Exhibit 10.78


 


Rogers,
Arkansas (Homewood Suites)


 


 


PURCHASE
CONTRACT


 


 


between


 


ROGERS
LODGING ASSOCIATES 58, LLC (“SELLER”)


 


(“SELLER”)


 


 


AND


 


 


APPLE
NINE HOSPITALITY OWNERSHIP, INC. (“BUYER”)


 


 


AND


 


 


RAYMOND
MANAGEMENT COMPANY, INC.


(“INDEMNITOR”)


 


 


Dated:  March 16, 2010


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page No.

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  I

  	
  DEFINED
  TERMS

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  	
  PURCHASE AND SALE;
  PURCHASE PRICE; PAYMENT; EARNEST MONEY DEPOSIT

  	
  7

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Purchase and Sale

  	
  7

  
	
   

  	
   

  	
   

  
	
  2.2

  	
  Intentionally Omitted

  	
  7

  
	
   

  	
   

  	
   

  
	
  2.3

  	
  Purchase Price

  	
  7

  
	
   

  	
   

  	
   

  
	
  2.4

  	
  Allocation

  	
  7

  
	
   

  	
   

  	
   

  
	
  2.5

  	
  Payment

  	
  7

  
	
   

  	
   

  	
   

  
	
  2.6

  	
  Earnest Money Deposit

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  III 

  	
  REVIEW
  PERIOD

  	
  8

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Review Period

  	
  8

  
	
   

  	
   

  	
   

  
	
  3.2

  	
  Due Diligence
  Examination

  	
  9

  
	
   

  	
   

  	
   

  
	
  3.3

  	
  Restoration

  	
  9

  
	
   

  	
   

  	
   

  
	
  3.4

  	
  Seller Exhibits

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IV 

  	
  SURVEY
  AND TITLE APPROVAL

  	
  10

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Survey

  	
  10

  
	
   

  	
   

  	
   

  
	
  4.2

  	
  Title

  	
  10

  
	
   

  	
   

  	
   

  
	
  4.3

  	
  Survey or Title
  Objections

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  V 

  	
  TERMINATION
  OF MANAGEMENT AGREEMENT

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI 

  	
  BROKERS

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII 

  	
  REPRESENTATIONS,
  WARRANTIES AND COVENANTS

  	
  12

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Seller’s and
  Indemnitor’s Representations, Warranties and Covenants

  	
  12

  
	
   

  	
   

  	
   

  
	
  7.2

  	
  Buyer’s
  Representations, Warranties and Covenants

  	
  16

  
	
   

  	
   

  	
   

  
	
  7.3

  	
  Survival

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII 

  	
  ADDITIONAL
  COVENANTS

  	
  17

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Subsequent Developments

  	
  17

  
	
   

  	
   

  	
   

  
	
  8.2

  	
  Operations

  	
  17

  
	
   

  	
   

  	
   

  
	
  8.3

  	
  Third Party Consents

  	
  19

  
	
   

  	
   

  	
   

  
	
  8.4

  	
  Employees

  	
  19

  
				



 


i

















 


	
  8.5

  	
  Estoppel Certificates

  	
  19

  
	
   

  	
   

  	
   

  
	
  8.6

  	
  Access to Financial
  Information

  	
  19

  
	
   

  	
   

  	
   

  
	
  8.7

  	
  Bulk Sales

  	
  19

  
	
   

  	
   

  	
   

  
	
  8.8

  	
  Indemnification

  	
  19

  
	
   

  	
   

  	
   

  
	
  8.9

  	
  Escrow Funds

  	
  22

  
	
   

  	
   

  	
   

  
	
  8.10

  	
  Liquor Licenses

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IX 

  	
  CONDITIONS
  FOR CLOSING

  	
  22

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Buyer’s Conditions for
  Closing

  	
  22

  
	
   

  	
   

  	
   

  
	
  9.2

  	
  Seller’s Conditions for
  Closing

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  X 

  	
  CLOSING
  AND CONVEYANCE

  	
  24

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Closing

  	
  24

  
	
   

  	
   

  	
   

  
	
  10.2

  	
  Deliveries of Seller
  and Indemnitor

  	
  24

  
	
   

  	
   

  	
   

  
	
  10.3

  	
  Buyer’s Deliveries

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XI 

  	
  COSTS

  	
  26

  
	
   

  	
   

  	
   

  
	
  11.1

  	
  Seller’s Costs

  	
  26

  
	
   

  	
   

  	
   

  
	
  11.2

  	
  Buyer’s Costs

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XII 

  	
  ADJUSTMENTS

  	
  27

  
	
   

  	
   

  	
   

  
	
  12.1

  	
  Adjustments

  	
  27

  
	
   

  	
   

  	
   

  
	
  12.2

  	
  Reconciliation and
  Final Payment

  	
  28

  
	
   

  	
   

  	
   

  
	
  12.3

  	
  Employees

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XIII 

  	
  CASUALTY
  AND CONDEMNATION

  	
  29

  
	
   

  	
   

  	
   

  
	
  13.1

  	
  Risk of Loss; Notice

  	
  29

  
	
   

  	
   

  	
   

  
	
  13.2

  	
  Buyer’s Termination
  Right

  	
  29

  
	
   

  	
   

  	
   

  
	
  13.3

  	
  Procedure for Closing

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XIV 

  	
  DEFAULT
  REMEDIES

  	
  30

  
	
   

  	
   

  	
   

  
	
  14.1

  	
  Buyer Default

  	
  30

  
	
   

  	
   

  	
   

  
	
  14.2

  	
  Seller Default

  	
  30

  
	
   

  	
   

  	
   

  
	
  14.3

  	
  Attorney’s Fees

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XV 

  	
  NOTICES

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XVI 

  	
  MISCELLANEOUS

  	
  32

  
	
   

  	
   

  	
   

  
	
  16.1

  	
  Performance

  	
  32

  
	
   

  	
   

  	
   

  
	
  16.2

  	
  Binding Effect;
  Assignment

  	
  32

  
	
   

  	
   

  	
   

  
	
  16.3

  	
  Entire Agreement

  	
  32

  
				



 


ii

















 


	
  16.4

  	
  Governing Law

  	
  32

  
	
   

  	
   

  	
   

  
	
  16.5

  	
  Captions

  	
  32

  
	
   

  	
   

  	
   

  
	
  16.6

  	
  Confidentiality

  	
  32

  
	
   

  	
   

  	
   

  
	
  16.7

  	
  Closing Documents

  	
  32

  
	
   

  	
   

  	
   

  
	
  16.8

  	
  Counterparts

  	
  32

  
	
   

  	
   

  	
   

  
	
  16.9

  	
  Severability

  	
  32

  
	
   

  	
   

  	
   

  
	
  16.10

  	
  Interpretation

  	
  33

  
	
   

  	
   

  	
   

  
	
  16.11

  	
  (Intentionally Omitted)

  	
  33

  
	
   

  	
   

  	
   

  
	
  16.12

  	
  Further Acts

  	
  33

  
	
