspect and purchase the Hotel
Properties pursuant to this Agreement and for Seller's execution, delivery and
performance of this Agreement. The Independent Contract Consideration is in
addition to and independent of any other consideration or payment provided in
this Agreement, is nonrefundable and is fully earned and shall be retained by
Seller notwithstanding any other provision of this Agreement.
16. Trust and Escrow Agreement; Limitations on Liability. SELLER, BUYER
AND TRUSTEE SHALL NEGOTIATE AND ENTER INTO THE TRUST AND ESCROW AGREEMENT DURING
THE DUE DILIGENCE PERIOD, WITH SELLER AND BUYER AGREEING TO NEGOTIATE SUCH TRUST
AND ESCROW AGREEMENT IN GOOD FAITH. THE PURPOSE OF THE TRUST AND ESCROW
AGREEMENT SHALL BE TO ESTABLISH THE SOLE AND EXCLUSIVE SOURCE OF FUNDS TO WHICH
BUYER SHALL LOOK SUBSEQUENT TO CLOSING FOR RECOURSE IN THE EVENT OF A BREACH OR
DEFAULT BY SELLER OF ANY OF ITS REPRESENTATIONS, WARRANTIES, COVENANTS OR
OBLIGATIONS UNDER THIS AGREEMENT, ANY OTHER DOCUMENT OR INSTRUMENT EXECUTED BY
SELLER AS CONTEMPLATED BY THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE
SPECIAL WARRANTY DEEDS, BILLS OF SALE AND ASSIGNMENT AGREEMENTS, AND/OR THE
TRUST AND ESCROW AGREEMENT. THE TRUST AND ESCROW AGREEMENT SHALL PROVIDE FOR THE
DEPOSIT, IMMEDIATELY AFTER CLOSING, OF THE TRUST FUNDS IN TRUST WITH TRUSTEE AND
SHALL SET FORTH THE PROCEDURE FOR BUYER TO FILE A CLAIM AGAINST THE TRUST FUNDS
SUBSEQUENT TO CLOSING. THE TRUST AND ESCROW AGREEMENT SHALL PROVIDE THAT BUYER
MAY FILE A CLAIM AGAINST THE TRUST FUNDS FOR A PERIOD OF ONE YEAR FOLLOWING THE
CLOSING DATE. IF BUYER HAS NOT FILED ANY CLAIMS AGAINST THE TRUST FUNDS DURING
SUCH ONE YEAR PERIOD, OR IF ALL CLAIMS FILED AGAINST THE TRUST FUNDS HAVE BEEN
RESOLVED PRIOR TO THE EXPIRATION OF SUCH ONE YEAR PERIOD, TRUSTEE SHALL
IMMEDIATELY DELIVER TO SELLER OR ITS DESIGNEE THE REMAINING BALANCE OF THE TRUST
FUNDS. IF ANY CLAIMS ARE PENDING AGAINST THE TRUST FUNDS AT THE TIME OF THE
EXPIRATION OF SUCH ONE YEAR PERIOD, THE REMAINING BALANCE OF THE TRUST FUNDS
SHALL CONTINUE TO BE HELD IN TRUST BY TRUSTEE PURSUANT TO THE TRUST AND ESCROW
AGREEMENT PENDING RESOLUTION OF SUCH CLAIMS, AND UPON SUCH RESOLUTION, THE
BALANCE OF THE TRUST FUNDS, AFTER PAYMENT TO BUYER OF ALL SUMS DUE WITH RESPECT
TO CLAIMS RESOLVED IN BUYER'S FAVOR, SHALL BE DELIVERED TO SELLER OR ITS
DESIGNEE. IN THE ABSENCE OF THE EXECUTION AND DELIVERY BY SELLER, BUYER AND
TRUSTEE OF THE TRUST AND ESCROW AGREEMENT PRIOR TO THE END OF THE DUE DILIGENCE
PERIOD, THIS AGREEMENT SHALL BE DEEMED TERMINATED, THE INITIAL DEPOSIT SHALL BE
RETURNED TO BUYER AND SELLER AND BUYER SHALL HAVE NO FURTHER OBLIGATIONS TO EACH
OTHER WITH RESPECT TO THE HOTEL PROPERTIES OTHER THAN BUYER'S INDEMNITY
OBLIGATION SET FORTH IN SECTION 9. THE TRUST FUNDS SHALL BE HELD AND DISTRIBUTED
BY THE TRUSTEE IN ACCORDANCE WITH THE TRUST AND ESCROW AGREEMENT. TRUSTEE'S FEES
AND EXPENSES SHALL BE PAID OUT OF THE TRUST FUNDS DISTRIBUTED TO SELLER;
PROVIDED, HOWEVER, IF THE REMAINING TRUST FUNDS ARE INSUFFICIENT TO PAY SUCH
FEES AND EXPENSES, SELLER AND ITS GENERAL PARTNER(S) SHALL BE SOLELY RESPONSIBLE
FOR PAYING SUCH FEES AND EXPENSES.
