SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): November 27, 1996
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Hudson Hotels Corporation
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(Exact Name of Registrant as Specified in Charter)
New York 33-26780-NY 16-1312167
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(State or Other Jurisdiction (Commission File (IRS Employer
of Incorporation) Number) Identification No.)
One Airport Way, Suite 200, Rochester, New York 14624
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (716)-436-6000
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(Former Name or Founder Address, if Changed Since Last Report)
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Item 2. Acquisition or Disposition of Assets.
On November 17, 1996, the Company acquired 12 hotel properties, consisting
of 8 Fairfield Inns by Marriott(R) and 4 Cricket Inns, from SB Motel Corp., a
subsidiary of Salomon Brothers Inc. and the subsidiaries of SB Motel Corp. which
had been formed to hold each such hotel, pursuant to an Agreement of Purchase
and Sale dated September 27, 1996 among the Company and its subsidiary, Hudson
Hotels Properties Corp. as Purchaser and SB Motel Albany Corp., SB Motel
Charleston Corp., SB Motel Richmond Corp., SB Motel Durham-Research Triangle
Park Corp., SB Motel Cary Corp., SB Motel Statesville Corp., SB Motel Wilmington
Corp., SB Motel Columbia Corp., SB Motel Virginia Beach Corp., SB Motel
Durham-Duke Corp., SB Motel Raleigh Corp., and SB Motel Charlotte I-85 Corp.
(the subsidiaries of SB Motel Corp. which held each property ) (the Sellers).
The Company acquired eleven of the properties into its newly-formed subsidiary,
HH Properties - I, Inc., and the twelfth, the Virginia Beach Cricket Inn, into
its newly formed subsidiary, HH Properties VB, Inc.
The purchase price for the properties was $60,400,000, determined by
arms-length negotiation with the Sellers, after analysis and valuation by the
Company based upon historic and projected operating results of the properties.
The purchase price was paid by issuing 370,657 shares of Company common stock,
valued at $2,400,000, by issuing the Company's subordinated promissory note in
the amount of $3,000,000 (maturing November 27, 1997) to the Seller, and by
paying the balance of $55,000,000 in cash. The cash portion of the purchase
price was obtained a) by placing a $37,470,000 mortgage issued by Nomura
Asset Capital Corporation, on the properties purchased by HH Properties - I,
Inc. b) by the Company securing $17,000,000 of mezzanine financing from Nomura
Asset Capital Corporation, and c) by the Company utilizing $530,000 of its
available capital.
There were no material relationships between the Company and the Seller
prior to the consummation of the acquisition. As a result of the acquisition, SB
Motel Corp. became a greater than 5% shareholder in the Company, and John Buza,
an officer of the Seller, became a director of the Company.
In addition to the consideration stated above, the Company has agreed to
register the 370,657 shares issued to SB Motel Corp. for sale to the public
within 180 days following closing, and the Company has granted to Salomon
Brothers, Inc a right of first refusal to undertake equity offerings on behalf
of the Company.
The following properties were acquired. Each such property was operated as
a hotel prior to the acquisition, and the Company intends to continue to operate
each property as a hotel thereafter.
Fairfield Inn by Marriott(R) in Albany, Georgia. The Albany Fairfield Inn
by Marriott consists of two, 2-story exterior corridor buildings with 122 rooms.
The Property was opened in July 1982 and was renovated and re-branded as a
Fairfield Inn by Marriott in September 1994. The hotel is located 1/8 mile off
business route U.S. 19 north and approximately 1/4 mile from the Liberty
Expressway on North Slappey Boulevard in Albany, Georgia. Slappey Boulevard is
the primary north-south traffic artery through Albany and is lined by commercial
establishments including hotels, restaurants, gas stations and shopping centers.
Liberty Expressway allows easy commuting around Albany. The Fairfield Inn by
Marriott enjoys excellent visibility with prominent signage on both U.S. 19 and
82, and Slappey Boulevard. In addition, despite its location in a thriving
commercial area, the Property's site is park-like with mature trees and
plantings.
Fairfield Inn by Marriott(R) in Cary, North Carolina. The Cary Fairfield
Inn consists of two, 2-story, guest room buildings and one, 1-story building
housing the reception area. The 125-room exterior corridor hotel was opened in
April 1986 and was renovated and rebranded as a Fairfield Inn by Marriott(R) in
June 1994. The Hotel is located at the intersection of U.S. 64 and Walnut Street
and 3/4 miles west of the I-40 interchange in Cary, North Carolina. This
intersection is only 3/4 mile west of the I-40 interchange making the Property's
access to the primary traffic routes in the area excellent. U.S. 64 is a major
highway providing easy access to virtually every community within the
Raleigh-Durham metropolitan area. The predominantly commercial area surrounding
the Property includes retail development, motor services, restaurants and
lodging facilities.
Cary is located to the east of Raleigh between I-40 and U.S. 1/64. Cary is
the fastest growing city in Wake County; its growth is fueled by its proximity
and accessibility to the major employment centers in the area. These include
Research Triangle Park, Regency Park, and the Raleigh-Durham Airport area and
downtown Raleigh.
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The Fairfield Inn by Marriott(R) in Charleston, South Carolina. The
Charleston Fairfield Inn consists of two, 2-story exterior corridor buildings
with 119 guest rooms. The Property was opened in 1985 and was renovated and
re-branded as a Fairfield Inn by Marriott(R) in July 1994. Additional land is
available at this site to accommodate approximately 50-60 additional guest
units.
The Property is located in the northwest quadrant of I-26 and Ashley
Phosphate Road on Northside Drive in Charleston, South Carolina. I-26 is the
major highway that links downtown Charleston to Columbia and Greenville, South
Carolina. It also provides direct access to the Charleston International Airport
which is only five minutes from the Property. Ashley Phosphate Road is an
important east-west artery providing access to I-26 and is lined by
commercial/travel related uses including restaurants, hotels, gas stations,
shopping centers and business offices. The Property has excellent visibility
from both Ashley Phosphate Road and Northside Drive.
The Fairfield Inn by Marriott(R) in Columbia, South Carolina. The Columbia
Fairfield Inn consists of two, 2-story, external corridor structures with 129
guest rooms. The hotel opened in 1988 and was renovated and re-branded as a
Fairfield Inn by Marriott(R) in August 1994. The hotel is located at the
intersection of I-77 and Two Notch Road and approximately .5 miles from I-20 to
the southwest. The Property is located in the southeast quadrant of the I-77 and
Two Notch Road intersection. The area, known as the "Two Notch" area, is the
location of much of the growth in the city. The Area contains South Carolina's
largest shopping mall as well as a number of small retail establishments and
companies. I-77, a major north-south highway, links Cleveland, Ohio with
Columbia, South Carolina and is one of the most heavily traveled tourist and
commercial routes in the eastern United States. The Property is also in close
proximity to I-20, a major east-west highway. The Property enjoys excellent
access and visibility from I-77 and displays prominent signage on I-77. The
Fairfield Inn by Marriott is approximately three miles north of the Fort Jackson
Army Base, which is a major market force for the immediate area. The Property is
nine miles northeast of downtown Columbia.
The Fairfield Inn by Marriott(R) in Durham-Research Triangle Park, North
Carolina. The Durham-Research Triangle Park Fairfield Inn consists of one,
3-story structure with 96 guest rooms. Unique in its design, the Property
utilizes exterior hallways on the first floor and interior hallways on the upper
floors. The hotel was opened in march 1987 and was renovated and re-branded as a
Fairfield Inn by Marriott(R) in July 1994. The hotel is located at the
intersection of NC Highway 55 and I-40 located right on the edge of Research
Triangle Park (RTP), the nation's largest planned research and development park.
RTP is the largest research park in the United States with over 70 research,
development and professional organizations. In addition, the hotel is only six
miles from the Raleigh-Durham International Airport and only seven miles from
downtown Durham and Duke University. Across the street from the Property is the
Meridian Office Park which contains number of companies. Prominent among these
is BASF Chemicals. It along with other companies in the park, generate demand
for the area.
The Fairfield Inn by Marriott(R) in Richmond, Virginia. The Richmond
Fairfield Inn consists of two, 2-story guest room buildings. The 124-room
exterior corridor hotel was opened in August 1987 and was renovated and
re-branded as a Fairfield Inn by Marriott(R) in July 1994. The hotel is located
on West Broad Street, less than a mile west of I-64 and three miles from I-95 in
Richmond, Virginia. The Property is located in Richmond, Virginia which is
approximately 93 miles northwest of Norfolk and approximately 110 miles from
Washington, D.C. Its excellent access to these major thoroughfares is very
attractive to both business travelers and tourists. The location's desirability
is further heightened by its proximity to both downtown Richmond, only eight
miles away, and the Richmond International Airport, 15 miles away. The Property
also enjoys excellent proximity to Richmond's major office parks (Brookfield,
Paragon Place, Innsbrook and the Koger Office Parks). In addition, Motorola
announced in 1995 plans to open a new semi-conductor plant in the Goochland
area, approximately 20 miles Northwest of the Property. This plant will create
5,000 jobs and be an excellent demand generator in the Richmond market.
The Fairfield Inn by Marriott(R) in Statesville, North Carolina. The
Statesville Fairfield Inn consists of three, 2-story guest room buildings. The
118-room exterior corridor hotel was opened in 1985 and was renovated and
re-branded as a Fairfield Inn by Marriott(R) in August 1994. The hotel has a
prime location off I-77, approximately three miles south of the I-77/I-40
interchange in Statesville, South Carolina. Statesville, North Carolina is
located approximately one hour north of Charlotte and approximately one and a
half hours west of the Raleigh and Durham area. The city is strategically well
located at the confluence of the region's two interstate highways, I-40 and
I-77, which provide convenient access to areas throughout the region. I-77, a
major north-south highway, links Cleveland, Ohio with Charleston, South Carolina
and is one of the most heavily traveled tourist and commercial routes in the
eastern United
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States. The Property enjoys excellent access and visibility off I-77 and
displays prominent signage on I-77. The Property is approximately three miles
south of the I-77/I-40 interchange and is located in a shopping mall with
approximately 20 retail stores, fast food restaurants and a movie theater.
This Property is subject to a ground lease which expires April 30, 2035.
The annual rental payment is the greater of i) $22,000 less 1/2% of gross room
rentals from the hotel during the 1991 lease year of the lease term, or ii) four
percent of the gross room rentals from the hotel during each lease year, which
is most likely given the Property's performance.
The Fairfield Inn by Marriott(R) in Wilmington, North Carolina. The
Wilmington Fairfield Inn consists of two, 2-story guest room buildings. The
120-room exterior corridor hotel was opened in April 1985 and was renovated and
re-branded as a Fairfield Inn by Marriott(R) in July 1994. The hotel has a prime
location on U.S. Highways 17/74 (Market Street) and 3/4 miles west of I-40 in
Wilmington, North Carolina. Wilmington is located in southeastern North Carolina
on the coast just above the South Carolina border. Wilmington's location between
the Cape Fear River and the Atlantic Ocean, and along the intracoastal waterway
has been a consistent source of lodging demand. Commercial development,
including restaurants, lodging facilities and gas stations line Market Street.
The Property enjoys excellent access and visibility off Market Street and
displays four prominent billboards along the highway. The hotel is located eight
miles from Wrightsville Beach and four miles from historic downtown Wilmington.
Famous gardens, plantations, beaches, and world class golf is only a short drive
from the hotel. The hotel is only 7 minutes from the new Hanover International
Airport.
The Cricket Inn in Charlotte (I-85), North Carolina. The Charlotte I-85
Cricket Inn consists of three, 2-story exterior corridor structures with 132
guest rooms. The Property opened in March 1989 and was completely renovated in
August 1995. The hotel is located at the Sugar Creek Road Exit off I-85 and is
approximately three miles from I-77 and Charlotte, North Carolina. I-85 is a
major north-south highway, which is one of the two major roadways that provide
access to Charlotte, North Carolina. The predominately commercial intersection
has heavy traffic and contains several competing hotels, fast food outlets and
full service restaurants. The Property allows guests easy access from the
interstate and displays prominent billboards along I-85. Charlotte International
Airport is approximately 10 miles from the Property and is accessible by I-85.
The Cricket Inn in Durham-Duke, North Carolina. The Durham-Duke Cricket
Inn consists of an eight-story tower (opened in 1985) and a five-story building
(opened in 1988) both with interior corridors and elevators. The eight story
tower, which received a $1 million renovation in June 1995, contains 118 guest
rooms and a coffee shop which seats 38. The five story building contains 32
guest rooms. The hotel is located just two blocks from Duke University and the
Duke University Medical Center and across the street from the Veterans
Administration ("VA") Medical Center in Durham, North Carolina. Lodging demand
is enhanced by the completion of a 40-room geriatric ward at the VA Medical
Center and 76-room eye care center at the Duke Medical Center. The Property is
located in the northwest quadrant of Elba and Fulton Street in Durham. The
Property is one block from the Durham Freeway, which provides access to I-40.
I-85 is approximately one mile from the hotel.
The Cricket Inn in Raleigh, North Carolina. The Raleigh Cricket Inn
consists of three, 2-story, external corridor structures with 148 guest rooms.
Raleigh is part of a three city metropolitan area known as the Research Triangle
(which in addition to Raleigh includes the cities of Durham and Chapel Hill).
Old Wake Forest Road leads directly into the heart of downtown Raleigh which is
only four miles away. Several colleges and universities, including North
Carolina State University, and the State Capitol are located in the downtown
area. I-440 connects with U.S. Highway 70 and I-40 which provide excellent
access to the Research Triangle Park, the nation's largest planned research and
development park, and the Raleigh-Durham International Airport, both of which
are less than 30 minutes away.
The Cricket Inn in Virginia Beach, Virginia. The Virginia Beach Cricket
Inn consists of three, 2-story external corridor structures with 150 guest
rooms. Two buildings contain only guest rooms and are perpendicular to one
another in an "L" shape. The third building contains guest rooms and the lobby
and front desk area. The Property opened in 1986 and was completely renovated in
August 1995. The hotel is located on U.S. Route 13 (Northampton Boulevard) and
approximately .67 mile east of I-64 in Virginia Beach, Virginia. I-64 is a major
east/west highway which is the primary tourist access road for the beach
resorts. The hotel has excellent access from both Route 13 and I-64. The
Property is 10 miles west of the resort beaches, four miles south of Norfolk
International Airport and four miles southeast of the Little Creek Naval
Amphibious Base (one of the four military bases in Virginia Beach) which employs
over 12,200 employees.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Hudson Hotels Corporation
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(Registrant)
Date: December 12, 1996 /s/ Taras Kolcio
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Taras Kolcio, Chief Financial Officer
<PAGE>
Item 7. Financial Statements, Pro Forma, Financial Information and Exhibits.
a) Financial Statements of Businesses Acquired.
It is impracticable to provide the required financial statements for the
properties acquired at this time. The required financial statements will be
filed as soon as practicable, but not later than sixty days after this report is
filed.
b) Pro Forma Financial Information.
It is impracticable to provide the pro forma financial information which
is required with respect to the acquisitions described in Item 2 above. The
required pro forma financial information will be filed as soon as practicable,
but not later than sixty days after this report is filed.
c) Exhibits.
Exhibit 10. Material Contracts
Exhibit 10.30 Agreement of Purchase and Sale, as amended.
CONTRACT AMENDMENT NO.1
THIS INSTRUMENT is entered into as of the 31st day of October, 1996 by SB
Motel Richmond Corp., SB Motel Durham-Research Triangle Park Corp., SB Motel
Cary Corp., SB Motel Statesville Corp., SB Motel Wilmington Corp., SB Motel
Columbia Corp., SB Motel Charleston Corp., SB Motel Albany Corp., SB Motel
Virginia Beach Corp., SB Motel Durham-Duke Corp., SB Motel Raleigh Corp., and SB
Motel Charlotte I-85 Corp. (collectively, "Sellers"), Hudson Hotel Properties
Corp. ("Purchaser") and Hudson Hotels Corporation ("Hudson").
WHEREAS, Purchaser entered into an Agreement of Purchase and Sale dated
September 27, 1996 (the "Agreement") with Sellers covering twelve properties in
the States of North Carolina, South Carolina, Georgia and Virginia
(collectively, the "Premises"); and
WHEREAS, Hudson, Sellers and Purchaser desire to amend Sections 3.1, 3.2,
15.7 and 16.10 of the Agreement as set forth below. All terms not defined herein
shall have the meanings ascribed to them in the Agreement.
NOW THEREFORE, Hudson, Sellers and Purchaser hereby agree that the
Agreement is hereby amended as follows:
1. Section 3.1 of the Agreement is hereby amended to extend the Feasibility
Period from October 31, 1996 to and including November 15, 1996. Hudson,
Sellers, and Purchaser agree that none of the terms, conditions and covenants
of the Agreement have been waived, except that Hudson and Purchaser hereby
acknowledge their approval of and satisfaction with the following due
diligence matters:
a. Property Appraisals.
b. Financial Statements and Audited Financials for the Premises.
c. Engineering and Site Inspection Reports; provided, however, that
Hudson, Sellers and Purchaser acknowledge and agree that to the
extent any of work agreed to by Sellers in a letter dated October 15,
1996, a copy of which is attached hereto and incorporated herein by
reference as Exhibit "A", is not completed prior to Closing, Hudson
and Purchaser shall be entitled to a closing adjustment for the cost
of such uncompleted work.
d. Environmental, with the exception of the Columbia, South Carolina
property, for which property Purchaser has requested further
information and reserves its right to object upon receipt and review
of such information.
2. Section 3.2 of the Agreement is hereby deleted in its entirety and replaced
with the following: "If Purchaser shall terminate this Agreement as permitted
pursuant to Section
<PAGE>
3.1 on or before the last day of the Feasibility Period, then Purchaser shall
be entitled to a refund of the Deposit less $50,000, and Sellers shall be
entitled to immediate payment from Escrow Agent of such $50,000 portion of
the Deposit as option money and consideration for the Feasibility Period and
the opportunity to conduct due diligence on the Premises during the
Feasibility Period."
3. The Closing Date shall not be affected by the extension hereunder of the
Feasibility Period.
4. Sellers hereby withdraw its Cure Notice dated October 28, 1996 in its
entirety (without prejudice to its right to resubmit a Cure Notice at least
three days prior to the expiration of the Feasibility Period, as hereby
extended, and that Section 4.1 of the Agreement is hereby amended to reflect
the foregoing), such that the Cure Notice is null and void and of no force
and effect.
5. Section 15.7(a) is hereby amended to delete "within five (5) Business Days
after the expiration of the Feasibility Period," and replace it with "by
November 7, 1996,".
6. Section 15.7(b) is hereby amended to delete the last sentence in its entirety
and replace it with "Sellers agree to indicate to Purchaser by November 7,
1996 whether they will request a Sellers Nominee to be placed on the Board
immediately following Closing.".
7. Section 16.10 is deleted in its entirety and replaced by the following:
"It shall be a condition precedent to the obligation of Sellers to Purchaser
hereunder that Hudson shall have satisfied each and all of the obligations of
Hudson hereunder at Closing. Notwithstanding anything to the contrary herein,
Purchaser shall have no liability for the representations and warranties of,
nor obligation to fulfill or perform any of the covenants or obligations of
Hudson which arise hereunder, under the Note, for the registration of the
Shares, or otherwise."
8. Hudson, Sellers and Purchaser acknowledge and agree that, except as modified
by this Contract Amendment No.1, all other terms and conditions of the
Agreement shall remain in full force and effect, including, but not limited
to, Purchaser's right to terminate the Agreement at any time prior to the
expiration of the Feasibility Period by delivery of a Termination Notice, if
Purchaser is dissatisfied with any aspect of the Premises in Purchaser's sole
discretion.
2
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IN WITNESS WHEREOF, the parties have hereunto set their hands as of the
date first set forth above.
SB Motel Albany Corp.
By: /s/ John P. Buza
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John P. Buza
Vice President
SB Motel Charleston Corp.
By: /s/ John P. Buza
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John P. Buza
Vice President
SB Motel Columbia Corp.
By: /s/ John P. Buza
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John P. Buza
Vice President
SB Motel Richmond Corp.
By: /s/ John P. Buza
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John P. Buza
Vice President
SB Motel Virginia Beach Corp.
By: /s/ John P. Buza
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John P. Buza
Vice President
SB Motel Cary Corp.
By: /s/ John P. Buza
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John P. Buza
Vice President
3
<PAGE>
SB Motel Charlotte I-85 Corp.
By: /s/ John P. Buza
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John P. Buza
Vice President
SB Motel Durham-Duke Corp.
By: /s/ John P. Buza
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John P. Buza
Vice President
SB Motel Durham-Research Triangle
Park Corp.
By: /s/ John P. Buza
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John P. Buza
Vice President
SB Motel Raleigh Corp.
By: /s/ John P. Buza
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John P. Buza
Vice President
SB Motel Statesville Corp.
By: /s/ John P. Buza
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John P. Buza
Vice President
SB Motel Wilmington Corp.
By: /s/ John P. Buza
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John P. Buza
Vice President
4
<PAGE>
Hudson Hotels Properties Corp.
By: /s/ John P. Buza
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John P. Buza
Vice President
Hudson Hotels Corporation
By: /s/ John P. Buza
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John P. Buza
Vice President
Escrow Agent is executing this Contract
Amendment No.1 solely to acknowledge its
continued obligations as Escrow Agent
Lawyers Title Insurance Corporation
By: ____________________________
Its:
5
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Exhibit "A"
SB Motel Albany Corp., SB Motel Raleigh Corp., SB Motel Cary Corp.,
SB Motel Richmond Corp., SB Motel Charleston Corp., SB Motel
Statesville Corp., SB Motel Charlotte I-85 Corp.,
SB Motel Virginia Beach Corp., SB Motel Columbia Corp., SB
Motel Durham-Duke Corp., SB Motel Wilmington Corp., SD
Motel Durham-Research Triangle Park Corp.
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October 15, 1996
Hudson Hotels Corporation
One Airport Way, Suite 200
Rochester, NY 14624
Attn: Christopher B. Burns
RE: Property Visits - Repairs & Maintenance
Dear Chris:
Pursuant to our conversations during our property visits on October 2-4, we
discussed how certain repairs and maintenance items would be handled. The
properties will maintain their schedules for maintenance, painting of doors and
trim and carpet cleaning. The following is a summary of the specific items we
discussed at the properties we visited and comments regarding the other
properties which we did not visit together, but which I had visited in the last
few months, as well as the current status of any repairs and maintenance to be
conducted as a result therefrom. As you will see, some items are pending and
require a response from American General Hospitality, Inc. ("AGHI"), the
property management company, as well as from third party contractors, while
other items have already been corrected.
PROPERTIES VISITED:
Fairfield Inn - Albany, GA
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Carpets: Will be professionally cleaned as scheduled in October 1996.
The property has 6 rooms of carpet to replace rooms as
needed.
Pool: There was a minor pitted area on stairs into the pool. Bids
are being requested to determine an allowance for repainting
only.
Mold and Mildew: The General Manager will provide a list of rooms that need
attention and identify an authorized "knock-down"
contractor. Due to the uncertainty of the extent of the
problem, we agreed an allowance of $13,500 ($450 x 30
rooms) was fair.
In addition, second floor walkways have been rechalked by
the maintenance staff along the building seam to prevent
water, if any, from penetrating from that location.
<PAGE>
Mr. Christopher B. Burns
October 15, 1996
Page 2
Fairfield Inn - Cary, NC
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Smoke Detectors: Rooms with broken smoke detectors were repaired immediately
by AGHI.
Carpets: Will be cleaned as scheduled in October 1996.
Washing Machines: L2 - Value 'frozen'
L1 - Limited hot water } Both have been repaired.
Dryer: Has been repaired.
Painting: Certain areas of the 2nd floor ceilings that have peeling
paint caused by water damage from Hurricanes Bertha and Fran
will be repaired. Bid pending from Southeastern
Restorations.
Fairfield Inn - Statesville NC
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Washing Machine: New machine was purchased and installed on 10/4/96 at a cost
of $6,441.
Hot Water Heater: Boiler B-5 was leaking. A bad pressure valve was replaced by
maintenance on 10/4/96.
Wall Vinyl: General Manager to provide list of rooms requiring
"knock-down" finish and repainting of ceilings, not to
exceed $6,000 ($400 X 15 rooms).
Fairfield Inn - Wilmington, NC
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Ice Machine: One machine has been repaired; all operational.
See Exhibit A The only significant item not corrected to date is the roof
repair, for which bids are pending.
Cricket Inn - Charlotte, NC
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Ice Machine: One machine has been repaired; needed celenoid switch.
Pool Deck: Awaiting estimate to repair crack.
Bath Tubs: For tubs where the grab bar has been removed, the holes need
to be plugged.
HVAC Covers: Repair or replace as needed; estimated to be 15.
Outside Lights: Two roof mounted outdoor lights have been repaired; new
light bulbs.
Beds: Bedding that is fully "hammocked" should be under warranty
and replaced by manufacturer. One king size bed to be
replaced.
<PAGE>
Mr. Christopher B. Burns
October 15, 1996
Page 3
Cricket Inn - Raleigh, NC
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Outside Ceilings: Certain areas have water damage and blistering paint from
the Hurricanes. These outside walkway ceilings will be
repaired.
Carpets: To be cleaned in normal maintenance schedule. Room 228's
carpet will be replaced if pet odor persists.
Interior Ceilings: Room 122 had water damage to the ceiling which will be
repaired.
Cricket Inn - (Duke) - Durham, NC
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Roof Leak: The roof on the 5 story tower needs to be inspected for a
solution to stop leaks into rooms 5001 and 5007; bids are
pending.
Carpet: To be cleaned as scheduled in November 1996.
Out of service Rooms 5001 and 5007 will be put back into service upon
rooms: completion of roof repairs.
PROPERTIES NOT VISITED ON OCTOBER 2-4 TRIP, BUT RESPONSES TO CHRISTOPHER BURNS'
PROPERTY INSPECTION REPORTS
Cricket Inn - Virginia Beach, VA
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Ice Machine: One machine (obsolete bin style) has been broken for years
and will be discarded.
Carpets: To be cleaned as scheduled.
Wall Vinyl: To be repaired by maintenance.
Gutter: To be repaired.
Fairfield Inn - RTP - Durham, NC
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Ceiling Grids: Need to be repainted in first floor rooms (26). Bids
requested.
Room: One leak reported by maintenance man near elevator. To be
inspected and repaired.
<PAGE>
Mr. Christopher B. Burns
October 15, 1996
Page 4
Fairfield Inn - Columbia, SC
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Roof: Bids to replace sections of the roof are being requested.
Porte-cochere: To be repainted as scheduled.
Emergency Lights: Now operational.
Pool: Bids requested to resurface pool.
Laundry Equipment: All operational.
Fairfield Inn Charleston, SC
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California Knock- The two rooms where the maintenance staff performed the
down knock-down application will be redone by an authorized
contractor.
Parking lot: Area of asphalt outside the maintenance office will be
repaired utilizing concrete. Bids pending.
Fairfield Inn Richmond, VA
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Washing Machine: One machine was leaking and has been repaired.
Ice Machines: All operational.
After you have an opportunity to review this document, please call me at (212)
783-6962 with any comments you may have.
Very truly yours,
/s/ John P. Buza
John P. Buza
Vice President
JPB:lap
cc: E. Anthony Wilson Hudson Hotels Corporation
Bruce Sahs Hudson Hotels Corporation
Steven Fowler Boylan, Brown, Code, Fowler, Vigdor & Wilson
Robin Panovka Wachtell, Lipton, Rosen & Katz
Julius Schwarz Wachtell, Lipton, Rosen & Katz
<PAGE>
[Execution Counterpart]
CONTRACT AMENDMENT NO. 2
THIS CONTRACT AMENDMENT NO. 2 (this "Amendment"), made as of the
18th day of November, 1996 by and among HUDSON HOTELS PROPERTIES CORP., a New
York corporation with offices at One Airport Way, Suite 200, Rochester, New York
14624 ("Purchaser"), SB MOTEL RICHMOND CORP., SB MOTEL DURHAM-RESEARCH TRIANGLE
PARK CORP., SB MOTEL GARY CORP., SB MOTEL STATESVILLE CORP., SB MOTEL WILMINGTON
CORP., SB MOTEL COLUMBIA CORP., SB MOTEL CHARLESTON CORP., SB MOTEL ALBANY
CORP., SB MOTEL VIRGINIA BEACH CORP., SB MOTEL DURHM-DUKE CORP., SB MOTEL
RALEIGH CORP. and SB MOTEL CHARLOTTE 1-85 CORP., each a Delaware corporation
with offices at Seven World Trade Center, New York, New York 10048, Attn: Mr.
John P. Buza, Vice President (collectively, "Sellers") and HUDSON HOTELS
CORPORATION, a New York corporation with offices at One Airport Way, Suite 200,
Rochester, New York 14624 ("Hudson").
W I T N E S S E T H:
WHEREAS, Sellers, Purchaser and Hudson entered into that certain
Agreement of Purchase and Sale, dated September 27, 1996, as amended by (i) that
certain Contract Amendment No. 1, dated October 31, 1996 (the "First Amendment")
and (ii) that certain letter agreement dated November 15, 1996; and the
Agreement of Purchase and Sale as amended by the First Amendment, the "P&S
Agreement"); all capitalized terms not herein defined shall have the meanings
ascribed to such terms in the P&S Agreement;
WHEREAS, Sellers, Purchaser and Hudson wish to amend the P&S
Agreement as provided below.
NOW THEREFORE, for $1.00 and other good and valuable consideration,
the receipt and sufficiency of which is hereby mutually acknowledged, and the
mutual covenants contained herein, the parties hereto, intending to be legally
bound, hereby agree, and the P&S Agreement is hereby amended, as follows:
1. (a) The Purchase Price is hereby reduced by $600,000 to Sixty
Million Four Hundred Thousand and no/100 Dollars ($60,400,000). Section 2.2 of
the P&S Agreement is hereby deleted in its entirety and the following is hereby
substituted therefor
"2.2. The balance of the Purchase Price ($58,950,000.00) shall
be paid by Purchaser to
<PAGE>
Sellers at the Closing (as hereinafter defined) as follows:
(a) The sum of Fifty Three Million Five Hundred Fifty Thousand
and NO/100 Dollars ($53,550,000.00), plus the Stock Price
Adjustment Amount (as hereinafter defined), if any, shall be
paid by Purchaser in cash by wire transfer of immediately
available funds to an account or accounts designated in
writing by Sellers;
(b) Hudson shall deliver to Sellers (i) a promissory note
executed by Hudson in the amount of Three Million and NO/100
Dollars ($3,000,000), plus or minus any closing adjustments
made pursuant to Section 9, in the form of Exhibit D, attached
hereto and incorporated herein by reference (the "Note"); and
(c) Purchaser shall deliver to Sellers the lesser of (i)
400,000 shares of the common stock, par value $0.001, of
Hudson (the "Hudson Common Stock") or (ii) that number of
shares of Hudson Common Stock that is equal to the number
determined by dividing $2,400,000 by the Per Share Market
Price (such number of shares of Hudson Common Stock determined
in accordance with clauses (i) and (ii) above shall be
referred to herein as the "Shares").
For purposes hereof, the term "Stock Price Adjustment Amount"
shall mean the amount, if any, by which (i) the product of the
Per Share Market Price (as defined below) multiplied by
400,000 is less than (ii) $2,400,000, and the term "Per Share
Market Price" shall mean the average closing price per share
of Hudson Common Stock on NASDAQ for the five trading days
immediately preceding the Closing Date. If the Closing occurs,
Purchaser will be entitled to a $50,000 credit against the
Purchase Price (which $50,000 represents the deposit
previously paid by Purchaser to Sellers which had been
forfeited)."
(b) Exhibit E of the P&S Agreement is hereby deleted in its entirety
and replaced with the Exhibit E attached hereto and incorporated herein by
reference.
-2-
<PAGE>
2. Subpart (k) of Section 5.2 of the P&S Agreement is hereby deleted
in its entirety and replaced with the following:
"(k) An indemnity agreement in the form of Exhibit J; and
(l) Such other instruments as are customarily executed by
sellers to effectuate the sale of property similar to
the Premises, provided that this subpart (1) shall not
require Sellers to incur expenses, liabilities or
obligations in excess of those provided for elsewhere in
this Agreement."
3. The following Section 12.7 is hereby added to the P&S Agreement
immediately following Section 12.6 of the P&S Agreement:
"12.7. (a) Seller's parent corporation, SB Motel Corp., a
Delaware corporation, hereby represents and warrants that, to
SB Motel's knowledge, neither it nor any of its affiliates or
subsidiaries (including, but not limited to, SB Motel Columbia
Corp.) (x) has been named or joined as a party in that certain
litigation in the Court of Common Pleas of the State of South
Carolina captioned Dean Waldrop and Kathy Elaine Clark v.
Hotel Renovations of Dallas and American General Hospitality
Incorporated, CA No. 95-CP-40-0773 (the "Waldrop Litigation"),
or (y) is a defendant in or party to any other action or
proceeding of any kind with respect to the claim asserted in
the Waldrop Litigation.
The term to "SB Motel Corp.'s knowledge" or any similar
phrase, as used above, shall mean the actual knowledge,
without specific investigation or inquiry, of John P. Buza,
Vice President of SB Motel Corp.
(b) The representation and warranty made by SB Motel Corp. in
subsection (a) shall survive the Closing until the fifth
anniversary of the Closing Date or until a sale, assignment or
other transfer of the Premises (or any part thereof) by
Purchaser, if sooner (provided that neither an assignment
pursuant to Section 16.2 of the P&S Agreement nor a grant to a
lender of a deed
-3-
<PAGE>
of trust, shall constitute such a sale, assignment or other
transfer). No claim may be asserted by Purchaser under the
foregoing representation or warranty after the expiration of
such survival period, and all claims for breach of such
representation and warranty asserted during such survival
period may continue to be asserted after such survival period
only if during the survival period the claiming party provided
the other party specific and detailed written notice thereof
and commenced and diligently prosecuted a law suit against the
other in connection therewith.
(c) SB Motel Corp. has executed this Agreement solely to
acknowledge its representation and warranty set forth in
subsection 12.7(a)."
4. Sections 12.4 and 12.5 are hereby amended to add the following
sentence as the second sentences of such Sections: "Neither an assignment
pursuant to Section 16.2 hereof nor the execution and delivery of deeds of trust
and mortgages by Purchaser to its lender shall constitute a sale, assignment or
other transfer of the Premises."
5. Section 3.11 of the P&S Agreement is hereby deleted in its
entirety and the following is hereby substituted therefor
"3.11. (a) In the event that on or before the Closing, either
(i) the ground lessor under the Statesville Ground Lease has
not executed and delivered to Purchaser an estoppel
certificate in substantially the form attached hereto as
Exhibit K or in a form which is otherwise reasonably
acceptable to Purchaser, or (ii) a Deed of Easement
substantially in the form attached hereto as Exhibit L or in a
form which is otherwise reasonably acceptable to Purchaser has
not been executed by the parties thereto and delivered to
Purchaser, then Purchaser shall have the right to exclude from
the Premises being purchased and sold hereunder the
Statesville Property, the Statesville Ground Lease and any
Personality, Contracts, Permits, Inventory, Intangible Rights,
books and records, "as-built drawings", documentation,
instrumentation, rights and other aspects of the Premises
which relate to the Statesville Property (collectively, the
"Statesville Premises"). Purchaser's right to
-4-
<PAGE>
exclude the Statesville Premises from the Premises may be
exercised by written notice to Sellers on or before the
Closing Date. Any exercise of such right shall be irrevocable.
(b) If the Statesville Premises are excluded from the Premises
being purchased and sold hereunder pursuant to subsection
3.11(a), then the Purchase Price shall be reduced by
$3,741,000.00 (the "Statesville Purchase Price Reduction
Amount") to the sum of Fifty Six Million Six Hundred Fifty
Nine Thousand and No/100 Dollars ($56,659,000.00), and, to
reflect such reduction, Section 2.2 shall be deemed to have
been deleted in its entirety and the following substituted
therefor:
'2.2. The balance of the Purchase Price ($55,209,000.00)
shall be paid by Purchaser to Sellers at the Closing (as
hereinafter defined) as follows:
(a) The sum of Fifty Million Five Hundred Fifty-Seven
Thousand Two Hundred Dollars ($50,557,200.00), plus the
Stock Price Adjustment Amount (as hereinafter defined)
if any, shall be paid by Purchaser in cash by wire
transfer of immediately available funds to an account or
accounts designated in writing by Sellers;
(b) Hudson shall deliver to Sellers (i) a promissory
note executed by Hudson in the amount of Two Million Six
Hundred and Twenty Five Thousand Nine Hundred Dollars
($2,625,900), plus or minus any closing adjustments made
pursuant to Section 9, in the form of Exhibit D,
attached hereto and incorporated herein by reference
(the "Note"); and
(c) Purchaser shall deliver to Sellers the lesser of (i)
337,650 shares of the common stock, par value $0.001, of
Hudson (the "Hudson Common Stock") or (ii) that number
of shares of Hudson Common Stock that is equal to the
number determined by dividing $2,025,900 by the Per
Share Market Price (such determined in accordance with
clauses
-5-
<PAGE>
(i) and (ii) above shall be referred to herein as the
"Shares").
For purposes hereof, the term "Stock price Adjustment
Amount" shall mean the amount, if any, by which (i) the
product of the Per Share Market Price (as defined below)
multiplied by 337,650 is less than (ii) $2,025,900, and
the term "Per Share Market Price" shall mean the average
closing price per share of Hudson Common Stock on NASDAQ
for the five trading days immediately preceding the
Closing Date. If the Closing occurs, Purchaser will be
entitled to a $50,000 credit against the Purchase Price
(which $50,000 represents the deposit previously paid by
Purchaser to Sellers which had been forfeited).'