   

  	
   

  	
   

  
	
  16.13

  	
  Joint and Several
  Obligations

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XVII 

  	
  JOINDER
  BY INDEMNITOR

  	
  33

  
	
   

  	
   

  	
   

  
	
  17.1

  	
  Indemnification by
  Indemnitor

  	
  33

  
	
   

  	
   

  	
   

  
	
  SCHEDULES:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Legal
  Description

  	
   

  
	
  Exhibit B

  	
  List
  of FF&E

  	
   

  
	
  Exhibit C

  	
  List
  of Hotel Contracts

  	
   

  
	
  Exhibit D

  	
  Consents
  and Approvals

  	
   

  
	
  Exhibit E

  	
  Environmental
  Reports

  	
   

  
	
  Exhibit F

  	
  Claims
  or Litigation Pending

  	
   

  
	
  Exhibit G

  	
  Escrow
  Agreement

  	
   

  
				



 


iii

















 


PURCHASE
CONTRACT


 


This PURCHASE CONTRACT
(this “Contract”) is made and entered into
as of March 16, 2010, by and between ROGERS LODGING ASSOCIATES 58, LLC, a
Wisconsin limited liability company (“Seller”)
with a principal office at 8333 Greenway Boulevard, Suite 200, Middleton,
Wisconsin 53562 and APPLE NINE HOSPITALITY OWNERSHIP, INC., a Virginia
corporation, with its principal office at 814 East Main Street, Richmond,
Virginia 23219, or its affiliates or assigns (“Buyer”),
and joined in by Raymond Management Company, Inc., a Wisconsin Corporation
(“Indemnitor”), with its principal
office at 8333 Greenway Boulevard, Suite 200, Middleton, Wisconsin 53562.


 


RECITALS


 


A.                                    Seller is the fee simple owner of that
certain 126-room hotel property commonly known as the Homewood Suites —
Bentonville/Rogers located at 4302 W. Walnut St., Rogers, AR 72756 (the “Hotel”) identified in Exhibit A attached hereto and
incorporated by reference.


 


B.                                    Buyer is desirous of purchasing the Hotel
from Seller, and Seller is desirous of selling the Hotel to Buyer, for the
purchase price and upon terms and conditions hereinafter set forth.


 


AGREEMENT:


 


NOW, THEREFORE, in consideration of the foregoing
Recitals, the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:


 


ARTICLE I

DEFINED TERMS


 


1.1                               Definitions. 
The following capitalized terms when used in this Contract shall have
the meanings set forth below unless the context otherwise requires:


 


“Additional Deposit” shall mean $125,000.00.


 


“Affiliate” shall mean, with respect to Seller
or Buyer, any other person or entity directly or indirectly controlling
(including but not limited to all directors and officers), controlled by or
under direct or indirect common control with Seller or Buyer, as
applicable.  For purposes of the
foregoing, a person or entity shall be deemed to control another person or
entity if it possesses, directly or indirectly, the power to direct or cause
direction of the management and policies of such other person or entity,
whether through the ownership of voting securities, by contract or otherwise.


 


“Appurtenances” shall mean all rights, titles,
and interests of a Seller appurtenant to the Land and Improvements, including,
but not limited to, (i) all easements, rights of way, rights of ingress
and egress, tenements, hereditaments, privileges, and appurtenances in any way 


 


1

















 


belonging to the Land or Improvements, (ii) any
land lying in the bed of any alley, highway, street, road or avenue, open or
proposed, in front of or abutting or adjoining the Land, (iii) any strips
or gores of real estate adjacent to the Land, and (iv) the use of all
alleys, easements and rights-of-way, if any, abutting, adjacent, contiguous to
or adjoining the Land.


 


“Brand” shall mean Homewood Suites by Hilton,
the hotel brand or franchise under which the Hotel operates.


 


“Business Day” shall mean any day other than a
Saturday, Sunday or legal holiday in the Commonwealth of Virginia.


 


“Closing” shall mean the closing of the
purchase and sale of the Property pursuant to this Contract.


 


“Closing Date” shall have the meaning set forth
in Section 10.1.


 


“Contracts, Plans and Specs” shall mean all
construction plans, drawings, specifications, surveys, soil reports,
engineering reports, inspection reports, and other technical descriptions and
reports, in Seller’s possession or control.


 


“Deed” shall have the meaning set forth in Section 10.2(a).


 


“Deposits” shall mean, to the extent
assignable, all prepaid rents and any cash balances in lender required reserves
for replacement of FF&E and for capital repairs and/or improvements (“Lender
Required Reserves”), refundable security deposits and rental deposits, and all
other deposits for advance reservations, banquets or future services, made in
connection with the use or occupancy of the Improvements; provided, however,
that to the extent Seller has not received or does not hold all of the prepaid
rents and/or deposits attributable to the Leases related to the Property, Buyer
shall be entitled to a credit against the cash portion of the Purchase Price
allocable to the Property in an amount equal to the amount of the prepaid rents
and/or deposits attributable to the Leases transferred at the Closing of such
Property, and provided further, that “Deposits” shall exclude (i) reserves
for real property taxes and insurance, in each case, to the extent pro rated on
the settlement statement such that Buyer receives a credit for (a) taxes
and premiums in respect of any period prior to Closing and (b) the amount
of deductibles and other self-insurance and all other potential liabilities and
claims in respect of any period prior to Closing, and (ii) utility
deposits.


 


“Due Diligence Examination” shall have the meaning
set forth in Section 3.2.


 


“Earnest Money Deposit” shall have the meaning
set forth in Section 2.6(a).


 


“Environmental Requirements” shall have the
meaning set forth in Section 7.1(f)


 


“Escrow Agent” shall have the meaning set forth
in Section 2.6(a).


 


“Escrow Agreement” shall have the meaning set
forth in Section 2.6(b).


 


“Exception Documents” shall have the meaning
set forth in Section 4.2.


 


2

















 


“Existing Franchise Agreement” shall mean that
certain franchise license agreement between the Seller and the Franchisor,
granting to Seller a franchise to operate the Hotel under the Brand.


 


“Existing Management Agreement” shall mean that
certain management agreement between the Seller and the Manager for the operation
and management of the Hotel.


 


“FF&E” shall mean all tangible personal
property and fixtures of any kind (other than personal property (i) owned
by guests of the Hotel or (ii) leased by Seller pursuant to an FF&E
Lease) attached to, or located upon and used in connection with the ownership,
maintenance, use or operation of the Land or Improvements as of the date hereof
(or acquired by Seller and so employed prior to Closing), including, but not
limited to, all furniture, fixtures, equipment, signs and related personal
property; all heating, lighting, plumbing, drainage, electrical, air
conditioning, and other mechanical fixtures and equipment and systems; all
elevators, and related motors and electrical equipment and systems; all hot
water heaters, furnaces, heating controls, motors and equipment, all shelving
and partitions, all ventilating equipment, and all disposal equipment; all spa,
health club and fitness equipment; all equipment used in connection with the
use and/or maintenance of the guestrooms, restaurants, lounges, business
centers, meeting rooms, swimming pools, indoor and/or outdoor sports facilities
and other common areas and recreational areas; all carpet, drapes, beds,
furniture, televisions and other furnishings; all stoves, ovens, freezers,
refrigerators, dishwashers, disposals, kitchen equipment and utensils, tables,
chairs, plates and other dishes, glasses, silverware, serving pieces and other
restaurant and bar equipment, apparatus and utensils.  A current list of FF&E is attached hereto
as Exhibit B (which list will not include the mechanical fixtures,
elevators, and all similar items which are fixtures of the Hotel).