Notwithstanding anything to the contrary provided in this Agreement,
any other document or instrument to be executed and delivered as contemplated in
this Agreement in connection with the sale of the Hotel Properties by Seller to
Buyer, including, without limitation, the Special Warranty Deeds, Bills of Sale
and Assignment Agreements, and/or the Trust and Escrow Agreement, it is
specifically understood and agreed, such agreement being a primary consideration
for the execution of this Agreement by Seller and Buyer, that:
(i) there shall be absolutely no personal liability on the
part of any partner (or any partner of any partner) of Seller or Buyer,
any shareholder, director, officer or employee of a partner (or any
partner of any partner) of Seller or Buyer, or their Affiliates, with
respect to any of the terms, covenants and conditions of this
Agreement, the documents to be executed and delivered as contemplated
by this Agreement, including, without limitation, the Special Warranty
Deeds, Bills of Sale and Assignment Agreements, and/or the Trust and
Escrow Agreement;
(ii) Seller and Buyer waive all claims, demands and causes of
action against the partners (and the partners of the partners) of
Seller and Buyer and the shareholders, officers, directors, employees
and agents of the partners (and the partners of the partners) of Seller
and Buyer and of their Affiliates in the event of any breach by the
other party of any of the terms, covenants and conditions of this
Agreement, the documents and instruments to be executed and delivered
as contemplated by this Agreement, including, without limitation, the
Special Warranty Deeds, Bills of Sale and Assignment Agreements, and/or
the Trust and Escrow Agreement;
(iii) prior to Closing, Buyer's sole and exclusive remedies
for a breach or default by Seller of this Agreement shall be as set
forth in Section 11, and subsequent to Closing, Buyer shall look solely
to the Trust Funds in accordance with the terms and conditions of the
Trust and Escrow Agreement for the satisfaction of each and every
remedy of Buyer in the event of any breach or default by Seller of any
of its representations, warranties, covenants and obligations under
this Agreement, the documents to be executed and delivered by Seller as
contemplated by this Agreement, including, without limitation, the
Special Warranty Deeds, Bills of Sale and Assignment Agreements, and/or
the Trust and Escrow Agreement. The exculpation of liability set forth
in this subsection is absolute and without any exception whatsoever;
and
(iv) prior to Closing, Seller's sole and exclusive remedy for
a breach or default by Buyer of this Agreement shall be as set forth in
Section 11, and subsequent to Closing, Seller shall look solely to the
assets of Buyer for the satisfaction of each and every remedy of Seller
in the event of any breach by Buyer of any of the terms and conditions
of this Agreement, the documents to be executed and delivered by Buyer
as contemplated by this Agreement, including, without limitation, the
Assignment Agreements, and/or the Trust and Escrow Agreement. The
exculpation of liability set forth in this subsection is absolute and
without any exception whatsoever.
17. Miscellaneous Provisions.
A. Notices. All notices, consents, approvals or other
instruments required or permitted to be given by either party pursuant
to this Agreement shall be in writing and given by (i) hand delivery,
(ii) facsimile, (iii) express overnight delivery service or (iv)
certified or registered mail, return receipt requested, and shall be
deemed to have been delivered upon (a) receipt, if hand delivered, (b)
transmission, if delivered by facsimile, (c) the next business day, if
delivered by express overnight delivery service, or (d) the third
business day following the day of deposit of such notice with the
United States Postal Service, if sent by certified or registered mail,
return receipt requested. Attorneys may send or receive notices on
behalf of their respective clients. Notices shall be provided to the
parties and addresses (or facsimile numbers, as applicable) specified
below:
If to Seller: Dennis L. Ruben, Esq.
Senior Vice President and General Counsel
Franchise Finance Corporation of America
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (602) 585-4500
Telecopy: (602) 585-2226
If to Buyer: Mr. Jonathan D. Eilian
Principal
Starwood Capital Group, L.P.
Three Pickwick Plaza
Suite 250
Greenwich, CT 06830
Telephone: (203) 861-2100
Telecopy: (203) 861-2101
with a copy to: Andrew S. Robins, Esq.
Gunster, Yoakley, Valdes-Fauli & Stewart, P.A.
Suite 1400
500 East Broward Boulevard
Fort Lauderdale, Florida 33394
Telephone: (305) 462-2000
Telecopy: (305) 523-1722
B. Assignment. Seller and Buyer shall not, without the prior
written consent of the other party, sell, assign, transfer or convey
this Agreement, whether voluntarily or involuntarily or by operation of
law or otherwise, including, without limitation, by merger,
consolidation or dissolution or a transfer of a majority of the equity
interests of Seller or Buyer; provided, however, that Buyer may assign
its interest in this Agreement to an Affiliate or subsidiary of Buyer
with Seller's prior consent thereto, which consent shall be conditioned
upon Buyer documenting to Seller the proposed assignee's financial
ability to perform the obligations of "Buyer" under this Agreement,
Buyer shall remain obligated to perform all of the obligations of
"Buyer" under this Agreement, and the form of the assignment agreement
shall be subject to Seller's reasonable approval. Notwithstanding
anything in this Agreement to the contrary, Seller acknowledges that
Buyer may assign its rights under this Agreement to receive title to
all or a portion of the Fort Lauderdale Personal and Intangible
Property, Irving Personal and Intangible Property and Tampa Personal
and Intangible Property to an operating company designated by Buyer. In
such event, the Bills of Sale and Assignment Agreements may be in favor
of such operating company as the purchaser of such rights thereunder;
provided, however, Buyer shall be liable to Seller for all obligations
of the purchaser thereunder.
C. Commission. Except for the fee payable by Seller to Lehman
Brothers, Buyer and Seller represent and warrant to each other that
they have dealt with no real estate broker, agent, finder or other
intermediary in connection with the transaction contemplated by this
Agreement. Buyer and Seller shall indemnify and hold each other
harmless from and against any costs, claims or expenses, including
attorneys' fees, arising out of the breach of their respective
representations and warranties contained within this Section.
D. Waiver and Amendment. No provisions of this Agreement shall
be deemed waived or amended except by a written instrument
unambiguously setting forth the matter waived or amended and signed by
the party against which enforcement of such waiver or amendment is
sought. Waiver of any matter shall not be deemed a waiver of the same
or any other matter on any future occasion.
E. Captions. Captions are used throughout this Agreement for
convenience of reference only and shall not be considered in any manner
in the construction or interpretation hereof.
F. Severability. The provisions of this Agreement shall be
deemed severable. If any part of this Agreement shall be held
unenforceable, the remainder shall remain in full force and effect, and
such unenforceable provision shall be reformed by such court so as to
give maximum legal effect to the intention of the parties as expressed
therein.
G. Construction Generally. This is an agreement between
parties who are experienced in sophisticated and complex matters
similar to the transaction contemplated by this Agreement and is
entered into by both parties in reliance upon the economic and legal
bargains contained herein and shall be interpreted and construed in a
fair and impartial manner without regard to such factors as the party
which prepared the instrument, the relative bargaining powers of the
parties or the domicile of any party. Seller and Buyer were each
represented by legal counsel competent in advising them of their
obligations and liabilities hereunder. Words of any gender used in this
Agreement shall be held and construed to include any other gender, and
words in the singular number shall be held to include the plural, and
vice versa, unless the context requires otherwise.