(c) If the Statesville Premises are excluded from the Premises
being purchased hereunder pursuant to Subsection 3.11(a), any
and all covenants, representations, warranties, obligations
and liabilities set forth herein relating to the Statesville
Premises shall be null and void and of no further force and
effect, and every reference to either SB Motel Statesville
Corp. or any of the Statesville Premises shall be stricken
from the provisions hereof, in each case as if the Statesville
Premises had never been the subject of this Agreement. If the
Statesville Premises are excluded from the Closing pursuant to
this Section 3.11, SB Motel Statesville Corp. shall use good
faith efforts (which shall not include the expenditure of any
funds or the making of any changes, alterations or
improvements to any Premises) to assist Purchaser to obtain
the documents attached hereto as Exhibits K and L (or
substitutes reasonably acceptable to Purchaser) prior to
December 31, 1996. If the documents attached hereto as
Exhibits K and L (or substitutes reasonably acceptable to
Purchaser) can be obtained on or prior to December 31, 1996,
Purchaser and SB Motel Statesville Corp. shall close on the
Statesville Premises on or before December 31, 1996 at the
Statesville Purchase Price Reduction Amount, and otherwise on
the terms set forth in this Agreement, with the purchase price
thereof paid in the same proportions of cash, a promissory
note executed by
-6-
<PAGE>
Hudson, and shares of Hudson Common Stock as set forth in
Section 2.2 as amended by this Contract Amendment No. 2. If
the Closing of the Statesville Premises has not occurred on or
before December 31, 1996 as contemplated hereunder, then
Purchaser shall (x) have no right or claim whatsoever in or
to the Statesville Premises and shall, if so requested by
Sellers, promptly execute a recordable instrument evidencing
same and waiving all rights with respect to the Statesville
Premises and (y) promptly deliver to Sellers all Statesville
Premises related due diligence reports, surveys and other
materials in Purchaser's possession together with
documentation sufficient to grant to Sellers (and their
assignees) full right and title thereto."
6. Purchaser acknowledges that it has completed its investigation of
the Premises and is satisfied with all aspects thereof. Accordingly, Section 3.4
of the P&S Agreement and Section 1 of the First Amendment are hereby deleted in
their entirety and each of the parties hereto waives any and all rights it had
or may have had under such Sections. Purchaser hereby waives any and all
objections it had or might have with respect to the condition of the Premises
and agrees that Sellers shall have no obligations whatsoever to cure any defects
in or problems with the Premises or to incur any costs or expenses in connection
therewith, whether such defects or problems are set forth in Exhibit A to the
First Amendment, in the Fran Damage Schedule, or otherwise. Purchaser waives any
and all rights which it might have under or in connection with the Fran Damage
Schedule and/or the letter from Sellers which is attached as Exhibit A to the
First Amendment (and such schedule and letter shall be null and void). Purchaser
hereby waives any right to terminate the P&S Agreement under Section 3.1 thereof
or otherwise. As of the date hereof, Purchaser's and Hudson's obligation to
close the transactions contemplated by the P&S Agreement are unconditional, the
Deposit is non refundable, and neither Purchaser nor Hudson has or shall have
any termination rights under the P&S Agreement whatsoever (provided that the
foregoing shall not invalidate Purchaser's remedies for any default by Sellers,
as set forth in Section 8 of the P&S Agreement). Purchaser further waives any
and all objections and other matters set forth in the Title Notice sent to
Sellers (including, without limitation, all Title Defects) and acknowledges that
Sellers have not agreed to cure any such objections or other matters. All such
objections or other matters constitute Permitted Exceptions, and Purchaser (x)
waives any right to object thereto and (y) agrees to take title subject thereto
at Closing. Purchaser hereby waives any and all
-7-
<PAGE>
rights it might have under Section 4.1 of the P&S Agreement and accepts the
quality and condition of title to the Premises.
Notwithstanding the foregoing, Sellers have agreed to provide the following
title curatives at Closing:
(i) The inclusion in the deeds to each of the Properties of
standard quit claim language utilizing the insured legal
descriptions required by Purchaser's Title Notice where such
legal descriptions vary from the vesting deed legal
descriptions;
(ii) Standard gap/hold harmless indemnities or owner's affidavits
of liens and parties in possession as required by the
Purchaser's Title Company (which shall not cover any Permitted
Exceptions);
(iii) Evidence of payment of $5,000 to the sealing contractor with
respect to the Richmond property (referenced in Exhibit F to
the P&S Agreement); and
(iv) Evidence of payment or an indemnity reasonably satisfactory to
the Title Company regarding the $25,000 owed to the contractor
with respect to the Columbia Property (referenced in Exhibit F
to the P&S Agreement).
Sellers will, additionally, use their good faith efforts (which shall not
include the expenditure of any funds or the making of any changes, alterations
or improvements to any Premises) to assist Purchaser to secure the following:
(a) An Estoppel Certificate from the Downing Company with respect
to the Richmond Property in the form attached as Exhibit M;
(b) An Encroachment Agreement in the form provided with respect to
the Virginia Beach property in the form attached hereto as
Exhibit M;
(c) A Subordination, Nondisturbance and Attornment Agreement and
estoppel letter in the form provided by the Purchaser with
respect to the cellular dish lease affecting the Durham-Duke
Property in the form attached hereto as Exhibit M; and
-8-
<PAGE>
(d) Two estoppel letters in forms provided by the Purchaser
regarding the driveway easement and the Declaration of
Covenants, Conditions and Restrictions with respect to the
Raleigh Property in the form attached hereto as Exhibit M.
Purchaser's receipt of the foregoing items (a) through (d) shall not be a
condition to Closing. Sellers have not provided any assurances, representations
or warranties that any of the foregoing items will be secured. Provided that
Sellers use good faith efforts (as limited above) to assist Purchaser in
securing the aforesaid items, if such items are not secured, (x) Sellers shall
have no obligation or liability in connection therewith, and (y) Purchaser shall
not have any right to terminate this Agreement, fail to close hereunder or seek
any remedy or recourse against Sellers as a result thereof.
Nothing contained herein is intended to waive Sellers' obligation to
produce documents of conveyance or standard title curatives expressly provided
for in Section 5 of the P&S Agreement.
7. Except as expressly modified by provisions of this Amendment, all
of the terms, covenants and conditions of the P&S Agreement shall remain
unmodified and in full force and effect.
8. This Amendment may not be changed orally and shall be construed
according to the laws of the State of New York, and any legal action or
proceeding with respect to or in connection with this Amendment must be brought
in the Supreme Court of the State of New York within the First Judicial
Department, 1st District, New York City, or the Federal Courts for the Southern
District of New York.
9. This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
-9-
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed this
Amendment as of the day and year first above written.
SB MOTEL RICHMOND CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL DURHAM-RESEARCH
TRIANGLE PARK CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL CARY CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL STATESVILLE CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL WILMINGTON CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL COLUMBIA CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
<PAGE>
SB MOTEL CHARLESTON CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL ALBANY CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL VIRGINIA BEACH CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL DURHAM-DUKE CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL RALEIGH CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL CHARLOTTE I-85 CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
<PAGE>
HUDSON HOTELS PROPERTIES CORP.
By: /s/ B. Anthony Wilson
------------------------------
Name: B. Anthony Wilson
Title: Chairman and Chief
Executive Officer
HUDSON HOTELS CORPORATION
By: /s/ B. Anthony Wilson
------------------------------
Name: B. Anthony Wilson
Title: Chairman and Chief
Executive Officer
B. Anthony Wilson is executing this
Contract Amendment No. 2 in his in-
dividual capacity solely to acknowl-
edge and confirm his covenant set
forth in Section 15.3(b) of the P&S
Agreement.
/s/ B. Anthony Wilson
------------------------------
B. ANTHONY WILSON
<PAGE>
Escrow Agent is executing this Con-
tract Amendment No. 2 solely to ac-
knowledged its continued obligations
as Escrow Agent
LAWYERS TITLE INSURANCE CORPORATION
By: [Illegible]
---------------------------------
Name: [Illegible]
---------------------------
Title: Counsel
---------------------------
<PAGE>
SB Motel Corp. is executing this
Contract Amendment No. 2 solely to
acknowledge and confirm its repre-
sentations and warranties made in
Section 3 hereof
SB MOTEL CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
<PAGE>
EXHIBIT E
Purchase Price Allocation
SB Motel Albany Corp. $ 3,151,000
SB Motel Cary Corp. $ 6,008,000
SB Motel Charleston Corp. $ 5,938,000
SB Motel Charlotte 1-85 Corp. $ 3,291,000
SB Motel Columbia Corp. $ 5,811,000
SB Motel Durham-Duke Corp. $ 8,929,000
SB Motel Durham Research Triangle Park Corp. $ 4,920,000
SB Motel Raleigh Corp. $ 3,835,000
SB Motel Richmond Corp. $ 6,510,000
SB Motel Statesville Corp. $ 3,741,000
SB Motel Virginia Beach Corp. $ 2,286,000
SB Motel Wilmington Corp. $ 5,980,000
-----------
Total $60,400,000
<PAGE>
Exhibit J
November 27, 1996
HH Properties-I, Inc.
HH Properties-VB, Inc.
One Airport Way, Suite 200
Rochester International Airport
Rochester, NY 14624
Attn: E. Anthony Wilson, Chairman
Re: Agreement of Purchase and Sale, dated September 27, 1996, among Hudson
Hotels Properties Corp. ("Purchaser"), SB Motel Albany Corp., SB Motel
Raleigh Corp., SB Motel Cary Corp., SB Motel Richmond Corp., SB Motel
Charleston Corp., SB Motel Statesville Corp., SB Motel Charlotte I-85
Corp., SB Motel Virginia Beach Corp., SB Motel Columbia Corp., SB Motel
Durham-Duke Corp., SB Motel Wilmington Corp., SB Motel Durham-Research
Triangle Park Corp. (collectively, "Sellers"), and Hudson Hotels Corp.
("Hudson"), as amended by (i) that certain Contract Amendment No. 1, dated
October 31, 1996 and (ii) that certain Contract Amendment No. 2, dated
November 18, 1996 (as amended, the "P&S Agreement"); all capitalized
terms not herein defined shall have the meanings ascribed to such terms in
the P&S Agreement
Gentlemen:
Reference is hereby made to the following: (a) a certain Adversary
Proceeding that was commenced by Motels of America ("MOA") as Debtor and
Debtor-in-Possession, and Ben Franklin Properties, Inc. in its own right and as
Assignee of Ameritech Pension Trust ("Ben Franklin") against Salomon Brothers
Inc ("Salomon") and Salomon Brothers Realty Corp. ("SBRC") captioned Motels of
America, Inc. et al. v. Salomon Brothers Inc et al. No. A-91-167 in the United
States Bankruptcy Court for the District of Delaware (the "MOA Litigation"),
which proceeding was settled pursuant to a certain settlement agreement by and
among MOA, Ben Franklin, Salomon and SBRC, dated as of March 27, 1992 (which was
approved by Order of such Bankruptcy Court by Order dated July 23, 1992 filed
with the Clerk thereof on July 27, 1992); (b) a certain action that was
commenced in
<PAGE>
E. Anthony Wilson
Hudson Hotels Properties Corp.
November 27, 1996
Page 2
the United States District Court for the Northern District of Illinois by
purchasers of certain of the first mortgage notes (collectively, "Xerox")
secured by mortgages on, among other things, the Properties and captioned Xerox
Financial Services Life Ins. Co. et al. v. Salomon Brothers Inc et al. No.
93-C-1767 (the "Xerox Litigation"), which action was settled pursuant to a
certain settlement agreement dated September 9, 1993 by and among Xerox and
Salomon; (c) a certain action filed in the United States District Court for the
Northern District of Illinois which is known as Harris Trust Savings Bank, not
individually but solely as trustee for Ameritech Pension Trust ("APT"),
Ameritech Corporation and John A. Edwardson (collectively, "Ameritech") v.
Salomon Brothers Inc and Salomon Brothers Realty Corp. (92 Civ. 5883 (MEA)) (the
"Ameritech Litigation"); (d) an investigation conducted by the United States
Department of Labor (the "DOL") of certain transactions between Salomon, SBRC
and APT which are also a subject of the Ameritech Litigation (the "DOL
Investigation"); and (e) the potential assessment against Salomon, SBRC and APT
of excise taxes by the United States Internal Revenue Service (the "IRS") for
alleged prohibited transactions arising out of certain transactions between
Salomon, SBRC and APT which are also a subject of the Ameritech Litigation (the
"IRS Investigation"; the MOA Litigation, the Xerox Litigation, the Ameritech
Litigation, the DOL Investigation and the IRS Investigation being referred to
herein collectively as, the "Litigation"). Salomon and SBRC disputed both the
factual and the legal basis for the claims asserted in the MOA Litigation and
the Xerox Litigation, and dispute both the factual and the legal basis for the
claims asserted or which would be asserted in the Ameritech Litigation, the DOL
Investigation and the IRS Investigation.
Subject to the terms and conditions of this letter, Salomon shall,
from and after the Closing, indemnify and protect HH Properties-I, Inc. and HH
Properties-VB, Inc. (collectively, "Indemnitees" and each an "Indemnitee") from
and against any and all actions, causes of action, suits, claims, judgments,
demands or liens whatsoever, in law or at equity (collectively, "Claims") which
(i) are made by MOA or Ben Franklin against Indemnitees, or either of them, and
result directly by reason of or on account of the MOA Litigation, (ii) are made
by Xerox against Indemnitees, or either of them, and result directly by reason
of or on account of the Xerox Litigation, (iii) are made by Ameritech against
Indemnitees, or either of them, and result directly by reason of or on account
of the Ameritech Litigation, (iv) are made by the DOL against Indemnitees, or
either of them, and result directly by reason of or on account of the DOL
Investigation, and (v) are made by the IRS against Indemnitees, or either of
them, and result directly by reason of or on account of the IRS Investigation
(each, an
<PAGE>
E. Anthony Wilson
Hudson Hotels Properties Corp.
November 27, 1996
Page 3
"Indemnified Claim"), provided that, notwithstanding the foregoing, in no event
shall Salomon have any liability or responsibility for, and the Indemnified
Claims shall not include, Indemnitees' incidental or consequential damages or
any Claims by any party other than (i) MOA or Ben Franklin (by reason of or on
account of the MOA Litigation), (ii) Xerox (by reason of or on account of the
Xerox Litigation), (iii) Ameritech (by reason of or on account of the Ameritech
Litigation), (iv) the DOL (by reason of or on account of the DOL Investigation),
and (v) the IRS (by reason of or on account of the IRS Investigation).
The obligations and liabilities of Salomon which are set forth above
shall be subject to the following terms, conditions and limitations:
(a) Indemnitees, or either of them, within ten (10) days of
obtaining any knowledge of any Claim which has given rise to, or which
might reasonably be expected to give rise to, an Indemnified Claim, shall
give written notice ("Notice of Claim") of such Claim to Salomon, which
Notice of Claim shall include in reasonable detail all information
available to Indemnitees, or either of them, with respect to such
Indemnified Claim (including, without limitation, the nature and basis of
such Indemnified Claim, and the amount thereof to the extent known).
Indemnitees, or either of them, shall provide with each Notice of Claim
copies of any summons, complaint or other pleading which may have been
served on it and any written claim, demand, invoice, billing or other
document evidencing or asserting the same. Thereafter, Indemnitees, or
either of them, shall, as promptly as practicable but in any event no
later than ten (10) days after receiving from time to time any
documentation, notice or information relating to any Indemnified Claim,
provide copies thereof to Salomon;
(b) Salomon shall have the right to assume the defense of any
Indemnified Claim at its own expense and by its own counsel. If Salomon
shall assume the defense of an Indemnified Claim, Salomon shall not be
responsible for any legal or other defense costs subsequently incurred by
Indemnitees, or either of them, in connection with the defense thereof. If
Salomon does not exercise its right to assume the defense of any
Indemnified Claim, then Indemnitees, or either of them, may assume such
defense but the costs, expenses and reasonable attorneys' fees incurred
shall be paid by Salomon hereunder;
<PAGE>
E. Anthony Wilson
Hudson Hotels Properties Corp.
November 27, 1996
Page 4
(c) Anything contained herein to the contrary notwithstanding,
Indemnitees, or either of them, shall not admit any liability with respect
to, or defend, settle, compromise or discharge, any Indemnified Claim
without the express written consent of Salomon, which consent shall not be
unreasonably withheld. Indemnitees, or either of them, shall in all
respects cooperate with Salomon and act in a reasonable and good faith
manner to minimize Salomon's liability in connection with any Indemnified
Claim; and
(d) Indemnitees' right to indemnification hereunder shall be the
sole remedy to which Indemnitees and Hudson shall be entitled with respect
to the Litigation and/or any Indemnified Claims.
This indemnity shall survive (i) with respect to the indemnities
arising in connection with the MOA Litigation, the Xerox Litigation, the DOL
Investigation and the IRS Investigation, until the fifth anniversary of the
Closing Date or until a sale, assignment or other transfer of the Premises (or
any part thereof) by Indemnitees, if sooner (provided, however, that neither an
assignment pursuant to Section 16.2 of the P&S Agreement, nor a grant to a
lender of a deed of trust covering the Premises or any part thereof shall
constitute such a sale, assignment or other transfer, and (ii) with respect to
the indemnity arising in connection with the Ameritech Litigation, until the
fifth anniversary of a final, non-appealable judgment concluding the Ameritech
Litigation. No claim may be asserted by Indemnitees under the foregoing
indemnity after the expiration of such survival period, and all claims for
breach of such indemnity asserted during such survival period may continue to be
asserted after such survival period only if during the survival period the
claiming party provided the other party specific and detailed written notice
thereof and commenced and diligently prosecuted a law suit against the other in
connection therewith.
Neither this indemnity nor any of the respective obligations,
covenants or agreements hereunder may be assigned in whole or in part, directly
or indirectly, by operation of law or otherwise excepting, however, an
assignment pursuant to Section 16.2 of the P&S Agreement.
Any notice to be given hereunder shall be given in the manner and
subject to the provisions set forth in Section 10 of the P&S Agreement. Any
notice to be given to Indemnitees, or either of them, hereunder shall be to the
address set forth in Section 10 of the P&S Agreement, and any notice to be given
to Salomon hereunder shall sent to the following address:
<PAGE>
E. Anthony Wilson
Hudson Hotels Properties Corp.
November 27, 1996
Page 5
Salomon Brothers Inc, Seven World Trade Center, 33rd Floor, New York, New
York 10048, Attn: John P. Buza.
The provisions hereof may not be changed orally and shall be
construed according to the laws of the State of New York, and any legal action
or proceeding with respect to or in connection with the provisions hereof must
be brought in the Supreme Court of the State of New York within the First
Judicial Department, 1st District, New York City, or the Federal Courts for the
Southern District of New York.
Very truly yours,
SALOMON BROTHERS INC
By: __________________________________
Name:
Title:
ACKNOWLEDGED, APPROVED
AND ACCEPTED:
HH PROPERTIES-I, INC.
By: __________________________________
Name:
Title:
HH PROPERTIES-VB, INC.
By: __________________________________
Name:
Title:
<PAGE>
Location: Statesville, North Carolina
Name of Facility; Fairfield Inn
(formerly, a Cricket Inn)
Exhibit K
GROUND LESSOR ESTOPPEL
THIS GROUND LESSOR ESTOPPEL (this "Agreement"), made as of
October __, 1996, is entered into by and among INTERSTATE DEVELOPMENT COMPANY, a
North Carolina corporation ("Landlord"), having an address at P.O. Box 1001,
Statesville, North Carolina 28677, NOMURA ASSET CAPITAL CORPORATION, a Delaware
corporation ("Lender"), having an address at 2 World Financial Center, Building
B, New York, New York, 10281-1198, and HH Properties-I, Inc. a New York
corporation ("New Tenant"), having an address c/o Hudson Hotels Corporation, One
Airport Way, Suite 2a Rochester International Airport, Rochester, New York
14624, Attn: E. Anthony Wilson, Chairman.
RECITALS
A. Pursuant to that certain Ground Lease dated February 20, 1984
(the "Lease"), a Memorandum of which was recorded on February 24, 1984 in Book
696, Page 475 of the Iredell County, North Carolina Registry (the "Iredell
County Registry"), Landlord leased certain real property described on Exhibit A
attached hereto (together with all rights of way, easements and appurtenances
relating thereto and described in the Lease, including, without limitation,
easements for vehicular and pedestrian ingress and egress and parking on, over
and across adjoining or abutting property, the "Demised Premises") to Turnpike
Properties, Inc., a North Carolina corporation ("Turnpike Properties"), as
tenant.
B. Pursuant to a certain Amendment to Ground Lease by and between
Landlord and Turnpike Properties dated March 30, 1984 and recorded on April 19,
1984 in Book 698, Page 589 of the Iredell County Registry, the Lease was further
modified and amended.
C. Pursuant to that certain Assignment of Lease dated July 28, 1989
and recorded on August 4, 1989 in Book 789, Page 329 of the Iredell County
Registry, Turnpike Properties, as tenant, assigned all of its right, title and
interest in, to and under the Lease to Motels of America, Inc., a Delaware
corporation ("Motels of America").
D. Pursuant to a certain Assignment of Lease dated December 1, 1993
and recorded on December 1, 1993 in Book 903, Page 580 of the Iredell County
Registry, Motels of America, as tenant, assigned all of its right, title and
interest in, to and under the Lease to SB Motel Statesville Corp., a Delaware
corporation ("Tenant").
<PAGE>
E. Pursuant to that certain Assignment of Lease dated October __,
1996 and intended to be forthwith recorded in the Iredell County Register,
Tenant, as tenant, has assigned all of its right, title and interest in, to and
under the Lease to New Tenant.
F. Pursuant to a certain Loan Agreement by and between Lender and
New Tenant (as the same may be amended, modified, supplemented or assigned from
time to time, the "Loan Agreement"), Lender intends to extends a loan (the
"Loan") to New Tenant to be secured by, among other things, a first lien
leasehold mortgage or deed of trust, as the case may be (as the same may be
amended, modified, supplemented or assigned from time to time, the "Mortgage"),
encumbering New Tenants leasehold interest in the Demised Premises and its
interest in the Lease.
NOW, THEREFORE, to induce New Tenant to purchase by assignment all
of Tenant's right, title and interest in, to and under the Lease and to induce
Lender to make the Loan to New Tenant and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound, hereby agree as follows:
1. Landlord's Representations and Warranties. Landlord represents
and warrants to Lender and New Tenant the following:
1.1 Lease. A true, correct and complete copy of the Lease is
attached hereto as Exhibit B and such Lease has not been assigned,
modified, amended or supplemented except as expressly set forth in Exhibit
B. The Lease is in full force and effect and constitutes the entire
agreement between Landlord and Tenant with respect to the Demised
Premises. There do not exist any other agreements or understandings
(including, but not limited to, subordination, non-disturbance and
attornment agreements) concerning the Demised Premises and/or the Lease,
whether oral or written, between Landlord and Tenant (or any of their
respective predecessors or successors).
1.2 Tenant. Tenant is the tenant under the Lease and is in
peaceful, quiet and undisturbed possession of the entire Demised Premises.
Upon execution of the Assignment of Lease identified in Paragraph F above,
New Tenant shall be the tenant under the Lease.
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<PAGE>
1.3 Enforceability. The Lease constitutes the legal, valid and
binding obligation of Landlord, enforceable against Landlord in accordance
with its terms.
1.4 Rent. The rent payable under the Lease currently is
$________ per annum, which rent is paid in equal monthly installments in
advance on the first day of each month, and such rent has been paid
through the month of _______, 1996. No rent, other than for the current
month, has been paid in advance. The Lease in a triple net lease and
Tenant receives all real estate tax bills relating to the Demised Premises
directly from the applicable taxing authorities.
1.5 Term. The current term of the Lease commenced on February
20, 1985 and expires on February 20, 2005. Upon execution of the
Assignment of Lease identified in Paragraph F above, however, and pursuant
to Section 2.1 below, the current term of the Lease shall be extended so
as to expire on February 20, 2035.
1.6 Escrow. The amount of any escrows and deposits presently
held by Landlord under the Lease is $_______. (If none, so state.)
1.7 Tenant's Defaults. Tenant is not in default under the
Lease and Landlord has no knowledge of the existence of any event which,
with the giving of notice, the passage of time, or both, would constitute
a default (or event of default) by Tenant under the Lease.
1.8 Landlord's Defaults. Landlord is not in default under the
Lease and Landlord has no knowledge of the existence of any event which,
with the giving of notice, the passage of time, or both, would constitute
a default (or event of default) by Landlord under the Lease.
1.9 No Mortgages. Landlord has not assigned, conveyed,
transferred, sold, encumbered or mortgaged its interest in the Lease or
the Demised Premises (or any part of it) and there currently are no
mortgages, deeds of trust or other security interests encumbering
Landlord's fee interest in the Demised Premises (or any part of it). No
third party (including, without limitation, Roses Department Stores, Inc.)
has any option, preferential right or right of first refusal to purchase
all or any part of the Demised Premises or Landlord's underlying fee
interest. No consent or approval of any third party (including, without
limitation, any lender) is required in order
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<PAGE>
for Landlord to deliver this Agreement and to perform fully its
obligations hereunder.
1.10 No Offsets. There are no offsets, counterclaims,
defenses, deductions or credits whatsoever with respect to the Lease, or
any amounts owning under any other agreement.
1.11 Eminent Domain. Landlord has not received written notice
of any pending eminent domain proceedings or other governmental actions or
any judicial actions of any kind against Tenant's or Landlord's interest
in the Demised Premises.
1.12 Violations. Landlord has not received written notice that
it is in violation of any governmental law or regulation applicable to
Tenant's or Landlord's interest in the Demised Premises and its operation
thereon, including, without limitation, any zoning, subdivision or
environmental laws or the Americans with Disabilities Act, and has no
reason to believe that there are ground for any claim of any such
violation.
1.13 Acceptance of the Premises. The Demised Premises have
been fully accepted by Tenant and neither Landlord nor Tenant has any
outstanding right or option to terminate or cancel the Lease prior to its
stated expiration date.
1.14 Title Improvements. Title to the buildings, improvements,
and fixtures at the Demised Premises is vested in Tenant.
2. Landlord's Covenants. Landlord hereby consents and agrees to each
and every one of the following covenants and agreements for the benefit of
Lender and, as applicable, New Tenant:
2.1 Recognition of New Tenants as Tenant. Landlord hereby
approves of and recognizes New Tenant as the tenant under the Lease.
Landlord hereby acknowledges and agrees that, notwithstanding anything set
forth in the Lease (including Section 13 thereof) to the contrary, all
existing extension options under the Lease have been effectively exercised
by New Tenant, and are hereby accepted by Landlord, and that as such, the
initial term of the Lease shall henceforth expire on February 20, 2035.
2.2 Recognition of Lender as Leasehold Mortgagee. Landlord
hereby recognizes Lender as a first lien
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<PAGE>
leasehold mortgagee under the Lease and consents to Mortgage. All of the
leasehold mortgagee protection provisions contained in the Lease, and all
other provisions inuring to the benefit of leasehold mortgagees (or their
successors and assigns) are hereby incorporated into this Agreement by
reference and restated and confirmed by Landlord for the benefit of
Lender, its successors and assigns, subject to any modification of such
protection provisions as provided herein. Landlord acknowledges and
confirms that New Tenant shall have the absolute right to grant a
leasehold mortgage on the Demised Premises in favor of Lender or any other
mortgagee or third party in connection with any refinancing of the
Mortgage on such terms and conditions as New Tenant may agree to in its
sole discretion.
2.3 Notice to Lender of Proposed Termination Date.
Notwithstanding anything in the Lease to the contrary, if any default or
event of default shall occur which entitles Landlord to terminate the
Lease, Landlord shall have no right to terminate the Lease unless,
following the expiration of the period of time given New Tenant to cure
such default (or if New Tenant has no right to cure, following such
default), Landlord shall deliver a notice (the "Proposed Termination
Notice") to Lender of Landlord's intent to terminate the Lease (i) at
least forty-five (45) days in advance of the proposed effective date of
such termination (the "Proposed Termination Date"), if such default is
capable of being cured by the payment of money and (ii) at least ninety
(90) days in advance of the Proposed Termination Date if such default is
not capable of being cured by the payment of money. The provisions of
Section 2.4 below shall apply if, during such forty-five (45) or ninety
(90) day period, as applicable, Lender shall: (i) notify Landlord in
writing of Lender's desire to nullify the Proposed Termination Notice;
(ii) pay or cause to be paid to Landlord all sums then due and in arrears
as specified in the Proposed Termination Notice and which may become due
during such forty-five (45) or ninety (90) day periods, as applicable; and
(iii) comply or in good faith, with reasonable diligence and continuity,
commence to comply with all non-monetary requirements of the Lease then in
default and reasonably susceptible of being complied with by Lender.
2.4 Procedure on New Tenant Default. (i) If Landlord shall
elect to terminate the Lease by reason of a default or event of default of
New Tenant, and Lender shall have complied with the provisions of Section
2.3
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<PAGE>
above, the Proposed Termination Date stated in the Proposed Termination
Notice shall be (A) nullified if the default or event of default is
completely cured or (B) extended for an additional period of six (6)
months provided that, in the latter instance, during such additional six
(6) month period, Lender shall:
(A) pay or cause to be paid all monetary obligations of
New Tenant under the Lease as the same become due and continue in
good faith to perform all of New Tenant's other obligations under
the Lease except (1) past non-monetary obligations then in default
and not reasonably susceptible of being cured by Lender and (2)
obligations of New Tenant to satisfy and discharge any lien or
encumbrance junior in priority to the Mortgage, if any; and
(B) if not enjoined or stayed, commence steps to acquire
all of New Tenant's interest in the Lease by foreclosure, assignment
in lieu of foreclosure, or other appropriate means and prosecute the
same to completion with due diligence. If Lender is enjoined or
stayed during such six (6) month period, such period shall be
extended by the number of days that any injunction or stay is in
effect.
(ii) If at the end of such additional six (6) month period (as it
may be extended under Section 2.4(i)(B), Lender is complying with the
terms of Section 2.4, the Lease shall not terminate, and the time for
completion by Lender of its proceedings to acquire or sell all of New
Tenant's interest in the Lease shall continue so long as Lender is
enjoined or stayed and thereafter for so long as Lender proceeds to
complete steps to acquire or sell New Tenant's interest in the Lease by
foreclosure, assignment in lieu of foreclosure, or by other appropriate
means with reasonable diligence and continuity. Notwithstanding the terms
of Section 2.3 or 2.4, nothing contained in the Lease or this Agreement
shall require Lender, its successors, assigns or designees, to cure any
default or event of default of New Tenant under the Lease, it being
understood that the right to cure a New Tenant default or event of default
shall be in Lender's sole discretion.
2.5 Continuation of Lease. If Lender is complying with Section
2.4, upon the acquisition of the leasehold estate by Lender or its
designee or any other purchaser at a foreclosure sale or otherwise, the
Lease shall continue in full force and effect as if New Tenant had not
defaulted under the Lease.
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<PAGE>
2.6 No Amendments to Lease. From and after the date hereof,
Landlord will not amend or modify the Lease without the prior written
consent of Lender. In the event Landlord fails to secure such prior
written approval to any such amendment or modification, such amendments or
modifications to the Lease shall be null and void as if never made. In no
event shall the Lease be cancelled, terminated or surrendered without the
prior written consent of Lender.
2.7 Delivery of Notices. Landlord shall simultaneously deliver
to Lender copies of all notices, statements, information and
communications delivered or required to be delivered to New Tenant
pursuant to the Lease, including, without limitation, any notice of any
default by New Tenant. Landlord shall advise Lender in writing if New
Tenant fails to make any rental payment on the date such payment is due
under the Lease.
2.8 Further Assurances. Landlord shall from time to time (i)
execute such affidavits and certificates as Lender shall reasonably
require to further evidence the agreements herein contained and (ii)
cooperate with Lender's representatives in any inspection of all or any
portion of the Demised Premises to the extent Lender is permitted to enter
and inspect such Demised Premises in accordance with the Mortgage and/or
the Loan Agreement.
2.9 Lender Not Obligated Under Lease; Permitted Transfers. The
granting of the Mortgage shall not be deemed to constitute an assignment
or transfer of the Lease or the Demised Premises to Lender, nor shall
Lender, as such, be deemed to be an assignee or transferee of the Lease or
the leasehold estate thereby created so as to require Lender, as such, to
assume the performance of any of the terms, covenants or conditions on the
part of New Tenant to perform thereunder. Notwithstanding the foregoing,
the purchase at any sale of the Lease and the leasehold estate thereby
created in any proceedings for the foreclosure of the Mortgage (including,
without limitation, power of sale) or the assignee or transferee of the
Lease and the leasehold estate thereby created under any instrument of
assignment or transfer in lieu of the foreclosure (whether Lender or any
third party) shall be deemed to be a permitted assignee or transferee
under the Lease without the need to obtain Landlord's consent, and shall
be deemed to have agreed to perform all of the terms, covenants and
conditions on the part of New Tenant to be performed under the Lease from
and after the date of
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<PAGE>
such purchase and/or assignment (but not for any obligations or
liabilities accruing prior to such date), but only for so long as such
purchaser or assignee is the owner of the Lease and the leasehold estate
thereby created, it being understood and agreed that upon a sale or
transfer of the Lease by such party (which sale or transfer shall not
require the consent of Landlord) and written assumption of its obligations
under the Lease by any new purchaser or assigner, the transferring party
shall be relieved of all future liability under the Lease.
2.10 Lender's Reliance on Representations. Landlord has
executed this Agreement for the purpose of inducing New Tenant to purchase
by assignment all of Tenant's right, title and interest in, to and under
the Lease and inducing Lender to make the Loan and with full knowledge
that New Tenant and Lender, respectively, shall rely upon the
representations, warranties, covenants and agreements herein contained
when acquiring such assignment from Tenant and making the Loan to New
Tenant and that, but for this instrument and the representations,
warranties, covenants and agreements herein contained, New Tenant and
Lenders, respectively, would not take such actions.
2.11 Landlord's Mortgagees; Fee Mortgages Subordinate.
Notwithstanding anything in the Lease to the contrary, Landlord
acknowledges and agrees that if it sells, transfers, assigns, mortgages,
hypothecates, pledges or otherwise encumbers its fee interest in the
Demised Premises, or any part of it, or the Lease to any mortgagee, lender
or any other third party, any such sale, transfer, assignment, mortgage,
deed of trust, hypothecation, pledge or encumbrance shall be expressly
subject and subordinate in all respects to the Mortgage, Lender's interest
in the Demised Premises and the Lease. Landlord hereby further
acknowledges and agrees that the Lease and the Mortgage shall be senior in
all respects to any such future mortgage, deed of trust or other security
interest encumbering all or any portion of Landlord's fee interest in the
Demised Premises and that any provision of the Lease requiring that the
Lease or the leasehold interest created thereby (or any leasehold mortgage
or deed of trust thereon) be junior, subordinate or inferior in any
respect to any mortgage or other lien on such fee interest is hereby
deleted in it entirety and declared to be null and void.
2.12 Casualty and Insurance Proceeds. Notwithstanding anything
in the Lease to the contrary and so long as the indebtedness, or any part
of it, secured by the
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<PAGE>
Mortgage remains outstanding and unpaid and the Mortgage remains of
record: (i) the Lease shall not terminate or be cancelled upon the damage
or destruction by fire or other casualty of all, substantially all, or any
part of the Demised Premises; (ii) the public liability and property
damage insurance policies required to be maintained pursuant to the Lease
shall name Lender as an additional named insured and loss payee/mortgagee,
respectively; (iii) the form of such policies and amounts thereof shall at
all times be in accordance with the terms of the Mortgage and Lender shall
have the sole and absolute right to adjust and settle any insurance claim;
and (iv) Landlord hereby subordinates its interest in and rights to
receive any insurance proceeds to Lender and agrees that all proceeds of
such insurance polices shall be payable to Lender as loss payee to be
applied by Lender in accordance with the terms of the Mortgage and the
Loan Agreement.
2.13 Condemnation and Condemnation Proceeds. Notwithstanding
anything in the Lease to the contrary and so long as the indebtedness, or
any part of it, secured by the Mortgage remains outstanding and unpaid and
the Mortgage remains of record: (i) the Lease shall not terminate or be
cancelled upon a taking or condemnation pursuant to an eminent domain
proceeding of all, substantially all, or any part of the Demised Premises
without Lender's consent or unless required by law; (ii) Lender shall be
entitled to make a claim for the value of the leasehold improvements and
leasehold estate and shall have the sole and absolute right to settle any
claim with respect to the Demised Premises, provided that Landlord shall
be entitled to make an independent claim for the value of the land as if
it were unimproved and as encumbered by the Lease; and (iii) that Lender
shall have the right to apply its portion of the condemnation proceeds in
accordance with the terms of the Mortgage and the Loan Agreement.
2.14 Intentionally Omitted.
2.15 Agreement to Modify. In the event Lender succeeds to the
rights of the New Tenant under the Lease, Landlord agrees that it shall
enter into such amendments or modifications of the Lease as Lender may
reasonably request from time to time to reflect the intent hereof so long
as such modifications do not materially and adversely affect Landlord's
rights thereunder or affect the economic terms thereof.
2.16 New Direct Lease In the event the Lease is terminated or
cancelled for any reason or rejected by
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<PAGE>
New Tenant (in the event of a bankruptcy, insolvency or similar proceeding
involving New Tenant) Landlord hereby acknowledges and agrees that it
shall, upon Lender's written election, promptly enter into a new, direct
lease with Lender (or its nominee) with respect to the Demised Premises on
the same terms and conditions as the Lease, it being the intention of the
parties to preserve the Lease and leasehold estate for the benefit of
Lender without interruption. In the event the Lease is rejected or deemed
rejected by New Tenant in any such bankruptcy, insolvency or similar
proceeding, such rejection shall not as between Lender and Landlord effect
or modify any of the rights and obligations set forth in this Agreement
and the terms and conditions of this Agreement shall expressly survive any
such rejection. Upon Lender's request, New Tenant agrees to cause Landlord
to promptly deliver to Lender a separate writing from Landlord to New
Tenant containing the foregoing two sentences of this Section 2.16.
3. Permitted Uses. Notwithstanding anything contained in the Lease
or otherwise to the contrary, Landlord acknowledges and agrees that in the event
Lender succeeds to the interests of New Tenant under the Lease, Lender, and any
successor or assignee thereof, shall be permitted to use and operate the Demised
Premises for any lawful use. In the event Lender, or any successor or assignee
thereof, elects to change or modify the use of the Demised Premises, Landlord
agrees to cooperate with Lender, and any successor or assignee thereof, in
obtaining any and all permits, approvals and licenses that may be necessary in
connection with or as a result of any such conversion of the Demised Premises.
4. No Duty to Continue to Operate. Notwithstanding anything
contained in the Lease or otherwise to the contrary, Lender shall have no duty
to continue to operate the Demised Premises during any period(s) in which Lender
is in possession of the Demised Premises or otherwise exercising any other
rights or remedies against New Tenant under the Mortgage or applicable law.