 


“FF&E Leases” shall mean all leases of any
FF&E and other contracts permitting the use of any FF&E at the
Improvements that are assumed by Buyer.


 


“Financial Statements” shall have the meaning
set forth in Section 3.1(b).


 


“Franchisor” shall mean Hilton Worldwide, Inc.
or its Affiliate.


 


“Hotel Contracts” shall have the meaning set
forth in Section 10.2(d).


 


“Improvements” shall mean all buildings,
structures, fixtures, parking areas and other improvements to the Land, and all
related facilities.


 


“Indemnification Agreement” shall have the
meaning set forth in Article XVII.


 


“Indemnified Party” shall have the meaning set forth
in Section 8.8(c)(i).


 


“Indemnifying Party” shall have the meaning set
forth in Section 8.8(c)(i).


 


“Initial Deposit” shall have the meaning set
forth in Section 2.6(a).


 


“Land” shall mean, collectively, a fee simple
absolute interest in the real property more fully described in Exhibit A,
which is attached hereto and incorporated herein by reference, 


 


3

















 


together with all rights (including without limitation
all air rights and development rights), alleys, streets, strips, gores,
privileges, appurtenances, advantages and easements belonging thereto or in any
way appertaining thereto.


 


“Leases” shall mean all leases, franchises,
licenses, occupancy agreements, “trade-out” agreements, advance bookings, convention
reservations, or other agreements demising space in, providing for the use or
occupancy of, or otherwise similarly affecting or relating to the use or
occupancy of, the Improvements or Land, together with all amendments,
modifications, renewals and extensions thereof, and all guaranties by third
parties of the obligations of the tenants, licensees, franchisees,
concessionaires or other entities thereunder.


 


“Legal Action” shall have the meaning set forth
in Section 8.8(c)(ii).


 


“Licenses” shall mean all permits, licenses,
franchises, utility reservations, certificates of occupancy, and other
documents issued by any federal, state, or municipal authority or by any
private party related to the development, construction, use, occupancy,
operation or maintenance of the Hotel, including, without limitation, all
licenses, approvals and rights (including any and all existing waivers of any
brand standard) necessary or appropriate for the operation of the Hotel under
the Brand.


 


“Liquor Licenses” shall have the meaning set
forth in Section 8.10.


 


“Manager” shall mean Raymond Management Company, Inc.


 


“New Franchise Agreement” shall mean the
franchise license agreement to be entered into between Buyer and the
Franchisor, granting to Buyer a franchise to operate the Hotel under the Brand
on and after the Closing Date.


 


“New Management Agreement” means the management
agreement to be entered into between Buyer and the Manager for the operation
and management of the Hotel on and after the Closing Date.


 


“Other Property” shall have the meaning set
forth in Section 16.14.


 


“Pending Claims” shall have the meaning set
forth in Section 7.1(e).


 


“Permitted Exceptions” shall have the meaning
set forth in Section 4.3.


 


“Personal Property” shall mean, collectively,
all of the Property other than the Real Property.


 


“PIP” shall mean a product improvement plan for
any Hotel, as required by the Manager or the Franchisor, if any.


 


“Post-Closing Agreement” shall have the meaning
set forth in Section 8.9.


 


“Property” shall mean, collectively, (i) all
of the following with respect to the Hotel: 
the Land, Improvements, Appurtenances, FF&E, Supplies, Leases,
Deposits, Records, Service 


 


4

















 


Contracts, Warranties, Licenses, FF&E Leases, Contracts,
Plans and Specs, Tradenames, Utility Reservations, as well as all other real,
personal or intangible property of Seller related to any of the foregoing and (ii) any
and all of the following that relate to or affect in any way the design,
construction, ownership, use, occupancy, leasing, maintenance, service or
operation of the Real Property, FF&E, Supplies, Leases, Deposits or
Records:  Service Contracts, Warranties,
Licenses, Tradenames (except “Cool Pool” tm, the right to which Seller shall retain), Contracts, Plans and Specs
and FF&E Leases.


 


“Purchase Price” shall have the meaning set
forth in Section 2.3.


 


“Real Property” shall mean, collectively, all
Land, Improvements and Appurtenances with respect to the Hotel.


 


“Records” shall mean all books, records,
promotional material, guest history information (other than any such
information owned exclusively by the Manager), marketing and leasing material
and forms (including but not limited to any such records, data, information,
material and forms in the form of computerized files located at the Hotel), any
marketing plan prepared in connection with Seller’s current annual operating
budget (including, without limitation, all documentation relating to any
pending litigation or other proceedings, all zoning and/or land use notices,
relating to or affecting the Property owned by Seller and/or in Seller’s
possession or control, or to which Seller has access or may obtain from the
Manager, that are used in or relating to the Property and/or the operation of
the Hotel, including the Land, the Improvements or the FF&E, and proforma
budgets and projections and all construction warranties and guaranties in
effect at Closing and copies of the record plans and specifications for the
Hotel, as available.


 


“Release” shall have the meaning set forth in Section 7.1(f).


 


“Review Period” shall have the meaning set
forth in Section 3.1.


 


“SEC” shall have the meaning set forth in Section 8.6.


 


“Seller Liens” shall have the meaning set forth
in Section 4.3.


 


“Seller Parties” shall have the meaning set
forth in Section 7.1(e).


 


“Service Contracts” shall mean contracts or
agreements, such as maintenance, supply, service or utility contracts.


 


“Supplies” shall mean all merchandise,
supplies, inventory and other items used for the operation and maintenance of
guest rooms, restaurants, lounges, swimming pools, health clubs, spas, business
centers, meeting rooms and other common areas and recreational areas located
within or relating to the Improvements, including, without limitation, all food
and beverage (alcoholic and non-alcoholic) inventory, office supplies and
stationery, advertising and promotional materials, china, glasses,
silver/flatware, towels, linen and bedding (all of which shall be 2-par level
for all suites or rooms in the Hotel), guest cleaning, paper and other
supplies, upholstery material, carpets, rugs, furniture, engineers’ supplies,
paint and painters’ supplies, employee uniforms, and all cleaning and
maintenance supplies, including those used in 


 


5

















 


connection with the swimming pools, indoor and/or
outdoor sports facilities, health clubs, spas, fitness centers, restaurants,
business centers, meeting rooms and other common areas and recreational areas.


 


“Survey” shall have the meaning set forth in Section 4.1.