H. Other Documents. Each of the parties agrees to sign such
other and further documents as may be appropriate to carry out the
intentions expressed in this Agreement.
I. Attorneys' Fees. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement,
the prevailing party shall be entitled to recover all of its attorneys'
fees and other costs in addition to any other relief to which it may be
entitled, including fees and expenses paid to the Title Company in
connection with this Agreement.
J. Entire Agreement. This Agreement, together with any other
certificates, instruments or agreements to be delivered hereunder,
constitute the entire agreement between the parties with respect to the
subject matter hereof, and there are no other representations,
warranties or agreements, written or oral, between Seller and Buyer
with respect to the subject matter of this Agreement.
K. Forum Selection; Jurisdiction; Venue; Choice of Law. Buyer
acknowledges that this Agreement was substantially negotiated in the
State of Arizona, the Agreement was signed by Seller and Buyer in the
State of Arizona and delivered by Seller and Buyer in the State of
Arizona and there are substantial contacts between the parties and the
transaction contemplated herein and the State of Arizona. For purposes
of any action or proceeding arising out of this Agreement, the parties
hereto hereby expressly submit to the jurisdiction of all federal and
state courts located in the State of Arizona and Buyer consents that it
may be served with any process or paper by registered mail or by
personal service within or without the State of Arizona in accordance
with applicable law. Furthermore, Buyer waives and agrees not to assert
in any such action, suit or proceeding that it is not personally
subject to the jurisdiction of such courts, that the action, suit or
proceeding is brought in an inconvenient forum or that venue of the
action, suit or proceeding is improper. It is the intent of the parties
hereto that all provisions of this Agreement shall be governed by and
construed under the laws of the State of Arizona. To the extent a court
of competent jurisdiction finds Arizona law inapplicable with respect
to any provisions hereof, then, as to those provisions only, the laws
of the states where the Hotel Properties are located, as applicable,
shall be deemed to apply. Nothing contained in this subsection shall
limit or restrict the right of Seller to commence any proceeding in the
federal or state courts located in the states where the Hotel
Properties are located to the extent Seller or Buyer deems such
proceeding necessary or advisable to exercise remedies available under
this Agreement.
L. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
M. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of Seller and Buyer and their respective
successors and permitted assigns, including, without limitation, any
United States trustee, any debtor-in-possession or any trustee
appointed from a private panel.
N. Survival. Except for the conditions of Closing set forth in
Section 10, which shall be satisfied or waived as of the Closing Date,
all representations, warranties and agreements of Seller and Buyer set
forth in this Agreement shall survive the Closing.
O. Time of the Essence. Time is of the essence with respect to
each provision of this Agreement; provided, however whenever any
determination is to be made or action to be taken on a date specified
in this Agreement, if such date shall fall upon a Saturday, Sunday or
holiday observed by federal banks in the State of Arizona, the date for
such determination or action shall be extended to the first business
day immediately thereafter.
P. Waiver of Jury Trial and Consequential and Punitive
Damages. SELLER AND BUYER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST
THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED
HEREIN OR RELATED HERETO. THIS WAIVER BY THE PARTIES HERETO OF ANY
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN
ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, SELLER AND BUYER EACH
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY
HAVE TO SEEK CONSEQUENTIAL AND PUNITIVE DAMAGES FROM THE OTHER WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT BY ONE PARTY AGAINST THE OTHER OR ITS
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED
HERETO. THE WAIVER BY SELLER AND BUYER OF ANY RIGHT THEY MAY HAVE TO
SEEK CONSEQUENTIAL AND PUNITIVE DAMAGES HAS BEEN NEGOTIATED BY THE
PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
Q. Confidentiality of Information. Seller and Buyer agree to
keep strictly confidential all Confidential Information and not to
disclose such Confidential Information other than (i) to such of their
respective (A) Affiliates and partners and the officers, directors,
shareholders, employees and agents of their respective Affiliates and
partners, (B) regulatory agencies, (C) rating agencies with a bona fide
need to know and/or (D) attorneys, accountants, engineers, consultants
or agents of the foregoing, (ii) in response to a subpoena or court
order to disclose such Confidential Information, or (iii) as otherwise
required by law.
R. Nonrecordation. The parties agree that neither this
Agreement nor any notice or memorandum thereof shall be recorded in any
public records, and a breach of this provision shall constitute a
default by the breaching party.
S. No Offer; Effective Date. The distribution of this
Agreement by Seller to Buyer shall not constitute an offer by Seller to
Buyer to convey the Hotel Properties and shall not be binding upon and
enforceable against Seller until such time as Seller and Buyer have
both executed and acknowledged this Agreement. The "date of this
Agreement" shall be the date an original of this Agreement (or original
counterparts of this Agreement) executed by both Seller and Buyer
together with the Initial Earnest Money described in Section 3(i) are
delivered to the Title Company.
T. Radon. Radon is a naturally occurring radioactive gas that,
when it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time. Levels
of radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit. This
disclosure is being given in connection with the Fort Lauderdale Hotel
Property and the Tampa Hotel Property in accordance with the Florida
Statutes.
<PAGE>
IN WITNESS WHEREOF, Seller and Buyer have entered into this Agreement
as of the date first above written.
SELLER:
GUARANTEED HOTEL INVESTORS 1985, L.P., a Delaware
limited partnership
By FFCA Management Company, Limited
Partnership, a Delaware limited
partnership, its general partner
By Perimeter Center Management
Company, a Delaware corporation, its general
partner
By /s/ Morton Fleischer
Printed Name: Morton H. Fleischer
Its President and Chief Executive Officer
BUYER:
SLT REALTY LIMITED PARTNERSHIP, a Delaware limited
partnership
By Starwood Lodging Trust, a
Maryland real estate investment trust,
its general partner
By /s/ Barry S. Sternlicht
Printed Name: Barry S. Sternlicht
Its Chairman and Chief Executive Officer
BUYER'S COUNSEL
By ______________________________________________________
Name ____________________________________________________
Title ___________________________________________________
Date:______________, 1995
Counsel for Buyer, signing only for purposes of meeting
the statutory requirements of Article 17.42 of the Texas
Deceptive Trade PracticesAConsumer Protection Act.