5. Deleted Provisions. Landlord acknowledges and agrees that the
following sections of the Lease are hereby deleted in their entirety and are of
no further force and effect: 4.1.(3) (which appears on page 9 of the Lease);
7.1(c); 7.1(d); 7.1(e); 7.1(f); and 7.2. The phrase "to the extent of up to
seventy-five percent (75%) of the appraised value of said Demised Premises,
improvements, fixtures, furnishings and equipment thereon" appearing in the
fifth through eighth lines of Section 7.1(b) of the Lease is hereby deleted.
Nothing contained in the Lease, including, without limitation Section 14.5
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<PAGE>
thereof, shall limit or modify in any way (i) Lender's rights and remedies
against New Tenant under the Loan Agreement, the Mortgage or any other document
delivered in connection therewith or (ii) New Tenant's obligations and
liabilities to Lender thereunder with respect to the Loan.
6. Intentionally Omitted.
7. Notices. All notices, demands, consents, or requests which are
either required or desired to be given or furnished hereunder to Landlord,
Lender or New Tenant shall be sent to the appropriate party at the address set
forth in the preamble to this Agreement and shall be given in writing and shall
be effective for all purposes if hand delivered or sent by (a) certified or
registered United States mail, postage prepaid, return receipt requested, or (b)
expedited prepaid delivery service, either commercial or United States Postal
Service, with proof of attempted delivery. A copy of all notices, demands,
consents, or requests delivered to Lender also shall be delivered to Joseph B.
Heil, Esquire, Dechert Price & Rhoads, 1717 Arch Street, 4000 Bell Atlantic
Tower, Philadelphia, Pennsylvania 19103. A notice shall be deemed to have been
given: in the case of hand delivery, at the time of delivery; in the case of
registered or certified mail, when delivered (as evidenced by the receipt) or
the first attempted delivery on a business day; or in the case of expedited
prepaid delivery, upon the first attempted delivery on a business day. A party
receiving a notice which does not comply with the technical requirements for
notice under this Section may elect to waive any deficiencies and treat the
notice as having been properly given. By notice complying with this Section, any
party may from time to time change the address to be subsequently applicable to
it or the identity of its individual officer or its counsel.
8. No Joint Venture. The relationship of Lender to New Tenant is one
of a creditor to a debtor, and Lender is not a joint venturer or partner of New
Tenant.
9. Governing Law. This Agreement and the rights and obligations of
the parties hereunder shall in all respects be governed by, and construed and
enforced in accordance with, the laws of the State of North Carolina (without
giving effect to such state's principles of conflicts of law).
10. Successors. This Agreement shall be binding upon and shall inure
to the benefit of Landlord, Lender and New Tenant and each of their respective
successors and assigns.
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<PAGE>
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which, when
taken together, shall constitute one and the same original.
12. Rights Cumulative; Original Agreement. The rights of Lender
hereunder are in addition to the rights of Lender granted in the Lease and shall
not be in derogation thereof. To the degree terms in this Agreement conflict
with the terms of the Lease, the terms of the Agreement shall control.
13. Recording of Agreement. At Lender's option, this Agreement shall
be recorded in the public land records of the jurisdiction in which the Demised
Premises is located.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Ground
Lessor's Estoppel to be duly executed and delivered as of the day and year first
above written.
LANDLORD:
INTERSTATE DEVELOPMENT COMPANY, a
North Carolina corporation
By:_____________________________________
Name:
Title:
Attest:_________________________________
Name:
Title:
[CORPORATE SEAL]
LENDER:
NOMURA ASSET CAPITAL CAPITAL
CORPORATION, a Delaware corporation
By:_____________________________________
Name:
Title:
Attest:_________________________________
Name:
Title:
[CORPORATE SEAL]
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NEW TENANT:
HH PROPERTIES-I, INC. a
New York Corporation
By:____________________________
Name:
Title:
Attest:________________________
Name:
Title:
[CORPORATE SEAL]
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STATE OF NORTH CAROLINA
COUNTY OF IREDELL
I,____________________________________________ , a Notary Public within
and for said County and State, do hereby certify that ________________________
personally appeared before me this day and acknowledged that he/she is Secretary
of Interstate Development Company, and that by authority duly given and as the
act of the corporation, the foregoing instrument was signed in its name by its
________________, sealed with its corporate seal, and attested by
himself/herself as its Secretary.
WITNESS my hand and official seal this_____ day of October, 1996.
____________________
Notary Public
My Commission Expires
___________________
[NOTARY SEAL]
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<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
I, __________________________________________ , a Notary Public within and
for said County and State, do hereby certify that _______________________
personally appeared before me this day and acknowledged that he/she is Secretary
of Nomura Asset Capital Corporation, and that by authority duly given and as the
act of the corporation, the foregoing instrument was signed in its name by its
________________, sealed with its corporate seal, and attested by
himself/herself as its Secretary.
WITNESS my hand and official seal this ____ day of October, 1996.
____________________
Notary Public
My Commission Expires
___________________
[NOTARY SEAL]
-16-
<PAGE>
STATE OF NEW YORK
COUNTY OF
I, ____________________________________________ , a Notary Public within
and for said County and State, do hereby certify that _______________________
personally appeared before me this day and acknowledged that he/she is Secretary
of HH Properties-I, Inc. and that by authority duly given and as the act of the
corporation, the foregoing instrument was signed in its name by its
_______________, sealed with its corporate seal, and attested by himself/herself
as its Secretary.
WITNESS my hand and official seal this ________ day of October, 1996.
____________________
Notary Public
My Commission Expires
___________________
[NOTARY SEAL]
-17-
<PAGE>
EXHIBIT B
GROUND LEASE
-18-
<PAGE>
EXHIBIT L
NORTH CAROLINA DEED OF EASEMENT
IREDELL COUNTY
THIS DEED OF EASEMENT, made and entered into this _____ day of November,
1996, by and between INTERSTATE DEVELOPMENT COMPANY, of the City of Statesville,
County of Iredell, State of North Carolina, a North Carolina corporation (the
"Grantor") and SB MOTEL STATESVILLE CORP., a Delaware corporation (the
"Grantee"),
W I T N E S S E T H:
Grantor, for an in consideration of the sum of $10,00 and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, does hereby give, grant, bargain, sell and convey to Grantee, its
successors and assigns, a non-exclusive easement of ingress and egress for
vehicular and pedestrian traffic and right of parking for Grantee, its
customers, employees, invitees, guests and licensees over existing paved drive
areas and walkways on Grantor's property described in Exhibit A attached hereto
and incorporated herein by reference (the "Easement Property"), together with
easements for installation, maintenance and operation of utilities, including
sewer, water, gas, electricity, telephone and other utility lines over the
Easement Property; and together with all Grantor's easements in adjoining lands,
highways, roads, streets, lanes, whether public or private, reasonably required
for the installation, maintenance, operation and service of said utilities and
utility lines and for driveways and approaches to and from abutting highways,
all for the use and benefit of the premises demised to the Grantee pursuant to
the
<PAGE>
terms of that certain Ground Lease dated February 20, 1984, a Memorandum of
which is recorded in Book 696, Page 475, Iredell County Registry, and which
Lease has been amended by that certain Amendment of Lease recorded in Book 698,
Page 589, Iredell County Registry (the "Ground Lease"), together with a non-
exclusive easement for vehicular and pedestrian ingress and egress across and
over the roadway described in Exhibit B attached hereto and incorporated herein
by reference.
TO HAVE AND TO HOLD the above-described right and easement unto Grantee,
its successors and assigns for the duration of the term of the Ground Lease, as
it may be extended and/or amended from time to time.
First Union National Bank of North Carolina ("Lender") and Samuel M. Black,
as trustee (the "Trustee"), join in the execution of this Easement Agreement for
the sole purpose of evidencing their consent as beneficiary and trustee of the
Deed of Trust encumbering all or part of the Easement Property and recorded in
Book _____, Page _____, Iredell County Registry (the "Deed of Trust"), and
accordingly Lender and Trustee hereby subordinate the lien of the Deed of Trust
to the rights and easements hereby established. Except as specified herein, the
Deed of Trust shall remain unmodified and in full force and effect.
2
<PAGE>
IN TESTIMONY WHEREOF, Grantor has caused this Deed of Easement to be signed
by its duly authorized officers under seal as of the day herein first above
written.
INTERSTATE DEVELOPMENT COMPANY,
a North Carolina Corporation
By: ________________________________
______________________ President
ATTEST:
________________________________
______________________ Secretary
(CORPORATE SEAL)
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, a national
banking association
By: ________________________________
______________________ President
ATTEST:
________________________________
______________________ Secretary
(CORPORATE SEAL)
___________________________________
Samuel L. Black, Trustee
3
<PAGE>
EXHIBIT M
ESTOPPEL CERTIFICATE
THIS CERTIFICATE is given this _____ day of November, 1996 by DOWNING
COMPANY, a _______________________ corporation having an office at 2880 East
Pike, Box 2309, Zanesville, Ohio 43701 ("Downing") to HH PROPERTIES-I, INC., a
New York corporation, its successors and assigns (HHP-I), NOMURA ASSET CAPITAL
CORPORATION, a _______________ corporation, its successors and assigns
("Nomura") and LAWYERS TITLE INSURANCE CORPORATION, a ________________
corporation, its successors and assigns ("Lawyers Title").
WHEREAS, SB Motel Richmond Corp. ("SB") is the owner of certain premises
located in the County of Henrico, Commonwealth of Virginia and commonly referred
to as the Fairfield Inn, 7300 West Broad Street (the "SB Premises"); and
WHEREAS, pursuant to a certain Shared Access Easement Agreement by and
between Eugene R. Slayden, Jr. and M. Kay Slayden and Commercial Title Agency, a
South Carolina corporation, dated March 7, 1986 and recorded in Deed Book 2004,
at page 1894 (the "Easement"), the SB Premises and the Downing Premises are each
encumbered by and enjoy the benefit of a non-exclusive easement for vehicular
and pedestrian passage to and from each of said Premises in accordance with the
terms and conditions thereof; and
WHEREAS, pursuant to the terms and conditions of the Easement each of the
parties thereto, and their respective successors and assigns, are obligated to
perform certain obligations and to make certain payments all as more fully set
forth therein; and
WHEREAS, SB proposes to convey all of its right, title and interest in and
to the SB Premises to HHP-I and HHP-I intends to finance its acquisition of such
premises by obtaining mortgage loan financing from Nomura; and
WHEREAS, Lawyers Title intends to issue its policies of title insurance to
insure HHP-I's fee title in and to the SB Premises and to insure the Nomura
mortgage as a good and valid first mortgage lien on such Premises; and
WHEREAS, in connection with its acquisition of the SB Premises, the
financing by Nomura thereof and the issuance by Lawyers Title of its fee and
mortgagee policies of title insurance, HHP-I, Nomura and Lawyers Title require
that Downing execute and delivery the within Certificate.
<PAGE>
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby mutual acknowledged, Downing hereby represents,
warrants, certifies, covenants and agrees that:
1. The Easement constitutes the valid and binding obligation of Downing,
enforceable by and against it in accordance with its terms and conditions and
remains in full force and effect. Attached hereto is an accurate and complete
copy of the Easement and the same has not been modified or amended in any
manner.
2. There exist no unpaid maintenance costs, real estate taxes, lighting
costs or other sums, charges, costs or amounts of any kind under the Easement.
All duties, covenants and obligations of the parties thereunder have been
performed in full.
3. The undersigned agrees that, notwithstanding anything to the contrary
contained in the Easement, express or implied, any lien or encumbrance created
by or pursuant to the terms of the Easement for any unpaid sums, amounts,
charges, costs, taxes, or expenses, including, but not limited to, any lien
created pursuant to Section 5(d) thereof, is and shall in all respects be
subject and subordinate to the right, title and interest, legal or equitable, of
the beneficiary of any deed of trust covering, among other things, all or any
portion of the SB Premises and/or the Downing Premises and to the lien and/or
security interest created by any such deed of trust, as the same may be amended,
modified, consolidated, increased, spread, extended, restated, assigned and/or
refinanced from time to time. Without limiting the foregoing, the undersigned
acknowledges that Nomura is the beneficiary under a deed of trust from HHP-I and
further acknowledges and agrees that the aforesaid liens or encumbrances are and
shall in all respects be subject and subordinate to Nomura's right, title and
interest, legal or equitable, as beneficiary under the deed of trust in and to
the SB Premises and the lien and/or security interest created by such deed of
trust on, in and to such Premises.
4. The undersigned acknowledges and agrees that this Certificate, and the
representations and warranties herein contained, is being given to induce (a)
HHP-I to acquire the SB Premises; (b) Nomura to finance HHP-I's acquisition of
the SB Premises, and (c) Lawyers Title to issue its policies of fee and
mortgagee title insurance for the benefit of HHP-I and Nomura, respectively, and
that HHP-I, Nomura and Lawyers Title may rely upon the same.
IN WITNESS WHEREOF, Downing has duly executed and delivered this
Certificate on the date and year first above written.
DOWNING COMPANY
By: ____________________________
Its: ____________________________
<PAGE>
STATE OF VIRGINIA
COUNTY OF HENRICO, to-wit:
The foregoing instrument was acknowledged before me this _____ day of
November, 1996, by __________________________ of Downing Company, a
_____________________ corporation.
My commission expires:
_________________________________
Notary Public
<PAGE>
CONSENT TO ENCROACHMENT
THIS CONSENT AGREEMENT is made as of this _____ day of November, 1996, by
and between HH PROPERTIES-VB, INC., a Virginia corporation (hereinafter referred
to as "Owner"), and NORTHAMPTON INVESTORS (hereinafter referred to as
"Northampton").
RECITALS
A. Concurrently herewith, Owner has acquired that certain property
containing 3,895 acres located off of Northampton Boulevard, U.S. Route 13, in
the City of Virginia Beach, Virginia, having a street address of 5745
Northampton Boulevard and commonly known as the "Cricket Inn" (the "Hotel
Parcel").
B. Northampton is the owner of the property located west of, and
adjoining, the Hotel Parcel on which there is located a Bojangles Restaurant
(the "Restaurant Facility").
C. The eastern walls and some curbing of the improvements constructed on
the Restaurant Facility (hereinafter referred to as the "Encroachment") encroach
upon the Hotel Parcel as shown on that certain plat of survey prepared by
Freedland-Clinkscales & Associates, Inc. dated August 21, 1996, entitled
"ALTA/ACSM LAND TITLE SURVEY FOR HH PROPERTIES-VR, INC., a copy of which plat is
recorded among the land records of the Clerk's Office of the Circuit Court of
the City of Virginia Beach, Virginia, in Plat Book _____, at Page _____, which
plat is incorporated herein by reference.
D. The parties hereto desire to set fort their agreement with respect to
the Encroachment.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and other valuable
consideration, Owner does hereby grant to Northampton, for its sole, exclusive
use, the right to encroach upon the Hotel Parcel, which right shall be revocable
at any time and at the sole discretion of the Owner. Owner agrees to give
Northampton written notice, as specified below, of such termination in which
event Northampton shall have a period of thirty (30) days from its receipt of
such notice to remove the Encroachment. Removal of the Encroachment and all
costs incurred in conjunction therewith shall be the sole responsibility of
Northampton. If Northampton fails to remove the Encroachment within such thirty-
day period, Owner shall have the right, but not the obligation, to remove the
Encroachment and Northampton agrees to reimburse Owner for all costs associated
therewith.
The parties further agree that the occupation of the Encroachment and the
exercise of rights with respect to the Encroachment shall be made solely
pursuant to this agreement.
<PAGE>
This execution by Owner of this Consent is not to be construed in any
manner as a license for further encroachment on the Hotel Parcel. This Consent
shall automatically terminate upon removal of the Encroachment. The parties
agree that the destruction or removal of the Encroachment shall not entitle
Northampton to rebuild the encroachment. Changes in the physical shape or size
of the Encroachment or reconstruction of it shall be considered an additional
encroachment without authority and in violation of the legal rights and
interests of the Owner.
The Encroachment is subject and subordinate at all times to the paramount
rights of the Owner and lienholders. Northampton agrees to indemnify, defend
and save Owner, its successors in title and assigns, harmless from any and all
claims, demands, charges, suits or actions for property damage or loss, or loss
of use thereof, and personal injury and death, whether at law or in equity,
brought by any person, entity, or agency, including but not limited to employees
or agents of Northampton, and all expenses of litigation including but not
limited to attorneys' fees and litigation expenses, arising out of or in any
manner connected with the use, care, maintenance or removal of the Encroachment.
In the event any such proceeding should be filed, Northampton agrees that Owner
shall have the right to select counsel to defend such proceeding, and that
Northampton shall make payment of any and all court costs, expenses of
litigation, reasonable attorneys' fees and any judgments entered therein.
Any notice or election required or permitted to be given or served by any
party hereto shall be deemed given or served when deposited in the United States
mail registered or certified, return receipt requested, postage prepaid,
electronically transmitted by facsimile, delivered to a recognized or
established overnight courier services, or delivered in person, properly
addressed as follows:
In the case of notices directed to the Owner:
HH Properties-VB, Inc.
_____________________________
_____________________________
Attention:___________________
Facsimile No. _______________
In the case of notices directed to Northampton:
Northampton Investors
_____________________________
_____________________________
Attention:___________________
Facsimile No. _______________
<PAGE>
This consent in no way relieves Northampton, its successors and assigns,
from any restrictions, if any, to which either the Restaurant Facility or the
Hotel Parcel is made subject by deed or otherwise, and the restrictions
contained in all applicable zoning ordinances.
IN WITNESS WHEREOF, Owner has caused this instrument to be executed on its
behalf by its duly authorized officer.
HH PROPERTIES-VB, INC.,
a Virginia corporation
By: ______________________________
Title: _________________________
IN WITNESS WHEREOF, Northampton agrees to the terms and conditions of the
foregoing consent.
NORTHAMPTON INVESTORS
By: ______________________________
Title: _________________________
COMMONWEALTH OF VIRGINIA
_________________ of _______________, to-wit:
The foregoing instrument was acknowledged before me this _____ day of
November, 1996, by ____________________, the duly authorized
____________________ of H&H Properties-VB, Inc., a Virginia corporation, on
behalf of said corporation.
My commission expires: ______________________________
______________________________
Notary Public
<PAGE>
COMMONWEALTH OF VIRGINIA
_________________ of _______________, to-wit:
The foregoing instrument was acknowledged before me this _____ day of
November, 1996, by ____________________, the duly authorized
____________________ of Northampton Investors, a Virginia ______________, on
behalf of said _______________.
My commission expires: ______________________________
______________________________
Notary Public
<PAGE>
Nondisturbance, Attornment and
Subordination Agreement
THIS AGREEMENT is made as of the _____ day of _____________, 1996, by and
among Nomura Asset Capital Corporation, a Delaware corporation (together with
its successors and assigns, "Mortgagee") Raleigh-Durham MSA Limited Partnership,
a _____________________ limited partnership, as successor in interest to SBA,
Inc. ("Tenant"), and HH Properties-I, Inc., a New York Corporation ("Landlord").
RECITALS
A. Landlord is the owner of those certain premises common known as 2306
Elba Street, Durham, NC, more particularly described in Exhibit "A" attached
hereto (the "Real Estate");
B. Mortgagee is now or will be the owner and holder of a note (the
"Note") and a mortgage (the "Mortgage");
C. The Mortgage constitutes or will constitute a first lien upon the Real
Estate and the improvements (the "Improvements") situated thereon (collectively,
the "Property");
D. Under the terms of a certain Leas (the "Lease") dated December 14,
1995, and Assigned December 14, 1995, Landlord leased to Tenant a portion of the
improvements, as more particularly described in the Lease; and
E. The parties hereto desire to establish additional rights of quiet and
peaceful possession for the benefit of Tenant under the Lease and further to
define the terms, covenants and conditions precedent for such additional rights.
AGREEMENTS
1. Subordination. The Lease is and at all time shall be subordinate to the
Mortgage and to all renewals, modifications and amendments thereof and
thereto.
2. Non-Disturbance. In the event of foreclosure of the Mortgage (by judicial
process, power of sale or otherwise) or conveyance in lieu of foreclosure,
which foreclosure, power of sale, or conveyance occurs prior to the
expiration date of the Lease, including any extensions and renewals of the
Lease now provided thereunder, and so long as Tenant is not in default
under any of the terms, covenants and conditions of the Lease beyond any
applicable grace or cure period, Mortgagee agrees on behalf of itself, its
successors and assigns, and on behalf of any purchase at such foreclosure
("Purchaser") that Tenant shall not be disturbed in the quiet and peaceful
possession of the premises demised under the Lease. Tenant acknowledges
that Mortgagee has a
<PAGE>
claim superior to Tenant's claim for insurance proceeds, if any, received
with respect to the Improvements or the Property.
3. Attornment. In the event of foreclosure of the Mortgage or conveyance in
lieu of foreclosure, which foreclosure or conveyance occurs prior to the
expiration date of the Lease, including any extensions and renewals of the
Lease now provided thereunder, Tenant shall attorn to Mortgage or Purchaser
and recognize Mortgagee or Purchaser as its landlord under the Lease, and
so long as Tenant is not in default under any of the terms, covenants and
conditions of the Lease beyond any applicable grace or cure period,
Mortgagee or Purchaser shall recognize and accept Tenant as its tenant
thereunder, whereupon the Lease shall continue, without further agreement,
in full force and effect as a direct lease between Mortgagee or Purchaser
and Tenant for the full term thereof, together with all extensions and
renewals now provided thereunder, upon the same terms, covenants and
conditions as therein provided, and Mortgagee or Purchaser shall thereafter
assume and perform all of Landlord's subsequent obligations, as landlord
under the Lease, with the same force and affect as if Mortgagee or
Purchaser were originally named therein as Landlord and Tenant shall
thereafter make all rent payment directly to either Mortgagee or Purchaser,
as the case may be, subject to limitations contained in Paragraphs 4 and 8
below.
4. Limitation of Liability. Notwithstanding anything to the contrary
contained herein or in the Lease, in the event of foreclosure of the
Mortgagee (by judicial process, power of sale or otherwise) or conveyance
in lieu of foreclosures, which foreclosure, power of sale or conveyance
occurs prior to the expiration date of the Lease, including any extensions
and renewals of the Lease now provided thereunder, the liability of
Mortgagee or Purchaser, as the case may be, shall be limited as set forth
below in Paragraph 8; provided, however, that Mortgagee or Purchaser, as
the case may be, shall in no event or to any extent:
(a) be liable to Tenant for any past act, omission or default on the part
of the original or any prior landlord under the Lease and Tenant shall
have no right to assert the same or any damages arising therefrom as
an offset, defense or deficiency against Mortgagee, Purchaser, or the
successors or assigns of any of them;
(b) be liable to Tenant for any prepayment of rent or deposit, rental
security or any other sums deposited with the original or any prior
landlord under the Lease and not delivered to Mortgagee;
(c) be bound by any amendment or modification of the Lease not consented
to by Mortgagee;
(d) be bound by any warranty or representation of Landlord relating to
work performed by Landlord under the Lease; or
2
<PAGE>
(e) be liable to Tenant for construction or restoration, or delays in
construction or restoration, of the Improvements or the portion
thereof leased to Tenant.
5. Further Documents. The foregoing provisions shall be self-operative and
effective without the execution of any further instruments of the part of
any party hereto. Tenant agrees, however, to execute and deliver to
Mortgagee or to any person to whom Tenant herein agrees to attorn such
other instruments as either shall reasonably request in order to effectuate
said provisions.
6. Notice and Cure. Tenant agrees that if there occurs a default by Landlord
under the Lease:
(a) A copy of each notice given to Landlord pursuant to the Lease shall
also be given to Mortgagee, and no such notice shall be effective for
any purpose under the Lease unless so given to Mortgagee; and
(b) If Landlord shall fail to cure any default within the time prescribed
by the Lease, Tenant shall give further notice of such fact to
Mortgagee. Mortgagee shall have an additional 15 days after the
expiration of Landlord's cure period within which to cure such default
or, if such default cannot be cured within that time, then such
additional time as may be necessary if, within the initial 15 day cure
period, Mortgagee shall have commenced and shall be diligently
pursuing the remedies necessary to cure such default including, but
not limited to, commencement of foreclosure proceedings or otherwise
acquiring title to the Improvements, if necessary to effect such cure.
7. Notices. All notices, demands and requests given or required to be given
hereunder shall be in writing and shall be deemed to have been properly
given when personally served or if sent by U.S. registered or certified
mail, postage prepaid, addressed as follows:
Mortgagee: Nomura Asset Capital Corporation
2 World Financial Center
Building B
New York, New York, 10281-1198
Attn: Michael Brody
with a copy to: Dechert Price & Rhoads
1717 Arch Street
4000 Bell Atlantic Tower
Philadelphia, PA 19103
Attn: Joseph B. Heil, Esq.
Tenant: Raleigh-Durham MSA Limited Partnership
3
<PAGE>
8725 Higgins Road
Chicago, IL 60631
Landlord: HH Properties-I, Inc.
One Airport Way, Suite 200
Rochester, New York 14624
Attn: E. Anthony Wilson
with a copy to: Boylan, Brown, Code, Fowler, Vigdor & Wilson, LLP
2400 Chase Square
Rochester, New York 14604
Attn: Kathleen s. Baum, Esq.
8. Limitation of Personal Liability. Notwithstanding anything to the contrary
herein or in the Lease, in the event that Mortgagee or any Purchaser shall
acquire title to the Property, Mortgagee or Purchaser shall have no
obligation, nor incur any liability, beyond the then interest, if any, of
Mortgagee or Purchaser in the Property. Tenant shall look exclusively to
such interest of Mortgagee or Purchaser, if any, in the Property for the
payment and discharge of any obligations imposed upon Mortgagee or
Purchaser hereunder or under the Lease, and Mortgagee and Purchaser are
hereby released and relieved of any other liability hereunder and under the
Lease. As regards Mortgagee or Purchaser, Tenant shall look solely to the
estate or interest owned by Mortgagee or Purchaser in the Property and
Tenant will not collect or attempt to collect any such judgment out of any
other assets of Mortgagee or Purchaser. By executing this Agreement,
Landlord specifically acknowledges and agrees that nothing contained in
this Paragraph 8 shall impair, limit, affect, lessen, abrogate or otherwise
modify the obligations of Landlord to Tenant under the Lease.
9. Binding Effect. The terms, covenants and conditions hereof shall inure to
the benefit of and be binding upon the parties hereto, and their respective
heirs, executors, administrators, successors and assigns.
10. Modification. This Agreement may not be modified orally or in a manner
other than by an agreement signed by the parties hereto or their respective
successors in interest.
11. Choice of Law. This Agreement shall be governed by the internal law (and
not the law of conflicts) of the State in which the Property is located.
WITNESS the due execution of this instrument by the parties hereto the day
and year first above written.
4
<PAGE>
MORTGAGEE:
NOMURA ASSET CAPITAL CORPORATION, a
Delaware corporation
By: ________________________________
Name:
Title:
Attest:
________________________________
______________________ Secretary
(Corporate Seal)
TENANT:
Raleigh-Durham MSA Limited Partnership (SEAL)
BY: TeleSpectrum, Inc. Its General Partner
By: ________________________________
Name:
Title:
Attest:
________________________________
______________________ Secretary
(Corporate Seal)
LANDLORD:
HH Properties-I, Inc., a New York corporation
By: ________________________________
Name:
Title:
Attest:
________________________________
______________________ Secretary
(Corporate Seal)
5
<PAGE>
STATE OF ___________________)
COUNTY OF __________________)
I, ________________________________, a Notary Public of the county and
State aforesaid, certify that _____________________________________ personally
came before me this day and acknowledged that __he is __________________
Secretary of Nomura Asset Capital Corporation and that by authority duly given
and as the act of the corporation, the foregoing instrument was signed in its
name by its ______ President, sealed with its corporate seal, and attested by
_____self as its ____________ Secretary.
Witness my hand and official stamp this _____ day of __________, 19___.
_________________________________
Notary Public
My Commission Expires:
(Seal)
___________________________________
STATE OF ___________________)
COUNTY OF __________________)
I, ________________________________, a Notary Public of the county and
State aforesaid, certify that _____________________________________ personally
came before me this day and acknowledged that __he is __________________
Secretary of TeleSpectrum, Inc., General Partner of Raleigh-Durham MSA Limited
Partnership and that by authority duly given and as the act of the corporation,
the foregoing instrument was signed in its name by its ______ President, sealed
with its corporate seal, and attested by _____self as its ____________
Secretary.
Witness my hand and official stamp this _____ day of __________, 19___.
_________________________________
Notary Public
My Commission Expires:
(Seal)
___________________________________
6
<PAGE>
STATE OF ___________________)
COUNTY OF __________________)
I, ________________________________, a Notary Public of the county and
State aforesaid, certify that _____________________________________ personally
came before me this day and acknowledged that __he is __________________
Secretary of HH Properties-I, Inc. and that by authority duly given and as the
act of the corporation, the foregoing instrument was signed in its name by its
______ President, sealed with its corporate seal, and attested by _____self as
its ____________ Secretary.
Witness my hand and official stamp this _____ day of __________, 19___.
_________________________________
Notary Public
My Commission Expires:
(Seal)
___________________________________
Dechert Price & Rhoads
400 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Attn: Joseph B. Heil, Esquire
7
<PAGE>
TENANT ESTOPPEL CERTIFICATE
Dated: ___________________, 1996
TO: Nomura Asset Capital Corporation
Together with its successors and assigns
Two World Financial Center
Building B
New York, New York 10281-1198
Attn: Michael Brody
and
HH Properties-I, Inc.
One Airport Way
Suite 200
Rochester, New York 14624
Attn: B. Anthony Wilson
Lease Dated: December 14, 1995
Landlord: HH Properties-I, Inc.
One Airport Way
Suite 200
Rochester, New York 14624
Attn: B. Anthony Wilson
Tenant: Raleigh-Durham MSA Limited Partnership
8725 Higgins Road
Chicago, IL 60631
Premises: 336 square feet of space located on the roof top of
2306 Elba Street in Durham, NC
The undersigned ("Tenant") hereby confirms, as of the date hereof, the
following:
1. Tenant is the tenant under the captioned lease (the "Lease") covering
the captioned space (the "Premises") in the building located at the above
address (the "Building"). Attached hereto as Exhibit A is a true and correct
copy of the Lease.
<PAGE>
2. Tenant is in full and complete possession of the Premises, such
possession having been delivered by the captioned landlord (the "Landlord"), or
its predecessor in title, pursuant to the Lease and having been accepted by
Tenant. If the landlord named in the Lease is other than Landlord, Tenant
recognizes Landlord as the landlord under the Lease.
3. The improvements and space required to be furnished by the terms of
the Lease have been completed in all respects and the satisfaction of Tenant,
and are open for the use of Tenant, its employees, patients (or customers) and
invitees.
4. All duties of an inducement nature required of the Landlord in the
Lease have been fulfilled.
5. The Lease is in full force and effect; to the best of Tenant's
knowledge after due inquiry, there is no existing default on the part of Tenant
or on the part of the Landlord under the Lease; and the Lease has not been
amended, modified, supplemented, superseded or otherwise changed.
6. There are no other agreements between the Landlord and the Tenant with
respect to the Premises.
7. No rents have been prepaid more than thirty (30) days in advance of
its due date, except as provided by the Lease, and Tenant has not asserted, and
has no knowledge of, any claim against the Landlord under the Lease that might
be set-off or credited against future accruing rents.
8. Tenant has received no notice of a prior sale, transfer, assignment,
hypothecation or pledge of the Lease or of the rents secured therein.
9. Rents provided in the Lease commenced to accrue on the 1 day of
February, 1996.
10. A security deposit of $-0- has been paid to Landlord.
11. The term of the Lease commenced on February 1, 1996. The termination
date of the present term of the Lease, excluding renewals, is January 31, 2016.
12. Tenant has no right to renew or extend the current term of its Lease
except as follows:
Two additional terms of five (5) years each on the same terms and
conditions as stated in the Lease except rent shall be adjusted as provided
for in the Lease.
2
<PAGE>
13. The current monthly rental (base rent, plus all additional rents
imposed in connection with Tenant's obligation, if any, to contribute to the
payment of real estate taxes, insurance premiums, common area maintenance and
other similar charges) due under the Lease is $________________.
14. Tenant has no right of first refusal, option or other right to
purchase the Premises or the Building, nor does Tenant have any right to
unilaterally cancel the Lease.
15. The address for notices to be sent to Tenant is as set forth in the
Lease.
16. There are no actions, whether voluntary or otherwise, pending against
Tenant under the bankruptcy laws of the United States or any state thereof.
17. Tenant acknowledges that the addressees hereof will rely upon this
statement in making a loan to Landlord, secured by a mortgage lien upon the
property of which this Premises is a part.
Very truly yours,
Raleigh-Durham MSA Limited Partnership (SEAL)
BY: TeleSpectrum, Inc. Its General Partner
By: ________________________________
Name:
Title:
Attest:
________________________________
______________________ Secretary
(Corporate Seal)
3
<PAGE>
HH Properties-I, Inc. a
New York Corporation
One Airport Way, Suite 200
Rochester, New York 14624
and
Nomura Asset Capital Corporation and
its successors and assigns
Two World Financial Center
Building B, 21st Floor
New York, New York 10281-1198
Re: Declaration of Covenants and Easements recorded in Book 3108,
Page 819, Wake County Registry (the "Easement")
Ladies and Gentlemen:
The undersigned Marriott Resident Inn USA ("Marriott") is the owner of
Tract 3 as shown in Book of Maps 1983, Pages 378 & 379, Wake County Registry
("Tract 3"). SB Motel Raleigh Corp. is the owner of, and HH Properties-I, Inc.
is the contract purchaser of Tract 2 as shown in Book of Maps 1983, Page 379,
Wake County Registry ("Tract 2"). Nomura Asset Capital Corporation ("Nomura")
is the lender of HH Properties-I, Inc. ("HH") in its proposed purchase of Tract
2. Tract 2 and Tract 3 share a nonexclusive private access drive as shown in
Book of Maps 1983, Pages 378 and 379 pursuant to the Easement. This estoppel
letter is intended, pursuant to the Easements, to certify to HH and to Nomura,
which certifications they are entitled to rely upon, certain facts regarding the
status of the Easement.
Please accept this certification and confirmation, as of the date of this
estoppel letter, of Marriott with regard to the following:
1. The Easement constitutes the valid and binding obligation of Marriott,
enforceable by and against it in accordance with its terms and conditions and
remains in full force and effect. Attached hereto is an accurate and complete
copy of the Easement and the same has not been modified or amended in any
manner.
2. The Easement has been maintained properly and no maintenance or
repairs of the Easement is scheduled or required as of this time.
<PAGE>
3. The owners of Tract 2 are not obligated to the owner of Tract 3 for
any costs or expense arising out of the Easements for maintenance, repair or
otherwise of the Easement. There exist no unpaid maintenance costs, real estate
taxes or other sums, charges, costs or amounts of any kind under the Easement.
All duties, covenants and obligations of the parties thereunder have been
performed in full.
The undersigned understands that this letter has been requested in
connection with Nomura's loan to HH and that in making such loan, Nomura is
relying on the information contained herein. The undersigned also understands
that HH is relying on the information contained herein in agreeing to purchase
Tract 2. The undersigned understands that Lawyers Title Insurance Corporation
is relying on the information contained herein to issue its policies of fee and
mortgagee title insurance for the benefit of HH and Nomura, respectively. The
undersigned signatory warrants to Nomura and HH that such signatory is
authorized and empowered to execute this document and bind the undersigned.
Marriott Residence Inn USA
By: _____________________________(seal)
Date:_____________________________
<PAGE>
HH Properties-I, Inc. a
New York Corporation
One Airport Way, Suite 200
Rochester, New York 14624
and
Nomura Asset Capital Corporation and
its successors and assigns
Two World Financial Center
Building B, 21st Floor
New York, New York 10281-1198
Re: Easement Agreements for Ingress, Egress and Driveway Purposes recorded
in Book 3140, Page 104 and Declaration of Covenants and Easements
recorded in Book 3108, Page 819, Wake County Registry (the
"Easements")
Ladies and Gentlemen:
The undersigned Denny's Inc. ("Denny's") is the owner of Tract 1 as shown
in Book of Maps 1983, Page 379, Wake County Registry ("Tract 1"). SB Motel
Raleigh Corp. is the owner of, and HH Properties-I, Inc. is the contract
purchaser of Tract 2 as shown in Book of Maps 1983, Page 379, Wake County
Registry ("Tract 2"). Nomura Asset Capital Corporation ("Nomura") is the lender
of HH Properties-I, Inc. ("HH") in its proposed purchase of Tract 2. Tract 1
and Tract 2 share a nonexclusive private access drive as shown in Book of Maps
1983, Page 379 pursuant to the Easement. This estoppel letter is intended,
pursuant to the Easements, to certify to HH and to Nomura, which certifications
they are entitled to rely upon, certain facts regarding the status of the
Easement.
Please accept this certification and confirmation, as of the date of this
estoppel letter, of Denny's with regard to the following:
1. The Easements constitute valid and binding obligations of Denny's,
enforceable by and against it in accordance with their terms and conditions and
remain in full force and effect. Attached hereto are accurate and complete
copies of the Easements and the same have not been modified or amended in any
manner.
2. The Easements have been maintained properly and no maintenance or
repairs of the Easements are scheduled or required as of this time.
<PAGE>
3. The owners of Tract 2 are not obligated to the owner of Tract 1 for
any costs or expense arising out of the Easements for maintenance, repair or
otherwise of the Easement. There exist no unpaid maintenance costs, real estate
taxes or other sums, charges, costs or amounts of any kind under the Easements.
All duties, covenants and obligations of the parties thereunder have been
performed in full.
The undersigned understands that this letter has been requested in
connection with Nomura's loan to HH and that in making such loan, Nomura is
relying on the information contained herein. The undersigned also understands
that HH is relying on the information contained herein in agreeing to purchase
Tract 2. The undersigned understands that Lawyers Title Insurance Corporation
is relying on the information contained herein to issue its policies of fee and
mortgagee title insurance for the benefit of HH and Nomura, respectively. The
undersigned signatory warrants to Nomura and HH that such signatory is
authorized and empowered to execute this document and bind the undersigned.
Denny's Inc.
By: _____________________________(seal)
Date:_____________________________
<PAGE>
CONTRACT AMENDMENT NO. 3
THIS INSTRUMENT is entered into as of the 27th day of November, 1996
by SB Motel Richmond Corp., SB Motel Durham-Research Triangle Park Corp., SB
Motel Cary Corp., SB Motel Statesville Corp., SB Motel Wilmington Corp., SB
Motel Columbia Corp., SB Motel Charleston Corp., SB Motel Albany Corp., SB Motel
Virginia Beach Corp., SB Motel Durham-Duke Corp., SB Motel Raleigh Corp., and SB
Motel Charlotte 1-85 Corp., (Collectively, "Sellers"), Hudson Hotels Properties
Corp. ("Purchaser") and Hudson Hotels Corporation ("Hudson").