 


“Third Party Consents” shall have the meaning
set forth in Section 8.3.


 


“Title Commitment” shall have the meaning set
forth in Section 4.2.


 


“Title Company” shall have the meaning set
forth in Section 4.2.


 


“Title Policy” shall have the meaning set forth
in Section 4.2.


 


“Title Review Period” shall have the meaning
set forth in Section 4.3.


 


“Tradenames” shall mean all telephone exchanges
and numbers, trade names, trade styles, trade marks, and other identifying
material, and all variations thereof, together with all related goodwill (it
being understood and agreed that the name of the hotel chain to which the Hotel
is affiliated by franchise, license or management agreement is a protected name
or registered service mark of such hotel chain and cannot be transferred to
Buyer by this Contract, provided that all such franchise, license, management
and other agreements granting a right to use the name of such hotel chain or
any other trademark or trade name and all waivers of any brand standard shall
be assigned to Buyer to the extent Seller has any right to make such
assignment).


 


“Utility Reservations” shall mean Seller’s
interest in the right to receive immediately on and after Closing and
continuously consume thereafter water service, sanitary and storm sewer
service, electrical service, gas service and telephone service on and for the
Land and Improvements in capacities that are adequate continuously to use and
operate the Improvements for the purposes for which they were intended,
including, but not limited to (i) any right to the present and future use
of wastewater, drainage, water and other utility facilities to the extent such
use benefits the Real Property, (ii) any reservations of or commitments
covering any such use in the future, and (iii) any wastewater capacity
reservations relating to the Real Property. 
Buyer shall be responsible for any requests or documents to transfer the
Utility Reservations, at Buyer’s sole cost and expense.


 


“Warranties” shall mean all warranties,
guaranties, indemnities and claims for the benefit of Seller with respect to
the Hotel, the Property or any portion thereof, including, without limitation,
all warranties and guaranties of the development, construction, completion, installation,
equipping and furnishing of the Hotel, and all indemnities, bonds and claims of
Seller related thereto.


 


6














 


ARTICLE
II


PURCHASE
AND SALE; PURCHASE PRICE; PAYMENT;


EARNEST
MONEY DEPOSIT


 


2.1                                 Purchase and Sale. 
Seller agrees to sell and convey to Buyer or its Affiliates and/or
assigns, and Buyer or its assigns agrees to purchase from Seller, the Property,
in consideration of the Purchase Price and upon the terms and conditions
hereof.  All of the Property shall be
conveyed, assigned, and transferred to Buyer at Closing, free and clear of all
mortgages, liens, encumbrances, licenses, franchises (other than any hotel
franchise or any other Licenses assumed by Buyer), concession agreements,
security interests, prior assignments or conveyances, conditions, restrictions,
rights-of-way, easements, encroachments, claims and other matters affecting
title or possession, except for the Permitted Exceptions.


 


2.2                                 Intentionally Deleted.


 


2.3                                 Purchase Price. 
Buyer agrees to pay, and Seller agrees to accept, as consideration for
the conveyance of the Property, subject to the adjustments provided for in this
Contract, the amount of Twelve Million and No/100 Dollars ($12,000,00.00) (the “Purchase Price”).


 


2.4                                 Allocation.  Buyer and
Seller shall acting reasonably, in good faith, and based on objective standards
and appraisals of value, on an “open-book” basis, attempt to agree, prior to
the expiration of the Review Period, on an allocation of the Purchase Price
among Real Property, tangible Personal Property and intangible property related
to the Property.  In the event Buyer and
Seller do not agree, each party shall be free to allocate the Purchase Price to
such items as they deem appropriate, subject to and in accordance with
applicable laws.


 


2.5                                 Payment.  The portion
of the Purchase Price, less the Earnest Money Deposit and interest earned
thereon, if any, which Buyer elects to have applied against the Purchase Price
(as provided below), less the Escrow Funds, shall be paid to Seller in cash,
certified funds or wire transfer, at the Closing of the Property.  At the Closing, the Earnest Money Deposit,
together with interest earned thereon, if any, shall, at Buyer’s election, be
returned to Buyer or shall be paid over to Seller by Escrow Agent to be applied
to the portion of the Purchase Price on behalf of Buyer, and the Escrow Funds
shall be deposited into an escrow account pursuant to the Post-Closing
Agreement as contemplated by Section 8.9.


 


2.6                                 Earnest Money Deposit.


 


(a)                                  Within three (3) Business Days after
the full execution and delivery of this Contract, Buyer shall deposit the sum
of One Hundred Twenty-five Thousand and No/100 Dollars ($125,000.00) in cash,
certified bank check or by wire transfer of immediately available funds (the “Initial Deposit”) with the Title
Company, as escrow agent (“Escrow Agent”),
which sum shall be held by Escrow Agent as earnest money.  If, pursuant to the provisions of Section 3.1
of this Contract, Buyer elects to terminate this Contract at any time prior to
the expiration of the Review Period, then the Escrow Agent shall return the
Earnest Money Deposit to Buyer promptly upon written notice to that effect from
Buyer.  If Buyer does not elect to
terminate this Contract on or before the expiration of the Review Period, Buyer
shall, within three (3) Business Days after the expiration of the Review
Period deposit the Additional Deposit with the Escrow


 


7

















 


Agent.  The
Initial Deposit and the Additional Deposit, and all interest accrued thereon,
shall hereinafter be referred to as the “Earnest Money Deposit.”


 


(b)                                 The Earnest Money Deposit shall be held
by Escrow Agent subject to the terms and conditions of an Escrow Agreement
dated as of the date of this Contract entered into by Seller, Buyer and Escrow
Agent (the “Escrow Agreement”).  The Earnest Money Deposit shall be held in an
interest-bearing account in a federally insured bank or savings institution
reasonably acceptable to Seller and Buyer, with all interest to accrue to the
benefit of the party entitled to receive it and to be reportable by such party
for income tax purposes.


 


ARTICLE
III

REVIEW PERIOD


 


3.1                                 Review Period. 
Buyer shall have a period through 6:00 p.m. Eastern Time on the
date that is forty-five (45) days after the date of this Contract, unless a
longer period of time is otherwise provided for in this Contract and except as
otherwise agreed to by Buyer and Seller (the “Review
Period”), to evaluate the legal, title, survey, construction,
physical condition, structural, mechanical, environmental, economic, permit
status, franchise status, financial and other documents and information related
to the Property.  Within five (5) Business
Days following the date of this Contract, Seller, at Seller’s sole cost and
expense, will deliver to Buyer (or make available at the Hotel) for Buyer’s
review, to the extent not previously delivered to Buyer, true, correct and
complete copies of the following, together with all amendments, modifications,
renewals or extensions thereof:


 


(a)                                  All Warranties and Licenses currently in
force relating to the Hotel or any part thereof;


 