TITLE COMPANY:
Receipt of $200,000 Initial Earnest Money is
acknowledged.
LAWYERS TITLE INSURANCE
CORPORATION
By /s/ Irma Hickman
--------------------
Name: Irma Hickman
Title: Manager National Accounts
STATE OF ARIZONA ]
] SS.
COUNTY OF MARICOPA ]
The foregoing instrument was acknowledged before me on November 13,
1995 by Morton H. Fleischer, President and Chief Executive Officer of Perimeter
Center Management Company, a Delaware corporation, general partner of FFCA
Management Company, Limited Partnership, a Delaware limited partnership, general
partner of Guaranteed Hotel Investors 1985, L.P., a Delaware limited
partnership, on behalf of the corporation and partnerships.
/s/ Mary E. Leeland
-------------------
Notary Public
My Commission Expires:
December 9, 1996
- ----------------
STATE OF CONNECTICUT ]
] SS.
COUNTY OF FAIRFIELD ]
The foregoing instrument was acknowledged before me on November 3, 1995
by Barry S. Sternlicht, Chairman and CEO of Starwood Lodging Trust, a Maryland
real estate investment trust, the general partner of SLT Realty Limited
Partnership, a Delaware limited partnership, on behalf of the trust and
partnership.
/s/ Beth Van Nostrand
---------------------
Notary Public
My Commission Expires:
2/28/99
<PAGE>
EXHIBIT A-1
LEGAL DESCRIPTION
FORT LAUDERDALE PROPERTY
Lot 22, CORPORATE PARK AT CYPRESS CREEK, according to the Plat thereof, as
recorded in Plat Book 108, at Page 11, of the Public Records of Broward County,
Florida; LESS AND EXCEPT therefrom that certain parcel being more particularly
described as follows:
BEGINNING at the Northeast corner of Lot 23 of said CORPORATE PARK AT CYPRESS
CREEK; thence North 00 degrees 01 minutes 06 seconds West on a Northerly
projection of the Easterly boundary of said Lot 23, a distance of 67.67 feet;
thence South 89 degrees 58 minutes 54 seconds West, a distance of 166.11 feet to
an intersection of an arc of a circular curve to the left; thence Southwesterly
along the arc of said curve, having a radius of 555.0 feet, whose radius point
bears South 54 degrees 12 minutes 57 seconds East from the last described point,
an arc distance of 79.60 feet; said last mentioned course being coincident with
the right-of-way of Northwest Sixth Way; (as shown on Plat of CORPORATE PARK AT
CYPRESS CREEK, according to the Plat thereof, as recorded in Plat Book 108, at
Page 11, of the Public Records of Broward County, Florida); thence North 89
degrees 58 minutes 54 seconds East along the North line of said Lot 23, a
distance of 207.90 feet to the POINT OF BEGINNING of this description; also,
LESS AND EXCEPT therefrom the following described parcel, being more
particularly described as follows:
BEGINNING at the Southeast corner of Lot 21, CORPORATE PARK AT CYPRESS
CREEK; thence South 89 degrees 26 minutes 35 seconds West, a distance of 250.00
feet; thence North 45 degrees 32 minutes 07 seconds West, a distance of 102.91
feet, the last two described courses being more particularly described as being
the South line of said Lot 21; thence South 44 degrees 27 minutes 53 seconds
West, a distance of 67.00 feet; thence south 45 degrees 32 minutes 07 seconds
East, a distance of 130.68 feet; thence North 89 degrees 26 minutes 35 seconds
East, a distance of 262.52 feet to a point on the East line of said Lot 22;
thence North 12 degrees 15 minutes 54 seconds East along the East line of Lot
22, a distance of 68.71 feet to the POINT OF BEGINNING of this description.
AND ALSO LESS AND EXCEPT:
That portion of Lot 22 of CORPORATE PARK AT CYPRESS CREEK, as shown on the Plat
recorded in Plat Book 108, Page 11 of the Public Records of Broward County,
Florida described as follows:
COMMENCE at the Southeast corner of said Lot 22 and run thence North
10(degree)47'53" East along the Easterly boundary of said Lot 22, a distance of
12.28 feet for a POINT OF BEGINNING; thence South 88(degree)30'53" West along an
Easterly extension of a Southerly boundary of Lot 23 of said CORPORATE PARK AT
CYPRESS CREEK, a distance of 456.62 feet to an intersection with a Westerly
boundary of said Lot 22; thence North 1(degree)29'07" West along said Westerly
boundary, a distance of 16.50 feet; thence North 88(degree)13'20" East, a
distance of 276.74 feet; thence South 87(degree)58'15" East, a distance of
165.64 feet; thence North 88(degree)30'53" East, distance of 16.24 feet to an
intersection with the Easterly boundary of said Lot 22; thence South
10(degree)47'53" West along said Easterly boundary, a distance of 7.94 feet to
the POINT OF BEGINNING.
Said lands situate, lying and being in Broward Country, Florida.