WHEREAS, Purchaser entered into an Agreement of Purchase and Sale
dated September 27, 1996, as amended by Contract Amendment No. 1 dated October
31, 1996 and further amended by Contract Amendment No. 2 dated November 18, 1996
(the "Agreement") with Sellers covering twelve properties in the States of North
Carolina, South Carolina, Georgia and Virginia (collectively, the "Premises");
and
WHEREAS, Hudson, Sellers and Purchase desire to amend Section 12.4
of the Agreement as set forth below. All terms not defined herein shall have the
meanings ascribed to them in the Agreement.
NOW THEREFORE, Hudson, Sellers and Purchaser hereby agree that the
Agreement is hereby amended as follows:
1. The first sentence of Section 12.4 of the Agreement is hereby
deleted in its entirety and replaced with the following:
"Except as provided in Section 12.5, each of the representations and
warranties contained in Sections 12.1 and 12.3 (collectively, the
"Base Reps") shall survive the Closing until the first anniversary
of the Closing Date, provided further that, upon a sale, assignment
or other transfer of any of the Premises by Purchaser, the
representations and warranties set forth in Section 12.3 shall not
survive with respect to the portion of the Premises being
transferred thereunder, if sooner."
2. Purchaser acknowledges and agrees that Sellers (as such term and
all other terms which are capitalized but not defined herein are defined in the
Agreement) have designated SB Motel Corp. as the payee of the Note pursuant to
Section 5.4(a) of the Agreement and as the transferee and holder of the
certificates representing the Shares. SB Motel Corp. shall be entitled to all of
the rights and benefits of Sellers under the Agreement which relate to the Note
and/or the Shares, including, without limitation, all rights and benefits
provided for in Section 15 of the Agreement and any and all rights under
<PAGE>
other covenants, representations or warranties in the Agreement or related
documents relating to the Note or the Shares. Accordingly, but without limiting
the generality of the foregoing, Section 15 of the Agreement is hereby deleted
in its entirety and the following substituted therefor:
"Section 15. HUDSON COVENANTS.
15.1 For as long as SB Motel Corp. or any other direct or
indirect wholly owned subsidiary of Salomon Brothers Holding Company Inc
(as the case may be, "SBMC") owns any of the Shares, Hudson shall provide
at least 30 days' prior written notice to Salomon Brothers Inc (at the
address for Sellers set forth herein) of any equity offering of Hudson
("Equitv Offering") and an opportunity to make the first offer to
underwrite such offering. Provided that Salomon Brothers Inc shall submit
a written proposal to Hudson with respect to such underwriting within 20
days after written notice from Hudson that it proposes to have such Equity
Offering, and provided further that, after reviewing whether Salomon
Brothers Inc's proposal has terms, pricing, a fee structure and any other
pertinent business terms substantially similar in Hudson's judgment to
those available from an alternative underwriter, Hudson shall give due
consideration to Salomon Brothers Inc's proposal but, subject to the
remaining provisions of this Section 15.1, shall have the sole and
absolute discretion to determine whether or not to choose Salomon Brothers
Inc as the principal underwriter. Notwithstanding the foregoing, if Hudson
after giving such due consideration wishes to accept an offer from an
alternative underwriter (the "Alternative Underwriter") in connection with
any Equity Offering, Hudson shall provide at least five (5) Business Days'
prior written notice (the "Right of First Refusal Period") of same to
Salomon Brothers Inc (at the address for Sellers set forth herein).
Provided that within the Right of First Refusal Period Salomon Brothers
Inc shall submit a written proposal to Hudson with respect to such
underwriting which is substantially similar to the terms, pricing, fee
structure and any other pertinent business terms of the offer of the
Alternative Underwriter (the "Matching Offer"), Hudson shall accept the
Matching Offer of Salomon Brothers Inc to be the principal underwriter. If
Salomon Brothers Inc does not provide Hudson with a Matching Offer during
the Right of First Refusal Period, Hudson shall be entitled to enter into
an underwriting commitment with the Alternative Underwriter within thirty
(30) days after the expiration of the Right of First Refusal Period,
provided that the underwriting
-2-
<PAGE>
commitment entered into with the Alternative Underwriter is no more
favorable to the Alternative Underwriter (in its terms, pricing, fee
structure and any other pertinent business terms which shall be specified
therein) than the Alternative Underwriter's offer as aforesaid. If, at the
end of such 30 day period, Hudson shall not have entered into such
underwriting commitment agreement with the Alternative Underwriter, Hudson
shall again be obligated to comply with the provisions of this Section
15.1 (and to provide Salomon Brothers Inc the aforesaid right of first
offer and right of first refusal) with respect to any Equity Offering.
Hudson acknowledges that the rights granted to Salomon Brothers Inc
hereunder constitute material consideration and inducement to Sellers to
enter into this transaction. Salomon Brothers Inc and SBMC shall be a
third party beneficiary under this Section 15 but shall not have any
obligation or liability whatsoever under this Agreement. For the purposes
hereof, any form or type of equity offerings of Hudson shall not include
any type of mortgage, line of credit, bond or debenture financing.
15.2 Hudson hereby covenants with Sellers that from and after
the Closing, any public announcements or disclosures made by Hudson with
respect to this Agreement or the transactions contemplated hereby
(including, without limitation, the Shares, the Note, the Purchase Price
or the Premises) shall first be sent to SBMC for its review and approval.
Until such approval has been given to Hudson by SBMC, Hudson shall refrain
from making such public disclosures or announcements.
15.3 (a) Hudson hereby covenants with SBMC that, in the event
a Closing takes place hereunder, Hudson shall immediately commence the
preparation and filing of a registration statement registering the Shares
for sale with the SEC as more particularly set forth below. Hudson shall
diligently prosecute the registration and shall register the Shares no
later than one hundred eighty (180) days after the Closing and shall take
any and all actions necessary to maintain the effectiveness of the
registration, including post-effective amendments, if necessary, until
SBMC has disposed of all of the Shares. To this end, following the Closing
Date, Hudson shall file with the SEC a registration statement under the
Securities Act for the offering on a continuous or delayed basis in the
future of all of the Shares (this and subsequent filings of registration
statements provided hereinafter, the "Shelf Registration"). The Shelf
Registration shall be on an appropriate form and the Shelf
-3-
<PAGE>
Registration and any form of prospectus included therein or prospectus
supplement relating thereto shall reflect such plan of distribution or
method of sale as SBMC may from time to time notify Hudson, including the
sale of some or all of the Shares in a public offering or, if requested by
SBMC, subject to receipt by Hudson of such information (including
information relating to purchasers) as Hudson reasonably may require, (i)
in a transaction constituting an offering outside the United States which
is exempt from the registration requirements of the Securities Act in
which Hudson undertakes to effect registration after the completion of
such offering in order to permit such shares to be freely tradeable in the
United States, (ii) in a transaction constituting a private placement
under Section 4(2) of the Securities Act in connection with which Hudson
undertakes to effect a registration after the conclusion of such placement
to permit such shares to be freely tradeable by the purchasers thereof,
or (iii) in a transaction under Rule 144A of the Securities Act in
connection with which Hudson undertakes to effect a registration after the
conclusion of such transaction to permit such shares to be freely
tradeable by the purchasers thereof. Hudson shall use its best efforts to
keep the Shelf Registration continuously effective for the period
beginning on the date on which the Shelf Registration is declared
effective and ending on the first date that there are no Shares remaining
in the possession of SBMC (the "Registration Period"), and in the event
that notwithstanding Hudson's best efforts, Hudson fails to keep the Shelf
Registration effective, Hudson shall file with the SEC another Shelf
Registration, such that a Shelf Registration is continually in effect
during the Registration Period. During the Registration Period, Hudson
shall supplement or make amendments to the Shelf Registration, if required
by the Securities Act or if reasonably requested by SBMC or an underwriter
of Registrable Securities, including to reflect any specific plan of
distribution or method of sale, and shall use its reasonable best efforts
to have such supplements and amendments declared effective, if required,
as soon as practicable after filing.
(b) Until sixty (60) days following the beginning of the
Registration Period, Hudson and E. Anthony Wilson covenant that B. Anthony
Wilson acting in his individual capacity shall not sell any shares of
Hudson Common Stock other than under and pursuant to Rule 144 of the
Securities Act. E. Anthony Wilson has executed this Agreement below in his
individual capacity to confirm his agreement to such covenant.
-4-
<PAGE>
15.4 If, at any time from and after the Closing Date and until
commencement of the Registration Period, Hudson shall propose to prepare
on its own behalf or on behalf of any of its shareholders (other than
SBMC) a registration statement in connection with an underwritten public
offering of any securities of Hudson, Hudson shall give SBMC notice at
least 20 days before the anticipated filing date of such registration
statement. Should SBMC desire to have any Shares owned by SBMC included in
such registration statement, SBMC shall so advise Hudson no later than 15
days after Hudson's notice is given, setting forth the number or amount of
Shares which SBMC requests to be included in the registration statement,
and Hudson shall include the Shares specified in such request in such
registration statement and keep such registration statement in effect and
maintain relevant compliance with each federal and state law and
regulation. Notwithstanding the foregoing, (i) Hudson shall not be
required to give notice or include such Shares in any such offering if the
proposed registration relates solely to the sale of securities to
participants in a dividend reinvestment plan, is to be made on Form S-4
and relates to a business combination or similar transaction permitted to
be registered on such Form S-4, is to be made on Form S-8 and relates
solely to the sale of securities to participants in a stock or employee
benefit plan, or is permitted under Rule 462 promulgated under the
Securities Act and registers additional securities of the same class as
were included in an earlier registration statement for the same offering
and declared effective; and (ii) Hudson may, in its sole discretion,
withdraw such registration statement and abandon the proposed offering.
15.5 To the extent required from time to time to enable SBMC
to sell Shares without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC, Hudson will file
in a timely manner (taking into account any extensions granted by the
SEC), information, documents and reports in compliance with the Exchange
Act and will, at its expense, forthwith upon the request of SBMC, deliver
to SBMC a certificate, signed by Hudson's principal financial officer,
stating (a) Hudson's name, address and telephone number (including area
code), (b) Hudson's Internal Revenue Service identification number, (c)
Hudson's SEC file number, (d) the number of shares of Hudson's common
stock and the number of shares of any preferred stock of Hudson
-5-
<PAGE>
outstanding as shown by the most recent report or statement published by
Hudson, and (e) whether Hudson has filed the reports required to be filed
under the Exchange Act for a period of at least 90 days prior to the date
of such certificate and in addition has filed the most recent annual
report required to be filed thereunder. If at any time Hudson is not
required to file reports in compliance with either Section 13 or Section
15(d) of the Exchange Act, Hudson will, at its expense, forthwith upon the
written request of SBMC, make available adequate current public
information with respect to Hudson within the meaning of paragraph (c) (2)
of Rule 144 of the General Rules and Regulations promulgated under the
Securities Act.
15.6 (a) Following the registration of the Shares as provided
herein, the parties understand that SBMC may dispose of the Shares using
several different methods, which may include an underwritten offering. In
the event that SBMC elects to utilize an underwriter, Hudson shall enter
into a customary underwriting agreement providing for customary
indemnities for the underwriters and the selling security holders. Hudson
shall pay all costs and expenses of whatsoever nature which arise from or
relate to the registration or sale of the Shares as aforesaid, except that
the seller of the Shares shall be responsible for any underwriting
discounts or commissions.
(b) In the event that SBMC shall elect to dispose of the
Shares in a transaction or series of transactions not involving an
underwriting, Hudson and SBMC shall enter into a customary indemnity
agreement providing for an indemnity to each party for statements or
information in the registration statement pertaining to or provided by the
indemnifying party.
5.7 (a) Hudson shall, if so requested by SBMC within five (5)
Business Days after the expiration of the Feasibility Period, appoint and
maintain, commencing on the Closing Date and for as long as SBMC holds any
Shares, an observer of Hudson's Board of Directors, designated by SBMC,
who shall be invited to attend all meetings of the Board of Directors and
shall be compensated in the same manner as are non-employee directors of
Hudson. Such observer shall be indemnified by Hudson against all claims
and liabilities arising out of his or her participation in the meetings of
the Board of Directors.
(b) Alternatively, from and after the Closing Date, SBMC
shall have the right (but not the
-6-
<PAGE>
obligation) to have on the board of directors of Hudson (the "Board") one
director (such director and any other person made a director of the Board
pursuant to this Section 15.8, the "SBMC Nominee"), and Hudson shall
promptly cause SBMC Nominee to become a member of the Board. If necessary
to effectuate the placement of the SBMC Nominee on the Board, Hudson
shall, at its sole option, (i) expand the size of the Board or (ii)
solicit the resignation of one of its directors, in either case, to the
extent necessary to permit the SBMC Nominee to serve. Until such time that
SBMC no longer owns any of the Shares, SBMC shall have the right to
maintain a SBMC Nominee on the Board. SBMC agrees to indicate to Purchaser
within five (5) Business days after the expiration of the Feasibility
Period whether they will request a SBMC Nominee to be placed on the Board
immediately following Closing.
(c) If SBMC elects to exercise its option in Section
15.7(b) above, Hudson will support the nomination of, and Hudson's
nominating committee (or any other committee exercising a similar
function) shall recommend to the Board, the election of any SBMC Nominee
to the Board, and Hudson will exercise all authority under applicable law
to cause such SBMC Nominee to be elected to the Board. Without limiting
the generality of the foregoing, with respect to each meeting of
shareholders of Hudson at which directors are to be elected, Hudson shall
use its reasonable efforts to solicit from the shareholders of Hudson
eligible to vote in the election of directors proxies in favor of such
SBMC Nominee.
(d) In the event that any SBMC Nominee shall cease to
serve as a director for any reason other than the fact that SBMC no longer
has a right to nominate a director, as provided in subsection (b), the
vacancy resulting thereby shall, if SBMC so chooses in their sole
discretion, be filled by a SBMC Nominee designated by SBMC.
15.8 The rights and benefits of SBMC set forth in Sections
15.3(a), 15.4, 15.5 and 15.6 hereunder shall inure to the benefit of any
of SBMC's successors, assigns or transferees who obtain a legal or
beneficial interest in the Shares, other than in connection with the sale
thereof pursuant to the registration described in Section 15.3(a) or 15.4.
15.9 Each of the covenants contained in this Section iS shall
survive the Closing until SBMC no longer owns any of the Shares."
-7-
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed this
Amendment as of the day and year first above written.
SELLERS: SB MOTEL RICHMOND CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL DURHAM-RESEARCH
TRIANGLE PARK CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL CARY CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL STATESVILLE CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL WILMINGTON CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL COLUMBIA CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
<PAGE>
SB MOTEL CHARLESTON CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL ALBANY CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL VIRGINIA BEACH CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL DURHAM-DUKE CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL RALEIGH CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL CHARLOTTE I-85 CORP.
By: /s/ John P. Buza
-----------------------------
Name: John P. Buza
Title: Vice President
<PAGE>
PURCHASER: HUDSON HOTELS PROPERTIES CORP.
By: /s/ E. Anthony Wilson
------------------------------
Name: E. Anthony Wilson
Title: Chairman and Chief
Executive Officer
HUDSON: HUDSON HOTELS CORPORATION
By: /s/ E. Anthony Wilson
------------------------------
Name: E. Anthony Wilson
Title: Chairman and Chief
Executive Officer
ESCROW AGENT: LAWYERS TITLE INSURANCE CORPORATION
(Solely as Escrow
Agent
By: /s/ Eileen Callan
---------------------------------
Name: EILEEN CALLAN
---------------------------
Title: AUTHORIZED AGENT
---------------------------
E. Anthony Wilson is executing this
amendment in his individual capacity
solely in order to make the covenant
set forth in Section 15.3(b) of the
Agreement, as amended hereby.
/s/ E. Anthony Wilson
------------------------------
E. ANTHONY WILSON
[Execution Counterpart)
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement"), dated as of the
Date of this Agreement (as defined hereinafter) by and among HUDSON HOTELS
PROPERTIES CORP., a New York corporation with offices at One Airport Way,Suite
200, Rochester, New York 14624 ("Purchaser"), SB Motel Richmond Corp., SB Motel
Durham-Research Triangle Park Corp., SB Motel Cary Corp., SB Motel Statesville
Corp., SB Motel Wilmington Corp., SB Motel Columbia Corp., SB Motel Charleston
Corp., SB Motel Albany Corp., SB Motel Virginia Beach Corp. SB Motel Durham-Duke
Corp., SB Motel Raleigh Corp. SB Motel Charlotte I-85 Corp. each a Delaware
corporation with offices at Seven World Trade Center, New York, New York 10048,
Attn: Mr. John P. Buza, Vice President (collectively, "Seller"), and Hudson
Hotels Corporation, a New York corporation with offices at One Airport Way,
Suite 200, Rochester, New York 14624 ("Hudson").
WITNESSETH
WHEREAS, Purchaser wishes to purchase, and Sellers wish to sell, the
Premises (as defined below) on the terms and conditions set forth below; and
WHEREAS, Hudson, which directly or indirectly owns 100% of the stock of
Purchaser and will benefit directly from the transactions contemplated hereby,
has agreed to certain covenants, representations and warranties made by Hudson
herein and to execute the Note (as hereinafter defined) as partial payment of
the Purchase Price (as hereinafter defined).
NOW, THEREFORE, for $1.00 and other good and valuable consideration, the
receipt and sufficiency of which is hereby mutually acknowledged, and the mutual
covenants contained herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
Section 1. PROPERTIES. On the terms and subject to all of the conditions
set forth in this Agreement, Purchaser agrees to purchase and Sellers agree to
sell, for the purchase price set forth herein, any and all of the right, title
and interest of Sellers, respectively, if any, in and to the following property
(collectively, the "Premises"):
(a) a Fairfield Inn limited service hotel located in Richmond, Virginia,
including fee simple title to the land upon
<PAGE>
which such limited service hotel is located, as more particularly described on
Exhibit A-1, attached hereto and incorporated herein by reference, with all
improvements thereon (the "Richmond Property");
(b) a Fairfield Inn limited service hotel located in Durham, North
Carolina, including fee simple title to the land upon which such limited service
hotel is located, as more particularly described on Exhibit A-2, attached hereto
and incorporated herein by reference, with all improvements thereon (the
"Durham-Fairfield Property");
(c) a Fairfield Inn limited service hotel located in Cary, North Carolina,
including fee simple title to the land upon which such limited service hotel is
located, as more particularly described on Exhibit A-3, attached hereto and
incorporated herein by reference, with all improvements thereon (the "Cary
Property");
(d) a Fairfield Inn limited service hotel located in Statesville, North
Carolina, including leasehold title to the land upon which such limited service
hotel is located, as more particularly described on Exhibit A-4, attached hereto
and incorporated herein by reference (the "Statesville Ground Lease"), with all
improvements thereon (the "Statesville Property");
(e) a Fairfield Inn limited service hotel located in Wilmington, North
Carolina, including fee simple title to the land upon which such limited service
hotel is located, as more particularly described on Exhibit A-5, attached hereto
and incorporated herein by reference with all improvements thereon (the
"Wilmington Property");
(f) a Fairfield Inn limited service hotel located in Columbia, South
Carolina, including fee simple title to the land upon which such limited service
hotel is located, as more particularly described on Exhibit A-6, attached hereto
and incorporated herein by reference, with all improvements thereon (the
"Columbia Property");
(g) a Fairfield Inn limited service hotel located in Charleston, South
Carolina, including fee simple title to the land upon which such limited service
hotel is located, as more particularly described on Exhibit A-7, attached hereto
and incorporated herein by reference, with all improvements thereon (the
"Charleston Property");
(h) a Fairfield Inn limited service hotel located in Albany, Georgia,
including fee simple title to the property
-2-
<PAGE>
upon which such limited service hotel is located, as more particularly described
on Exhibit A-8, attached hereto and incorporated herein by reference, with all
improvements thereon (the "Albany Property");
(i) a Cricket Inn limited service hotel located in Virginia Beach,
Virginia, including fee simple title to the land upon which such limited service
hotel is located, as more particularly described on Exhibit A-9, attached hereto
and incorporated herein by reference, with all improvements thereon (the
"Virginia Beach Property");
(j) a Cricket Inn limited service hotel located in Durham, Carolina,
including fee simple title to the land upon which such limited service hotel is
located, as more particularly described on Exhibit A-10, attached hereto and
incorporated herein by reference, with all improvements thereon (the
"Durham-Cricket Property");
(k) a Cricket Inn limited service hotel located in Raleigh, North
Carolina, including fee simple title to the land upon which such limited service
hotel is located, as more particularly described on Exhibit A-11, attached
hereto and incorporated herein by reference, with all improvements thereon (the
"Raleigh Property");
(l) a Cricket Inn limited service hotel located in Charlotte, North
Carolina, including fee simple title to the land upon which such limited service
hotel is located, as more particularly described on Exhibit A-12, attached
hereto and incorporated herein by reference, with all improvements thereon (the
"Charlotte Property"; the Richmond Property, the Durham-Fairfield Property, the
Cary Property, the Statesville Property, the Wilmington Property, the Columbia
Property, the Charleston Property and the Albany Property are herein
collectively referred as the "Fairfield Inn Properties"; the Virginia Beach
Property, the Durham-Cricket Property, the Raleigh Property and the Charlotte
Property are herein collectively referred to as the "Cricket Inn Properties";
the Fairfield Inn Properties and the Cricket Inn Properties are herein
collectively referred to as the "Properties"; and each of the limited service
hotels operated on the Fairfield Inn Properties or the Cricket Inn Properties is
herein referred to as a "Hotel");
(m) any and all furniture, fixtures, equipment, machinery, furnishings,
carpets, drapes, blinds or mini-blinds, service and maintenance equipment,
linens, tools, signs, landscaping equipment, supplies, pool equipment,
television systems, keys, passcards, intercom equipment and systems, and
replacement parts, and other tangible and intangible personal
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property located on the Properties and owned by any Seller (collectively, the
"Personalty");
(n) all contracts or agreements to which any Seller is a party and which
relate to any of the Properties, including, without limitation, the Statesville
Ground Lease and the franchise agreements and other contracts referenced in
Exhibit B, attached hereto and by this reference made a part hereof, but only to
the extent same are assignable to Purchaser (collectively, the "Contracts");
(o) all permits, licenses and certificates of occupancy held by Sellers in
connection with the Hotels, but only to the extent same are legally assignable
to Purchaser (the "Permits");
(p) all inventory, supplies and other materials used in connection with
the Hotels and the hotel business operated thereon to the extent owned by
Sellers (the "Inventory");
(q) all plans, specifications and "as-built" drawings and surveys relating
to the Properties, to the extent owned by Sellers, all books and records
relating to the operation or management of the Properties by or on behalf of
Sellers, and all assignable warranties and guaranties of Sellers pertaining to
the Properties; and
(r) all intangible property, guest ledgers, customer and mailing lists,
catalogues and brochures, telephone numbers and similar property used in
connection with the operation of the Hotels which, in each case, are not owned
by any franchisor, manager or other third party and which are assignable to
Purchaser (the "Intangible Rights");
provided, however, that, notwithstanding the foregoing or any other provision
hereof to the contrary, Sellers do not hereby agree to sell, and the Premises
shall not include, any of the inventory, contracts or property described in
Exhibit C, attached hereto and by this reference made a part hereof.
Section 2. TERMS OF PURCHASE AND SALE. The purchase price for the Premises
shall be Sixty One Million and NO/100 Dollars ($61,000,000.00) (the "Purchase
Price"), payable by Purchaser to Sellers as follows:
2.1. The sum of One Million Four Hundred Fifty Thousand and NO/100 Dollars
($1,450,000.00) (the "Deposit") shall be paid by Purchaser on or before Monday,
September 30, 1996 by
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wire transfer of immediately available funds to an account designated by Lawyers
Title Insurance Corporation, 708 Third Avenue, New York, NY 10017, as escrow
agent ("Escrow Agent"). Escrow Agent shall maintain the Deposit in an interest
bearing account subject to the provisions of Section 13. Escrow Agent shall not
disburse the Deposit except in accordance with the terms of this Agreement. At
the Closing (as hereinafter defined), the Deposit shall be paid by Escrow Agent
to Sellers by wire transfer of immediately available funds. In the event that
this transaction is not consummated, the Deposit shall be paid as provided in
Sections 8 and 13 of this Agreement. Purchaser shall be entitled to a credit for
any interest earned on the Deposit unless the Deposit is forfeited, in which
event interest shall be paid to Sellers. If for any reason Escrow Agent does not
confirm its receipt of the Deposit by executing this Agreement on or before
Monday, September 30, 1996, this Agreement shall be cancelled and shall be
deemed null and void, ab initio.
2.2. The balance of the Purchase Price ($59,550,000.00) shall be paid by
Purchaser to Sellers at the Closing (as hereinafter defined), as follows:
(a) The sum of Fifty Three Million Five Hundred Fifty Thousand and
NO/100 Dollars ($53,550,000.00), plus the Stock Price Adjustment
Amount (as hereinafter defined), if any, shall be paid by Purchaser
in cash by wire transfer of immediately available funds to an
account or accounts designated in writing by Sellers;
(b) Hudson shall deliver to Sellers (i) a promissory note executed by
Hudson in the amount of Three Million and NO/100 Dollars
($3,000,000), plus or minus any closing adjustments made pursuant to
Section 9, in the form of Exhibit D, attached hereto and
incorporated herein by reference (the "Note"); and
(c) Purchaser shall deliver to Sellers the lesser of (i) 500,000 shares
of the common stock, par value $0.001, of Hudson (the "Hudson Common
Stock") or (ii) that number of shares of Hudson Common Stock that is
equal to the number determined by dividing $3,000,000 by the Per
Share Market Price (such number of shares of Hudson Common Stock
determined in accordance with clauses (i) and (ii) above shall be
referred to herein as the "Shares").
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For purposes hereof, the term "Stock Price Adjustment Amount" shall mean
the amount, if any, by which (i) the product of the Per Share Market Price (as
defined below) multiplied by 500,000 is less than (ii) $3,000,000, and the term
"Per Share Market Price" shall mean the average closing price per share of
Hudson Common Stock on NASDAQ for the five trading days immediately preceding
the Closing Date. If the Closing occurs, Purchaser will be entitled to a $50,000
credit against the Purchase Price (which $50,000 represents the deposit
previously paid by Purchaser to Sellers which had been forfeited).
2.3. The Purchase Price shall be allocated among Sellers in accordance
with Exhibit E hereto.
Section 3. FEASIBILITY PERIOD.
3.1. Purchaser commenced its due diligence investigation of the Premises
on the date of the term sheet executed by Sellers and Purchaser in connection
with the Premises. Purchaser shall have a period ending October 31, 1996 to
review the Inspection Items and to otherwise complete its due diligence
investigation and inspection of the Premises (the "Feasibility Period").
Purchaser shall have the right to terminate this Agreement at any time prior to
the expiration of the Feasibility Period, by written notice to Sellers and
Escrow Agent (the "Termination Notice"), if Purchaser is dissatisfied with any
aspect of the Premises in Purchaser's sole discretion. If Purchaser shall
terminate this Agreement pursuant to this Section 3.1 on or before the last day
of the Feasibility Period, then Purchaser shall be entitled to a refund of the
Deposit. If Purchaser shall not have provided notice of termination of this
Agreement pursuant to this Section 3.1 during the Feasibility Period, then from
and after the Feasibility Period Purchaser shall be deemed to have waived its
right to terminate this Agreement as permitted under this Section 3.1 and to
accept the Premises in their present condition. After the Feasibility Period,
Purchaser's and Hudson's obligation to close the transactions contemplated
hereby shall be unconditional, the Deposit shall be non-refundable, and neither
Purchaser nor Hudson shall have any termination rights hereunder whatsoever
(provided that the foregoing shall not invalidate Purchaser's remedies for any
default by Sellers, as set forth in Section 8).
The term "Inspection Items" shall mean copies of the following documents,
to the extent same are in Sellers' possession (which shall mean, for all
purposes hereunder, to the extent same are located in the offices of SB Planning
and Management Services, 33rd Floor, Seven World Trade Center, New York, New
York), or, with respect to items (e) and (f) below, to the
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extent same are either located at the Hotels or at the offices of American
General Hospitality, Inc., Sellers' manager for the Hotels ("Manager").
(a) any title policies, environmental reports and surveys of or with
respect to the Premises;
(b) the Contracts (including the Statesville Ground Lease and the
Franchise Agreements, as defined below);
(c) financial statements (the "Financial Statements") for the Hotels
prepared and certified by Sellers (including balance sheets, income
statements and statements of changes in financial condition) for
calendar years 1994 and 1995 for the first and second calendar
quarters of 1996, together with an itemized breakdown of room sales
per month, occupancy and ADR for such periods;
(d) audited financial statements (the "Audited Financials") prepared and
certified by the firm of Coopers & Lybrand, copies of which have
been provided to Purchaser;
(e) any guest registration records, operating permits, certificates of
occupancy, municipal approvals and other governmental permits and
copies of Contracts copies of which have not previously been
delivered to Purchaser, which in all such cases, are kept at the
Hotels; and
(f) any books and records of the operations of the Premises necessary to
confirm the accuracy of the Financial Statements and the Audited
Financials, which in all such cases are kept at the Hotels or at the
offices of Manager.
Within four (4) Business Days of Purchaser's request therefor, Sellers shall
make available for inspection at one or more of the Hotels or at their offices
in New York any Inspection Items described in clauses (e) and (f) above which
are located at Manager's offices.
Except for the representations and warranties set forth in Section 12.3
(to the extent applicable), Sellers make no representations or warranties as to
the accuracy or completeness of any of the foregoing Inspection Items or other
materials provided or made available to Purchaser, and
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Purchaser's sole remedy for any such inaccuracy or lack of completeness shall be
to terminate this Agreement during the Feasibility Period.
3.2. (a) If Purchaser shall terminate this Agreement as permitted pursuant
to Section 3.1 on or before the last day of the Feasibility Period, then
Purchaser shall be entitled to a refund of the Deposit less $50,000, and Sellers
shall be entitled to immediate payment from Escrow Agent of such $50,000 portion
of the Deposit as option money and consideration for the Feasibility Period and
the opportunity to conduct due diligence on the Premises during the Feasibility
Period; provided, however, that notwithstanding the foregoing, if (i) Purchaser
certifies in the Termination Notice that (x) its termination of this Agreement
is based solely upon a material defect in or problem with the Premises which has
been uncovered by Purchaser and was either unknown to Purchaser prior to the
Date of this Agreement or the materiality or consequences of which were not
understood by Purchaser prior to the Date of this Agreement, and which is
described with specificity in the Termination Notice, and (y) that it has
obtained financing for this transaction and is not terminating this Agreement
because of an inability to obtain a commitment from a lender willing to finance
this transaction, and (ii) Sellers do not provide notice to Escrow Agent that
they wish to dispute the matters set forth in clause (i) of this sentence, then
such $50,000 portion of the Deposit shall be refunded by Escrow Agent to
Purchaser. For purposes of the immediately preceding sentence, the term
"material defect in or problem with the Premises" shall mean: (i) any defect or
problem with the Premises which prevents Purchaser from obtaining financing for
this transaction from prospective lenders; (ii) the failure of the franchisor of
the Premises currently operated as Fairfield Inns to execute and deliver to
Purchaser an estoppel and comfort letter in the form contemplated by this
Agreement; or (iii) the failure of the franchisor of the Premises currently
operated as Cricket Inns to execute and deliver to Purchaser an estoppel and
comfort letter in the form contemplated by this Agreement.
3.3. Whether or not Purchaser terminates this Agreement as permitted
pursuant to Section 3.1 hereof the non-refundable $50,000 fee paid by Purchaser
to Sellers on or about August 12, 1996, upon execution of the term sheet in
connection with this transaction, shall be non-refundable and fully earned by
Sellers, provided that if the Closing takes place, the non-refundable $50,000
fee shall be applied as a credit against the Purchase Price in accordance with
Section 2.2 hereof.
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3.4. At least 15 days prior to the expiration of the Feasibility Period,
Sellers shall, after consultation with Purchaser, prepare and provide to
Purchaser a schedule setting forth all material damages to the Wilmington
Property and the Raleigh Property resulting from Hurricane Fran on or about
September 5, 1996, and corresponding cost estimates for their repair (such
schedule shall be referred to herein as the "Damage Schedule"). Sellers shall,
at their option, either (a) make any or all repairs with respect to the damage
represented in the Fran Damage Schedule prior to the Closing Date, or (b) credit
Purchaser at Closing with the cost of such repairs Bet forth on the Fran Damage
Schedule, to the extent such repairs have not been completed prior to the
Closing Date. In the event that Sellers elect to make any repairs with respect
to the damage represented in the Fran Damage Schedule pursuant to this Section
3.4, Sellers agree to provide Purchaser with copies of all documentation
relating to the same, including evidence of lien free completion, and to assign
all related warranties and guaranties to the extent assignable to Purchaser at
Closing.
3.5. During the Feasibility Period, Sellers shall use good faith efforts
(which shall not include the expenditure of any funds or the making of any
changes, alterations or improvements at any Premises or otherwise) to obtain
estoppel and comfort letters from the two franchisors under the franchise
agreements described in Exhibit B hereto (the "Franchise Agreements") in a form
reasonably satisfactory to Purchaser's prospective lender. A proposed form of
such estoppel and comfort letter shall be provided to Sellers by Purchaser
within 10 Business Days from the Date of this Agreement. Except as provided in
this Section 3.5, Purchaser shall pay any and all fees or other costs or
expenses incurred directly or indirectly in connection with such franchisors'
execution and delivery to Purchaser of such estoppel and comfort letters. If
Sellers fail to obtain such estoppel and comfort letters from such franchisors,
then Purchaser's sole remedy shall be to terminate this Agreement during the
Feasibility Period in accordance with Section 3.1 hereof and receive a full
refund of its Deposit. After the Feasibility Period Purchaser shall be deemed to
have waived the applicability of the foregoing provisions of this Section 3.5,
provided that, if the aforesaid estoppel certificates are obtained during the
Feasibility Period, Sellers shall, if so requested by Purchaser, in good faith
request of the relevant franchisors a second estoppel certificate (in the same
form as the first) dated as of a date within iS days of the Closing Date. Except
as provided above, Purchaser shall be responsible for obtaining any and all
consents or approvals required to be obtained from the franchisors under the
Franchise Agreements in connection with the sale of the Premises to
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Purchaser and the assignment to and assumption by Purchaser of the Franchise
Agreements as contemplated hereby. Purchaser shall provide to Sellers evidence
of its having obtained any such required consents or approvals at or prior to
the expiration of the Feasibility Period. The transfer fees provided for in
Section 3 of Addendum Two to each of the Franchise Agreements applicable to the
Fairfield Inn Properties (the "Fairfield Franchise Agreements"), which are
required to be paid under the Franchise Agreements in connection with the
assignment and assumption of the Franchise Agreements or the sale of Premises
pursuant to this Agreement shall be paid by Sellers to the relevant
franchisor(s) at or prior to the Closing (the "Addendum Two Transfer Fee"), and
any other transfer fees, costs and expenses, if any, required to be paid under
the Franchise Agreements in connection with the transactions contemplated hereby
shall be paid by Purchaser to the relevant franchisor(s) at or prior to the
Closing. Sellers shall cooperate with Purchaser in its dealings with the
franchisors under the Franchise Agreements which are required pursuant to this
Section 3.5. In the event that the transactions contemplated hereby result in a
default or termination of any Franchise Agreement, then from and after the
Closing Date Purchaser shall be solely responsible and liable for all related
costs, expenses, fees and damages and shall fully indemnify Sellers against
same. Purchaser's foregoing obligations shall survive the Closing.
3.6. Sellers and Purchaser shall cooperate and take all actions necessary,
in a diligent and expeditious manner, to effectuate the inspections and reviews
contemplated by this Section 3 during the Feasibility Period. Purchaser and its
representatives and agents shall be provided with access to the Premises at all
reasonable times (subject to the notice to Sellers required hereinafter), in
order to inspect the Premises, including but not limited to, taking soil samples
and test borings (upon receipt of prior written consent from Sellers as set
forth hereinafter) and conducting environmental studies, engineering studies and
other such inspections and reviews that Purchaser shall deem reasonably
necessary to determine the condition and financial status of the Premises.
Purchaser shall not make any borings or holes in any part of the Premises or
otherwise damage any part of the Premises in any manner or to any extent unless
prior written consent is given by Sellers thereto, which consent shall not be
unreasonably withheld, and provided, further, that Sellers may prohibit any
boring that might void any roof warranty and that all borings, holes, or other
damage shall be repaired promptly by Purchaser.
3.7. In the event that the transaction contemplated by this Agreement does
not close for any reason, Purchaser
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shall have the obligation to remediate any damage caused by Purchaser or its
representatives or agents to the Premises and to restore the Premises to their
condition prior to Purchaser's damage, which obligation shall survive any
termination of this Agreement. The terms of this Agreement and all information
furnished by Sellers to Purchaser in accordance with the provisions of this
Agreement or obtained by Purchaser in the course of its investigations shall be
treated as confidential information by Purchaser, except as such disclosure may
be required by applicable state or federal environmental laws and except that
Purchaser may disclose such information to prospective investors and lenders, as
well as attorneys and other parties assisting or representing Purchaser in
connection with the subject transaction, provided, however, that nothing herein
shall restrict or impair any disclosures which Purchaser may be required to make
by virtue of rules and regulations of the Securities and Exchange Commission
(the "SEC") applicable to Purchaser, if any. The foregoing obligation to treat
such information as confidential shall survive any termination of this Agreement
but shall not survive Closing.
3.8. Purchaser covenants and agrees that the Premises shall not be damaged
or impaired in any way as the result of its aforesaid activities on the
Premises, and hereby agrees to indemnify and hold Sellers harmless from and
against any claims, causes of action, damages, expenses (including attorneys'
fees) or liabilities of whatsoever nature to the extent incident to, resulting
from or in any way arising out of the presence in, on or about the Premises of
Purchaser, or Purchaser's agents or representatives, or out of any test or
inspection conducted by or any other act or omission of Purchaser on the
Premises. Such indemnity shall survive the Closing or any termination of this
Agreement.