(b)                                 Income and expense statements and budgets
for the Hotel, for the current year to date and each of the three (3) prior
fiscal years (the “Financial Statements”),
and Seller shall provide to Buyer copies of all income and expense statements
generated by Seller or any third party that relate to the operations of the
Hotel and that contain information not included in the financial statements, if
any, provided to Buyer by the Manager, provided that Seller also agrees to
provide to Buyer’s auditors and representatives all financial and other
information necessary or appropriate for preparation of audited financial
statements for Buyer and/or its Affiliates as provided in Section 8.6,
below;


 


(c)                                  All real estate and personal property tax
statements with respect to the Hotel and notices of appraised value for the
Real Property for the current year (if available) and each of the three (3) calendar
years prior to the current year;


 


(d)                                 To the extent available and in Seller’s
possession, engineering, mechanical, architectural and construction plans,
drawings, specifications and contracts, payment and performance bonds, title
policies, reports and commitments, zoning information, as well as copies of all
environmental reports and information, topographical, boundary or “as built”
surveys, engineering reports, subsurface studies and other Contracts, Plans and
Specs relating to or affecting the Hotel. 
If the Hotel is purchased by Buyer, all such documents and information 


 


8

















 


relating to the Hotel shall thereupon be and become
the property of Buyer without payment of any additional consideration therefor;


 


(e)                                  All FF&E Leases, Services Contracts,
Leases and, if applicable, a schedule of such Leases of space in the Hotel, and
all agreements for real estate commissions, brokerage fees, finder’s fees or
other compensation payable by Seller in connection therewith; and


 


(f)                                    All notices received from governmental
authorities in connection with the Hotel that relate to any noncompliance or
violation of law that has not been corrected.


 


Seller shall, upon request of Buyer, make available to Buyer and Buyer’s
representatives and agents, for inspection and copying during normal business
hours or as otherwise agreed, Records located at Seller’s corporate offices including
items identified in 3.1(a)-(f) above, and Seller agrees to provide Buyer
copies of all other reasonably requested information that is relevant to the
management, operation, use, occupancy or leasing of or title to the applicable
Hotel and the plans specifications for development of the Hotel.  At any time during the Review Period, Buyer
may, in its sole and absolute discretion, elect not to proceed with the
purchase of the Property for any reason whatsoever by giving written notice
thereof to Seller, in which event:  (i) the
Earnest Money Deposit shall be promptly returned by Escrow Agent to Buyer
together with all accrued interest, if any, (ii) this Contract shall be
terminated automatically, (iii) all materials supplied by Seller to Buyer
shall be returned promptly to Seller, and (iv) both parties will be
relieved of all other rights, obligations and liabilities hereunder, except for
the parties’ obligations pursuant to Sections 3.3 and 16.6 below.


 


3.2                                 Due Diligence Examination. 
At any time during the Review Period, and thereafter through Closing of
the Property, Buyer and/or its representatives and agents shall have the right
to enter upon the Property at all reasonable times for the purposes of
reviewing all Records and other data, documents and/or information relating to
the Property and conducting such surveys, appraisals, engineering tests, soil
tests (including, without limitation, Phase I and Phase II environmental site
assessments), inspections of construction and other inspections and other
studies as Buyer deems reasonable and necessary or appropriate to evaluate the
Property, subject to providing reasonable advance notice to Seller unless
otherwise agreed to by Buyer and Seller (the “Due
Diligence Examination”). 
Seller shall have the right to have its representative present during
Buyer’s physical inspections of its Property, provided that failure of Seller
to do so shall not prevent Buyer from exercising its due diligence, review and
inspection rights hereunder.  Buyer
agrees to exercise reasonable care when visiting the Property, in a manner
which shall not materially adversely affect the operation of the Property.
Seller and Buyer shall also agree during the Review Period which FF&E
Leases shall be assumed by Buyer. Failure, to agree on FF&E Leases shall
give either party the right to terminate the agreement.


 


3.3                                 Restoration. 
Buyer covenants and agrees not to damage or destroy any portion of the
Property in conducting its examinations and studies of the Property during the
Due Diligence Examination and, if closing does not occur, shall repair any
portion of the Property damaged by the conduct of Buyer, its agents, employees
or contractors, to substantially the condition such portion(s) of the
Property were in immediately prior to such examinations or studies.


 


9

















 


3.4                                 Seller Exhibits. 
Buyer shall have until the end of the Review Period to review and
approve the information on Exhibits B, C, D, E and F.  In the event Buyer does not approve any such Exhibit or
the information contained therein prior to the end of the Review Period, Buyer
shall be entitled to terminate this Contract by notice to Seller and the
Earnest Money Deposit shall be returned to Buyer with all interest thereon and
both parties shall be relieved of all rights, obligations and liabilities
hereunder except for the parties’ obligations pursuant to Sections 3.3 and
16.6. Silence by Buyer through the end of the Review Period shall be deemed
approval of all information on the foregoing exhibits.


 


ARTICLE
IV

SURVEY AND TITLE APPROVAL


 


4.1                                 Survey.  Seller has
delivered to Buyer true, correct and complete copies of the most recent surveys
of the Real Property.  In the event that
an update of the survey or a new survey (such updated or new surveys being
referred to as the “Survey”)
are desired by Buyer, then Buyer shall be responsible for all costs related
thereto.


 


4.2                                 Title.  Seller has
delivered to Buyer its existing title insurance policy, including copies of all
documents referred to therein, for its Real Property.  Buyer’s obligations under this Contract are
conditioned upon Buyer being able to obtain, at its sole cost and expense, for
the Property (i) a Commitment for Title Insurance (the “Title Commitment”) issued by
Chicago Title Company, Attn: Debby Moore, 5501 LBJ Freeway, Suite 200,
Dallas, TX 75240 (the “Title Company”),
for the most recent standard form of owner’s policy of title insurance in the
state in which the Real Property is located, covering the Real Property, setting
forth the current status of the title to the Real Property, showing all liens,
claims, encumbrances, easements, rights of way, encroachments, reservations,
restrictions and any other matters affecting the Real Property and pursuant to
which the Title Company agrees to issue to Buyer at Closing an Owner’s Policy
of Title Insurance on the most recent form of ALTA (where available) owner’s
policy available in the state in which the Land is located, with extended
coverage and, to the extent applicable and available in such state,
comprehensive, access, single tax parcel, contiguity, Fairway and such other
endorsements as may be required by Buyer (collectively, the “Title Policy”); and (ii) true,
complete, legible and, where applicable, recorded copies of all documents and
instruments (the “Exception Documents”)
referred to or identified in the Title Commitment, including, but not limited
to, all deeds, lien instruments, leases, plats, surveys, reservations,
restrictions, and easements affecting the Real Property.  Buyer shall promptly provide Seller with a
copy of the Title Commitment issued by the Title Company.