<PAGE>
EXHIBIT A-2
LEGAL DESCRIPTION
IRVING PROPERTY
BEING 6.646 acres of land located in Lot 1, Block 1, TOWNE LAKE, Phase I, an
addition to the City of Irving, Dallas County, Texas, according to the plat
recorded in Volume 83091, Page 1067 of the Deed Records of Dallas County, Texas,
and being more particularly described by metes and bounds, as follows:
BEGINNING at a 1/2" iron rod at the Northwest corner of said Lot 1, Block 1,
lying at the intersection of the East right-of-way line of Valley View Lane (a
100 foot wide right-of-way) and the new South right-of-way line of State Highway
No. 183, as conveyed to the State of Texas, by the deed recorded in Volume
88189, Page 1985 of the Deed Records of Dallas County, Texas;
THENCE S 83(degree) 17' 58" E 488.20 feet along the new South right-of-way line
of said State Highway No. 183 and the North boundary line of said Lot 1, Block
1, TOWNE LAKE to a 1/2" iron rod at the Northeast corner of said Lot 1;
THENCE S 13(degree) 16' 12" W 612.11 feet along the East boundary line of said
Lot 1 to a 1/2" iron rod in the East boundary line of a tract of land conveyed
to Texas Power & Light Company by the deed recorded in Volume 75244, Page 1690
of the Deed Records of Dallas County, Texas;
THENCE N 01(degree) 02' 53" E 74.89 feet along the East boundary line of Said
Texas Power & Light Company Tract to a 1/2" iron rod at the Northeast corner
thereof;
THENCE N 89(degree) 55' 23" W along the South boundary line of said Lot 1, Block
1 and the North boundary line of said Texas Power & Light Company tract at
141.40 feet passing the Northwest corner of said Texas Power & Light Company
Tract, and in all 157.40 feet to a 1/2" iron rod;
THENCE S 01(degree) 15' 42" W 125.00 feet to a point;
THENCE S 46(degree)10' 28" W 22.00 feet to a 1/2" iron rod at the back of a
concrete curb;
THENCE S 01(degree) 16' 14" W 151.50 feet to a point in the South boundary line
of said Lot 1, Block 1, TOWNE LAKE, Phase I;
THENCE S 89(degree) 52' 34" W 187.91 feet along the South boundary line of said
Lot 1 to an "X" cut in a concrete driveway at the Southwest corner of said Lot
1, and lying in the East right-of-way line of aforesaid Valley View Lane;
THENCE along the West boundary line of said Lot 1, Block 1, TOWNE LAKE, and the
East right-of-way line of said Valley View Lane, as follows:
1. NORTHEASTERLY 229.62 feet along a curve to the Left, having a
radius of 1482.40 feet, a central angle of 08(degree) 52' 30"
and a chord bearing N 04(degree) 41' 24" E 229.39 feet to a
1/2" iron rod at the end of said curve;
2. N 00(degree)15' 06" E 641.09 feet to THE PLACE OF BEGINNING,
containing 6.646 acres (289,482 square feet) of land.
<PAGE>
EXHIBIT A-3
TAMPA PROPERTY
LEGAL DESCRIPTION:
Lot 1, Block 4, Less the South 190 feet thereof, of Tampania Subdivision,
according to the map or plat thereof, as recorded in Plat Book 8, page 71,
Hillsborough County, Florida, and Less that part described in order of taking in
Official Records Book 3237, page 206, of the Public Records of Hillsborough
County, Florida; together with the West 1/2 of closed right-of-way known as
Manhattan Avenue abutting that portion of Lot 1, described above, as vacated by
Ordinance No. 8419A as recorded in Official Records Book 4235, page 1615, of the
Public Records of Hillsborough County, Florida.
FIRST AMENDMENT TO PURCHASE AGREEMENT
-------------------------------------
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT (this "First Amendment"), is
made and entered into as of the 7th day of November, 1995 by and between
GUARANTEED HOTEL INVESTORS 1985, L.P., a Delaware limited partnership
("Seller"); and SLT REALTY LIMITED PARTNERSHIP, a Delaware limited partnership
("Buyer");
W I T N E S S E T H:
--------------------
WHEREAS, Seller and Buyer are parties to that certain Purchase
Agreement dated October 27, 1995 (the "Agreement"); and
WHEREAS, Seller and Buyer have agreed to amend the Agreement as
provided herein.
NOW THEREFORE, for and in consideration of the foregoing and of the
mutual covenants and agreements herein contained and other good and valuable
consideration, the receipt of which is hereby acknowledged by the parties
hereto, Seller and Buyer hereby covenant and agree as follows:
1. In the event of any conflict between the terms and provisions of the
Agreement and this First Amendment, then the terms and provisions of this First
Amendment shall prevail. All capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to the same in the Agreement.
2. Seller and Buyer hereby agree that the expiration date of the Phase
I Review Period shall be extended from November 7, 1995 to the expiration date
of the Due Diligence Period.
3. Seller and Buyer hereby agree that: (a) the Due Diligence Period
expires on December 12, 1995; (b) the Document Review Period expires on November
27, 1995; and (c) the Phase I Review Period expires on December 12, 1995.
4. Except as expressly amended and modified hereby, the Agreement is
and shall otherwise remain in full force and effect, and the parties hereto
hereby ratify and confirm the same.
5. This First Amendment may be executed in one or more counterparts and
all such counterparts taken together shall constitute one agreement. Executed
copies of this First Amendment received by telecopier shall be deemed to be
originals.
[TEXT AND SIGNATURES APPEAR ON THE FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, Seller and Buyer have hereunder set their hands and
seals as of the date first above written.
SELLER:
GUARANTEED HOTEL INVESTORS 1985, L.P.,
a Delaware limited partnership
By: FFCA Management Company, Limited
Partnership, a Delaware limited partnership,
its general partner
By: Perimeter Center Management
Company, a Delaware corporation,
its general partner
By: /s/ Morton H. Fleischer
-----------------------
Morton H. Fleischer, President
and Chief Executive Officer
BUYER:
SLT REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Starwood Lodging Trust, a Maryland real
estate investment trust, its general partner
By:/s/ Jeff Lapin
-----------------
Jeff Lapin
SECOND AMENDMENT TO PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AGREEMENT (the "Second Amendment") is
made and entered into this 13th day of December 1995 by and between GUARANTEED
HOTEL INVESTORS 1985, L.P., a Delaware limited partnership ("Seller"), and SLT
REALTY LIMITED PARTNERSHIP, a Delaware limited partnership ("Buyer"):
W I T N E S S E T H:
WHEREAS, Seller and Buyer are parties to that certain Purchase
Agreement dated October 27, 1995, as amended and modified by that certain First
Amendment to Purchase Agreement between Seller and Buyer (collectively, the
"Agreement"); and
WHEREAS, Seller and Buyer have agreed to amend the Agreement as
provided herein.