3.9. Purchaser shall make all inspections provided for herein in good
faith and with due diligence. All inspection fees, appraisal fees, engineering
fees and other expenses of any kind (including, without limitation, expenses
related to environmental and engineering studies) incurred by Purchaser relating
to the inspection of the Premises will be solely Purchaser's expenses and will
be paid timely by Purchaser, except that Purchaser shall not become liable
solely by virtue of this sentence for remediation costs relating to Hazardous
Materials (as defined below) discovered by Purchaser on any Property as long as
Purchaser did not and does not cause, accelerate or increase, in whole or in
part, directly or indirectly, the need or extent of the required remediation.
Sellers hereby reserve the right to have a representative present at the time of
making any such inspection. Purchaser shall cause any and
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all surveys, engineering reports, environmental reports, feasibility studies,
title reports, audits and other tests, studies or reports prepared for or
obtained by Purchaser in connection with the Premises (collectively, the
"Purchaser Resorts") to be certified to Sellers as well as to Purchaser and
Purchaser shall deliver a copy of each such report to Sellers promptly after
receipt thereof. In making any inspection hereunder, Purchaser will, and will
cause any representative of Purchaser to, use discretion so as to not disrupt
any guest, tenant or customer of the Premises. Purchaser shall notify Sellers
not less than one (1) Business Day in advance of making any such inspection.
3.10. If Purchaser shall validly terminate this Agreement during the
Feasibility Period pursuant to this Section 3, or if the Closing shall otherwise
fail to occur, Purchaser shall return to Sellers the originals and all copies of
all material relating to the Premises furnished to Purchaser pursuant to this
Agreement and shall not make or retain any copies thereof and shall also deliver
to Sellers the originals and all copies of the Purchaser Reports, together with
an absolute assignment of all Purchaser's right, title and interest therein, and
Purchaser shall not make or retain any copies thereof.
3.11. Prior to the expiration of the Feasibility Period, the Seller which
holds leasehold title to the Statesville Property shall use reasonable efforts
(which shall not include the expenditure of any funds or the making of any
changes, alterations or improvements at the Statesville Property or otherwise)
to obtain from the ground lessor under the Statesville Ground Lease and to
deliver to Purchaser an estoppel certificate (a) in the form provided for in
Article XV of the Statesville Ground Lease with the addition of an
acknowledgment of the lack of necessity for approval of the proposed assignment
of the Statesville Ground Lease as contemplated hereby; or (b) in such other
form as may be required by Purchaser's prospective lender for the acquisition
contemplated hereby and which shall be provided to Sellers within 10 Business
Days after the Date of this Agreement. If such Seller fails to obtain such an
estoppel certificate, Purchaser's sole remedy shall be to terminate this
Agreement during the Feasibility Period in accordance with Section 3.1 hereof.
After the Feasibility Period Purchaser shall be deemed to have waived the
applicability of this Section 3.11, provided that, if the aforesaid estoppel
certificate is obtained during the Feasibility Period, the relevant Seller
shall, if so requested by Purchaser, in good faith request of the ground lessor
a second estoppel certificate (in the same form as the first) dated as of a date
within 15 days of the Closing Date.
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3.12. Purchaser shall provide to Sellers, at least five (5) Business Days
prior to the expiration of the Feasibility Period, evidence of Purchaser's
unconditional ability to finance the acquisition of the Premises and the payment
of the Purchase Price pursuant to Section 2.2 of this Agreement. Sellers agree
that for purposes hereof, a comfort letter from Purchaser's prospective lender
which provides reasonable assurances as to the availability of financing shall
constitute evidence of Purchaser's unconditional ability to finance the
acquisition of the Premises and the payment of the Purchase Price.
3.13. If this Agreement is terminated pursuant to this Section 3 and the
Deposit is disbursed as set forth in this Section 3 and in Section 13, then,
except as specifically set forth in this Agreement, neither party shall have any
further obligations or liabilities hereunder.
Section 4. TITLE AND SURVEY.
4.1. Purchaser shall obtain, at its sole cost and expense a title report
and survey for each of the Properties from a national title insurance company.
At least five (5) days prior to the expiration of the Feasibility Period,
Purchaser shall deliver copies of such title reports and surveys to Sellers and
notify (the "Title Notice") Sellers which, if any, of the liens, defects,
encumbrances or other matters disclosed thereby are objectionable to Purchaser
(the "Title Defects"). Within two (2) Business Days after receipt by Sellers of
the Title Notice, Sellers shall notify Purchaser if Sellers are willing and able
to cure any of the Title Defects (the "Cure Notice"). All title defects,
encumbrances and other matters which are a matter of public record on or before
the expiration of the Feasibility Period or which are otherwise disclosed by
Purchaser's title reports or surveys for the Properties, except for Title
Defects which are objected to by Purchaser and which Sellers agree to cure in
the Cure Notice, shall be deemed "Permitted Exceptions" which Purchaser shall
take title subject to. Sellers shall have no obligation to cure any Title
Defects, except for mortgages, mechanics liens, monetary judgments or delinquent
real estate taxes, which Sellers agree to bond or pay off at or prior to the
Closing. In the event Sellers are unable or unwilling to cure any Title Defects
which are material to the Properties, taken as a whole, then Purchaser shall
have the right, as its sole remedy, to terminate this Agreement pursuant to
Section 3.1 hereof prior to the expiration of the Feasibility Period. After the
Feasibility Period, Purchaser shall be deemed to have waived its rights under
this Section 4.1 and to have accepted the quality
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and condition of title to the Premises subject only to the Permitted Exceptions.
Section 5. CLOSING.
5.1. The closing of this transaction (the "Closing") shall occur on
November 27, 1996 or on such sooner date as the parties may agree upon in
writing (as the case may be, the "Closing Date") at 10:00 a.m. at the offices of
Sellers' counsel, Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York,
New York 10019.
5.2. At the Closing, Sellers shall deliver to Purchaser the following:
(a) Special or limited warranty deeds conveying fee simple title to each
of the Properties other than the Statesville Property, and an
assignment of the Statesville Ground Lease and all of Sellers' other
interests in the Statesville Property subject only to the Permitted
Exceptions;
(b) Bills of sale conveying the Personalty and Inventory, containing
special or limited warranties of title (but no warranties of any
other kind);
(c) An assignment of Sellers' interests in and to all Contracts,
Permits, Intangible Rights and warranties and guarantees relating to
the condition of the Premises (in each case, to the extent legally
assignable), without any representations or warranties contained
therein;
(d) Originals of the Contracts and Permits, to the extent in Sellers'
Possession;
(e) A certificate of Sellers dated as of the Closing that Sellers are
not foreign persons or corporations within the meaning of Sections
1445 and 7701 of the Internal Revenue Code (the "IRC");
(f) An affidavit of title reasonably satisfactory to Purchaser's title
insurance company to enable such title insurance company to issue to
Purchaser a title insurance policy for the Properties without
exception for mechanics' or materialmens' or other statutory liens
or for the
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rights of parties in possession other than temporary hotel patrons;
(g) Evidence of Sellers' due formation, good standing in Delaware,
qualification to do business in the respective States in which
Sellers do business, and authority to consummate the transactions
contemplated hereby;
(h) Originals of documents included in the definition of "Intangible
Rights", to the extent in Sellers' possession;
(i) An estoppel certificate from the ground lessor under the Statesville
Ground Lease, if obtained pursuant to Section 3.11;
(j) Estoppel and comfort letters from the franchisors under the
Franchise Agreements, if obtained pursuant to Section 3.5; and
(k) Such other instruments as are customarily executed by Sellers to
effectuate the sale of property similar to the Premises, provided
that this subpart (k) shall not require Sellers to incur expenses,
liabilities or obligations in excess of those provided for elsewhere
in this Agreement.
At the Closing, Sellers shall also bond or pay off any mortgages, mechanics'
liens, monetary judgments or delinquent real estate taxes which encumber any
Property. None of Sellers' conveyance documents shall have general warranties of
title or any other representations or warranties except as specifically provided
above.
5.3. At the Closing, Purchaser shall deliver to Sellers the following:
(a) The sum of Fifty-Three Million Five Hundred Thousand and NO/100
Dollars ($53,500,000), plus the Stock Price Adjustment Amount, if
any (and Purchaser shall also cause Escrow Agent to deliver to
Sellers the Escrow Deposit);
(b) Certificates (bearing a restrictive legend, which legend Hudson
shall remove following registration of the Shares as contemplated
under
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Section 15.3) representing the Shares, free and clear of all liens,
with all necessary share transfer and other documentary stamps
attached;
(c) Evidence of Purchaser's due formation, good standing in New York,
qualification to do business in each state in which it does
business, and authority to consummate the transactions contemplated
hereby;
(d) An assumption agreement pursuant to which Purchaser will assume all
obligations of Sellers under or in connection with the Contracts,
Permits and Intangible Rights and will agree to cooperate with
Sellers to cause Sellers to be released from any future obligations
or liabilities under the Contracts;
(e) Evidence that Purchaser has performed all of its obligations under
Section 3.5, including, without limitation, that Purchaser has paid
all fees, costs and expenses and obtained all consents and approvals
required to be paid or obtained by Purchaser under Section 3.5;
(f) Such other instruments as are customarily executed by purchasers to
effectuate the purchase of property similar to the Premises,
provided that this subpart (f) shall not require Purchaser to incur
expenses, liabilities or obligations in excess of those provided
elsewhere in this Agreement.
5.4. At the Closing, Hudson shall deliver to Sellers the following:
(a) The Note (naming Sellers or any designee of Sellers as the payee);
(b) An opinion of Hudson's counsel with respect to (i) the validity and
enforceability of the Note, (ii) the valid issuance and due
authorization of the Shares (which shall further include that the
Shares have been fully paid, are nonassessable and are free and
clear of all security interests and other encumbrances), (iii) if
Sellers so elect pursuant to Section 15.7, the due authorization of
the board of directors of Hudson with respect to the placement of
the Sellers Nominee on Hudson's board of directors, (iv) Hudson's
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authority to enter into the Note and issue the Shares, and (v) other
customary matters relating to the Shares and the Note (which opinion
shall be customary in form and substance and shall be reasonably
acceptable to Sellers);
(c) If Sellers so elect pursuant to Section 15.7 to place a Sellers
nominee on Hudson's board of directors immediately following
Closing, evidence satisfactory to Sellers that the board of
directors of Hudson shall have adopted a resolution authorizing the
placement of the Sellers Nominee (as defined hereinafter) on the
board of directors of Hudson in accordance with the terms of Section
15.7 hereof, and approving any necessary expansion of the number of
directors constituting such board of directors, all in accordance
with the requirements of any corporate charter, certificate of
incorporation or bylaws of Hudson;
(d) Evidence of Hudson's due formation, good standing in New York,
qualification to do business in each state in which Hudson does
business, and authority to consummate the transactions contemplated
hereby; and
(e) Such other instruments as are customarily executed in similar
transactions, provided that this subpart (e) shall not require
Hudson to incur expenses, liabilities or obligations in excess of
those provided elsewhere in this Agreement.
Sellers and Hudson agree to negotiate in good faith and attempt to reach
agreement as to the form of the opinion referred to in Section 5.4(b) above
prior to the expiration of the Feasibility Period.
5.5. At the Closing, Purchaser shall, and does hereby, assume all
obligations of Sellers pursuant to the Contracts, including the Statesville
Ground Lease and the Franchise Agreements. Purchaser will cooperate with Sellers
in all respects to cause Sellers to be released from any future obligations or
liabilities under any Contract. The parties shall enter into an assignment and
assumption agreement at the Closing in respect of the Contracts (the "Assignment
and Assumption Agreement") which shall contain reciprocal indemnities pursuant
to which Sellers shall indemnify Purchaser against liabilities arising under the
Contracts prior to the Closing and Purchaser
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shall indemnify Sellers against liabilities arising under the Contracts after
the Closing. Notwithstanding the foregoing, Purchaser shall not assume liability
for any employees of Sellers or any other persons who otherwise worked at any
Property prior to the Closing, and the Assignment and Assumption Agreement shall
expressly exclude such liability.
5.6. Purchaser shall pay all costs and expenses associated with obtaining
any title commitments, title policies, title insurance, surveys, environmental
reports and other due diligence reports with respect to the Premises. At the
Closing, Purchaser and Sellers shall each pay fifty (50%) percent of all
transfer taxes, conveyance fees, documentary stamps, and other similar taxes and
charges imposed by any governmental authority in connection with the conveyance
of the Premises to Purchaser. Purchaser shall pay all expenses in connection
with the issuance of the Shares. Purchaser shall pay any recording fees relating
to the deeds and other instruments of conveyance and any mortgage or deed of
trust recording taxes or fees in connection with any financing obtained by
Purchaser. Sellers shall pay all accounting and other fees associated with the
preparation and delivery of the Audited Financials. Each party shall be
responsible for its own attorneys' fees and other professional fees. Except as
otherwise provided herein or elsewhere in this Agreement, all other costs
associated with the Closing will be borne by Purchaser.
Section 6. DELIVERY OF POSSESSION. Sellers shall deliver actual and
exclusive possession of the Properties to Purchaser on the Closing Date.
Section 7. CASUALTY AND CONDEMNATION.
7 1. If, prior to the Closing, any Material Portion (as defined below) of
any Hotel shall be destroyed by one or more incidents of fire or other casualty,
Sellers shall, promptly after learning of same, give Purchaser notice of such
occurrence, and Purchaser shall, within ten (10) days after receipt of such
notice, elect either (a) to exclude such Hotel from the Premises to be sold and
purchased under this Agreement, in which event the Purchase Price shall be
reduced by the Purchase Price Reduction Amount (as defined below) and such Hotel
and all related property shall be excluded from this transaction and retained by
the applicable Seller, or (b) to acquire such Hotel along with the remainder of
the Premises without any adjustment to the Purchase Price and close the
transaction contemplated hereby as scheduled, in which event Purchaser shall
have the right to Participate in the adjustment
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and settlement of any insurance claim relating to such damage, and Sellers shall
assign and/or pay to Purchaser at the Closing all insurance proceeds collected
or claimed with respect to said damage. If Purchaser does not make any election
within said ten (10) day period, or if the fire or other casualty does not
result in a loss of a Material Portion of any Hotel, Purchaser shall be deemed
to have elected to close this transaction as provided in (b) above. The term
"Material Portion" means any portion having a value in excess of $5 million. The
term "Purchase Price Reduction Amount" shall mean, with respect to any Hotel
which is excluded from the Premises to be sold and purchased hereunder pursuant
to this Section 7.1, or pursuant to Section 7.2 below, the portion of the
Purchase Price allocable to such Hotel pursuant to Exhibit E.
7.2. If, prior to the Closing, any proceeding (judicial, administrative or
otherwise) which shall relate to the proposed taking of a Material Portion of
any Hotel by condemnation or eminent domain or any action in the nature of
eminent domain, is commenced, Sellers shall promptly after learning of same give
Purchaser notice of such occurrence and Purchaser shall, within ten (10) days
after receipt of such notice, elect either (a) to exclude such Hotel from the
Premises to be sold and purchased pursuant to this Agreement, in which event the
Purchase Price shall be reduced by the Purchase Price Reduction Amount and such
Hotel and all related property shall be excluded from this transaction and
retained by the applicable Seller or (b) to acquire such Hotel along with the
remainder of the Premises without any adjustment to the Purchase Price and close
the transaction contemplated hereby as scheduled, in which event Purchaser shall
have the right to participate in the proceedings affecting such Hotel and the
entire award from such proceedings shall be paid or assigned to Purchaser at the
Closing. If Purchaser does not make any election within said ten (10) day
period, or if the proposed taking does not result in a loss of a Material
Portion of any Hotel, Purchaser shall be deemed to have elected to close this
transaction as provided in (b) above.
Section 8. REMEDIES.
8.1. If this transaction fails to close by reason of Purchaser's or
Hudson's failure to perform its obligations under this Agreement, and such
failure is not cured within five (5) days after notice thereof from Sellers to
Purchaser, then the Deposit shall be paid by Escrow Agent to, and shall be
retained by, Sellers as full liquidated damages, the parties hereby
acknowledging and agreeing that the amount of Sellers' actual damages in such
circumstances would be difficult, if not
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impossible, to determine. Sellers shall have no obligation to close the
transactions contemplated hereby if either Hudson or Purchaser shall fail to
perform or shall be in breach of its obligations hereunder. It shall be a
condition to Sellers' obligation to close hereunder that no material adverse
change shall have occurred in the condition, financial results or operations of
Hudson or Purchaser after the Date of this Agreement.
8.2. If this transaction fails to close by reason of Sellers' failure to
perform their obligations under this Agreement and such failure is not cured
within five (5) days after notice thereof from Purchaser to Sellers, then
Purchaser shall be permitted to seek specific performance as its sole remedy,
provided that if Sellers are unable or unwilling to convey the Premises to
Purchaser at Closing in accordance with Section 5.2 then Purchaser shall also be
permitted, as an alternative to seeking specific performance, to terminate this
Agreement and obtain a refund of the Deposit as its sole remedy. Purchaser's
remedies for breach shall be limited to those specified in the immediately
preceding sentence.
Section 9. PRORATIONS. All income (excluding cash on hand and accounts
receivable, which shall be and remain the property of Sellers), current
operating expenses, association or trade group dues, accounts payable, real
estate taxes, other taxes and assessments, all utilities, water and sewer
charges, transferable license or permit fees, real estate and personal property
ad valorem taxes (provided that, personal property ad valorem taxes shall not be
prorated to the extent that Purchaser provides to Sellers evidence prior to the
expiration of the Feasibility Period that local law where any of the Hotels are
located would require Purchaser to pay such taxes that have already been paid by
or on behalf of the respective Seller), phone bills, office bills, prepayments
made under the Contracts and other income and expenses from or relating in each
case to the Premises shall be adjusted and prorated as of the Closing, with
Purchaser being entitled to all income and responsible for all expenses accruing
after the Closing and Sellers being entitled to all income and responsible for
all expenses accruing prior to the Closing. Sellers shall provide Purchaser with
a list of all contracts subject to prorations for Purchaser's review at least
two (2) weeks prior to Closing. Sellers and Purchaser agree that inventories at
any of the Hotels shall not be prorated. If any items of income or expense are
unascertainable on the Closing Date, a readjustment of such charges and expenses
shall be made within sixty (60) days after the Closing or, in the case of
property taxes for which tax bills are not yet available, promptly after such
tax bills become
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available. The parties agree to cooperate in good faith in effecting such a
final reconciliation and each party shall promptly pay (or reimburse the other
party for) any expense item that is chargeable to the former party and shall
promptly remit any income item to the other party if the other is entitled
thereto. Sellers shall use reasonable efforts to arrange for the rendition of
final bills by the utility companies involved as of the Closing Date. Sellers
shall use reasonable efforts to provide Purchaser with accountings for vending
machines and commissions as of the Closing Date. Sellers shall credit Purchaser
with the cost of repairs that have not been completed as of Closing with respect
to damage caused by Hurricane Fran as set forth on the Fran Damage Schedule, as
more fully set forth in Section 3.4.
Guest room revenues of the Premises, whether in cash or in accounts
receivable, arising from occupancy for the night beginning on the day preceding
the Closing Date, including any tax thereon, but exclusive of food, beverage,
telephone and similar charges (which shall be retained by Sellers), shall be
credited one half to Purchaser and one half to Sellers. Sellers shall collect
all income and other sums payable by tenants or guests (or otherwise) and shall
be responsible for the payment of all expenses on account of services and
supplies furnished to and for the benefit of the Premises through the Closing.
Purchaser shall purchase and Sellers shall be credited for guest ledger
receivables and for any and all cash that is in the cash drawer of each of the
Hotels on the Closing Date. On the Closing Date, Sellers will not remove any
other house funds or petty cash from the Premises until Purchaser is ready to
start its operations. Purchaser shall be credited with all deposits from tenants
or guests of the Premises (whether refundable or not) which relate to post-
Closing services. Sellers shall remit to Purchaser at Closing all prepaid room
charges for nights after the Closing Date. In addition, at Closing, Sellers
shall deliver to Purchaser a schedule of all unpaid accounts receivable and
other unpaid income items as of Closing. All such accounts receivable and other
income items paid to and collected by Purchaser after Closing shall be promptly
remitted to the order of Sellers. Except for sums actually received by Purchaser
pursuant to the immediately preceding sentence, Purchaser shall assume no
obligation to collect or enforce the payment of any amounts that may be due to
Sellers, except that Purchaser shall render reasonable assistance, at no expense
to Purchaser, to Sellers after Closing in the event Sellers proceed against any
third party to collect any accounts receivable or other income items due
Sellers. Purchaser shall have the right to pursue collection of such items after
the Closing without Sellers' consent or involvement.
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In the event any adjustments pursuant to this Section 9 are, within one
(1) year subsequent to Closing, found to be erroneous, then if either party
hereto is entitled to additional monies and shall invoice the other party for
such additional amounts as may be owing, such amounts shall be paid promptly by
the other party upon receipt of the invoice. Such invoice shall be accompanied
by reasonable substantiating evidence.
The provisions of this Section 9 shall survive the Closing.
Section 10. NOTICES. Any notice to be given by either Sellers or Purchaser
shall be in writing and shall be either delivered personally or by certified or
registered U.S. Mail, postage prepaid, or by overnight courier delivery service
with charges to the sender, as follows:
To Sellers: SB Motel Richmond Corp.
SB Motel Durham Research Triangle Park Corp.
SB Motel Cary Corp.
SB Motel Statesville Corp.
SB Motel Wilmington Corp.
SB Motel Columbia Corp.
SB Motel Charleston Corp.
SB Motel Albany Corp.
SB Motel Virginia Beach Corp.
SB Motel Durham-Duke Corp.
SB Motel Raleigh Corp.
SB Motel Charlotte 185 Corp.
Seven World Trade Center, 33rd Floor
New York, New York 10048
Attn: John P. Buza, Vice President
With copies to: Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attn: Robin Panovka
To Purchaser: Hudson Hotels Properties Corp.
One Airport Way, Suite 200
Rochester International Airport
Rochester, NY 14624
Attn.: E. Anthony Wilson, Chairman
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With copies to: Boylan, Brown, Code, Fowler, Vigdor
& Wilson, LLP
2400 Chase Square
Rochester, NY 14604
Attn: Stephens M. Fowler
To Hudson: Hudson Hotels Corporation
One Airport Way, Suite 200
Rochester International Airport
Rochester, NY 14624
Attn.: E. Anthony Wilson, Chairman
With copies to: Boylan, Brown, Code, Fowler, Vigdor & Wilson, LLP
2400 Chase Square
Rochester, NY 14604
Attn: Stephens M. Fowler
To Escrow Agent: Lawyers Title Insurance Corporation
708 Third Avenue
New York, NY 10017
Attention: Stephanie Butler
Any notice, demand or other communication shall be deemed given and effective as
of the date of delivery in person or by receipt set forth on the verification of
delivery or return receipt. The inability to deliver because of a changed
address of which no notice was given, or rejection or other refusal to accept
any notice, demand or other communication, shall be deemed to be receipt of the
notice, demand or other communication as of the date of such attempt to transmit
or deliver or rejection or refusal to accept. Any party may change addresses for
notices by delivering written notice of such change in accordance with this
Section 10.
Section 11. BROKERAGE COMMISSIONS. Purchaser, Hudson and Sellers each
represent and warrant to the other that such party has not dealt with or
employed any broker or agent in connection with this transaction and that, to
such party's knowledge, no commission or finder's fee will be owing to any third
party in connection with this transaction. Sellers agree to, and hereby do,
indemnify and save harmless Purchaser and its affiliates and their respective
successors and assigns from and against any loss, liability or expense,
including reasonable attorneys' fees, arising out of any claim or claims for
commissions or other compensation for bringing about this Agreement or the
transactions contemplated hereby made by any broker, finder, consultant or like
agent if such claim or
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claims made by any such broker, finder, consultant or like agent are based in
whole or in part on any agreements or understandings entered into with Sellers
or their representatives for a commission or other compensation. Purchaser and
Hudson agree to, and hereby do, indemnify and save harmless Sellers and their
affiliates and respective successors and assigns against and from any loss,
liability or expense, including reasonable attorneys' fees, arising out of any
claim or claims for commission or other compensation for bringing about this
Agreement or the transactions contemplated hereby made by any broker, finder,
consultant or like agent if such claim or claims made by any such broker,
finder, consultant or like agent are based on any agreements or understandings
entered into with Purchaser or its representatives for commissions or other
compensation. The indemnities set forth in this Section 11 shall survive the
Closing.
Section 12. REPRESENTATIONS AND WARRANTIES.
12.1. Purchaser represents and warrants to Sellers that:
(a) Purchaser is, and as of the Closing shall be, a corporation duly
organized, validly existing and in good standing under the laws of
the State of New York, and has and as of the Closing shall have all
requisite power to enter into and perform its obligations under this
Agreement and under any other document or instrument required to be
executed and delivered on behalf of Purchaser hereunder.
(b) Purchaser is, and as of the Closing shall be, authorized to enter
into this Agreement and to consummate the transactions contemplated
hereby, and the individuals executing this Agreement on behalf of
Purchaser are also duly authorized to execute this Agreement and to
bind Purchaser to consummate such transactions. The execution of
this Agreement by Purchaser shall, within five (5) Business Days of
the Date of this Agreement, be duly authorized by proper corporate
action, including by resolution of the board of directors of
Purchaser. If evidence of such due authorization is not provided to
Sellers within such period referenced above, Sellers shall have the
right to terminate this Agreement.
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(c) Purchaser is not nor as of Closing shall be a foreign entity,
foreign corporation, foreign partnership, foreign trust or foreign
estate (as those terms are defined in the Internal Revenue Code and
Income Tax regulations).
(d) Neither the entry into nor compliance with this Agreement by
Purchaser has resulted, or as of Closing will result, in any
violation of, or default under, or result in the acceleration of,
any obligation under any existing corporate charter, certificate of
incorporation or bylaws of Purchaser.
(e) There is no action, suit or proceeding, pending or, to Purchaser's
knowledge, threatened, against Purchaser in any court or before any
arbitrator or before any governmental body which (a) in any manner
raises any question affecting the validity or enforceability of this
Agreement or any other agreement or instrument required hereunder to
be entered into by Purchaser or (b) could materially and adversely
affect the ability of Purchaser to perform its obligations
hereunder.
(f) Except as contemplated hereby, neither the execution and delivery by
Purchaser hereof nor the consummation by Purchaser of the
transactions contemplated hereby in accordance with the terms
hereof, will require any consent, approval or authorization of, or
declaration, filing or registration with, any government authority.
(g) To Purchaser's knowledge, there is no litigation affecting the
Purchaser which could materially and adversely affect the ability of
Purchaser to perform its obligations under this Agreement or any
other agreement or instrument required hereunder to be entered into
by Purchaser.
The term "Purchaser's knowledge" or any similar phrase, as used above, shall
mean the actual knowledge, without specific investigation, of E. Anthony Wilson,
the Chairman and CEO of Purchaser or Bruce A. Sahs, the President and COO of
Purchaser.
12.2. Hudson represents and warrants to Sellers that, as of the date
hereof and as of the Closing Date:
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(a) Hudson is a corporation duly organized, validly existing and in good
standing under the laws of the State of New York, and has all
requisite power to enter into and perform its obligations under this
Agreement, the Note and any other document or instrument required to
be executed and delivered by Hudson hereunder.
(b) Hudson is authorized to enter into this Agreement and the Note and
to consummate the transactions contemplated hereby and thereby, and
the individuals executing this Agreement and the Note on its behalf
are also duly authorized to execute this Agreement and the Note and
to bind Hudson to consummate such transaction. The execution of this
Agreement and the Note by Hudson shall, within five (5) Business
Days of the Date of this Agreement, be duly authorized by proper
corporate action, including by resolution of the board of directors
of Hudson. If evidence of such due authorization is not provided to
Sellers within such period referenced above, Sellers shall have the
right to terminate this Agreement.
(c) Hudson is not a foreign entity, foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are
defined in the Internal Revenue Code and Income Tax regulations).
(d) There is no action, suit or proceeding, pending or, to Hudson's
knowledge, threatened, against either Hudson in any court or before
any arbitrator or before any governmental body which (a) in any
manner raises any question affecting the validity or enforceability
of this Agreement, the Shares, the Note or any other agreement or
instrument required hereunder or thereunder to be entered into by
Hudson or (b) except as disclosed in Exhibit G attached hereto,
could materially and adversely affect the ability of Hudson to
perform its obligations hereunder or thereunder.
(e) The authorized capital stock of Hudson as of the date hereof
consists and as of Closing shall consist of 20,000,000 shares of
Hudson Common Stock and 10,000,000 shares of Hudson Preferred Stock.
As of August 31, 1996 there are
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4,415,805 shares of Hudson Common Stock and 294,723 shares of Hudson
Preferred Stock issued and outstanding. All such issued and
outstanding shares of Hudson Common Stock are duly authorized,
validly issued, fully paid, nonassessable and free of preemptive
rights.
(f) As of the Closing the Shares to be acquired pursuant to this
Agreement shall be duly authorized for issuance, and upon issuance
will be duly and validly issued, fully paid, nonassessable and free
of preemptive rights.
(g) Except as contemplated hereby, neither the execution and delivery by
Hudson hereof nor the consummation by Hudson of the transactions
contemplated hereby in accordance with the terms hereof, will: (i)
conflict with or result in any breach or violation of, or default
under, or result in the acceleration of, any obligation under any
existing corporate charter, certificate of incorporation or bylaws
of Hudson; (ii) violate or conflict with any statute, regulation,
judgment, order, writ, decree or injunction applicable to Hudson or
any of its subsidiaries; (iii) violate or conflict with or result in
a breach of any provision of, or constitute a default (or any event
which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination or in a right of
termination or cancellation of, or accelerate the performance
required by, or result in the creation of any lien upon any of the
properties of Hudson or any of its subsidiaries under, or result in
being declared void, void able or without further binding effect,
any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust or any license, franchise,
permit, lease, contract, agreement or other instrument, commitment
or obligation to which Hudson or any of its subsidiaries is a party,
or by which Hudson or any of its subsidiaries or any of its
properties is bound or affected; or (iv) require any consent,
approval or authorization of, or declaration, filing or registration
with, any government authority, other than any filings required
under the Securities Act of 1933, as amended (the "Securities Act"),
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), state
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securities laws ("Blue Sky Laws") (collectively, the "Regulatory
Filings") and any filings required to be made with any national
securities exchange on which the Hudson Common Stock is listed.
(h) Hudson has filed with the SEC a registration statement in connection
with Hudson's initial public offering of Hudson Common Stock, and
all exhibits, amendments and supplements thereto (collectively, the
"Hudson Registration Statement"), and each registration statement,
report, proxy statement or information statement and all exhibits
thereto prepared by it or relating to its properties since the
effective date of the Hudson Registration Statement (collectively,
the "Hudson Resorts"). The Hudson Reports were filed with the SEC in
a timely manner and constitute all forms, reports and documents
required to be filed by Hudson under the Securities Act, the
Exchange Act and the rules and regulations promulgated thereunder
(the "Securities Laws"). As of their respective dates, the Hudson
Reports (i) complied as to form in all material respects with the
applicable requirements of the Securities Laws and (ii) did not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements made therein, in the light of the circumstances under
which they were made, not misleading. There is no unresolved
violation asserted by any government authority with respect to any
of the Hudson Reports. The Hudson Reports disclose all adverse
matters with respect to Hudson which are known to Hudson and
required by applicable law to be disclosed by Hudson on the Hudson
Reports.
(i) Each of the balance sheets included in or incorporated by reference
into the Hudson Reports (including the related notes and schedules)
fairly presented the financial Position of the entity or entities to
which it relates as of its date and each of the statements of
operations, shareholders' equity (deficit) and cash flows included
in or incorporated by reference into the Hudson Reports (including
any related notes and schedules) fairly presented the results of
operations, retained earnings or cash flows, as
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the case may be, of the entity or entities to which it relates for
the periods set forth therein, in each case in accordance with
United States generally accepted accounting principles ("GAAP")
consistently applied during the periods involved.
(j) Except as disclosed in the Hudson Reports filed with the SEC prior
to the date hereof, as of the date of this Agreement, Hudson and
each of its subsidiaries has and as of the Closing Date Hudson and
each of its subsidiaries shall have conducted its business only in
the ordinary course and has and shall have acquired real estate and
other assets and entered into financing arrangements in connection
therewith only in the ordinary course of such business, and as of
the Date of this Agreement there has not and as of the Closing Date
there shall have not been (a) any declaration, setting aside or
payment of any dividend or other distribution with respect to the
Hudson Common Stock, (b) any commitment, contractual obligation,
borrowing, capital expenditure or transaction (each, a "Commitment")
entered into by Hudson or any of its subsidiaries, other than
Commitments which would not, individually or in the aggregate,
reasonably be expected to result in a material adverse effect or (c)
any change in Hudson's accounting principles, practices or methods.
Since June 30, 1996 there has not been, and as of the Closing Date
there shall not have been, an adverse change in the condition or
financial results of Hudson.
(k) The affirmative vote of the board of directors of Hudson (which
shall be obtained within five (5) Business Days after the Date of
this Agreement) is the only vote necessary to approve this Agreement
and the Note and the transactions contemplated hereby and thereby.
No shareholder vote by the shareholders of Hudson is required in
connection with this transaction.
(1) Hudson has entered into this Agreement and agreed to provide the
Note to Sellers and the Shares to Sellers (indirectly, through
delivery thereof to Purchaser for delivery to Sellers) and to
otherwise perform its obligations hereunder at Purchaser's request
in order to induce
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Sellers to enter into this Agreement with Purchaser. Hudson, being
the owner of 100%: of the stock of Purchaser (directly or
indirectly) will derive material benefits from this transaction and
has received fair and adequate consideration for its entry into and
performance of this Agreement (including, without limitation,
payment of a portion of the Purchase Price, payment and performance
of the Note, issuance of the Shares, and performance of the
covenants set forth in Section 15 and elsewhere in this Agreement).
Hudson understands that its agreements herein with respect to the
Note, the Shares and otherwise constitutes material consideration to
Sellers for entering into this Agreement without which Sellers would
not have entered into this Agreement.
The term "Hudson's knowledge" or any similar phrase, as used above, shall mean
the actual knowledge, without specific investigation, of E. Anthony Wilson, the
Chairman and CEO of Hudson or Bruce A. Sahs, the Executive Vice President and
COO of Hudson.
12.3. Sellers represent and warrant to Purchaser, and to Hudson with
respect to Sections 12.3(e) and (m) through (o) only, as follows:
(a) Sellers are, and as of the Closing shall be, corporations, duly
organized, validly existing and in good standing under the laws of
the state of Delaware, and have, and as of the Closing shall have,
all requisite power to enter into and perform their obligations
under this Agreement and under any document or instrument required
to be executed and delivered on behalf of Sellers hereunder.
(b) Sellers are, and as of Closing shall be, authorized to enter into
this Agreement and to consummate the transaction contemplated
hereby, and the individuals executing this Agreement on behalf of
Sellers are also duly authorized to execute this Agreement and to
bind Sellers to consummate such transaction. The execution of this
Agreement by Sellers has been duly authorized by proper corporate
action, including by resolution of the board of directors of each
Seller.
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(c) No Seller either is or as of Closing shall be a foreign entity,
foreign corporation, foreign partnership, foreign trust or foreign
estate (as those terms are defined in the Internal Revenue Code and
Income Tax regulations).
(d) Neither the entry into nor compliance with this Agreement by Sellers
has resulted, or as of Closing will result, in any violation of, or
default under, or result in the acceleration of, any obligation
under any existing corporate charter, certificate of incorporation
or bylaws of any Seller.
(e) There is no action, suit or proceeding pending or, to Sellers'
knowledge, threatened, against Sellers in any court or before any
arbitrator or before any governmental body which (a) in any manner
raises any question affecting the validity or enforceability of this
Agreement or any other agreement or instrument required hereunder to
be entered into by Sellers or (b) could materially and adversely
affect the ability of Sellers to perform their obligations
hereunder.
(f) There are no pending or, to the knowledge of Sellers, threatened,
condemnation or similar proceedings affecting the Premises, or any
portion thereof, to which any Seller is a party.
(g) To Sellers' knowledge, except as disclosed in the Inspection Items
there are no options to purchase, rights of first refusal or other
similar agreements with respect to the Premises which give anyone
the right to purchase the Premises or any part thereof. To Sellers'
knowledge (based on inquiry of the management company which manages
the Hotels), there are no contracts or agreements which affect or
relate to the Premises, except for the Contracts and Permits. Except
as set forth in Exhibit F attached hereto, Sellers have no knowledge
of any unpaid bill or claim in excess of $35,000 in connection with
the construction, repair or replacement of the Premises which is
past due or was incurred outside the ordinary course of business,
except for such bills or claims as Sellers are required to pay or
bond off at the Closing. Except as disclosed by the Inspection
Items, to Sellers' knowledge there are no agreements to which any
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Seller is a party and which will be binding upon Purchaser which
require any reduction, concession or abatement of room rates, except
in the ordinary course of business.
(h) To Sellers' knowledge, the Financial Statements for each of the
Hotels that have been made available to Purchaser pursuant to this
Agreement are true, correct and accurate in all material respects
and fairly present the results of operations of the Premises for the
periods covered thereby.
(i) To Sellers' knowledge, each Seller has filed all federal, state,
county and local tax returns required to be filed by such Seller and
has paid all taxes, interest and penalties that have become due and
payable by such Seller. To Sellers' knowledge, there is no tax
deficiency or penalty owing with respect to Sellers or the Premises.
(j) To Sellers' knowledge, Sellers do not lack any permit, license,
certificate or authority necessary for the present use and occupancy
of each of the Properties.
(k) To Sellers' knowledge, except as set forth in the Inspection Items,
the Premises are in compliance in all material respects with all
statutes, laws, ordinances, rules, regulations, orders and
directives (including, without limitation, all building, health,
zoning, fire, labor, environmental control and antipollution laws,
ordinances, rules, regulations or directives) of any and all
governmental agencies pertaining to the use or occupancy of the
Premises. To Sellers' knowledge, except as set forth in the
Inspection Items (including, without limitation, the environmental
reports listed in Exhibit H hereto (the "Environmental Reports"),
copies of which Purchaser acknowledges receiving), Sellers and the
Premises are not under investigation or threatened investigation for
failure to comply with any statutes, laws, ordinances, rules,
regulations, orders and directives of any governmental agency
pertaining to the use, generation, dumping, releasing, burying or
disposing of or emitting of any materials or substances
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now or heretofore defined as "hazardous substances," "hazardous
materials," "hazardous waste," "toxic substances," or other similar
designations under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. s
9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
S 6901, et seq., the Hazardous Materials Transportation Act, 49
U.S.C. S 1801, et seq. and other laws, whether or not of a similar
nature, applicable to the Premises and adopted by, enacted in or
applicable to the states where the Premises are located. To Sellers'
knowledge, except as may be set forth in the Environmental Reports,
the Premises have never appeared on any federal or state registry of
active or inactive hazardous waste disposal sites. Sellers have
never received any notice of claim from a governmental agency
concerning the alleged release or threatened release of Hazardous
Materials at the Premises.