 


4.3                                 Survey or Title Objections. 
If Buyer discovers any title or survey matter which is objectionable to
Buyer, Buyer may provide Seller with written notice of its objection to same on
or before the expiration of the Review Period (the “Title
Review Period”).  If Buyer
fails to so object in writing to any such matter set forth in the Survey or
Title Commitment during the Title Review Period, it shall be conclusively
assumed that Buyer has approved same.  If
Buyer disapproves any condition of title, survey or other matters by written
objection to Seller on or before the expiration of the Title Review Period,
Seller shall elect either to attempt to cure or not cure any such item by
written notice sent to Buyer within ten (10) days after its receipt of
notice from Buyer, and if Seller commits in writing to attempt to cure any such
item, then Seller shall be given until the Closing Date to cure any such defect.  In the event Seller shall fail to cure a 


 


10

















 


defect which Seller has committed in writing to cure
prior to Closing, or if a new title defect arises after the date of Buyer’s
Title Commitment or Survey, as applicable, but prior to Closing, then Buyer may
elect, in Buyer’s sole and absolute discretion: 
(i) to waive such objection and proceed to Closing, or (ii) to
terminate this Contract and receive a return of the Earnest Money Deposit, and
any interest thereon.  The items shown on
the Title Commitment which are not objected to by Buyer as set forth above
(other than exceptions and title defects arising after the Title Review Period
and other than those standard exceptions which are ordinarily and customarily
omitted in the state in which the Hotel is located, so long as Seller provides
the appropriate owner’s affidavit, gap indemnity or other documentation
reasonably required by the Title Company for such omission) are hereinafter
referred to as the “Permitted Exceptions.”  Regardless of whether Buyer does not object
to same, in no event shall Permitted Exceptions include liens, or documents
evidencing liens, securing any indebtedness, any mechanics’ or materialmen’s
liens or any claims or potential claims therefor covering the Property or any
portion thereof attributable to a claim arising prior to the Closing Date (“Seller Liens”), each of which shall
be paid in full by Seller and released at Closing.


 


ARTICLE
V

MANAGEMENT AGREEMENT AND FRANCHISE AGREEMENT


 


At or prior to the Closing, Seller shall terminate the Existing
Management Agreement and the Existing Franchise Agreement, and Seller shall be
solely responsible for all claims and liabilities arising thereunder on, prior
to or following the Closing Date.  As a
condition to Closing, Buyer shall enter into the New Management Agreement and
the New Franchise Agreement, effective as of the Closing Date, containing terms
and conditions acceptable to Buyer (including, without limitation, such terms
and conditions as may be required to accommodate Buyer’s and/or Buyer’s
Affiliates’ REIT structure).  Seller
shall be responsible for paying all costs related to the termination of the
Existing Management Agreement.  Buyer
shall be responsible for paying all reasonable and actual costs of the
Franchisor related to the assignment or termination, as applicable, of the
Existing Franchise Agreement.  Seller
shall use best efforts to promptly provide all information required by the
Franchisor in connection with the New Franchise Agreement, and Seller and Buyer
shall diligently pursue obtaining the same. 
As a condition to Buyer’s and Seller’s obligation to close under this
Contract, Buyer and Manager shall agree, on or before the expiration of the
Review Period, on the form and substance of the New Management Agreement.


 


ARTICLE
VI

BROKERS


 


Seller and Buyer each represents and warrants to the other that, except
for Hodges, Ward Elliott, Inc. for who’s fees and commissions Seller shall
be solely responsible, it has not engaged any broker, finder or other party in
connection with the transaction contemplated by this Contract. Buyer and Seller
each agree to save and hold the other harmless from any and all losses,
damages, liabilities, costs and expenses (including, without limitation,
attorneys’ fees) involving claims made by any other agent, broker, or other
person by or through the acts of Buyer or Seller, respectively, in connection
with this transaction.


 


11

















 


ARTICLE
VII

REPRESENTATIONS, WARRANTIES AND COVENANTS


 


7.1                                 Seller’s and Indemnitor’s
Representations, Warranties and Covenants.  Seller and
the Indemnitor hereby represent, warrant and covenant to Buyer as follows:


 


(a)                                  Authority; No Conflicts. 
Seller is a limited liability company duly formed, validly existing and
in good standing in the State of Wisconsin. 
Indemnitor is a corporation duly authorized, validly existing and in
good standing in the State of Wisconsin. 
Each of Seller and Indemnitor has obtained all necessary consents to
enter into and perform this Contract and is fully authorized to enter into and
perform this Contract (except as otherwise noted in Exhibit “D”) and to
complete the transactions contemplated by this Contract.  No consent or approval of any person, entity
or governmental authority is required for the execution, delivery or
performance by Seller or Indemnitor of this Contract, except as set forth in Exhibit D,
and this Contract is hereby binding and enforceable against Seller and
Indemnitor (assuming the consents set forth in Exhibit “D” are
obtained).  Neither the execution nor the
performance of, or compliance with, this Contract by Seller or Indemnitor has
resulted, or will result, in any violation of, or default under, or
acceleration of, any obligation under any existing corporate charter,
certificate of incorporation, bylaw, articles of organization, limited
liability company agreement or regulations, partnership agreement or other
organizational documents and under any, mortgage indenture, lien agreement,
promissory note, contract, or permit, or any judgment, decree, order,
restrictive covenant, statute, rule or regulation, applicable to Seller,
Indemnitor or to the Hotel (except as set forth in Exhibit “D.”


 


(b)                                 FIRPTA.  Seller is not
a foreign corporation, foreign partnership, foreign trust or foreign estate (as
those items are defined in the Internal Revenue Code and Income Tax
Regulations).


 


(c)                                  Bankruptcy.  None of
Seller, Indemnitor, or, to Seller’s knowledge, any of its or their partners or
members, is insolvent or the subject of any bankruptcy proceeding, receivership
proceeding or other insolvency, dissolution, reorganization or similar
proceeding.


 


(d)                                 Property Agreements. 
A complete list of all FF&E Leases, Service Contracts and Leases
(other than those entered into by the Manager on its own behalf) used in or
otherwise relating to the operation and business of the Hotel is attached
hereto as Exhibit C-1, and, to Seller’s knowledge, a complete list
of all other FF&E Leases, Service Contracts and Leases used in or otherwise
relating to the operation and business of the Hotel is attached hereto as Exhibit C-2.  The assets constituting the Property to be
conveyed to Buyer hereunder constitute all of the property and assets of Seller
used in connection with the operation and business of the Hotel.  There are no leases, license agreements,
leasing agent’s agreements, equipment leases, building service agreements,
maintenance contracts, suppliers contracts, warranty contracts, operating agreements,
or other agreements (i) to which Seller is a party or an assignee, or (ii) to
Seller’s or Indemnitor’s knowledge, binding upon the Hotel, relating to the
ownership, occupancy, operation, management or maintenance of the Real
Property, FF&E, Supplies or Tradenames, except for those Service Contracts,
Leases, Warranties, FF&E Leases and other agreements disclosed on Exhibit C
or to be delivered to Buyer pursuant to Section 3.1.  The Service Contracts, Leases, Warranties,
FF&E Leases and other agreements disclosed on 


 


12

















 


Exhibit C or to be delivered to Buyer pursuant to Section 3.1
are in full force and effect, and no default has occurred and is continuing
thereunder and no circumstances exist which, with the giving of notice, the
lapse of time or both, would constitute such a default.  No party has any right or option to acquire
the Hotel or any portion thereof, other than Buyer.