NOW, THEREFORE, for and in consideration of the foregoing and of the
mutual covenants and agreements herein contained and other good and valuable
consideration, the receipt of which is hereby acknowledged by the parties
hereto, Seller and Buyer hereby covenant and agree as follows:
1. In the event of any conflict between the terms and provisions of the
Agreement and this Second Amendment, then the terms and provisions of this
Second Amendment shall prevail. All capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to the same in the Agreement.
2. Seller and Buyer hereby agree to extent the time period in which
Buyer has to decide to terminate the Management Agreements with Doubletree to
January 12, 1996. Seller and Buyer hereby agree to extend the Closing to
accommodate any WARN Act notice periods in the event of a termination of
Doubletree under the Management Agreements, provided and on the condition that
Buyer pays the additional Earnest Money as provided in Paragraph 3 below.
3. Notwithstanding anything contained in the Agreement to the contrary,
Buyer shall have the right to extend the Closing Date to no later than April 30,
1996, which right may be exercised in connection with Paragraph 2 above or
otherwise, provided and on the condition that Buyer pays additional Earnest
Money (to be credited against the Purchase Price) in the amount of $100,000 to
the Title Company on or before the Closing Date that would otherwise be
scheduled pursuant to the provisions of Paragraph 4(a) of the Agreement without
regard to the extension set forth in this Paragraph 3.
4. On or before December 22, 1995, Seller shall advise Buyer as to
which Documents Buyer must obtain a release of Seller's liability in accordance
with the provisions of Paragraph 4(d)(4) of the Agreement. With respect to the
remaining Documents as to which Buyer does not obtain a specific release as set
forth in the immediately preceding sentence, Buyer agrees to indemnify Seller
from any and all loss, cost or expense incurred by Seller as a result of any
claims arising under such remaining Documents for the period commencing from and
after the Closing. The foregoing indemnity shall be evidenced by a document, in
form and substance acceptance to Buyer and Seller, to be delivered at the
Closing.
5. Seller and Buyer hereby agree to extend the date to agree upon the
form of the Trust and Escrow Agreement to December 15, 1995.
6. Seller and Buyer agree to extend the period in which to agree upon
an allocation of the Purchase Price under Paragraph 3 of the Agreement to
December 15, 1995.
7. Except as expressly amended and modified hereby, this Agreement is
and shall otherwise remain in full force and effect, and the parties hereto
ratify and confirm the same.
8. This Second Amendment may be executed in one or more counterparts
and all such counterparts taken together shall constitute one agreement.
Executed copies of this Second Amendment received by telecopier shall be deemed
to be originals.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, Seller and Buyer have hereunder set their hands and
seals as of the date first above written.
SELLER:
GUARANTEED HOTEL INVESTORS 1985, L.P., a Delaware limited partnership
By: FFCA Management Company Limited Partnership, a Delaware
limited partnership, General Partner
By: Perimeter Center Management Company, a Delaware
corporation, Managing General Partner
By: /s/ Dennis L. Ruben
-------------------
Dennis L. Ruben, Senior Vice President and
General Counsel
BUYER:
SLT REALTY LIMITED PARTNERSHIP, a Delaware limited partnership
By: Starwood Lodging Trust, a Maryland real estate investment
trust, its general partner
By /s/ Jeff Lapin
-----------------
Jeff Lapin
THIRD AMENDMENT TO PURCHASE AGREEMENT
THIS THIRD AMENDMENT TO PURCHASE AGREEMENT (the "Third Amendment"), is
made and entered into this 22nd day of December, 1995 by and between GUARANTEED
HOTEL INVESTORS 1985, L.P., a Delaware limited partnership ("Seller"), and SLT
REALTY LIMITED PARTNERSHIP, a Delaware limited partnership ("Buyer").
W I T N E S S E T H:
--------------------
WHEREAS, Seller and Buyer are parties to that certain Purchase
Agreement dated October 27, 1995, as amended and modified by those certain First
and Second Amendments to the Purchase Agreement between Seller and Buyer,
(collectively, the "Agreement"); and
WHEREAS, Seller and Buyer have agreed to amend the Agreement as
provided herein.
NOW, THEREFORE, for and in consideration of the foregoing and of the
mutual covenants and agreements herein contained and other good and valuable
consideration, the receipt of which is hereby acknowledged by the parties
hereto, Seller and Buyer hereby covenant and agree as follows:
1. In the event of any conflict between the terms and provisions of the
Agreement and this Third Amendment, then the terms and provisions of this Third
Amendment shall prevail. All capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to the same in the Agreement.
2. Seller and Buyer hereby agree to extend the date to agree upon the
form of the Trust and Escrow Agreement referred to in Paragraph 16 of the
Agreement to December 20, 1995. In addition, Seller and Buyer hereby agree that:
(a) the requirement that the Trust and Escrow Agreement be executed on or before
December 20, 1995, is hereby waived; and (b) the executed Trust and Escrow
Agreement shall be delivered at the Closing.
3. Except as expressly amended and modified hereby, the Agreement is
and shall otherwise remain in full force and effect, and the parties hereto
hereby ratify and confirm the same.
4. This Third Amendment may be executed in one or more counterparts and
all such counterparts taken together shall constitute one agreement. Executed
copies of this Third Amendment received by telecopier shall be deemed to be
originals.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, Seller and Buyer have hereunder set their hands and
seals as of the date first above written.
SELLER:
GUARANTEED HOTEL INVESTORS 1985, L.P.
a Delaware limited partnership
By: FFCA Management Company, Limited Partnership, a
Delaware limited partnership, its general partner
By: Perimeter Center Management Company, a
Delaware corporation, its general partner
By:/s/ Dennis L. Ruben
----------------------
Dennis L. Ruben, Senior Vice
President and General Counsel
BUYER:
SLT REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Starwood Lodging Trust, a Maryland real estate
investment trust, its general partner
By:/s/ Jeff Lapin
-----------------
Jeff Lapin
FOURTH AMENDMENT TO PURCHASE AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE AGREEMENT (this "Fourth Amendment"),
is made and entered into as of the 26th day of April, 1996 by and between
GUARANTEED HOTEL INVESTORS 1985, L.P., a Delaware limited partnership
("Seller"), and SLT REALTY LIMITED PARTNERSHIP, a Delaware limited partnership
("Buyer").