(l) Sellers have no employees.
(m) Within ten (10) Business Days of the Date of this Agreement and as
of Closing, Sellers shall (i) acknowledge that Hudson is a public
company and (ii) confirm that they have had an opportunity to review
the periodic filings of Hudson with the SEC, had an opportunity to
ask questions of officials of Hudson concerning the business of
Hudson, and otherwise had the opportunity to obtain such information
as they deemed necessary to making their decision to accept the
Shares as partial payment of the Purchaser Price and upon the terms
and conditions set forth in this Agreement.
(n) The Shares are not and as of Closing shall not be purchased for
resale, resyndication, distribution, subdivision or
fractionalization thereof nor will the Shares be Purchased with a
view to or for sale in connection with any distribution within the
meaning of the Securities Act of 1933, as amended.
(o) Each Seller is and as of Closing shall be an "Accredited Investor",
as defined in Regulation D under the Securities Act of 1933, as
amended.
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(p) To Sellers' knowledge, except as disclosed in Exhibit I attached
hereto, there is no litigation affecting Sellers or the Premises
that is likely to have a material adverse affect on the Premises.
(q) As of Closing, all rooms located in the Hotels will be in habitable
condition, subject to ordinary ongoing maintenance.
Sellers make no representations or warranties to Purchaser or Hudson other than
as specifically set forth herein. The term "Sellers' knowledge" or any similar
phrase, as used above, shall mean the actual knowledge, without specific
investigation or inquiry (except as specifically provided above), of John P.
Buza, vice president of each of the Sellers. No claim may be asserted against
Sellers under the foregoing representations and warranties unless upon execution
of this Agreement the aforesaid John P. Buza had actual knowledge of the falsity
or inaccuracy thereof. Notwithstanding any provision hereof to the contrary,
each Seller makes the aforesaid representations and warranties only as to such
Seller and its Property, and no Seller shall be liable or responsible for any
breach of any representation or warranty which relates to any other Seller or
any Property owned by any other Seller. The Premises will, on the Closing Date,
be transferred "as is," without warranty or representation of any kind or
character except as specifically set forth herein, including without limitation
without any representations as to physical condition, value, compliance with
legal requirements or the existence or status of contracts affecting the
Premises. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THERE IS NO
WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A SPECIFIC
PURPOSE OR AS TO THE CONDITION OF ANY PROPERTY. Purchaser will make inspection
of the Premises as it deems appropriate, and has not received any warranties or
representations of any kind, whether written or oral, except as specifically set
forth herein. Purchaser shall, and effective as of the Closing Date does hereby,
assume and agree to indemnify Sellers from and against all obligations and
liabilities arising in connection with the Premises from and after the Closing
Date. The scope of such indemnification shall not include adverse environmental
conditions which existed or originated prior to the Closing Date but which are
disclosed or manifest themselves after the Closing Date. Purchaser's and
Hudson's sole remedy for breaches or violations of the foregoing representations
and warranties which are uncovered prior to the expiration of the Feasibility
Period shall be to terminate this Agreement pursuant to Section 3 prior to the
expiration of the Feasibility Period. The truth or accuracy of the foregoing
representations and warranties shall
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not be a condition to Closing and shall not give rise to any right to terminate
this Agreement after the Feasibility Period. However, the foregoing shall not
constitute a waiver of Purchaser's rights to make claims against Sellers after
the Closing for breach of the foregoing representations and warranties, subject
to the limitations set forth below. Except as may be otherwise expressly stated
to the contrary above, Sellers' foregoing representations and warranties are
made only as of the Date of this Agreement (and not as of the Closing Date), but
Sellers agree that if they become aware of any matter which would be
inconsistent with any representation or warranty if such representation or
warranty were made as of the Closing Date then Sellers shall disclose such
matter to Purchaser.
12.4. Except as provided in Section 12.5, each of the representations and
warranties contained in Sections 12.1 and 12.3 (collectively, the "Base Reps")
shall survive the Closing until the first anniversary of the Closing Date or, in
the case of the representations and warranties set forth in Section 12.3, until
a sale, assignment or other transfer of the Premises (or any part thereof) by
Purchaser, if sooner. No claim may be asserted by either party under the
foregoing representations or warranties after the expiration of such survival
period, and all claims for breach of such representations and warranties
asserted during such survival period may continue to be asserted after such
survival period only if during the survival period the claiming party provided
the other party specific and detailed written notice thereof and commenced and
diligently prosecuted a law suit against the other in connection therewith. The
parties agree that, except as provided in Section 12.5 but notwithstanding any
other provision hereof to the contrary, (i) no claim may be asserted against
Purchaser or Sellers under the Base Reps unless the aggregate amount of all
claims under the Base Reps (and the Ninety Day Covenants as provided in Section
14.7 as applicable to Sellers) against Purchaser or Sellers, as the case may be,
is in excess of $100,000, and (ii) the maximum aggregate liability of each of
Purchaser and Sellers under or in connection with the Base Reps (and the Ninety
Day Covenants as provided in Section 14.7 as applicable to Sellers) (as a result
of any breach thereof or inaccuracy therein, or otherwise) shall not exceed $3
million, and neither Purchaser nor Sellers shall have liability under or in
connection with the Base Reps (and the Ninety Day Covenants as provided in
Section 14.7 as applicable to Sellers) in excess of such maximum aggregate
amount. Notwithstanding any provision hereof to the contrary, no claim may be
asserted against Sellers for breach of Section 12.3(q) later than seven (7)
Business Days after the Closing Date, and any claim asserted prior to such time
must be specific as to the breach being asserted.
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12.5. Each of the representations and warranties contained in Section
12.2, and, notwithstanding Section 12.4 above, the representations and
warranties set forth in Sections 12.3(m), (n) and (o) to the extent that such
representations and warranties are applicable to the Shares (the representations
and warranties set forth in Section 12.2 and the aforesaid representations and
warranties set forth in Section 12.3(m), (n) and (o) being hereinafter referred
to as the "Shares/Note Reps") shall survive the Closing until the later to occur
of (i) the first anniversary of the Closing Date and (ii) such time as Sellers
no longer own any of the Shares and the Note has been paid in full. No claim may
be asserted by Sellers under the Shares/Note Reps after the expiration of such
survival period, and all claims for breach of such representations and
warranties asserted during such survival period may continue to be asserted
after such survival period only if during the survival period the claiming party
provided the other party specific and detailed written notice thereof and
commenced and diligently prosecuted a law suit against the other in connection
therewith. The parties agree that, notwithstanding any provision hereof to the
contrary, (i) no claim may be asserted against Hudson or Sellers under the
Shares/Note Reps unless the aggregate amount of all claims against Hudson or
Sellers, as the case may be, under the Shares/Note Reps is in excess of
$100,000, and (ii) the maximum aggregate liability of each of Hudson and Sellers
under or in connection with the Shares/Notes Reps (as a result of any breach
thereof or inaccuracy therein, or otherwise) shall not exceed $6 million, and
neither Hudson nor Sellers shall have liability under the Shares/Note Reps in
excess of such maximum aggregate amount.
12.6. Purchaser acknowledges that Sellers have orally disclosed to
Purchaser the unresolved disagreements and disputes between certain of the
Sellers and the franchisor under the Franchise Agreements for the Cricket Inn
Properties. Sellers shall deliver to Purchaser within five (5) Business Days of
the Date of this Agreement a writing which shall further explain such matters.
Purchaser agrees that if it is dissatisfied with the Premises or this
transaction because of the aforesaid matters, Purchaser's sole remedy shall be
to terminate this Agreement during the Feasibility Period, and in no event shall
Purchaser assert a breach of any representation or warranty by Sellers or any
other claim against Sellers in connection therewith.
Section 13. ESCROW.
13.1. Escrow Agent hereby acknowledges receipt of the Deposit and agrees
to hold the Deposit in escrow until the Closing or sooner termination of this
Agreement and shall pay
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over and apply the proceeds thereof in accordance with the terms of this
Agreement. If, for any reason, the Closing does not occur and either Purchaser
or Sellers makes a written demand upon Escrow Agent for payment of the Deposit,
Escrow Agent shall give written notice to the other party of such demand. If
Escrow Agent does not receive a written objection from the other party to the
proposed payment within five (5) Business Days after the giving of such notice,
Escrow Agent is hereby authorized to make such payment. If Escrow Agent does
receive such written objection within such five (5) Business Day period, or if
for any reason Escrow Agent in good faith shall elect not to make such payment,
or in the event of any other dispute between Purchaser and Sellers, Escrow Agent
shall either continue to hold the Deposit until otherwise directed by written
instructions from the parties to this Agreement or until a final judgment
(beyond any applicable appeal period) by a court of competent jurisdiction is
rendered disposing of such Deposit, or shall have the right to deposit the
escrowed funds in a court of competent jurisdiction pursuant to CPLR 1006 or any
other applicable statute. Upon delivery of the Deposit to either Purchaser,
Sellers or a court of competent jurisdiction under and pursuant to this Section
13, Escrow Agent shall be relieved of all liability, responsibility or
obligation with respect to or arising out of the Deposit and any and all of its
obligations therefrom. Escrow Agent shall be liable as a depository only and its
duties hereunder are limited to the safekeeping of the Deposit and the delivery
of same in accordance with the terms of this Agreement.
13.2. Purchaser and Sellers hereby agree to indemnify, defend and hold
harmless Escrow Agent from and against any cost and expense Escrow Agent may
incur as a result of its agreement to act as Escrow Agent. Purchaser and Sellers
shall be equally responsible for such indemnity.
13.3. Escrow Agent shall not have any liability or obligation for loss of
all or any portion of the Deposit by reason of the insolvency or failure of the
institution or depository with whom the Deposit has been made. The parties
acknowledge that Escrow Agent shall deposit and maintain the Deposit with
Chemical Bank and the parties agree that said institution is acceptable.
13.4. Escrow Agent shall not be liable to Purchaser or Sellers, or any
other party, for any action taken or omitted to be taken by it in good faith;
and Escrow Agent shall not be responsible to any party for the consequences of
any oversight or errors of judgment on its part, nor be answerable to any party
for any loss, cost or expense unless same shall occur through Escrow Agent's
gross negligence or willful misconduct.
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Escrow Agent shall be entitled to consult with counsel of its own choosing and
shall not be liable for any action taken, suffered or omitted by it in
accordance with the advice of such counsel.
13.5. Escrow Agent shall have the right to act in reliance upon any
document, instrument or signature believed by it to be genuine and to assume
that any person purporting to give any notice or instruction in accordance with
the provisions hereof has been duly authorized to do so.
13.6. Escrow Agent shall execute this Agreement solely to acknowledge its
obligations as Escrow Agent hereunder.
Section 14. SELLERS COVENANTS.
14.1. Following the date of this Agreement and to and including the
Closing, Sellers shall, or shall cause the manager of the Premises to, continue
normal maintenance and management of the Premises and operation and marketing of
the Hotels in the ordinary course of business. Sellers will terminate their
existing management agreement at or prior to Closing. If requested by Purchaser,
Sellers will cooperate with Purchaser in its attempt to negotiate an agreement
with Sellers' management company for such management company to continue
managing the Properties on Purchaser's behalf and at Purchaser's cost for one
month following the Closing in order to facilitate the transition of ownership.
No claim may be asserted under this Section 14.1 after the Closing.
14.2. All taxes levied against the Premises which were or shall be due and
payable prior to the Closing shall be paid in full by Sellers on or prior to the
Closing.
14.3. All payments which are due and payable prior to the Closing Date
under any Contract shall be made by Sellers at or prior to the Closing. Sellers
shall not enter into new contracts or amend, cancel or renew any existing
Contracts after the Date of this Agreement except in the ordinary course of
business. Any such new Contract entered into after the Date of this Agreement
shall, unless Purchaser otherwise consents, provide that it may be cancelled on
not more than 30 days' notice by Sellers at no penalty or cost.
14.4. Sellers shall maintain the present level of fire and casualty
insurance on the Premises up to and including the Closing.
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14.5. Sellers shall deliver to Purchaser a report itemizing room sales per
month, occupancy and ADR through a date which is not later than one month prior
to the Closing Date.
14.6. Prior to the Closing Date, Sellers shall not deplete inventories of
any of the Hotels below their normal levels. Purchaser shall have seven (7)
Business Days following Closing to confirm that Sellers did not breach this
covenant and to assert any related claim (Purchaser hereby waiving any right to
assert any such claim after such seven (7) Business Day Period), except that,
(i) no claim may be asserted against Sellers under this Section 14.6 unless the
aggregate amount of all claims under this Section 14.6 against Sellers is in
excess of $15,000, and (ii) the maximum aggregate liability of Sellers under or
in connection with this Section 14.6 (as a result of any breach hereof or
inaccuracy therein, or otherwise) shall not exceed $120,000, and Sellers shall
not have liability under or in connection with this Section 14.6 in excess of
such maximum aggregate amount.
14.7. No claim may be asserted by either party for breach of the covenants
contained in Sections 14.2, 14.3, and 14.4 (collectively, the "Ninety Day
Covenants") except during the 90 day period immediately following the Closing
and all claims for breach of such Ninety Day Covenants asserted during such
period may continue to be asserted after such period only if during such period
the claiming party provided the other party specific and detailed written notice
thereof and commenced and diligently prosecuted a law suit against the other in
connection therewith. The parties agree that (i) no claim may be asserted
against Sellers under the Ninety Day Covenants unless the aggregate amount of
all claims under the Ninety Day Covenants against Sellers is in excess of
$100,000, and (ii) the maximum aggregate liability of Sellers under or in
connection with the Ninety Day Covenants and the Ease Reps, in the aggregate
shall not exceed $3 million, and Sellers shall not have liability under or in
connection with the Ninety Day Covenants and/or the Base Reps in excess of such
maximum aggregate amount.
14.8. None of the Sellers' covenants set forth in this Agreement shall
survive the Closing unless otherwise expressly set forth herein.
Section 15. HUDSON COVENANTS.
15.1. For as long as Sellers own any of the Shares, Hudson shall provide
at least 30 days' prior written notice to
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Salomon Brothers Inc (at the address for Sellers set forth herein) of any equity
offering of Hudson ("Equity Offering") and an opportunity to make the first
offer to underwrite such offering. Provided that Salomon Brothers Inc shall
submit a written proposal to Hudson with respect to such underwriting within 20
days after written notice from Hudson that it proposes to have such Equity
Offering, and provided further that, after reviewing whether Salomon Brothers
Inc's proposal has terms, pricing, a fee structure and any other pertinent
business terms substantially similar in Hudson's judgment to those available
from an alternative underwriter, Hudson shall give due consideration to Salomon
Brothers Inc's proposal but, subject to the remaining provisions of this Section
15.1, shall have the sole and absolute discretion to determine whether or not to
choose Salomon Brothers Inc as the principal underwriter. Notwithstanding the
foregoing, if Hudson after giving such due consideration wishes to accept an
offer from an alternative underwriter (the "Alternative Underwriter") in
connection with any Equity Offering, Hudson shall provide at least five (5)
Business Days' prior written notice (the "Right of First Refusal Period") of
same to Salomon Brothers Inc (at the address for Sellers set forth herein).
Provided that within the Right of First Refusal Period, Salomon Brothers Inc
shall submit a written proposal to Hudson with respect to such underwriting
which is substantially similar to the terms, pricing, fee structure and any
other pertinent business terms of the offer of the Alternative Underwriter (the
"Matching Offer"), Hudson shall accept the Matching Offer of Salomon Brothers
Inc to be the principal underwriter. If Salomon Brothers Inc does not provide
Hudson with a Matching Offer during the Right of First Refusal Period, Hudson
shall be entitled to enter into an underwriting commitment with the Alternative
Underwriter within thirty (30) days after the expiration of the Right of First
Refusal Period, provided that the underwriting commitment entered into with the
Alternative Underwriter is no more favorable to the Alternative Underwriter (in
its terms, pricing, fee structure and any other pertinent business terms which
shall be specified therein) than the Alternative Underwriter's offer as
aforesaid. If, at the end of such 30 day period, Hudson shall not have entered
into such underwriting commitment agreement with the Alternative Underwriter,
Hudson shall again be obligated to comply with the provisions of this Section
15.1 (and to provide Salomon Brothers Inc the aforesaid right of first offer and
right of first refusal) with respect to any Equity Offering. Hudson acknowledges
that the rights granted to Salomon Brothers Inc hereunder constitute material
consideration and inducement to Sellers to enter into this transaction. Salomon
Brothers Inc shall be a third party beneficiary under this Section 15.1 but
shall not have any obligation or liability whatsoever under this Agreement. For
the purposes
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hereof, any form or type of equity offerings of Hudson shall not include any
type of mortgage, line of credit, bond or debenture financing.
15.2. Hudson hereby covenants with Sellers that from and after the
Closing, any public announcements or disclosures made by Hudson with respect to
this Agreement or the transactions contemplated hereby (including, without
limitation, the Shares, the Note, the Purchase Price or the Premises) shall
first be sent to Sellers for their review and approval. Until such approval has
been given to Hudson by Sellers, Hudson shall refrain from making such public
disclosures or announcements.
15.3. (a) Hudson hereby covenants with Sellers that, in the event a
Closing takes place hereunder, Hudson shall immediately commence the preparation
and filing of a registration statement registering the Shares for sale with the
SEC as more particularly set forth below. Hudson shall diligently prosecute the
registration and shall register the Shares no later than one hundred eighty
(180) days after the Closing and shall take any and all actions necessary to
maintain the effectiveness of the registration, including post-effective
amendments, if necessary, until Sellers have disposed of all of the Shares. To
this end, following the Closing Date, Hudson shall file with the SEC a
registration statement under the Securities Act for the offering on a continuous
or delayed basis in the future of all of the Shares (this and subsequent filings
of registration statements provided hereinafter, the "Shelf Registration"). The
Shelf Registration shall be on an appropriate form and the Shelf Registration
and any form of prospectus included therein or prospectus supplement relating
thereto shall reflect such plan of distribution or method of sale as Sellers may
from time to time notify Hudson, including the sale of some or all of the Shares
in a public offering or, if requested by Sellers, subject to receipt by Hudson
of such information (including information relating to purchasers) as Hudson
reasonably may require, (i) in a transaction constituting an offering outside
the United States which is exempt from the registration requirements of the
Securities Act in which Hudson undertakes to effect registration after the
completion of such offering in order to permit such shares to be freely
tradeable in the United States, (ii) in a transaction constituting a private
placement under Section 4(2) of the Securities Act in connection with which
Hudson undertakes to effect a registration after the conclusion of such
placement to permit such shares to be freely tradeable by the purchasers
thereof, or (iii) in a transaction under Rule 144A of the Securities Act in
connection with which Hudson undertakes to effect a registration after the
conclusion of such transaction to permit such
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shares to be freely tradeable by the purchasers thereof. Hudson shall use its
best efforts to keep the Shelf Registration continuously effective for the
period beginning on the date on which the Shelf Registration is declared
effective and ending on the first date that there are no Shares remaining in the
possession of Sellers (the "Registration Period"), and in the event that
notwithstanding Hudson's best efforts, Hudson fails to keep the Shelf
Registration effective, Hudson shall file with the SEC another Shelf
Registration, such that a Shelf Registration is continually in effect during the
Registration Period. During the Registration Period, Hudson shall supplement or
make amendments to the Shelf Registration, if required by the Securities Act or
if reasonably requested by Sellers or an underwriter of Registrable Securities,
including to reflect any specific plan of distribution or method of sale, and
shall use its reasonable best efforts to have such supplements and amendments
declared effective, if required, as soon as practicable after filing.
(b) Until sixty (60) days following the beginning of the
Registration Period, Hudson and E. Anthony Wilson covenant that E. Anthony
Wilson acting in his individual capacity shall not sell any shares of Hudson
Common Stock other than under and pursuant to Rule 144 of the Securities Act. E.
Anthony Wilson has executed this Agreement below in his individual capacity to
confirm his agreement to such covenant.
15.4. If, at any time from and after the Closing Date and until
commencement of the Registration Period, Hudson shall propose to prepare on its
own behalf or on behalf of any of its shareholders (other than Sellers) a
registration statement in connection with an underwritten public offering of any
securities of Hudson, Hudson shall give Sellers notice at least 20 days before
the anticipated filing date of such registration statement. Should Sellers
desire to have any Shares owned by Sellers included in such registration
statement, Sellers shall so advise Hudson no later than 15 days after Hudson's
notice is given, setting forth the number or amount of Shares which Sellers
request to be included in the registration statement, and Hudson shall include
the Shares specified in such request in such registration statement and keep
such registration statement in effect and maintain relevant compliance with each
federal and state law and regulation. Notwithstanding the foregoing, (i) Hudson
shall not be required to give notice or include such Shares in any such offering
if the proposed registration relates solely to the sale of securities to
participants in a dividend reinvestment plan, is to be made on Form S-4 and
relates to a business combination or similar transaction permitted to be
registered on such Form S-4, is to be made on Form
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S-8 and relates solely to the sale of securities to participants in a stock or
employee benefit plan, or is permitted under Rule 462 promulgated under the
Securities Act and registers additional securities of the same class as were
included in an earlier registration statement for the same offering and declared
effective; and (ii) Hudson may, in its sole discretion, withdraw such
registration statement and abandon the proposed offering .
15.5. To the extent required from time to time to enable Sellers to sell
Shares without registration under the Securities Act within the limitation of
the exemptions provided by Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC, Hudson will file in a timely manner (taking into
account any extensions granted by the SEC), information, documents and reports
in compliance with the Exchange Act and will, at its expense, forthwith upon the
request of Sellers, deliver to Sellers a certificate, signed by Hudson's
principal financial officer, stating (a) Hudson's name, address and telephone
number (including area code), (b) Hudson's Internal Revenue Service
identification number, (c) Hudson's SEC file number, (d) the number of shares of
Hudson's common stock and the number of shares of any preferred stock of Hudson
outstanding as shown by the most recent report or statement published by Hudson,
and (e) whether Hudson has filed the reports required to be filed under the
Exchange Act for a period of at least 90 days prior to the date of such
certificate and in addition has filed the most recent annual report required to
be filed thereunder. If at any time Hudson is not required to file reports in
compliance with either Section 13 or Section 15(d) of the Exchange Act, Hudson
will, at its expense, forthwith upon the written request of Sellers, make
available adequate current public information with respect to Hudson within the
meaning of paragraph (c) (2) of Rule 144 of the General Rules and Regulations
promulgated under the Securities Act.
15.6. (a) Following the registration of the Shares as provided herein, the
parties understand that Sellers may dispose of the Shares using several
different methods, which may include an underwritten offering. In the event that
Sellers elect to utilize an underwriter, Hudson shall enter into a customary
underwriting agreement providing for customary indemnities for the underwriters
and the selling security holders. Hudson shall pay all costs and expenses of
whatsoever nature which arise from or relate to the registration or sale of the
Shares as aforesaid, except that the seller of the Shares shall be responsible
for any underwriting discounts or commissions.
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(b) In the event that Sellers shall elect to dispose of the Shares in a
transaction or series of transactions not involving an underwriting, Hudson and
Sellers shall enter into a customary indemnity agreement providing for an
indemnity to each party for statements or information in the registration
statement pertaining to or provided by the indemnifying party.
15.7. (a) Hudson shall, if so requested by Sellers within five (5)
Business Days after the expiration of the Feasibility Period, appoint and
maintain, commencing on the Closing Date and for as long as Sellers hold any
Shares1 an observer of Hudson's Board of Directors, designated by Sellers, who
shall be invited to attend all meetings of the Board of Directors and shall be
compensated in the same manner as are non-employee directors of Hudson. Such
observer shall be indemnified by Hudson against all claims and liabilities
arising out of his or her participation in the meetings of the Board of
Directors .
(b) Alternatively, from and after the Closing Date, Sellers shall have the
right (but not the obligation) to have on the board of directors of Hudson (the
"Board") one director (such director and any other person made a director of the
Board pursuant to this Section 15.8, the "Sellers Nominee"), and Hudson shall
promptly cause Sellers Nominee to become a member of the Board. If necessary to
effectuate the placement of the Sellers Nominee on the Board, Hudson shall, at
its sole option, (i) expand the size of the Board or (ii) solicit the
resignation of one of its directors, in either case, to the extent necessary to
permit the Sellers Nominee to serve. Until such time that Sellers no longer own
the Shares, Sellers shall have the right to maintain a Sellers Nominee on the
Board. Sellers agree to indicate to Purchaser within five (5) Business days
after the expiration of the Feasibility Period whether they will request a
Sellers Nominee to be placed on the Board immediately following Closing.
(c) If Sellers elect to exercise their option in Section 15.7(b) above,
Hudson will support the nomination of, and Hudson s nominating committee (or any
other committee exercising a similar function) shall recommend to the Board, the
election of any Sellers Nominee to the Board, and Hudson will exercise all
authority under applicable law to cause such Sellers Nominee to be elected to
the Board. Without limiting the generality of the foregoing, with respect to
each meeting of shareholders of Hudson at which directors are to be elected,
Hudson shall use its reasonable efforts to solicit from the shareholders of
Hudson eligible to vote in the election of directors proxies in favor of such
Sellers Nominee.
-44-
<PAGE>
(d) In the event that any Sellers Nominee shall cease to serve as a
director for any reason other than the fact that Sellers no longer have a right
to nominate a director, as provided in subsection (b), the vacancy resulting
thereby shall, if Sellers so choose in their sole discretion, be filled by a
Sellers Nominee designated by Sellers.
15.8. The rights and benefits of Sellers set forth in Sections 15.3(a),
15.4, 15.5 and 15.6 hereunder shall inure to the benefit of any of Sellers'
successors, assigns or transferees who obtain a legal or beneficial interest in
the Shares, other than in connection with the sale thereof pursuant to the
registration described in Section 15.3(a) or 15.4.
15.9. Each of the covenants contained in this Section 15 shall survive the
Closing until Sellers no longer own any of the Shares.
Section 16. BINDING EFFECT; MISCELLANEOUS.
16.1. This Agreement shall be binding upon and shall inure to the parties
hereto, their respective heirs, successors, legal representatives and assigns.
This Agreement sets forth the entire Agreement between the parties hereto and no
other prior written or oral statement or agreement or understanding shall be
recognized or enforced. All modifications or amendments shall be in writing and
signed by the parties. This Agreement is to be construed according to the laws
of the State of New York, and any legal action or proceeding with respect to or
in connection with this Agreement must be brought in the Supreme Court of the
State of New York within the First Judicial Department, 1st District, New York
City, or the Federal Courts for the Southern District of New York, and by
execution hereof each party accepts the jurisdiction of such courts. This
Agreement may be executed in two or more counterparts all of which shall
constitute one and the same instrument. Each of the twelve (12) individual
Sellers is hereby acknowledged to be a separate and distinct legal entity,
wholly independent from the other Sellers, and each of the Sellers shall be
liable only for such claims or demands made by Purchaser with respect to the
Property (and other related aspects of the Premises) owned by such Seller and
the representations, warranties and covenants made by such Seller with respect
to such Property, and it is specifically agreed by and between Purchaser and
each of the individual Sellers hereto that liability of the Sellers under this
Agreement is and shall be individual only and is not and shall not be joint and
several with other Sellers.
-45-
<PAGE>
16.2. Purchaser shall not be permitted to assign this Agreement to any
third party, except that, with Sellers' prior written consent (which consent
shall not be unreasonably withheld and, in any event, shall be granted if the
conditions set forth in clauses (i) through (iii) below are satisfied),
Purchaser shall be permitted to assign this Agreement to another directly or
indirectly wholly-owned subsidiary of Hudson provided that (i) such assignment
does not adversely affect Sellers (in connection with the matters set forth in
Section 3.5 or otherwise), (ii) the assignee shall assume all of Purchaser's
obligations hereunder pursuant to an assumption agreement approved as to form
and substance by sellers, and (iii) such assignment shall not release Purchaser
or Hudson from their obligations hereunder.
16.3. As used herein, the "Date of this Agreement" shall mean the date
noted below as the date upon which this Agreement was executed by the parties
hereto. As used herein, the term "Business Day" shall mean any day other than a
Saturday, a Sunday or a bank holiday in New York, N.Y.
16.4. No delay or omission in the exercise of any right or remedy accruing
to Sellers or Purchaser upon any breach under this Agreement shall impair such
right or remedy or be construed as a waiver of any such breach theretofore or
thereafter occurring. The waiver by Sellers or Purchaser of any breach of any
term, covenant or condition herein stated shall not be deemed to be a waiver of
any other breach, or of a subsequent breach of the same or any other term,
covenant or condition herein contained. All rights, powers, options or remedies
afforded to Sellers or Purchaser either hereunder or by law shall be cumulative
and not alternative, and the exercise of one right, power, option or remedy
shall not bar other rights, powers, options or remedies allowed herein or by
law, unless expressly provided to the contrary herein.
16.5. All exhibits and schedules referred to in this Agreement and
attached hereto are hereby incorporated in this Agreement by reference.
16.6. Article headings and article and section numbers are inserted herein
only as a matter of convenience and in no way define, limit or prescribe the
scope or intent of this Agreement or any part thereof and shall not be
considered in interpreting or construing this Agreement.
16.7. Time is of the essence as to all matters contained in the Agreement.
If the final day of any time period or limitation set out in any provision of
this Agreement falls on a Saturday, Sunday or legal holiday under the laws of
the
-46-
<PAGE>
State of New York or the federal govemment1 then and in such event such period
shall be extended to the next day which is not a Saturday, Sunday or legal
holiday.
16.8. In addition to the acts, deeds, instruments and agreements recited
herein and contemplated to be Performed1 executed and delivered by Purchaser and
Sellers, Purchaser and Sellers shall perform, execute and deliver or cause to be
performed, executed and delivered at the Closing or after the Closing, any and
all further acts, deeds, instruments and agreements and provide such further
assurances as the other party may reasonably require to consummate the
transaction contemplated hereunder. However, the foregoing shall not be deemed
to require Sellers to expend any money or incur liability, obligations or
exposure in excess of that which is provided for herein.
16.9. In case any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
16.10. Purchaser shall be jointly and severally responsible with Hudson
for Hudson's performance of and liability under Hudson's covenants,
representations and warranties hereunder. Any breach or default by Hudson
hereunder shall constitute a breach or default by Purchaser.
16.11. In order to assist Purchaser with its due diligence, Sellers shall
provide to Purchaser within five (5) Business Days after the Date of this
Agreement a letter which shall summarize the acquisition of the Premises by
Sellers through foreclosures and deeds-in-lieu of foreclosure from Motels of
America in connection with a bankruptcy and litigation relating to Motels of
America.
-47-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
September 27, 1996.
SELLERS: SB MOTEL RICHMOND CORP.
By: /s/ John P. Buza
----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL DURHAM-RESEARCH TRIANGLE PARK CORP.
By: /s/ John P. Buza
----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL CARY CORP.
By: /s/ John P. Buza
----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL STATESVILLE CORP.
By: /s/ John P. Buza
----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL WILMINGTON CORP.
By: /s/ John P. Buza
----------------------------
Name: John P. Buza
Title: Vice President
<PAGE>
SB MOTEL COLUMBIA CORP.
By: /s/ John P. Buza
----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL CHARLESTON CORP.
By: /s/ John P. Buza
----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL ALBANY CORP.
By: /s/ John P. Buza
----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL VIRGINIA BEACH CORP.
By: /s/ John P. Buza
----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL DURHAM-DUKE CORP.
By: /s/ John P. Buza
----------------------------
Name: John P. Buza
Title: Vice President
SB MOTEL RALEIGH CORP.
By: /s/ John P. Buza
----------------------------
Name: John P. Buza
Title: Vice President
<PAGE>
SB MOTEL CHARLOTTE I-85 CORP.
By: /s/ John P. Buza
----------------------------
Name: John P. Buza
Title: Vice President
<PAGE>
PURCHASER: HUDSON HOTELS PROPERTIES CORP.
By: /s/ E. Anthony Wilson
----------------------------
Name: E. Anthony Wilson
Title: Chairman and Chief
Executive Officer
HUDSON: HUDSON HOTELS CORPORATION
By: /s/ E. Anthony Wilson
----------------------------
Name: E. Anthony Wilson
Title: Chairman and Chief
Executive Officer
ESCROW AGENT: LAWYERS TITLE INSURANCE CORPORATION
By: ____________________________
Name:
Title:
<PAGE>
PURCHASER: HUDSON HOTELS PROPERTIES CORP.
By: /s/ E. Anthony Wilson
----------------------------
Name: E. Anthony Wilson
Title: Chairman and Chief
Executive Officer
HUDSON: HUDSON HOTELS CORPORATION
By: /s/ E. Anthony Wilson
----------------------------
Name: E. Anthony Wilson
Title: Chairman and Chief
Executive Officer
ESCROW AGENT: LAWYERS TITLE INSURANCE CORPORATION
By: ____________________________
Name:
Title:
<PAGE>
E. Anthony Wilson is executing
this Agreement in his individual
capacity solely in order to make
the covenant set forth in
Section 15.3(b)
/s/ E. Anthony Wilson
- --------------------------------
E. Anthony Wilson
<PAGE>
Escrow Agent is executing
this agreement solely to
acknowledge its obligations
as Escrow Agent hereunder
LAWYERS TITLE INSURANCE CORPORATION
By: /s/ Stephanie Butler
---------------------------------
Name: Stephanie Butler
Title: Vice President & Manager
<PAGE>
EXHIBITS A-1 THROUGH A-12
[Legal Descriptions]
<PAGE>
EXHIBIT A-1
ALL that certain lot, piece or parcel of land with all improvements thereon and
appurtenances thereunto belonging, lying and being in Henrico County, Virginia,
and being more particularly described as follows to-wit:
BEGINNING at a rod in the eastern right of way line of Broad Street Road, said
rod being the southwest corner of that tract now or formerly owned by Dixon W.
Christian; and running thence from said beginning rod along the southern
boundary line of Dixon W. Christian, North 72 degrees 33 minutes 58 seconds East
277.81 feet; and North 53 degrees 41 minutes 13 seconds East 277.00 feet to an
iron pipe in the western right of way line of Bowler Street; thence along the
western right of way line of Bowler Street the two (2) following courses and
distances: South 43 degrees 00 minutes 47 seconds East 115.51 feet; and South 41
degrees 57 minutes 55 seconds East 219.53 feet to a stone; thence along the
northern boundary line of Eddie and Mary W. Cargill, South 59 degrees 03 minutes
47 seconds West 381.50 feet to a stone; thence North 72 degrees 46 minutes 02
seconds West 51.75 feet to a rod; thence South 17 degrees 13 minutes 58 seconds
West 25.00 feet to a rod; thence North 72 degrees 46 minutes 02 seconds West
51.75 feet to a rod; thence South 17 degrees 13 minutes 58 seconds West 25.00
feet to a rod; thence North 72 degrees 46 minutes 02 seconds West 128.70 feet to
a PK nail; thence South 66 degrees 44 minutes 08 seconds West 124.10 feet to a
mark in the eastern right of way line of Broad Street Road; thence along the
eastern right of way line of Broad Street Road, North 23 degrees 15 minutes 52
seconds West 235.10 feet to the point and place of beginning, same containing
3.988 acres, more or less, and being those same premises surveyed and platted by
Foster & Miller, P.C., on March 1, 1989.
BEING the same real estate conveyed to Motels of America, Inc., a Delaware
Corporation, by deed from Turnpike Properties, Inc., a North Carolina
Corporation dated July 28, 1989, recorded August 4, 1989, in the Clerk's Office
of the Circuit Court, Henrico County, Virginia, in Deed Book 2201 at Page 651.
<PAGE>
EXHIBIT A-2
LYING AND BEING in Triangle Township, Durham County, State of North
Carolina:
BEGINNING at a point in the western right of way line of the Durham and
Southern R.R. at its intersection with Interstate 40, as shown on the plat
hereinafter referred to; and running thence North 81 degrees 44' 38" West 321.52
feet to a stake in the east right of way line of N.C. Highway #55; thence along
the east right of way line of N.C. Highway #55 North 06 degrees 08' 18" East
163.29 feet to a stake; thence continuing along the east right of way line of
N.C. Highway #55 North 14 degrees 18' 22" East 124.08 feet to a stake; thence
continuing along the east right of way line of N.C. Highway #55 North 14 degrees
19' 01" East 23.17 feet to a stake, the intersection of N.C. Highway #55 and the
south line of Pitcairn Place; thence along and with the south line of Pitcairn
Place South 89 degrees 40' East 315.38 feet to a point in the west right of
way line of the Durham and Southern R.R.; thence along and with the west right
of way of said railroad, South 08 degrees 13' 35" West 356.70 feet to the point
and place of BEGINNING, containing 2.4588 acres, more or less, and being that
same property surveyed and platted by George C. Love, Jr., R.L.S. on the 2nd day
of February, 1989. See also Plat Book 102, Page 117, Durham County Registry.
<PAGE>
EXHIBIT A-3
All of that certain tract or parcel of land lying and being situate in Cary
Township, Wake County, North Carolina and being more particularly described as
follows: Beginning at a point in the southern right of way line of the Cary-
Macedonia Road, said point of beginning having North Carolina grid coordinates
N=732,824.88 and E=2,074,786.44. THENCE, FROM SAID POINT OF BEGINNING, SO
LOCATED, South 69 degrees 53' 25" East, along and with the southern right of way
line of the Cary-Macedonia Road, 138.58 feet to a point, said point being the
northwestern corner of the property owned now or formerly by Joseph W. Smith;
thence, continuing along and with the western line of the property owned now or
formerly by Joseph W. Smith and the tract owned by Joseph W. Smith and Lula J.
Smith, South 26 degrees 18' 09" West 878.96 feet to an existing iron pipe in the
line of the property owned now or formerly by Erich A. Barbour; thence, North 63
degrees 38' 41" West, along and with the northern line of the property owned now
or formerly by Barbour, 534.24 feet to an existing iron pipe; thence, North 41
degrees 33' 02" East 592.22 feet; thence, South 67 degrees 46' 16" East 241.31
feet; thence, North 26 degrees 18' 09" East 275.00 feet to the point or place of
beginning.