 


(e)                                  Pending Claims. 
There are no:  (i) claims,
demands, litigation, proceedings or governmental investigations pending or
threatened against Seller, Indemnitor, the Manager or any Affiliate of any of
them (collectively, “Seller Parties”)
or related to the business or assets of the Hotel, except as set forth on Exhibit F
attached hereto and incorporated herein by reference, (ii) special
assessments or extraordinary taxes except as set forth in the Title Commitment
or (iii) pending or threatened condemnation or eminent domain proceedings
which would affect the Property or any part thereof.  There are no: 
pending arbitration proceedings or unsatisfied arbitration awards, or
judicial proceedings or orders respecting awards, which might become a lien on
the Property or any portion thereof, pending unfair labor practice charges or
complaints, unsatisfied unfair labor practice orders or judicial proceedings or
orders with respect thereto, pending charges or complaints with or by city,
state or federal civil or human rights agencies, unremedied orders by such
agencies or judicial proceedings or orders with respect to obligations under
city, state or federal civil or human rights or antidiscrimination laws or
executive orders affecting the Hotel, or other pending, actual or, to Seller’s
or Indemnitor’s knowledge, threatened litigation claims, charges, complaints,
petitions or unsatisfied orders by or before any administrative agency or court
which affect the Hotel or might become a lien on the Hotel (collectively, the “Pending Claims”).


 


(f)                                    Environmental. 
With respect to environmental matters, to Seller’s and Indemnitor’s
knowledge and except as described in Exhibit “E,” (i) there has been
no Release or threat of Release of Hazardous Materials in, on, under, to, from
or in the area of the Real Property, except as disclosed in the reports and
documents set forth on Exhibit E attached hereto and incorporated
herein by reference, (ii) no portion of the Property is being used for the
treatment, storage, disposal or other handling of Hazardous Materials or
machinery containing Hazardous Materials other than standard amounts of
cleaning supplies, equipment maintenance supplies, and chlorine and other
chemicals for the swimming pool, all of which are stored on the Property in
strict accordance with applicable Environmental Requirements and do not exceed
limits permitted under applicable laws, including without limitation
Environmental Requirements, (iii) no underground storage tanks are
currently located on or in the Real Property or any portion thereof, (iv) no
environmental investigation, administrative order, notification, consent order,
litigation, claim, judgment or settlement with respect to the Property or any
portion thereof is pending or threatened, (v) except as disclosed on Exhibit “E”
there is not currently and, to Seller’s and Indemnitor’s knowledge, never has
been any mold, fungal or other microbial growth in or on the Property, or
existing conditions within the Property that could reasonably be expected to
result in material liability or material costs or expenses to remediate the
mold, fungal or microbial growth, or to remedy such conditions that could
reasonably be expected to result in such growth, and (vi) except as
disclosed on Exhibit E, there are no reports or other documentation
regarding the environmental condition of the Real Property in the possession of
Seller or Seller’s Affiliates, consultants, contractors or agents.  As used in this Contract:  “Hazardous Materials”
means (1) “hazardous wastes” as defined by the Resource Conservation and
Recovery Act of 1976, as amended from time to time (“RCRA”), (2) 


 


13

















 


“hazardous substances” as
defined by the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (42 U.S.C. 9601 et seq.), as amended by the
Superfund Amendment and Reauthorization Act of 1986 and as otherwise amended
from time to time (“CERCLA”); (3) “toxic
substances” as defined by the Toxic Substances Control Act, as amended from
time to time (“TSCA”), (4) “hazardous
materials” as defined by the Hazardous Materials Transportation Act, as amended
from time to time (“HMTA”), (5) asbestos,
oil or other petroleum products, radioactive materials, urea formaldehyde foam
insulation, radon gas and transformers or other equipment that contains
dielectric fluid containing polychlorinated biphenyls and (6) any
substance whose presence is detrimental or hazardous to health or the
environment, including, without limitation, microbial or fungal matter or mold,
and is otherwise regulated by federal, state and local environmental laws
(including, without limitation, RCRA, CERCLA, TSCA, HMTA), rules, regulations
and orders, regulating, relating to or imposing liability or standards of
conduct concerning any Hazardous Materials or environmental, health or safety
compliance (collectively, “Environmental Requirements”).  As used in this Contract:  “Release”
means spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping or disposing.


 


(g)                                 Title and Liens. 
Except for Seller Liens to be released at Closing, Seller has good and
marketable fee simple absolute title to the Real Property, subject only to the
Permitted Exceptions.  Except for any
applicable Permitted Exceptions, Seller has good and marketable title to the
Personal Property, free and clear of all liens, claims, encumbrances or other
rights whatsoever (other than the Seller Liens to be released at Closing), and
there are no other liens, claims, encumbrances or other rights pending or of
which any Seller Party has received notice or which are otherwise known to any
Seller Party related to any other Personal Property.  All FF&E (except for FF&E Leases),
including vehicles if any, shall be lien free at Closing.


 


(h)                                 Utilities.  All
appropriate utilities, including sanitary and storm sewers, water, gas,
telephone, cable and electricity, are, to Seller’s and Indemnitor’s knowledge,
currently sufficient and available to service the Hotel and all installation,
connection or “tap-on”, usage and similar fees have been paid.


 


(i)                                     Licenses, Permits and Approvals. 
Neither Seller nor Indemnitor has received any written notice, and
neither Seller nor Indemnitor has knowledge that the Property fails to comply
with all applicable licenses, permits and approvals and federal, state or local
statutes, laws, ordinances, rules, regulations, requirements and codes
including, without limitation, those regarding zoning, land use, building,
fire, health, safety, environmental, subdivision, water quality, sanitation
controls and the Americans with Disabilities Act, and similar rules and
regulations relating and/or applicable to the ownership, use and operation of
the Property as it is now operated. To Seller’s and Indemnitor’s knowledge,
Seller has received all material licenses, permits and approvals required or
needed for the lawful conduct, occupancy and operation of the business of the
Hotel, and each license and permit is in full force and effect, and will be
received and in full force and effect as of the Closing.  No licenses, permits or approvals necessary
for the lawful conduct, occupancy or operation of the business of the Hotel, to
Seller’s or Indemnitor’s knowledge requires any approval of a governmental
authority for transfer of the Property except as set forth in Exhibit D.


 


14

















 


(j)                                     Financial Statements. 
Seller has delivered copies of all prior and current (i) Financial
Statements for the Hotel, and (ii) monthly financial statements prepared
by the Manager for the Hotel.  Each of
such statements is, to Seller’s knowledge, complete and accurate in all
material respects and, except in the case of budgets prepared in advance of the
applicable operating period to which such budgets relate, fairly presents the
results of operations of the Hotel for the respective periods represented
thereby.  Seller has relied upon the
Financial Statements in connection with its ownership and operation of the
Hotel, and there are no independent audits or financial statements prepared by
third parties relating to the operation of the Hotel other than the Financial
Statements prepared by or on behalf of the Manager, all of which have been
provided to Buyer.