W I T N E S E T H:
WHEREAS, Seller and Buyer are parties to that certain Purchase
Agreement dated October 27, 1995, as amended (the "Agreement"); and
WHEREAS, Seller and Buyer have agreed to further amend the Agreement as
provided herein.
NOW THEREFORE, for and in consideration of the foregoing and of the
mutual covenants and agreements herein contained and other good and valuable
consideration, the receipt of which is hereby acknowledged by the parties
hereto, Seller and Buyer hereby covenant and agree as follows:
1. In the event of any conflict between the terms and provisions of the
Agreement and this Fourth Amendment, then the terms and provisions of this
Fourth Amendment shall prevail. All capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in the
Agreement.
2. The definition of "Trust Funds" set forth in Section 1 of the
Agreement is amended by deleting the reference to $2,000,000 and inserting in
its place $2,500,000.
3. Section 16 of the Agreement is amended by deleting all references to
"ONE YEAR" and inserting in their place "EIGHTEEN MONTH" or "EIGHTEEN MONTHS",
as the context requires.
4. Subsection 5(b)(i) of the Agreement is hereby deleted and the
following sentence is added to Section 5(b) of the Agreement following the first
sentence: "The prorations for real estate and ad valorem taxes for 1996 with
respect to the Hotel Properties shall be determined using the 1995 tax amounts
multiplied by 105%, it being the intent of the parties hereto that the parties
shall not reprorate the Taxes subsequent to the Closing and the prorations of
Taxes reflected on the settlement statement(s) executed by Seller and Buyer at
Closing shall be final and conclusive".
5. Buyer acknowledges and agrees that, notwithstanding that the Special
Warranty Deeds to be delivered at Closing do not include exceptions to title for
survey matters, transient guest and
<PAGE>
tenants pursuant to unrecorded leases, Seller's conveyance of title to the Hotel
Properties is subject to the survey matters exceptions, transient guests
exceptions and tenants pursuant to unrecorded leases exceptions described in the
Title Policies, and Buyer's fee simple title to the Hotel Properties shall be
subject to such matters.
6. Seller and Buyer agree that the portion of the Purchase Price
allocable to the motor vehicles included within the definition of Hotel
Properties is as set forth on the attached Schedule I. Buyer further
acknowledges that it shall be solely responsible for the payment of all sales
tax imposed on the sale of such motor vehicles from Seller to Buyer.
7. Buyer agrees to indemnify, protect, hold harmless and defend Seller
and its directors, officers, shareholders, affiliates, employees, successors and
assigns and agents, as applicable, from and against any and all losses, costs,
claims, liabilities, damages (exclusive of consequential and punitive damages)
and expenses, including, without limitation, Seller's reasonable attorneys'
fees, arising or accruing prior to the date hereof with respect to that certain
equipment lease dated April 14, 1985 with BellSouth Financial Services,
successor to Universal Communications Systems, Inc., with respect to the Fort
Lauderdale Hotel Property (the "BellSouth Lease"); provided, however, upon
delivery to Seller of an assumption and release agreement in the form attached
hereto as Exhibit A executed by BellSouth Financial Services, this indemnity,
protection and hold harmless provision shall terminate and be of no further
force and effect.
8. Buyer and Seller agree that in order to obtain a release of Seller's
liabilities and obligations under the Management Agreements as required pursuant
to Section 4(d)(5) of the Agreement, Buyer has been required by Doubletree to
assume certain obligations of Seller thereunder. In connection therewith, Buyer
and Seller agree and acknowledge that Buyer shall have the right to make a claim
against the Trust Funds pursuant to Section 16 of the Agreement and in
accordance with the claims procedures set forth in the Trust and Escrow
Agreement for any loss, cost or expense incurred by Buyer, including, without
limitation reasonable attorneys' fees and costs, whether or not litigation is
commenced and, if commenced, through all appellate and bankruptcy proceedings,
as a result of any breach or default by Seller with respect to the payment and
performance of obligations and liabilities of Seller for the period prior to the
Closing Date or as a result of Buyer satisfying obligations of Seller under the
Management Agreements which accrued or arose prior to the Closing Date.
9. Buyer and Seller reconfirm, agree and acknowledge that Section 5(b)
of the Agreement provides that Seller is responsible for the payment of all
costs, expenses and obligations from the Hotel Properties accruing prior to the
Closing Date. In connection therewith, Buyer and Seller agree and acknowledge
the obligations and liabilities of Seller that Buyer is (i) assuming therefrom
or (ii) indemnifying Seller against claims made by third parties, for the period
prior to the Closing Date, including, without limitation, the obligations of
Seller described in Paragraphs 7 and 8 above, are included within the
obligations of Seller under the provisions of such Section 5(b) and,
accordingly, Buyer shall have the right to make a claim against the Trust Funds
pursuant to Section 16 of the Agreement and
2
<PAGE>
the Trust and Escrow Agreement for any loss, cost or expense incurred by Buyer ,
including, without limitation, reasonable attorneys' fees and costs, whether or
not litigation is commenced and, if commenced through all appellate and
bankruptcy proceedings, as a result of any breach or default by Seller with
respect to the payment and performance of obligations and liabilities of Seller
to which such assumption and indemnity relate or as a result of Buyer satisfying
obligations of Seller under the Management Agreements which accrued or arose
prior to the Closing Date.
10. Buyer and Seller agree that, in accordance with the provisions of
Paragraph 17(B) of the Agreement, Seller hereby assigns its right to receive the
stock of LSA Club One, Inc. to SLC Operating Limited Partnership, a Delaware
limited partnership.
11. Seller and Buyer agree that they will reconcile the credit card
receipts for the Hotel Properties that were credited to Buyer's account on
Monday, April 29, 1996, as soon thereafter as is practicable, based upon the
prorations for credit card receipts agreed upon by Buyer and Seller in
accordance with the terms and provisions of the Agreement.
12. Except as expressly amended and modified hereby, the Agreement is
and shall otherwise remain in full force and effect, and the parties hereto
hereby ratify and confirm the same.