The above-described tract or parcel of land is conveyed expressly subject to,
but together with, a non-exclusive easement of ingress, egress and regress over,
upon and across a tract or parcel of land fifty (50) feet in width, the
westernmost line of said easement fifty (50) in width being described as
follows: Beginning at a point in the southern right of way line of the Cary-
Macedonia Road, said point of beginning begin the northeastern corner of the
tract or parcel of land above-described and said point having North Carolina
grid coordinates N=732,824.88 and E=2,074,786.44. THENCE, FROM SAID POINT OF
BEGINNING, SO LOCATED, South 26 degrees 18' 09" West 275 feet.
Being those same premises surveyed and platted by Runa A. Cooper, R.L.S. on
the 27th day of February, 1989.
<PAGE>
EXHIBIT A-4
Leasehold estate created by the terms of that certain lease, a Memorandum
of which is as follows: Memorandum of Lease dated February 20, 1984, from
Interstate Development Company, a North Carolina corporation, to Turnpike
Properties, Inc. for a maximum term of 50 years including extensions and
renewals, which Memorandum of Lease appears in Book 696 at Page 475 in the
Office of the Register of Deeds of Iredell County, North Carolina, and having
been amended by the terms of that document entitled "Amendment of Lease" dated
March 30, 1984, and recorded in Book 698 at Page 589 in the Office of the
Register of Deeds of Iredell County, North Carolina.
LYING AND BEING in Statesville Inside Township, County of Iredell, State
of North Carolina:
Beginning at an iron at the northeast corner of property of James C. Kivett, et
al described in deed recorded in Book 551, Page 515, Iredell County, North
Carolina Registry (also being the northwest corner of property of William C.
Stiles, Jr. described in deed recorded in Book 689, page 987, Iredell County,
North Carolina registry); running thence with the norht line of said Kivett
property North 79 degrees 30' West 128.73 feet to an iron at the edge of
pavement of the Newtowne Plaza Shopping Center paved parking lot; thence with
the edge of said pavement North 06 degrees 35' 10" East 356.02 feet to an iron
at the edge of said pavement; thence South 87 degrees 16' 30" East 211.33 feet
to an iron; thence South 38 degrees 17' 00" East 60.96 feet to an iron; thence
South 02 degrees 43' 30" West 344.78 feet to a nail; thence North 82 degrees 27'
West 148.87 feet to an iron; thence South 10 degrees 00' West 2.00 feet to the
point and place of Beginning, containing 2.23805 acres as shown on plat entitled
"CRICKET INN, Statesville, Iredell County, N.C." prepared by Sprinkle Surveying
Company dated February 15, 1984, revised March 20, 1984.
<PAGE>
EXHIBIT A-5
BEGINNING at an iron pipe, the sothwest intersection of Market Street (50
feet from centerline) and Lullwater Drive (30 feet from centerline); and running
thence along the western right of way line of Lullwater Drive south 02 degrees
28' East 587.80 feet to an iron pipe, the northeast corner of R.W. Cannon;
thence along the northern boundary line of Cannon the two (2) following courses
and distances: South 65 degrees 02' West 130.00 feet; and South 87 degrees 32'
West 136.67 feet to an iron pipe in the eastern boundary line of Lillian
Crowell; thence North 03 degrees 47' East 621.31 feet to an iron pipe in the
southern right of way line of Market Street; thence along said right of way line
North 81 degrees 27' East 190.14 feet to the point and place of BEGINNING, same
containing 3.13 acres, more or less, and being those same premises surveyed and
platted by Stuart Y. Benson, R.L.S., February, 1989.
<PAGE>
EXHIBIT A-6
All that certain piece, parcel or tract of land, together with any improvements
thereon, situate, lying and begin at the easternmost intersection of
right-of-way for Old Two Notch Road and Interstate Highway 77, said property
containing 4.191 acres, more or less, and being more fully shown as Tract 2 on a
Plat prepared for Commercial Title Agency, Inc., dated April 29, 1987, by B.P.
Barber & Associates, Inc., and recorded in the RMC Office for Richland County in
Plat Book 51 at page 8819; said property having the following courses,
measurements, metes and boundaries as shown on the aforesaid plat, to-wit:
BEGINNING at an iron located at the northernmost corner of the subject
property which iron is at the southernmost corner of the intersection of
Old Two Notch Road (formerly U.S. Highway #1) and property designated on
the aforesaid plat as Proposed Trenholm Road Extension; thence from said
point of beginning S37 degrees 12' 35"E for 423.70 feet to an iron; thence
turning and running along the northern boundary of the right-of-way for
Seaboard System Railroad for the following distances: S50 degrees 48' 05"W
for 198.70 feet to an iron; S49 degrees 28' 42"W for 106.00 feet to an
iron; S49 degrees 28' 42"W for 112.38 feet to an iron; said iron located
at the intersection of the right-of-way for Interstate No. 77; thence
turning and running along the right-of-way for Interstate No. 77 for the
following distances: N37 degrees 17' 22" for 415.20 feet to an iron; N48
degrees 48' 33"W for 1.33 feet to a concrete monument; N48 degrees 46'
33"W for 34.90 feet to a point whereat said property corners with property
designated as Tract 1 on the aforesaid plat; thence turning and running
from along property designated as Tract N52 degrees 42' 38"E for 314.75
feet to an iron; thence turning and running along a common maintenance
area for pavement as designated on the aforesaid plat S41 degrees 35' 05"E
for 11.05 feet to an iron; thence turning and running along the
right-of-way for U.S. Highway No. 1 (Two Notch Road) N48 degrees 24' 55"E
for 28.96 feet to an iron; thence turning and continuing along said
right-of-way N52 degrees 08' 54"E for 80.00 feet to an iron; this being
the POINT OF BEGINNING.
Being the same premises surveyed and platted by Laverne Steadman,
Registered Surveyor, on the 28th day of February, 1989.
Also, all rights, title and interest in and to those easements and
rights-of-way retained by Turnpike Properties, Inc.. under the terms of
that certain Special Warranty Deed granted unto Notch, which deed is
recorded in Book D0859, Page 922.
<PAGE>
EXHIBIT A-7
TRACTS I AND II - CHARLESTON COUNTY:
All that certain piece, parcel or tract of land, together with any improvements
thereon, situate, lying and being in the City of North Charleston, County of
Charleston, State of South Carolina, containing 1.52 acres, more or less, on the
southwestern boundary of the right-of-way of Northforest Drive, said property
being more fully shown and delineated as a 1.52 acre tract on a plat for
Crickett Inn dated August 6, 1986, and recorded in the RMC Office for Charleston
County in Plat Book BK at page 59; said property having the following courses,
measurements, metes and boundaries, as shown on the aforesaid plat, to-wit:
BEGINNING at an iron located at the northeasternmost corner of the subject
property, which iron is located on the southern boundary of the
right-of-way for Northforest Drive, thence from said point of beginning
S56 degrees 23' 04"W for a distance of 70.49 feet to a point; thence
turning and running S10 degrees 51' 11"E for a distance of 185.00 feet
along property heretofore conveyed to the Grantee herein by Deed of
Sanderling Partners dated as of September 3, 1986; thence turning and
running N79 degrees 08' 49"W for a distance of 291.49 feet to a point;
thence turning and running N02 20' 18"E for 24.30 feet to an iron;
thence turning and running N01 degrees 56' 39"E for 114.95 feet to an
iron; thence turning and running N02 degrees 54' 18"E for 74.51 feet to
an iron; thence turning and running N62 degrees 56' 44"E for 257.08 feet
to an iron located on the western boundary of the right-of-way for
Northforest Drive; thence turning and running in a general southeastern
direction along the curve of the right-of-way for Northforest Drive (said
curve having an arc distance of 100.00 feet and a radius of 67.00 feet) to
an iron, this being the POINT OF BEGINNING.
TMS No.: 484-00-00-068
AND
ALL that certain piece, parcel or tract of land, together with any
improvements thereon, situate, lying and being in the City of North
Charleston, County of Charleston, State of South Carolina, containing 2.95
acres, more or less, at the southwestern corner of the intersection of
Northside Drive and Northforest Drive, said property being more fully
shown and delineated on a plat entitled Cricket Inn prepared by E.M.
Seabrook, Jr., Inc., dated August 6, 1986, and recorded in the RMC Office
for Charleston County in Plat Book BK at page 59; said property having the
following courses, measurements, metes and boundaries, as shown on the
aforesaid plat, to-wit:
<PAGE>
EXHIBIT A-7 (continued)
BEGINNING at a point located on the western boundary of the right-of-way
for Northside Drive whereon the same corners with the southern boundary of
the right-of-way for Northforest Drive, thence from said point of
beginning S10 degrees 51' 11" E for 184.00 feet to a point; thence turning
and running along properties designated on the aforesaid plat as
McDonalds, Bojangles, and Northwoods Limited Partnership, S79 degrees 08'
49" W for 611.96 feet to a point; thence turning and running N10 degrees
51' 11" W for 185.00 feet to a point; thence turning and running N56
degrees 23' 04" E for 70.49 feet to a point on the southern boundary of
the right-of-way for Northforest Drive; thence turning and running along
the southern boundary of the right-of-way for Northforest Drive in an
eastern direction along a curve for a distance of 6.10 feet (said curve
having a radius of 67.00 feet) to a point; thence turning and continuing
along the southern boundary of the right-of-way for Northforest Drive N79
degrees 08' 49" E for 512.86 feet to a point; thence turning and
continuing in an eastern and southeastern direction along the right-of-way
for Northforest Drive along a curve for a distance of 43.98 feet (said
curve having a radius of 28.00 feet) to a point on the western boundary of
the right-of-way for Northside Drive, this being the POINT OF BEGINNING.
TMS NO.: 484-00-00-025 and a portion of 484-00-00-068
The two above-described parcels of land being combined upon that survey
prepared by E.M. Seabrook, Jr., South Carolina Civil Engineer and Land
Surveyor, on the 20th day of February, 1989.
DERIVATION: Master's Deed by Louis E. Condon, as Master in Equity for
Charleston County, recorded June 23, 1993 in the Office of the RMC for
Charleston County in Book 0228 at page 019.
<PAGE>
EXHIBIT A-8
TRACT I. All that tract or parcel of land lying and being in the City of
Albany, Dougherty County, Georgia, and being more particularly described as
follows:
Begin at the intersection of the North right of way line of the Seaboard
Airline Railroad and the East right of way line of Slappey Drive, and run thence
North 05 degrees 05' West along the East right of way of Slappey Drive for a
distance of 32.68 feet to a point; run thence South 88 degrees 52' East a
distance of 90.0 feet to a point; run thence South 01 degrees 08' West for a
distance of 95.28 feet to a point on the North right of way line of the Seaboard
Airline Railroad, run thence North 52 degrees 57' 15" West along the North right
of way line of the Seaboard Airline Railroad for a distance of 106.73 feet to
the point of beginning. Said property is a portion of Lot 48 of the Palmyra
Pecan Grove Subdivision "C" and more particularly described on a plat entitled
"Turnpike Properties, Inc." prepared by Malcolm Burnsed, R.L.S. on the 6th day
of March, 1989.
TRACT II. All that tract or parcel of land lying in the City of Albany,
Dougherty County, Georgia, and being more particularly described as follows:
Beginning at a point in the southern right of way line of a Seaboard
Airline Railroad side track, said point being South 88 degrees 52' East 275.00
feet from Slappey Drive at its point of intersection with said side track right
of way; and running thence from said beginning point along the southern and
western right of way line of said side track right of way the five (5) following
courses and distances: South 88 degrees 52' East 146.25 feet, the PC of a curve;
thence in a southeasterly direction, along a curve with a radius of 296.31
feet, for a distance of 465.11 feet to the PT of curve; South 88 degrees 42'
East 6.0 feet; South 01 degrees 12' West 257.33 feet to the PC of a curve; and
in a Southeasterly direction, along a curve with the radius of 391.51 feet for a
distance of 136.45 feet to the North right of way line of the Seaboard Airline
Railroad, thence along the northern right of way line of the Seaboard Airline
Railroad North 52 degrees 57' 15" West 582.32 feet to a point; thence North 01
degrees 08' East 345.44 feet to the point and place of the beginning, and being
that same property surveyed and plated by Malcolm Burnsed, R.L.S. on the 6th day
of March, 1989.
<PAGE>
EXHIBIT A-8 (continued)
NOTE: The following described easements granted by Clinton Miles to Turnpike
Properties, Inc. are appurtenances of Tract II:
(a) A perpetual easement for ingress and egress from Slappey Drive over
and across all that tract or parcel of land lying and being in the City of
Albany, Dougherty County, Georgia, being more particularly described as follows:
All that tract or parcel of land lying and being a part of Tract 48 Subdivision
"C", Palmyra Pecan Groves, and being more particularly described as follows:
COMMENCE at the intersection of the East right of way line of Slappey Drive and
the North right of way line of the Seaboard Airline Railroad in Albany, Georgia,
and run thence North 05 degrees 05' West for a distance of 32.68 feet to the
point of beginning. From said point of beginning continue thence North 05
degrees 05' West along the East right of way line of Slappey Drive for a
distance of 30.07 feet to a point, run thence South 88 degrees 52' East for a
distance of 264.54 feet to a point; run thence South 01 degrees 08' West for a
distance of 30.0 feet to a point; run thence North 88 degrees 52' West for a
distance of 261.27 feet to the point of beginning, and begin the same property
surveyed and plated by Malcolm Burnsed, R.L.S. as shown upon that certain plat
entitled "Turnpike Properties, Inc." dated March 6, 1989.
(b) A perpetual easement for the purpose of installing both underground
and overhead, utility lines and mains, including but not limited to, water, gas,
sewer, electrical, and telephone lines and mains, over and across that certain
20-foot strip of property more particularly described as follows: COMMENCE at
the intersection of the East right of way line of Slappey Drive and the North
right of way line of Seaboard Airline Railroad in Albany, Georgia, and run
thence South 52 degrees 57' 15" East a distance of 106.73 feet along the North
right of way line of the Seaboard Airline Railroad to the point of beginning;
continue thence South 52 degrees 57' 15" east a distance of 211.45 feet along
the North right of way line of the Seaboard Airline Railroad to a point; run
thence NORTH 01 degrees 08' East a distance of 24.69 feet to a point; run thence
North 52 degrees 57' 15" West along a line parallel to the North right of way
line of the Seaboard Airline Railroad for a distance of 211.45 feet to a point;
run thence south 01 degrees 08' West for a distance of 24.69 feet to the point
of beginning. Said strip of land is located in Lots 48 and 66 of Palmyra Pecan
Grove Subdivision "C" and being the same property surveyed and plated by Malcolm
Burnsed, R.L.S. and shown upon that certain plat entitled "Turnpike Properties,
Inc." dated March 6, 1989.
<PAGE>
EXHIBIT A-9
ALL THAT certain tract, piece or parcel of land, with the buildings and
improvements thereon and the appurtenances thereunto belonging, lying, situate
and being in Bayside Borough, Virginia Beach, Virginia, fronting on Northampton
Boulevard and Baker Road, and described by reference to a certain plat and
survey thereof, made by Frank D. Terrall, Jr. and Associates, Surveyors and
Engineers, marked "Subdivision of Property for Shell Oil Company:, dated
October, 1967, and recorded in the Clerk's Office of the Circuit Court of the
City of Virginia Beach, Virginia, in Map Book 90, page 8, which said property is
more particularly described as follows:
BEGINNING at a pin on the southeast corner of Baker Road and Northampton
Boulevard; thence along the southern line of Northampton Boulevard, N 51 degrees
00' 00" E 191.50 feet to a pin at the dividing line between Parcel A and Parcel
B, the pint of beginning of this description and from said point of beginning
running thence along the southern side of Northampton Boulevard, N 51 degrees
00' 00" E. 135.41 feet to a pin at the western line of "Property now or formerly
Lucy V. Dobski", S 38 degrees 57' 00" E 171.84 feet to a pin; thence continuing
along the said line the following courses and distances; N 51 degrees 03' 00" E
150.00 feet to a pin; thence turning and running S 9 degrees 50' 00"E 407.50
feet to a pin; thence turning and running S 76 degrees 20' 00" W 511.94 feet to
a pin on the east side of Baker Road; thence along the eastern side of Baker
Road N 07 degrees 20' 19" W 199.87 feet to a pin on the dividing line between
Parcel A and Parcel B; thence turning and running along said dividing line the
following courses and distances; N 82 degrees 38' 00' E 49.86 feet to a pin;
thence N 51 degrees 00' 00" E 228.57 feet to a pin; thence turning and running N
38 degrees 57' 00" W 165.00 feet to a pin, the point of beginning; the above
described Parcel "B" containing 3.94 acres.
LESS AND EXCEPT those strips of land conveyed to the Commonwealth of Virginia in
Deed Book 2716, Page 1329 and Deed book 2750, Page 1987.
Being that same property platted by Baldwin & Gregg, Ltd. on the 9th day of
February, 1989.
<PAGE>
EXHIBIT A-10
1306 Elba Street:
LYING AND BEING in Durham Township, Durham County, State of North
Carolina, and beginning at an iron stake at the point of intersection of the
southern right of way line of Elder Street with the western right of way line of
Fulton Street, said iron stake being South 66 degrees 19' 13" East 61.71 feet
from the point of intersection of the center line of Elder Street with the
center line of Fulton Street; and running thence from said beginning iron stake,
along the southern right of way line of Elder Street, North 89 degrees 46' 52"
East 200.76 feet to an iron stake; thence South 01 degrees 09' 09" West 219.43
feet to an iron stake in the northern right of way line of Elba Street; thence
along the northern right of way line of Elba Street North 89 degrees 59' 46"
West 197.54 feet to an iron stake; thence along the western right of way line of
Fulton Street the three (3) following courses and distances: North 41 degrees
41' 04" West 26.66 feet; North 00 degrees 37' 05" East 180.00 feet; and North 42
degrees 13' 46" East 25.27 feet to the point and place of the beginning, same
being that same property surveyed and platted by James S. Murphy, R.L.S. on the
14th day of February, 1989, and being the majority of that certain property as
set out upon that plat and survey entitled "Property of Turnpike Properties,
Inc." dated February 4, 1983, revised October 19, 1983, and recorded in Plat
Book 104 at Page 107 in the Office of the Register of Deeds of Durham County,
North Carolina.
400 Elf Street:
LYING AND BEING in Durham Township, Durham County, State of North
Carolina, and beginning at a stake at the point of intersection of the South
side of Pratt Street with the West side of Elf Street, as shown on plat and
survey hereinafter referred to, and running thence along and with the West side
of Elf Street, as shown on plat and survey hereinafter referred to, and running
thence along and with the West side of Elf Street South 0 degrees 57' 0" West
176.04 feet to a stake in the northern right of way of Elder Street; running
thence along and with the northern right of way of Elder Street South 89 degrees
48' 0" West 99.88 feet to a stake; running thence North 0 degrees 58' 0" East
173.10 feet to a stake in the southern right of way of Pratt Street; running
thence along and with the southern right of way of Pratt Street North 88 degrees
07' 0" East 99.93 feet to a stake, the point and place of beginning, and being
that same property surveyed and platted by James S. Murphy, R.L.S. on the 14th
day of February, 1989.
<PAGE>
EXHIBIT A-11
LYING AND BEING in Raleigh Township, Wake County, State of North Carolina:
BEGINNING at a point in the Southwest line of Navaho Drive, said stake
marking the northwest corner of Tract 1 according to the plat hereinafter
referred to; runs thence South 25 degrees 14' 55" West 305.98 feet along the
West line of Tract 1 to an iron stake, the Southwest corner of Tract 1; runs
thence South 64 degrees 46' 05" East 142.45 feet along the South line of Tract 1
to an iron stake in the Northwest line of the right of way of Wake Forest Road;
runs thence 131.10 feet along the curve of the Northwest right of way line of
Wake Forest Road, said curve having a radius of 2,826,47 feet to the right to an
iron stake; thence continuing with the Northwest line of the right of way of
Wake Forest Road South 31 degrees 13' 55" West 65.97 feet to an iron stake in
said right of way; thence North 67 degrees 24' 47" West 561.32 feet along the
right of way of the entrance ramp for U.S. Highways 1 and 64 to a stone
monument; thence continuing with said right of way of said entrance ramp North
67 degrees 15 feet 53" West 199.39 feet to an iron stake, the Southeast corner
of Tract 3 according to the plat hereinafter referred to; runs thence North 25
degrees 13' 55" East 227.37 feet along the Eastern line of Tract 3 to an iron
stake; runs thence South 64 degrees 46' 05" East 525.12 feet to an iron stake,
the same marking the Southeast corner of Lot A according to a plat recorded in
Book of Maps 1974, Page 165; runs thence North 25 degrees 14' 55" East 312.94
feet to an iron stake in the Southwest line of Navaho Drive; runs thence South
51 degrees 42' 5" East 30.80 feet with the Southwest line of Navaho Drive to an
iron stake, the point and place of BEGINNING, being all of Tract 2 and
containing 155,239 square feet or 3.65 acres according to a plat entitled
"Property of B & W Associates, Raleigh, N.C.", prepared by John A. Edwards and
Company, Consulting Engineers, dated March 8, 1983, and recorded in Book of Maps
1983, Page 379, Wake County Registry.
In addition to said tract, the Grantors hereby convey to the Grantee, its
successors and assigns, a perpetual easement for ingress and egress over that
30-foot portion of Tract 3 (described on the plat mentioned above) extending
from the Northwest corner of said Tract 2 Westwardly and Northerly to the South
line of Navaho Drive, said land being shown by dotted lines and being designated
"Easement 'D'/private drive" on said recorded plat.
All of the above was surveyed and platted by John A. Edwards, Jr.,
R.L.S. on the 6th day of March, 1985, and recertified on the 14th day of
February, 1989.
<PAGE>
EXHIBIT A-12
Lying and being in Charlotte Township, Mecklenburg County, State of
North Carolina:
PARCEL I
Beginning at an iron pin located at the westernmost corner of that
property conveyed to E.A. Flowe by deed recorded in Book 4548 at Page 782 in the
Mecklenburg Public Registry; and running thence with the south boundary of the
Flowe property (now or formerly) South 80 degrees 49' 22" East 144.24 feet to an
iron pin in the western right of way line of the I-85 Service Road; thence along
the western right of way line of the I-85 Service Road in a southerly direction
along a circular curve to the left having a radius of 388.10 feet and an arc
distance of 84.00 feet to an iron pin; thence continuing along said right of way
line South 11 degrees 07' 30" East 222.67 feet to an iron pin; thence continuing
along said right of way line as it curves to the right in a southerly and
westerly direction with the arc of the circular curve having a radius of 147.81
feet and an arc distance of 260.73 feet to an iron pin; thence continuing along
said right of way line South 89 degres 56' 26" West 138.44 feet to an iron pin
at the beginning of the intersection of the north right of way line of the I-85
Service Road with the east right of way line of Sugar Creek Road; thence North
44 degrees 24' 25" West 15.36 feet to an iron pin in the eastern right of way
line of Sugar Creek Road; thence along said right of way line the two (2)
following courses and distances: North 00 degrees 08' 43" West 413.97 feet to a
concrete monument; and North 53 degrees 15' 42" East 127.99 feet to the point
and monument; and North 53 degrees 15' 42" East 127.99 feet to the point and
place of beginning, same containing 2.939 acres, more or less, and being that
same property surveyed and platted by R.B. Pharr & Associates, P.A. on the 21st
day of February, 1989, and revised March 8, 1989.
PARCEL II
Beginning at an iron located at northeast corner of that property conveyed
to TBAA, Inc. by deed recorded in Book 4593 at Page 180 in the Mecklenburg
Public Registry, and running thence from said beginning point partially with the
North boundary of the TBAA, Inc. property (now or formerly), South 89 degrees
56' 26" West 350.22 feet to a concrete monument in the south margin of the I-85
Service Road right of way; thence with the south margin of said right of way,
four (4) lines as follows: (1) North 56 degrees 35' 47" East 133.66 feet to an
iron pin, (2) in a northerly direction with the arc of a circular curve to the
left having a radius of 207.81 feet, an arc distance of 248.18 feet to an iron
pin, (3)
<PAGE>
EXHIBIT A-12 (continued)
North 11 degrees 07' 30" West 222.67 feet to a point, and (4) in a northerly
direction, with the arc of a circular curve to the right having a radius of
328.1 feet, an arc distance of 62.67 feet to an iron; thence with a southerly
boundary of property conveyed to Sree Incorporated by deed recorded in Book 4407
at Page 971 in the Mecklenburg Public Registry, South 80 degrees 49' 22" East
6.85 feet to an iron; thence South 18 degrees 25' 22" East 597.85 feet to the
iron at the point of beginning, same containing 1.194 acres, more or less, and
being that same property surveyed and platted by R.B. Pharr & Associates, P.A.
on the 21st day of February, 1989, and revised March 8, 1989.
PARCEL III
All the right, title and interest of Grantor in and to that property lying
within the I-85 Service Road right of way which separates Parcels I and II,
above, and in and to the right of way of that portion of the Sugar Creek Road
right of way which adjoins Parcel I on the west side of said tract, both of
which streets or roads are shown on survey prepared by R.B. Pharr & Associates,
P.A. dated February 21, 1989, and revised March 8, 1989.
<PAGE>
EXHIBIT B
[List of Contracts]
<PAGE>
EXHIBIT B
FAIRIELD INN RICHMOND
<TABLE>
<CAPTION>
CONTRACTS/LEASES
- ------------------------------------------------------------------------------------------------------------------------------------
VENDOR SERVICE COST CANCELLATION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Lodgenet Free to guest $311/mo. April, 2002 Salomon has copy
television program
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgenet Pay per view movies 5% profit share April, 2002 Salomon has copy
plus television
maintenance
- ------------------------------------------------------------------------------------------------------------------------------------
Exit Information Guide Advertising $3,327/yr. Annual renewal Already pd thru June 1997
- ------------------------------------------------------------------------------------------------------------------------------------
Walker's Service Grounds Maintenance $789/mo. 30 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
Terminix Pest Control $125/mo. 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
IBM/Marriott PMS service contract $1,341 Franchise required With franchise agreement,
no contract
- ------------------------------------------------------------------------------------------------------------------------------------
AAA Advertising $4,173/yr. Annual renewal Already pd thru 1997
- ------------------------------------------------------------------------------------------------------------------------------------
Browning-Ferris Rubbish Hauling $242/mo. 30 day notice Verbal, no contract
- ------------------------------------------------------------------------------------------------------------------------------------
DSEA Reservations shopping $105/mo. 30 day notice AGHI
reports
- ------------------------------------------------------------------------------------------------------------------------------------
Equifax Check guarantee service $60/yr plus $12/mo. 30 day notice AGHI
and 1.35% of check
value
- ------------------------------------------------------------------------------------------------------------------------------------
ADP Payroll Processing $100 per pay period 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
General Electric, HVAC repairs Varies with task, 60 days written or 10 Copy included
Consumer Services see agreement days by G.E.
w/ change of
ownership
- ------------------------------------------------------------------------------------------------------------------------------------
Hotelecom Phone system consultant % of revenue, see 30 days notice Agreement still pending, will
agreement copy upon execution
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
B-1
<PAGE>
FAIRIELD INN DURHAM RTP
<TABLE>
<CAPTION>
CONTRACTS/LEASES
- ------------------------------------------------------------------------------------------------------------------------------------
VENDOR SERVICE COST CANCELLATION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Lodgenet Free to guest $255.42/mo. April, 2002 Salomon has copy
television program
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgenet Pay per view movies 5% profit share April, 2002 Salomon has copy
plus television
maintenance
- ------------------------------------------------------------------------------------------------------------------------------------
Cape Fear Paging Pager air time $11.40/mo. 30 day notice Monthly billing like phone bill
- ------------------------------------------------------------------------------------------------------------------------------------
NC Dept Of Highway sign advertising $882/yr. 30 day notice Copy included
Transportation
- ------------------------------------------------------------------------------------------------------------------------------------
Turf Service Grounds Maintenance $560.00 30 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
Terminix Pest Control $96/mo. 30 day notice Copy included, AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
IBM/Marriott PMS service contract $1,296/yr. Franchise required With Franchise agreement,
no contract
- ------------------------------------------------------------------------------------------------------------------------------------
AAA Advertising $3,648/yr. Annual renewal Already pd thru 1997
- ------------------------------------------------------------------------------------------------------------------------------------
Waste Industries Rubbish Hauling $105.50/mo. 90 day notice prior to Copy included
end of term of
contract which is
1/19/01
- ------------------------------------------------------------------------------------------------------------------------------------
Hotelecom Telephone consultant % of revenue, see 30 days notice Agreement still pending, copy
agreement will be sent when executed
- ------------------------------------------------------------------------------------------------------------------------------------
Dover Electronics Elevator service contract $158.77/mo. 5 yr contract last Copy included
renewed 1988, 90
day written notice
- ------------------------------------------------------------------------------------------------------------------------------------
DSEA Reservations Shopping $105/mo. 30 day notice AGHI
report
- ------------------------------------------------------------------------------------------------------------------------------------
Equifax Check guarantee service $60/yr plus $12/mo. 30 day notice AGHI
and 1.35% of check
value
- ------------------------------------------------------------------------------------------------------------------------------------
ADP Payroll processing $100 per pay period 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
General Electric, HVAC service prices vary, see 60 days notice Copy included
agreement
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
B-2
<PAGE>
FAIRIELD INN CARY
<TABLE>
<CAPTION>
CONTRACTS/LEASES
- ------------------------------------------------------------------------------------------------------------------------------------
VENDOR SERVICE COST CANCELLATION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Lodgenet Free to guest $382.58/mo. April, 2002 Salomon has copy
television program
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgenet Pay per view movies 5% profit share April, 2002 Salomon has copy
plus television
maintenance
- ------------------------------------------------------------------------------------------------------------------------------------
A-Plus Pager $23.90/mo. 30 day notice air time only, monthly bill,
Communications like phone bill no contract
- ------------------------------------------------------------------------------------------------------------------------------------
Cape Fear Paging Pager $17.96/mo. 30 day notice copy included
- ------------------------------------------------------------------------------------------------------------------------------------
NC Dept Of Highway sign advertising $588/yr. Annual renewal copy included
Transportation
- ------------------------------------------------------------------------------------------------------------------------------------
General Electric HVAC service and replace- $753.31/mo. July, 1998 Contract copy requested
ment Ct.#133-0812328 from provider
- ------------------------------------------------------------------------------------------------------------------------------------
Turf Service Grounds Maintenance $767/mo. 30 day notice copy included
- ------------------------------------------------------------------------------------------------------------------------------------
IBM/Marriott PMS service contract $1,296/yr., Franchise required with franchise agreement,
every June no contract
- ------------------------------------------------------------------------------------------------------------------------------------
AAA Advertising $3,648/yr. Annual renewal Already pd thru 1997
- ------------------------------------------------------------------------------------------------------------------------------------
BFI Rubbish Hauling $364.55/mo. 30 day notice
- ------------------------------------------------------------------------------------------------------------------------------------
Hotelecom Telephone Consultant % of revenue, see 30 day notice agreement pending will copy
agreement when executed
- ------------------------------------------------------------------------------------------------------------------------------------
DSEA Reservations Shopping $105/mo. 30 day notice AGHI
reports
- ------------------------------------------------------------------------------------------------------------------------------------
Equifax Check guarantee service $60/yr plus $12/mo. 30 day notice AGHI
and 1.35% of check
value
- ------------------------------------------------------------------------------------------------------------------------------------
ADP Payroll processing $100 per pay period 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
Terminix Pest Control $126/mo. 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
B-3
<PAGE>
FAIRIELD INN STATESVILLE
<TABLE>
<CAPTION>
CONTRACTS/LEASES
- ------------------------------------------------------------------------------------------------------------------------------------
VENDOR SERVICE COST CANCELLATION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Lodgenet Free to guest $539.09/mo. July, 2002 Salomon has copy
television program
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgenet Pay per view movies 5% profit share July, 2002 Salomon has copy
plus television
maintenance
- ------------------------------------------------------------------------------------------------------------------------------------
Appalachian Billboard $595/mo. 60 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
Appalachian Billboard $920/mo. 60 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
General Electric HVAC service and replace- $744.52/mo. February, 1998 Copy included
ment
- ------------------------------------------------------------------------------------------------------------------------------------
Exit Information Advertising $3,811/yr. Annual renewal Already pd thru 6/97
Guide
- ------------------------------------------------------------------------------------------------------------------------------------
Terminix Pest Control $121/mo. 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
IBM/Marriott PMS service contract $1,298/yr. Franchise required With franchise agreement,
no contract
- ------------------------------------------------------------------------------------------------------------------------------------
AAA Advertising $4,184/yr. Annual renewal, Already pd thru 6/97
pd 6/96
- ------------------------------------------------------------------------------------------------------------------------------------
Wilson Security Security $9.00/hr. 30 day notice Copy included, price increase
was in January 1996
- ------------------------------------------------------------------------------------------------------------------------------------
Container Corp. Rubbish Hauling $121.12/mo. 60 day notice in Copy included
advance of contract
end, 9/5/97
- ------------------------------------------------------------------------------------------------------------------------------------
Hotelecom Telephone Consultant % of revenue, see 30 day notice Agreement still pending, will
agreement send upon execution
- ------------------------------------------------------------------------------------------------------------------------------------
DSEA Reservations Shopping $105/mo. 30 day notice AGHI
reports
- ------------------------------------------------------------------------------------------------------------------------------------
Equifax Check Guarantee service $60/yr plus $12/mo. 30 day notice AGHI
and 1.35% of check
value
- ------------------------------------------------------------------------------------------------------------------------------------
ADP Payroll processing $100 per pay period 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
B-4
<PAGE>
FAIRIELD INN WILMINGTON
<TABLE>
<CAPTION>
CONTRACTS/LEASES
- ------------------------------------------------------------------------------------------------------------------------------------
VENDOR SERVICE COST CANCELLATION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Lodgenet Free to guest $319/mo. April, 2002 Salomon has copy
television program
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgenet Pay per view movies 5% profit share April, 2002 Salomon has copy
plus television
maintenance
- ------------------------------------------------------------------------------------------------------------------------------------
Page South Pager air time & equip- $76/mo. 30 day notice, prior Copy included
ment rental to the end of contract
period which end
2/25/97. Penalty of
$50.00 per pager if
cancelled earlier
- ------------------------------------------------------------------------------------------------------------------------------------
Whiteco Billboard $595/mo. 60 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
General Electric HVAC service and replace- $749.10/mo. July, 1998 Copy included
ment
- ------------------------------------------------------------------------------------------------------------------------------------
Exit Information Advertising $3,567 Annual renewal Already pd thru 6/97
Guide
- ------------------------------------------------------------------------------------------------------------------------------------
Wilsons Grounds Maintenance $850/mo. 30 day notice Copy requested from vendor
- ------------------------------------------------------------------------------------------------------------------------------------
Orkin Pest Control $122/mo. 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
IBM/Marriott PMS service contract $1,296/yr. Franchise required With Franchise agreement,
no contract
- ------------------------------------------------------------------------------------------------------------------------------------
AAA Advertising $3,648/yr. Annual renewal Already pd thru 1997
- ------------------------------------------------------------------------------------------------------------------------------------
Waste Industries Rubbish Hauling $294/mo. 30 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
Hotelecom Telephone Consultant % of revenue, see 30 day notice agreement pending, will copy
agreement upon execution
- ------------------------------------------------------------------------------------------------------------------------------------
DSEA Reservations Shopping $105/mo. 30 day notice AGHI
reports
- ------------------------------------------------------------------------------------------------------------------------------------
Equifax Check guarantee service $60/yr plus $12/mo. 30 day notice AGHI
and 1.35% of check
value
- ------------------------------------------------------------------------------------------------------------------------------------
ADP Payroll processing $100 per pay period 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
B-5
<PAGE>
FAIRIELD INN COLUMBIA
<TABLE>
<CAPTION>
CONTRACTS/LEASES
- ------------------------------------------------------------------------------------------------------------------------------------
VENDOR SERVICE COST CANCELLATION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Lodgenet Free to guest $339.98/mo. April, 2002 Salomon has copy
television program
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgenet Pay per view movies 5% profit share April, 2002 Salomon has copy
plus television
maintenance
- ------------------------------------------------------------------------------------------------------------------------------------
A+ Communic Pager air time $102.92/mo. 30 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
Outdoor East Billboard I20 $850/mo. 1/15/97 60 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
Outdoor East Billboard I77 $800/mo. 1/25/97 60 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
3M National Billboard I20 East $550/mo. 1/18/97 60 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
Kingstowne Billboard I20 ex 74 $500/mo. 1/5/97 60 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
Fowler Billboard $560/mo. Cancelled 12/31/95 Letter attached
- ------------------------------------------------------------------------------------------------------------------------------------
General Electric HVAC service and replace- $758.87 July, 1998 Copy included
ment
- ------------------------------------------------------------------------------------------------------------------------------------
Exit Information Advertising $2,845/yr. Annual renewal Already pd thru 6/97
Guide
- ------------------------------------------------------------------------------------------------------------------------------------
Greenscape Grounds Maintenance $500/mo. 30 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
Orkin Pest Control $130/mo. 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
IBM/Marriott PMS service contract $1,296/yr. Franchise required With Franchise agreement,
no contract
- ------------------------------------------------------------------------------------------------------------------------------------
AAA Advertising $4,184/yr. Annual renewal Already pd thru 1997
- ------------------------------------------------------------------------------------------------------------------------------------
Waste Management Rubbish Hauling $111.20/mo. 30 day notice Verbal contract
- ------------------------------------------------------------------------------------------------------------------------------------
Ampro Security $9.13/hr. 30 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
Property Technologies Telephone Maint. $333.50 Expired 8/3/96 Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
Hotelecom Telephone Consultant % of revenue, see 30 day notice Agreement pending, will send
agreement copy upon execution
- ------------------------------------------------------------------------------------------------------------------------------------
DSEA Reservations Shopping $105/mo. 30 day notice AGHI
Reports
- ------------------------------------------------------------------------------------------------------------------------------------
Equifax Check guarantee service $60/yr plus $12/mo. 30 day notice AGHI
and 1.35% of check
value
- ------------------------------------------------------------------------------------------------------------------------------------
ADP Payroll Processing $100 per pay period 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
B-6
<PAGE>
FAIRIELD INN CHARLESTON
<TABLE>
<CAPTION>
CONTRACTS/LEASES
- ------------------------------------------------------------------------------------------------------------------------------------
VENDOR SERVICE COST CANCELLATION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Lodgenet Free to guest $317/mo. April, 2002 Salomon has copy
television program
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgenet Pay per view movies 5% profit share April, 2002 Salomon has copy
plus television
maintenance
- ------------------------------------------------------------------------------------------------------------------------------------
3M National Billboard $1,575/mo. 60 day notice copy attached
- ------------------------------------------------------------------------------------------------------------------------------------
3M National Billboard $1,600/mo. 60 day notice copy attached
- ------------------------------------------------------------------------------------------------------------------------------------
General Electric HVAC service and replace- $744.52/mo. July, 1998 copy attached
ment
- ------------------------------------------------------------------------------------------------------------------------------------
Exit Information Advertising $2,845/yr. Annual renewal Already pd thru 6/97
Guide
- ------------------------------------------------------------------------------------------------------------------------------------
Nancy's Grounds Maintenance $550/mo. 30 day notice copy attached
- ------------------------------------------------------------------------------------------------------------------------------------
Terminix Pest Control $122/mo. 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
IBM/Marriott PMS service contract $1,296/yr. every Franchise required part of franchise agreement, no
June contract
- ------------------------------------------------------------------------------------------------------------------------------------
AAA Advertising $3,648/yr. Annual renewal Already pd thru 1997
- ------------------------------------------------------------------------------------------------------------------------------------
Pegasus Security $412/wk. 30 day notice copy attached
- ------------------------------------------------------------------------------------------------------------------------------------
Fennell Rubbish Hauling $180.10/mo. 30 day notice copy attached
- ------------------------------------------------------------------------------------------------------------------------------------
Hotelecom Telephone Consultant % of revenue, see 30 day notice contract still pending, will
agreement forward upon execution
- ------------------------------------------------------------------------------------------------------------------------------------
DSEA Reservations Shopping $105/mo. 30 day notice AGHI
reports
- ------------------------------------------------------------------------------------------------------------------------------------
Equifax Check guarantee service $60/yr plus $12/mo. 30 day notice copy attached, AGHI
and 1.35% of check
value
- ------------------------------------------------------------------------------------------------------------------------------------
ADP Payroll processing $100 per pay period 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
Mila Copier lease $57.52 36 month, end 8/9/99 copy included
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
B-7
<PAGE>
FAIRIELD INN ALBANY
<TABLE>
<CAPTION>
CONTRACTS/LEASES
- ------------------------------------------------------------------------------------------------------------------------------------
VENDOR SERVICE COST CANCELLATION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Lodgenet Free to guest $525.82/mo. July, 2002 Salomon has copy
television program
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgenet Pay per view movies 5% profit share July, 2002 Salomon has copy
plus television
maintenance
- ------------------------------------------------------------------------------------------------------------------------------------
Radiofone of GA Pager air time $17/mo. 30 day notice verbal, like phone bill
- ------------------------------------------------------------------------------------------------------------------------------------
Franklin Advertising Billboard $275/mo. 60 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
All Star Int'l Trucks Billboard $588/yr. 60 day notice Contract attached
- ------------------------------------------------------------------------------------------------------------------------------------
Tri-State Systems Billboard $407.66/mo. 60 day notice Contract attached
- ------------------------------------------------------------------------------------------------------------------------------------
General Electric HVAC service and replace- $742.73/mo. July, 1998 Contract not available, we
ment, Ct#133-0812331 have requested copy
- ------------------------------------------------------------------------------------------------------------------------------------
Exit Information Advertising $1,365/yr. Annual renewal Already pd thru 6/97
Guide
- ------------------------------------------------------------------------------------------------------------------------------------
Stadolk, Inc. Grounds Maintenance $550/mo. 30 day notice Verbal, 30 day out
- ------------------------------------------------------------------------------------------------------------------------------------
Terminix Pest Control $122/mo. 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
IBM/Marriott PMS service contract $1,296/yr. every Franchise required part of franchise agreement, no
June separate agreement
- ------------------------------------------------------------------------------------------------------------------------------------
AAA Advertising $3,648/yr. Annual renewal Already pd thru 1997
- ------------------------------------------------------------------------------------------------------------------------------------
Hotelecom Telephone Consultant % of revenue, see 30 day notice Agreement pending, will
agreement copy upon execution
- ------------------------------------------------------------------------------------------------------------------------------------
DSEA Reservations Shopping $105/mo. 30 day notice AGHI
reports
- ------------------------------------------------------------------------------------------------------------------------------------
Equifax Check guarantee service $60/yr plus $12/mo. 30 day notice AGHI
and 1.35% of check
value
- ------------------------------------------------------------------------------------------------------------------------------------
ADP Payroll Processing $100 per pay period 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
B-8
<PAGE>
CRICKET INN VIRGINIA BEACH
<TABLE>
<CAPTION>
CONTRACTS/LEASES
- ------------------------------------------------------------------------------------------------------------------------------------
VENDOR SERVICE COST CANCELLATION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
World Cinema Free to Guest $655.56/mo. 11/13/98 with 90 day Copy included
television program notice, or with 90
days notice prior to
the end of nay
current contract year
- ------------------------------------------------------------------------------------------------------------------------------------
Metro-Call Pager air time & equip- $26.90/mo. 30 day notice Copy included
ment rental
- ------------------------------------------------------------------------------------------------------------------------------------
Exit Information Advertising $4,547/yr. Annual renewal Already pd thru 6/97
Guide
- ------------------------------------------------------------------------------------------------------------------------------------
Tidewater Landworks Grounds Maintenance $825/mo. 30 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
Orkin Pest Control $147.50/mo. 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
Command Force Security $441/wk. 30 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
BFI Rubbish Hauling $608.97/mo. 60 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
JC Penney Reservations system Based on the
number of calls
- ------------------------------------------------------------------------------------------------------------------------------------
Hotelecom Telephone Consultant % of revenue, see 30 day notice Agreement pending, will
agreement copy upon execution
- ------------------------------------------------------------------------------------------------------------------------------------
SQS Guest Satisfaction $110/mo. 30 day notice AGHI
survey/report
- ------------------------------------------------------------------------------------------------------------------------------------
DSEA Reservations shopping $105/mo. 30 day notice AGHI
reports
- ------------------------------------------------------------------------------------------------------------------------------------
Equifax Check guarantee service $60/yr plus $12/mo. 30 day notice AGHI
and 1.35% of check
value
- ------------------------------------------------------------------------------------------------------------------------------------
ADP Payroll processing $100 per pay period 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
General Electric HVAC maintenance Varies with task, 60 days notice by Copy included
Consumer Services see agreement either party, 10 days
notice by GE upon
ownership change
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
B-9
<PAGE>
CRICKET INN DURHAM DUKE
<TABLE>
<CAPTION>
CONTRACTS/LEASES
- ------------------------------------------------------------------------------------------------------------------------------------
VENDOR SERVICE COST CANCELLATION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Lodgenet Free to guest $358/mo. October, 2002 Copy included
television program
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgenet Pay per view movies 5% profit share October, 2002 Copy included
plus television
maintenance
- ------------------------------------------------------------------------------------------------------------------------------------
Cape Fear Paging Pager air time $40/mo. 30 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
3M Billboard $936/mo. 60 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
Hogan Billboard $988/mo. 60 day notice Copy requested from vendor
- ------------------------------------------------------------------------------------------------------------------------------------
Billboards
- ------------------------------------------------------------------------------------------------------------------------------------
Orkin Pest Control $151/mo. 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
National Guest Systems PMS interface service $179/mo. 30 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
AAA Advertising $4,264/yr. Annual renewal Already pd thru 1997
- ------------------------------------------------------------------------------------------------------------------------------------
Waste Management Rubbish Hauling $190/mo. 60 day notice prior to Copy included
renewal date 11/7/96
- ------------------------------------------------------------------------------------------------------------------------------------
Carter Security Security $500/mo. 30 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
JC Penney Reservations System Based on number
of calls
- ------------------------------------------------------------------------------------------------------------------------------------
Hotelecom Telephone consultant % of revenue, see 30 day notice agreement pending, will
agreement copy upon execution
- ------------------------------------------------------------------------------------------------------------------------------------
Dover Elevator Elevator service contract $605/mo. 90 day notice prior to Copy included
March, 1997
- ------------------------------------------------------------------------------------------------------------------------------------
Sprint Cellular Renting space on roof $500/mo. January, 2016 Copy included
for antenna reve.50
- ------------------------------------------------------------------------------------------------------------------------------------
SQS Guest Satisfaction $110/mo. 30 day notice AGHI
survey/report
- ------------------------------------------------------------------------------------------------------------------------------------
DSEA Reservations Shopping $105/mo. 30 day notice AGHI
Report
- ------------------------------------------------------------------------------------------------------------------------------------
Equifax Check guarantee service $60/yr plus $12/mo. 30 day notice AGHI
and 1.35% of check
value
- ------------------------------------------------------------------------------------------------------------------------------------
ADP Payroll Processing $100 per pay period 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
Bond Publishing Advertising, Hosp. $3,100/year pd through 7/97 Copy included
Directory
- ------------------------------------------------------------------------------------------------------------------------------------
Teachers @work Landscaping task billed 30 days verbal
- ------------------------------------------------------------------------------------------------------------------------------------
GE Consultant HVAC repair varies, see 60 days/non- Copy included
agreement transferrable
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
B-10
<PAGE>
CRICKET INN RALEIGH
<TABLE>
<CAPTION>
CONTRACTS/LEASES
- ------------------------------------------------------------------------------------------------------------------------------------
VENDOR SERVICE COST CANCELLATION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Lodgenet Free to guest $352.98/mo. October, 2002 Copy included
television program
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgenet Pay per view movies 5% profit share October, 2002 Copy included
plus television
maintenance
- ------------------------------------------------------------------------------------------------------------------------------------
Cape Fear Paging Pagers $48.09/mo. 30 day notice monthly billing
after 8/10/96
- ------------------------------------------------------------------------------------------------------------------------------------
Thomas Billboard $947.50/mo. 30 days upon sale Copy included
Advertising of hotel
- ------------------------------------------------------------------------------------------------------------------------------------
General Electric HVAC service and $896.66/mo. June, 1998 Copy requested from vendor
replacement, ct#133-
0812316
- ------------------------------------------------------------------------------------------------------------------------------------
Orkin Pest Control $150/mo. 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
Washenhut Security $8.50/hr. Approx. 30 day notice Copy requested from vendor
Security $1,130/mo.