13. This Fourth Amendment may be executed in one or more counterparts
and all such counterparts taken together shall constitute one agreement.
Executed copies of this Fourth Amendment received by telecopier shall be deemed
to be originals.
3
<PAGE>
IN WITNESS WHEREOF, Seller and Buyer have hereunder set their hands as
of the date first above written.
SELLER:
GUARANTEED HOTEL INVESTORS 1985, L.P.,
a Delaware limited partnership
By: FFCA Management Company, Limited, Partnership, a Delaware
limited partnership,
its general partner
By: Perimeter Center Management
Company, a Delaware corporation,
its general partner
By: /s/ Dennis L. Ruben
---------------------------
Name: Dennis L. Ruben
Title: Senior Vice President and General Counsel
BUYER:
SLT REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Starwood Lodging Trust, a Maryland real estate investment
trust, its general partner
By: /s/ Ronald C. Brown
--------------------------------
Name: Ronald C. Brown
Title: Vice President and Chief Financial Officer
4
<PAGE>
SCHEDULE I
MOTOR VEHICLE VALUE ALLOCATIONS
HOTEL LOCATION/VIN DESCRIPTION VALUE
------------------------------ -----
I. IRVING, TEXAS
(a) VIN 1FDJE37H8RHB75724 $26,000
(b) VIN 1FTHS24H9RHA16754 $13,500
(c) VIN 1FDHS24HOPH96762 $ 4,500
II. FORT LAUDERDALE, FLORIDA
VIN 1FDHS24H1PHA96768 $ 7,300
III. TAMPA, FLORIDA
VIN 1FDHS24HXPHA86787 $11,400
5
<PAGE>
EXHIBIT A
ASSUMPTION AND RELEASE AGREEMENT
This ASSUMPTION AND RELEASE AGREEMENT (this "Assumption and Release")
is made as of the ____ day of ______, 1996 by and between SLT REALTY LIMITED
PARTNERSHIP, a Delaware limited partnership ("SLT") and BELLSOUTH FINANCIAL
SERVICES ("BellSouth").
WITNESSETH
WHEREAS, SLT and Guaranteed Hotel Investors 1985, L.P., a Delaware
limited partnership, ("GHI") have entered into that certain Purchase Agreement
(the "Purchase Agreement"), dated October 27, 1996, for the purchase and sale of
the Doubletree Guest Suites Hotel located at 555 N.W. 62nd Street, Fort
Lauderdale, Florida (the "Hotel"); and
WHEREAS, GHI, as successor to Woolley/Sweeney Hotel Number 5, and
BellSouth, as successor to Universal Communication Systems, Inc., are parties to
those certain Master Lease Agreements (the "Agreements") for the lease of
equipment at the Hotel; and
WHEREAS, as a condition of the closing of the purchase and sale of the
Hotel by SLT under the Purchase Agreement (the "Closing"), GHI has requested a
release of liability from BellSouth under the Agreements for the period from and
after the Closing; and
WHEREAS, as a condition of the Closing, SLT has requested certain
estoppel information from BellSouth.
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and subject to the terms and conditions contained herein, SLT and
BellSouth agree as follows:
1. Bell South hereby consents to GHI's assignment of the
Agreements to SLT.
2. SLT hereby assumes and agrees to perform and abide by and be
bound by all of the duties, obligations and responsibilities imposed by the
terms of the Agreements upon GHI concerning the Hotel, from and after the date
of Closing, and hereafter all rights of GHI by and under the Agreements shall be
fully enforceable by SLT, its successors and assigns, against BellSouth, its
successors and assigns, as if SLT had been a party to the Agreements from its
commencement. BellSouth hereby ratifies and affirms the terms, conditions and
provisions of the Agreements.
3. BellSouth hereby forever releases, acquits, satisfies,
dismisses and discharges GHI and/or its employees, officers, directors,
attorneys, stockholders or agents and any of their respective successors and
assigns, of and from any and all obligations (including, without limitation, the
indemnity contained in Paragraph 9 of the Agreements) GHI may have under the
Agreements from and after the date of Closing.
6
<PAGE>
4. BellSouth hereby acknowledges and agrees that, as of the date
hereof, all of the terms, conditions and provisions of the Agreements on the
part of GHI and BellSouth to be performed thereunder have been duly and timely
performed, and all monies, outstanding liabilities or charges due or payable to
BellSouth by GHI under the Agreements have been paid through ___________ (if no
date is inserted, such date shall be deemed to be the date hereof). BellSouth
agrees to look solely to: (a) GHI for any amounts due it for the period prior to
the Closing and (b) SLT for the period after the Closing. BellSouth hereby
agrees that, as of the date hereof, there are no amounts due or payable to GHI
by BellSouth under the Agreements and there are no deposits or advance payments
under the Agreements except as noted: ______________________________________ (if
blank, then BellSouth agrees that there are no deposits or advance payments
under the Agreements).
5. BellSouth hereby acknowledges and agrees that, as of the date
hereof, there are no defaults or claims of defaults under the Agreements by
either GHI or BellSouth and no event has occurred which, with notice, lapse of
time, or both, would constitute a default under the Agreements by either GHI or
BellSouth, and neither GHI, nor BellSouth has any charge, lien, claim, defense,
set-off or counterclaim against the other, or under the Agreements.
6. This Assumption and Release represents the complete and
entire understanding and agreement among SLT and BellSouth with regard to the
assumption and release of GHI's rights and obligations under the Agreements. The
Agreements shall remain in full force and effect without modification, and
BellSouth shall remain fully obligated under the Agreements. If for any reason
GHI does not convey title to the Hotel to SLT, BellSouth shall remain solely
obligated under the terms and conditions of the Agreements, without regard to
the terms of this Assumption and Release.
IN WITNESS WHEREOF, the parties hereto have executed this Assumption
and Release under the hand of their officers duly authorized in that behalf as
of the day and year first above written.
WITNESSES: SLT REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
_____________________________ By: _______________________________________
Name: _____________________________________
Title: ____________________________________
BELLSOUTH FINANCIAL SERVICES
_____________________________ By: _______________________________________
Name: _____________________________________
Title: ____________________________________