- ------------------------------------------------------------------------------------------------------------------------------------
BFI Rubbish Hauling $264.14 Copy requested from vendor
- ------------------------------------------------------------------------------------------------------------------------------------
JC Penney Reservation System Based on the
number of calls
- ------------------------------------------------------------------------------------------------------------------------------------
Hotelecom Telephone Consultant % of revenue, see 30 day notice agreement pending, copy to be
agreement sent upon execution
- ------------------------------------------------------------------------------------------------------------------------------------
The Griffon Military newspaper $440 in April Annual renewal Copy included
advertisement $440 in August
- ------------------------------------------------------------------------------------------------------------------------------------
SQS Guest Satisfaction $110/mo. 30 day notice AGHI
survey/report
- ------------------------------------------------------------------------------------------------------------------------------------
DSEA Reservations shopping $105/mo. 30 day notice AGHI
reports
- ------------------------------------------------------------------------------------------------------------------------------------
Equifax Check guarantee service $60/yr plus $12/mo. 30 day notice AGHI
and 1.35% of check
value
- ------------------------------------------------------------------------------------------------------------------------------------
ADP Payroll Processing $100 per pay period 30 day notice AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
B-11
<PAGE>
CRICKET INN CHARLOTTE
<TABLE>
<CAPTION>
CONTRACTS/LEASES
- ------------------------------------------------------------------------------------------------------------------------------------
VENDOR SERVICE COST CANCELLATION STATUS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Time Warner Free to guest $1,039.50/mo. 30 day notice Copy included
Cable television program
- ------------------------------------------------------------------------------------------------------------------------------------
Page South Pager air time & Equipment $45.58/mo. 30 day notice Copy included
Rental
- ------------------------------------------------------------------------------------------------------------------------------------
3M National Billboards $1360/mo. 60 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
Horizon Billboards $1,200/mo. 60 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
Adams Billboards $1,843/mo. 60 day notice Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
General Electric HVAC service $928.87/mo. July, 1997 Copy included
- ------------------------------------------------------------------------------------------------------------------------------------
Exit Information Advertising $2,845/yr. Annual renewal/pd Copy included
Guide through June 1997
- ------------------------------------------------------------------------------------------------------------------------------------
Carolina Grounds Maintenance $450/mo. 30 day notice Copy included
Landscape
- ------------------------------------------------------------------------------------------------------------------------------------
Terminix Pest Control $132/mo. 30 day notice Copy included, AGHI
- ------------------------------------------------------------------------------------------------------------------------------------
Charlotte Police Security $15.50/hr. @ 8 30 day notice Verbal agreement, contact
Dept. hours per day individual labor
- ------------------------------------------------------------------------------------------------------------------------------------
General Security monitor $60/qtr 30 day notice Verbal, no contract
Emergency
Monitor
- ------------------------------------------------------------------------------------------------------------------------------------
Container Corp. Rubbish Hauling $282.04/mo. 180 day notice prior Copy included
to end of term which
is 3/20/01
- ------------------------------------------------------------------------------------------------------------------------------------
JC Penney Reservation System Based on number
of calls
- ------------------------------------------------------------------------------------------------------------------------------------
Hotelecom Telephone Consultant % of revenue, see 30 day notice agreement pending, will
agreement forward when executed
- ------------------------------------------------------------------------------------------------------------------------------------
DSEA Reservations Shopping $105/mo. 30 day notice AGHI
Reports
- ------------------------------------------------------------------------------------------------------------------------------------
Equifax Check guarantee service $60/yr plus $12/mo. 30 day notice AGHI
and 1.35% of check
value
- ------------------------------------------------------------------------------------------------------------------------------------
ADP Payroll processing $100 per pay 30 day notice AGHI
period
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
B-12
<PAGE>
EXHIBIT C
EXCLUDED ASSETS
1. The management contract between Sellers and American General Hospitality
Inc. ("Manager").
2. World Cinema and Lodgenet television decoders.
3. Any and all vending machines, including, without limitation, newspaper
vending machines.
4. Any and all pagers used by employees of Manager.
5. Manager's manuals and forms relating to the management of, or located at,
each of the Properties.
6. Credit card processing equipment.
7. Manager's computer software and any and all other property of Manager.
8. Property belonging to hotel guests, invitees or licensees.
9. Property owned by the lessor under the Statesville Ground Lease.
10. Any and all contracts, licenses, permits, etc. which, by their terms, are
not assignable.
11. Any and all tradenames, trademarks, intellectual property, manuals and
other property of the franchisors under the Franchise Agreements.
<PAGE>
EXHIBIT D
PROMISSORY NOTE
$__________ New York, New York
Dated: As of _____, 1996
FOR VALUE RECEIVED, Hudson Motels Corporation, a New York corporation with
offices at One Airport Way, Suite 200, Rochester, New York 14624 ("Borrower")
promises to pay to [SB Motel Richmond Corp., SB Motel Durham-Research Triangle
Park Corp., SB Motel Cary Corp., SB Motel Statesville Corp., SB Motel Wilmington
Corp., SB Motel Columbia Corp., SB Motel Charleston Corp., SB Motel Albany
Corp., SB Motel Virginia Beach Corp., SB Motel Durham-Duke Corp., SB Motel
Raleigh Corp. and SB Motel Charlotte I-85 Corp.] [Sellers shall have the right
to name any designee as the Lender at any time prior to the Closing]
(collectively, "Lender"), or order, at ________________ or at such other place
in the United States of America as may be designated in writing by the holder of
this note (this "Note"), the sum of _______________________ ($_________)
Dollars, together with Interest as hereinafter provided, until the said
principal sum shall be fully paid, and to be due and payable as hereinafter
provided. The said principal sum, or the amount thereof outstanding, together
with accrued and unpaid interest and all other unpaid sums payable hereunder,
shall be due and payable on the Maturity Date (as hereinafter defined) or as
otherwise expressly provided herein. Borrower may make voluntary prepayments of
principal in accordance with Section 3 hereof.
1. Definitions. The following terms, as used in this Note, shall have the
following meanings, which shall be applicable equally to the singular and the
plural of the terms defined:
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
on which federally insured depository institutions in the State of New York are
authorized or obligated by law, governmental decree or executive order to be
closed.
"Event of Default" shall mean (i) any failure of Borrower to pay any
amounts due and payable pursuant to this Note within five (5) Business Days
after the due date thereof, (ii) any default by Borrower under the Senior
Indebtedness (as hereinafter defined) which shall entitle Nomura Asset Capital
Corporation (or any successors or assigns thereof) to accelerate all principal
indebtedness evidenced by the Senior
D-1
<PAGE>
Indebtedness or (iii) financial difficulties of Borrower or any subsidiary of
Borrower as evidenced by (x) the filing of a voluntary or involuntary petition
in bankruptcy or under any chapters of the Bankruptcy Code or under any federal
or state statute providing for relief of debtors, (y) the making of an
assignment for the benefit of creditors or (z) the appointment of a receiver or
trustee for all or a major part of its property.
"Maturity Date" shall mean November 27, 1997.
2. Interest. (a) Interest at the rate of ten percent (l0%) per annum on
the unpaid principal ("Interest") shall be due and payable in arrears on the
first day of each month following the date of this Note. Interest accruing under
this Note shall be computed on the basis of a 360-day year for the actual number
of days elapsed.
(b) Borrower shall pay principal, Interest and all other sums due
hereunder in immediately available funds to Lender at ____________________ or
otherwise as directed in writing by Lender. Payments hereunder shall be due
prior to 3:00 P.M. (Eastern Standard Time) on the date on which payment shall be
due. Lender may apply payments received in respect of Borrower's obligations in
such manner as it may see fit in its sole discretion.
(c) Notwithstanding anything to the contrary herein contained, (i) upon
and following the Maturity Date (if the principal of, and any accrued Interest
on, this Note are not paid in full) or (ii) if an Event of Default shall occur,
then, from and after the date of the occurrence of such Event of Default and
during the continuance of such Event of Default, any unpaid principal shall bear
interest at a rate per annum (the "Default Rate") equal to the lesser of (1)
eighteen percent (18%) per annum, or (2) the maximum rate permitted by
applicable law to be charged to Borrower.
(d) It is not intended hereby to charge interest at a rate in excess of
the maximum legal rate of interest permitted to be charged to Borrower under
applicable law, but if, notwithstanding the foregoing, interest in excess of
said maximum legal rate shall be paid hereunder, the excess shall be applied by
Lender to the payment of the unpaid principal due hereunder.
3. Voluntary Prepayment. Borrower shall have the right to prepay any
unpaid principal or other unpaid sums in connection therewith in whole or in
part without penalty or
D-2
<PAGE>
premium. Any such prepayment of unpaid principal shall be accompanied by an
amount equal to unpaid Interest to the date of such prepayment on the amount of
principal being so prepaid. In the event of such voluntary prepayment, Borrower
shall give Lender written notice of its intent to prepay at least ten (10)
Business Days prior to the date on which such prepayment is to be made, and
shall specify the amount of such prepayment. If any such notice is given, the
amount specified in such notice shall be due and payable on the date specified
therein.
4. Acceleration. In the case of the occurrence of any Event of Default
under this Note, Lender may, upon giving written notice to Borrower, and in
addition to exercising any other available rights or remedies, accelerate all or
any part of the principal due hereunder, which shall therewith be immediately
due and payable by Borrower, together with Interest accrued to date at the rate
specified hereunder, together with all fees and other charges payable by
Borrower hereunder.
5. Waiver. (a) Borrower and any endorsers, sureties and guarantors hereof
or hereon hereby waive presentment for payment, demand, protest, notice of
non-payment or dishonor and of protest, and agree to remain bound until the
unpaid principal, all accrued interest and all other sums payable hereunder are
paid in full, notwithstanding any extensions of time for payment which may be
granted even though the period of extension be indefinite, and notwithstanding
any inaction by, or failure to assert any legal right available to, Lender.
(b) It is further expressly agreed that any waiver by Lender, other than a
waiver in writing signed by Lender, of any term or provision hereof or of any
right, remedy or option under this Note shall not be controlling, nor shall it
prevent or estop Lender from thereafter enforcing such term, provision, right,
remedy or option, and the failure or refusal of Lender to insist in any one or
more instances upon the strict performance of any of the terms or provisions of
this Note shall not be construed as a waiver or relinquishment for the future of
any such term or provision, but the same shall continue in full force and
effect, it being understood and agreed that Lender's rights, remedies and
options under this Note are and shall be cumulative and are in addition to all
other rights, remedies and options of Lender in law or in equity or under any
other agreement.
6. Late Charge. In addition to interest charged at the Default Rate and
Lender's other available remedies, in the event any amount due and payable under
this Note is not paid on the date when due, a "late charge" of six cents for
each dollar overdue shall be charged by Lender and paid by Borrower for the
D-3
<PAGE>
purpose, among other things, of covering the expenses incident to handling a
delinquent payment.
7. Costs of Collection. Borrower shall pay, when such costs are incurred
by Lender, all third party costs of collecting any amount which is not paid by
Borrower when due pursuant to the terms of this Note, including, without
limitation, the attorneys' fees and disbursements of Lender's counsel, which
costs may be added to the indebtedness evidenced by this Note and paid promptly
on demand, together with interest thereon at the Default Rate.
8. Subordination. The term "Senior Indebtedness" shall mean: (i) the
principal in an amount not to exceed $12,000,000, plus any premiums, unpaid
interest and any other sums, charges or amounts which is or may become due and
payable by Borrower to Nomura Asset Capital Corporation, whether outstanding on
the date of execution of this Note or thereafter created, incurred, assumed,
issued or guaranteed, which indebtedness is, among other things, for all or part
of the consideration for the acquisition of certain hotels being transferred
from Lender to Borrower on even date herewith pursuant to that certain Agreement
of Purchase Sale dated as of September 26, 1996, among Borrower, Lender and
Hudson Hotels Properties Corp.; and any and all deferrals, renewals or
extensions of any such indebtedness or obligations.
This Note, including the principal hereof and Interest hereon, is
subordinate and junior in right of payment to the Senior Indebtedness of
Borrower. In the case of any bankruptcy, insolvency, receivership,
conservatorship, reorganization, or arrangement with, or assignment for the
benefit of creditors, readjustment of debt, marshaling of assets and liabilities
or similar proceeding or any liquidation or winding up of, or relating to,
Borrower, whether voluntary or involuntary, all such obligations and rights,
including interest at the Default Rate, shall be entitled to be paid in full
before any payment shall be made on account of the principal, or Interest or
premium, if any, on this Note.
9. Waiver of Trial by Jury. Borrower hereby irrevocably waives all right
to trial by jury in any action, proceeding or counterclaim arising out of or
relating to this Note.
10. Miscellaneous. (a) Applicable Law. Borrower agrees that this Note
shall be governed by and construed and enforced in accordance with the
procedural and substantive laws
D-4
<PAGE>
of the State of New York. Any legal action or proceeding with respect to this
Note must be brought in the courts of the State of New York within the First
Judicial Department 1st District, New York City or of the United States of
America for the Southern District of New York, and, by execution and delivery of
this Note, Borrower hereby accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts.
Borrower further irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the delivery of
copies thereof to Borrower to the address of Borrower specified in the Preamble
hereof. Nothing herein shall affect the right of Lender to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against Borrower in any other jurisdiction.
(b) Amendments in Writing. No amendment or waiver of any provision of this
Note, nor consent to any departure by Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by Lender and Borrower
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
(c) Successors. Lender shall have the right to assign to one or more banks
or other persons or entities all or a portion of its interest in this Note and
to sell participations in or to all or a portion of its interest in this Note.
The term "Lender" shall mean the then holder of this Note from time to time and
its successors and assigns. Notwithstanding any provision of this Note, any
assignee of all or a portion of the rights and interests of Lender under this
Note shall be entitled to the benefits, and subject in all respects to the terms
and conditions, of this Note.
(d) Partial Invalidity. In the event that any provision of this Note or
the application thereof to Borrower or any circumstance in any jurisdiction
governing this Note shall, to any extent, be invalid or unenforceable under any
applicable statute, regulation, or rule of law then such a provision shall be
deemed inoperative to the extent that it may conflict therewith and shall be
deemed modified to conform to such statute, regulation or rule of law, and the
remainder of this Note and the application of any such invalid or unenforceable
provision to parties, jurisdictions, or circumstances other than to whom or to
which it is held invalid or unenforceable, shall not be affected thereby nor
shall the same affect the validity or enforceability of any other provision of
this Note.
D-5
<PAGE>
(e) Time Is of the Essence. Time is of the essence as to all dates set
forth herein; provided, however, that whenever any payment to be made hereunder
shall be stated to be due on a day other than a Business Day, such payment may
be made on the next succeeding Business Day.
(f) No Impairment of Rights. No act of commission or omission of any kind
or at any time upon the part of Lender or its successors or assigns in respect
of any matter whatsoever shall in any way impair the rights of Lender to enforce
any right, power or benefit under this Note and no set-off, counterclaim,
reduction, or diminution of any obligation, or any defense of any kind or
nature, which Borrower has or may have against Lender or any assignee or
successor thereof, shall be available hereunder to Borrower.
(g) Authority. Borrower has executed this Note with due and proper
authority to do so. This Note is valid and enforceable against Borrower and
evidences Borrower's lawful indebtedness to Lender.
IN WITNESS WHEREOF, Borrower has caused the note to be executed as of the
date first above written.
Attest HUDSON HOTELS CORPORATION
___________________________ By:_____________________________________
Alan S. Lockwood, Name: E. Anthony Wilson
Secretary Title: Chairman
D-6
<PAGE>
EXHIBIT E
Purchase Price Allocation
SB Motel Albany Corp. $3,176,000
SB Motel Cary Corp. $6,008,000
SB Motel Charleston Corp. $5,938,000
SB Motel Charlotte I-85 Corp. $3,291,000
SB Motel Columbia Corp. $5,811,000
SB Motel Durham-Duke Corp. $9,429,000
SB Motel Durham Research Triangle Park Corp. $4,945,000
SB Motel Raleigh Corp. $3,835,000
SB Motel Richmond Corp. $6,535,000
SB Motel Statesville Corp. $3,741,000
SB Motel Virginia Beach Corp. $2,286,000
SB Motel Wilmington Corp. $6,005,000
----------
Total $61,000,000
<PAGE>
EXHIBIT F
Mechanics Liens
(1) Approximately $25,000 claim/lien in connection with the Columbia Property.
(2) Approximately $5,000 dispute with sealing Contractor in connection with
the Richmond Property.
F-1
<PAGE>
EXHIBIT G
Hudson's Litigation Schedule
On October, 26, 1990, a complaint was filed in Palm Beach County Circuit
Court, Florida, by Seagate Beach Quarters, Inc., a Florida corporation (Bearing
Case #90-12358-AB), seeking damages plus interest and costs, against Rochester
Community Savings Bank, ("RCSB"), a New York based bank, Shore Holdings, Inc.
("SHORE"), a subsidiary of RCSB and naming Hudson as a co-defendant. On
December, 6, 1990, Delray Beach Hotel Properties Limited, a Florida limited
partnership controlled by Hudson, purchased the Seagate Hotel and Beach Club
from RCSB's subsidiary, SHORE. The purchase contract included an indemnification
of Hudson against any action resulting from previously negotiated contracts
between RCSB's subsidiaries and third-parties. Case #90-12358-AB contained
allegations that RCSB's subsidiary, SHORE, defaulted in its obligations under a
Contract for Purchase and Sale, dated August 16, 1990, and failed to go forward
with the transaction due to alleged tortious negotiations between RCSB and
Hudson. On March 17, 1994, the Court granted Summary Judgment in favor of RCSB
and Hudson which judgment was appealed by Seagate. The Fourth District Court of
Appeal in Florida affirmed the summary judgment on RCSB and reversed the summary
judgment granted in favor of Hudson, remanding the action to Circuit Court for
further consideration. On August 15, 1994, Seagate proceeded to trial against
SHORE in case #90-12358-AB. During the course of the trial, Seagate took a
voluntary dismissal of their action against SHORE. On September 8, 1994, Seagate
refiled its lawsuit against SHORE and joined Delray Beach Hotel Properties
Limited, through its general partner, Delray Beach Hotel Corp. (bearing Case
#94-6961-AF). The new case against SHORE was brought essentially on the same
facts as stated above. The claim against Delray Beach Hotel Properties Limited
was identical to the conspiracy and tortious interference with a business
relationship claim currently existing against Hudson. On January 27, 1995, the
Court issued an Order dismissing the Amended Complaint as to Delray Beach Hotel
Properties Limited. The Circuit Court has consolidated the case against Hudson
(Case #90-12358-AB) and the case against SHORE (Case #94-6961-AF) and it is
anticipated those suits will go to trial during 1997.
On February 11, 1993, a complaint was filed in the Western District of New
York, United States District Court, by John Miranda, Susan Miranda and
Christopher Miranda, seeking damages and costs against Quality Inn
International, Choice Hotels International, and naming Hudson as a co-defendant.
The
G-l
<PAGE>
requested relief in this case, John Miranda and Susan Miranda and Christopher
Miranda vs. Quality Inns International Inc., Choice Hotels International Inc.,
Ridge Road Hotel Properties, Ridge Road Hotel Properties d/b/a Comfort Inn,
a/k/a Comfort Inn West, Hudson, and Jennifer L. Ansley, as Executrix of the
Estate of Loren G. Ansley, was based on allegations that John Miranda, while
staying at the Comfort Inn, stepped on a needle, and claims negligence and lack
of due care on the part of the defendants. This case is being diligently
defended by the insurance carrier of Ridge Road Hotel Properties and Hudson.
Hudson believes that it has adequate insurance for any potential loss.
After taking into consideration legal Counsel's evaluation of all such
actions, management is of the opinion that the outcome of each such proceeding
or claim which is pending, or known to be threatened (as described above), will
not have a significant effect on Hudson's financial statements.
On June 20, 1995, Ladenburg, Thalmann & Co., Inc. Hudson's former
investment bankers, filed a complaint in New York State Supreme Court against
Hudson alleging breach of contract and damages of $906,250 relating to Hudson's
rescission of a warrant granted to them in connection with the investment
advisory agreement. In February 1994, the Board of Hudson determined that
Ladenburg had been otherwise adequately compensated for such services as were
actually performed, and voted to rescind the warrant. Hudson has answered the
complaint, denying the relevant allegations and asserting several affirmative
defenses. Discovery in the case has commenced and is continuing. The ultimate
outcome of the litigation cannot presently be determined. Accordingly, no
provision for any liability that may result has been made in the financial
statements.
On January 29, 1996, William Lemer filed a complaint in the Court of
Common Please of Washington County, Pennsylvania, against Hudson, alleging
breach of contract and damages of $253,125 relating to Hudson's rescission of a
warrant granted to this individual in connection with establishing a
relationship with Ladenburg, Thalmann & Co., Inc. In February 1994, the Board of
Hudson rescinded the warrant to William Lerner as a result of terminating
Hudson's relationship with Ladenburg, Thalmann & Co., Inc. On March 26, 1996,
William Lerner dismissed the complaint filed against Hudson. As part of the
dismissal, Hudson allowed him to exercise his warrants on a cashless basis and
issued 19,594 shares of Microtel common stock as a result of this transaction.
G-2
<PAGE>
EXHIBIT H
Environmental Reports
1. Phase I Site Assessment Report Update
Cricket Inn
7300 West Broad Street
Richmond, Virginia 23294
Prepared For: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Prepared By: Ogden Environmental and Engineering Services
9800 West Kincey Avenue, Suite 190
Huntersville, Virginia 23294
Dated: November 12, 1993
2 Phase I Environmental Assessment
Cricket Inn Property
Richmond, Virginia
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Donohue Inc
Greenville, South Carolina
Dated: July, 1992
3. Phase I Environmental Assessment
Cricket Inn Property
2306 Elba Street
Durham, North Carolina
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Donohue Inc.
Greenville, South Carolina
Dated: July, 1992
H-l
<PAGE>
4. Phase I Site Assessment Report Update
Cricket Inn
2306 Elba Street Durham,
North Carolina
Prepared For: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Prepared By: Ogden Environmental and Engineering Services
9800 West Kincey Avenue, Suite 190
Huntersville, North Carolina 28087
Dated: November 12, 1993
5. Phase I Environment Assessment
Cricket Inn Property
Cary, North Carolina
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Donohue Inc.
Greenville, South Carolina
Dated: July, 1992
6. Phase I Site Assessment Report Update Cricket Inn
1716 Walnut Street
Cary, North Carolina 27511
Prepared For: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Prepared By: Ogden Environmental and Engineering Services
9800 West Kincey Avenue, Suite 190
Huntersville, North Carolina 28087
Dated: November 12, 1993
7. Phase I Environmental Assessment
Cricket Inn Property
Statesville, North Carolina
Prepared For: Salomon Brothers Inc
New York, New York
H-2
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Prepared By: SEC Donohue Inc.
Greenville, South Carolina
Dated: July, 1992
8. Phase I Site Assessment Report Update
Cricket Inn
1503 East Broad Street
Statesville, North Carolina 28677
Prepared For: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Prepared By: Ogden Environmental and Engineering Services
9800 West Kincey Avenue, Suite 190
Huntersville, North Carolina 28087
Dated: November 12, 1993
9. Phase I Environmental Assessment
Cricket Inn Property
Wilmington, North Carolina
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Donohue Inc.
Greenville, South Carolina
Dated: July, 1992
10. Phase I Site Assessment Report Update
Cricket Inn
4926 Market Street
Wilmington, North Carolina 28403
Prepared For: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Prepared By: Ogden Environmental and Engineering Services
9800 West Kincey Avenue, Suite 190
Huntersville, North Carolina 28087
Dated: November 12, 1993
H-3
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11. Phase I Site Assessment Report Update I
Cricket Inn
8104 Two Notch Road
Columbia, South Carolina 29223
Prepared For: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Prepared By: Ogden Environmental and Engineering Services
9800 West Kincey Avenue, Suite 190
Huntersville, North Carolina 28087
Dated: November 12, 1993
12. Phase I Environmental Assessment
Cricket Inn Property
Columbia, South Carolina
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Donohue Inc.
Greenville, South Carolina
Dated: July, 1992
13. Limited Phase II Subsurface Investigation
Cricket Inn
Interstate 77 and Two Notch Road
Columbia, South Carolina
GWPD Site #A-40-AA-15401
Prepared For: Richfield Hotel Management, Inc.
4600 South Ulster Street, Suite 1200
Denver, Colorado 80237
Prepared By: Ogden Environmental and Engineering Services
9800 West Kincey Avenue, Suite 190
Huntersville, North Carolina 28087
Dated: February 26, 1993
14. Phase I Environmental Assessment
Cricket Inn Property
Charleston, South Carolina
Prepared For: Salomon Brothers Inc
New York, New York
H-4
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Prepared By: SEC Donohue Inc.
Greenville, South Carolina
Dated: July, 1992
15. Phase I Site Assessment Report Update
Cricket Inn
7415 Northside Drive
North Charleston, South Carolina 29420
Prepared For: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Prepared By: Ogden Environmental and Engineering Services
9800 West Kincey Avenue, Suite 190
Huntersville, North Carolina 28087
Dated: November 12, 1993
16. Phase I Environmental Assessment
Cricket Inn Property
Albany, Georgia
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Donohue Inc.
Greenville, South Carolina
Dated: July, 1992
17. Phase I Site Assessment Report Update
Cricket Inn
2586 North Slappey Boulevard
Albany, Georgia 31701
Prepared For: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Prepared By: Ogden Environmental and Engineering Services
9800 West Kincey Avenue, Suite 190
Huntersville, North Carolina 28087
Dated: November 12, 1993
H-5
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18. Phase I Site Assessment Report Update
Cricket Inn
5745 Northampton Boulevard
Virginia Beach, Virginia 23455
Prepared For: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Prepared By: Ogden Environmental and Engineering Services
9800 West Kincey Avenue, Suite 190
Huntersville, North Carolina 28087
Dated: November 12, 1993
19. Limited Phase II Subsurface Investigation
Cricket Inn Property
5745 Northampton Boulevard
Virginia Beach, Virginia 23455
Prepared For: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Prepared By: Ogden Environmental and Engineering Services
9800 West Kincey Avenue, Suite 190
Huntersville, North Carolina 28087
Dated: November 22, 1993
20. Phase I Environmental Assessment
Cricket Inn Property
Virginia Beach, Virginia
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Donohue Inc.
Greenville, South Carolina
Dated: July, 1992
21. Phase I Environmental Assessment
Cricket Inn Property
4507 NC Highway 55
Durham, North Carolina
Prepared For: Salomon Brothers Inc
New York, New York
H-6
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Prepared By: SEC Donohue Inc.
Greenville1 South Carolina
Dated: July, 1992
22. Phase I Site Assessment Report Update
Cricket Inn
4507 NC Highway 55
Durham1 North Carolina 27713
Prepared For: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Prepared By: Ogden Environmental and Engineering Services
9800 West Kincey Avenue, Suite 190
Huntersville, North Carolina 28087
Dated: November 12, 1993
23. Phase I Environmental Assessment
Cricket Inn Property
Raleigh, North Carolina
Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Donohue Inc.
Greenville, South Carolina
Dated: July, 1992
24. Phase I Site Assessment Report Update
Cricket Inn
3201 Old Wake Forest Road
Raleigh, North Carolina 27609
Prepared For: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Prepared By: Ogden Environmental and Engineering Services
9800 West Kincey Avenue, Suite 190
Huntersville, North Carolina 28087
Dated: November 12, 1993
25. Phase I Environmental Assessment
Cricket Inn Property
Charlotte, North Carolina
H-7
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Prepared For: Salomon Brothers Inc
New York, New York
Prepared By: SEC Donohue Inc.
Greenville, South Carolina
Dated: July, 1992
26. Phase I Site Assessment Report Update
Cricket Inn
1200 West Sugar Creek Road
Charlotte, North Carolina 28213
Prepared For: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Prepared By: Ogden Environmental and Engineering Services
9800 West Kincey Avenue, Suite 190
Huntersville, North Carolina 28087
Dated: November 12, 1993
27. Limited Phase II Subsurface Investigation
Cricket Inn
1200 West Sugar Creek Road
Charlotte, North Carolina
Prepared For: Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Prepared By: Ogden Environmental and Engineering Services
9800 West Kincey Avenue, Suite 190
Huntersville, North Carolina 28087
Dated: November 22, 1993
H-8
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EXHIBIT I
Sellers' Litigation Schedule
1. Dean Waldred and Kathy Elaine Clark v. Hotel Renovations General
Hospitality. Inc., S.C. Ct. of Common Pleas, C.A. No. 95-CP-40-0773.