 


(k)                                  Employees.  All employees
employed at the Hotel are the employees of Seller, the Manager or an affiliate.  There are, to Seller’s and Indemnitor’s
knowledge, no (i) unions organized at the Hotel, (ii) union
organizing attempts, strikes, organized work stoppages or slow downs, or
any other labor disputes pending or threatened with respect to any of the
employees at the Hotel, or (iii) collective bargaining or other labor
agreements to which Seller or the Manager or the Hotel is bound with respect to
any employees employed at the Hotel.


 


(l)                                     Operations.  To Seller’s
and Indemnitor’s knowledge, the Hotel has at all times been operated by Manager
in accordance with all applicable laws, rules, regulations, ordinances and
codes.


 


(m)                               Existing Management and Franchise
Agreements.  Seller has furnished to Buyer true and
complete copies of the Existing Management Agreement and the Existing Franchise
Agreement, which constitutes the entire agreement of the parties with respect
to the subject matter thereof and which have not been amended or supplemented
in any respect.  There are no other
management agreements, franchise agreements, license agreements or similar
agreements for the operation or management of the Hotel or relating to the
Brand, to which Seller is a party or which are binding upon the Property,
except for the Existing Management Agreement and the Existing Franchise
Agreement.  To Seller’s knowledge, the
Improvements comply with, and the Hotel is being operated in accordance with,
all requirements of such Existing Management Agreement and the Existing
Franchise Agreement and all other requirements of the Manager and the
Franchisor, including all “brand standard” requirements of the Manager and the
Franchisor.  The Existing Management
Agreement and the Existing Franchise Agreement are in full force and effect,
and shall remain in full force and effect until the termination of the Existing
Management Agreement and the Existing Franchise Agreement at Closing, as
provided in Article V hereof.  No
default has occurred and is continuing under the Existing Management Agreement
or the Existing Franchise Agreement, and no circumstances exist which, with the
giving of notice, the lapse of time or both, would constitute such a default.


 


(n)                                 Construction of Hotel.


 


(i)                                     To Seller’s and Indemnitor’s knowledge
the Hotel has been constructed in a good and workmanlike manner without
encroachments not disclosed on the Survey and in accordance in all material
respects with the record 


 


15

















 


plans and specs, and all
building permits and certificates of occupancy therefor and all applicable
zoning, platting, subdivision, health, safety and similar laws, rules,
regulations, ordinances and codes.


 


(ii)                                  To Seller’s and Indemnitor’s knowledge
the Personal Property is in good condition and operating order.


 


(iii)                               To Seller’s and Indemnitor’s knowledge,
necessary easements for ingress and egress, drainage, signage and utilities
serving the Hotel have either been dedicated to the public, conveyed to the
appropriate utility or will be conveyed to Buyer along with the Property, or
otherwise provided for such that the Hotel may operate.


 


Notwithstanding the
foregoing, Buyer acknowledges that it is being given a full opportunity to
completely inspect the Property, the operation thereof, and the financial and
other information in connection therewith. In addition, Buyer
represents and warrants that it will inspect the Property and, if it elects to
close the transaction, will be familiar with and satisfied with the condition
of Property including, without limitation, the
location, condition, layout and physical condition of the Property and
surrounding areas, geotechnical data,
surface, soil and subsurface conditions of the Property and all
structural matters related thereto. Therefore, except as specifically provided in this
Agreement, Seller is conveying and Buyer is accepting the property in strictly “AS
IS” condition with all faults and, except for the specific warranties and
representations provided in this Agreement, Seller is not making any further
warranties or representations, express or implied, including, without
limitation, any warranty of merchantability or fitness for a particular
purpose. Buyer represents and warrants that, Buyer is experienced in the
acquisition of real property, including lodging properties, and that as of the
Closing Date, Buyer will be familiar with the Property and will have made such
independent investigations as Buyer deems necessary or appropriate concerning
the Property. If Buyer elects to proceed with the purchase of the Property, any
objections which Buyer may have with respect to the Property shall be waived by
the Buyer. All warranties and representations contained in this Agreement shall
survive the Closing of this transaction for a period of twelve (12) months
after Closing. No suit, cause of action, demand or other claim of any nature
whatsoever shall be made under the foregoing representations, warranties and
covenants unless the aggregate amount of Buyer’s direct out-of-pocket losses
(not including, by way of example only, any diminution in the value of the
Property) resulting from the inaccuracy or breach of such representations,
warranties and covenants exceeds, in the aggregate, Fifty Thousand and
no/100ths ($50,000.00) dollars. (the Agreed-Upon Limit”).
The Agreed-Upon Limit shall not apply to subsections 7.1(d), (e), (g), and (i) above,
Section 8.8 below (except as provided in 8.8(a)(ii)) or errors in the
proper calculation of closing credits or changes including, but not limited to,
Seller’s Costs and Buyer’s Costs under Article XI, below, and Adjustments
under Article XII, below.


 


7.2                                 Buyer’s Representations, Warranties and
Covenants.  Buyer represents, warrants and covenants:


 


(a)                                  Authority.  Buyer is a
corporation duly formed, validly existing and in good standing in the
Commonwealth of Virginia.  Buyer has
received or will have received by 


 


16

















 


the applicable Closing Date all necessary
authorization of the Board of Directors of Buyer to complete the transactions
contemplated by this Contract.  No other
consent or approval of any person, entity or governmental authority is required
for the execution, delivery or performance by Buyer of this Contract, and this
Contract is hereby binding and enforceable against Buyer.


 


(b)                                 Bankruptcy.  Buyer is not
insolvent nor the subject of any bankruptcy proceeding, receivership proceeding
or other insolvency, dissolution, reorganization or similar proceeding.


 


7.3                                 Survival.  All of the
representations and warranties are true, correct and complete in all material
respects as of the date hereof and the statements set forth therein (without
qualification or limitation as to a party’s knowledge thereof except as
expressly provided for in this Article VII) shall be true, correct and
complete in all material respects as of the Closing Date.  All of the representations, warranties and
covenants made herein shall survive Closing for a period of one (1) years
and shall not be deemed to merge into or be waived by the Deed or any other
closing documents.


 


ARTICLE
VIII

ADDITIONAL COVENANTS


 


8.1                                 Subsequent Developments. 
After the date of this Contract and until the Closing Date, Seller shall
use best efforts to keep Buyer fully informed of all subsequent developments of
which Seller has knowledge (“Subsequent Developments”)
which would cause any of Seller’s representations or warranties contained in
this Contract to be no longer accurate in any material respect.


 


8.2                                 Operations.  From and
after the date hereof through the Closing on the Property, Seller shall comply
with the Existing Management Agreement and the Existing Franchise Agreement and
keep the same in full force and effect and shall perform and comply with all of
the following subject to and in accordance with the terms of such agreements:


 


(a)                                  Continue to maintain the Property generally
in accordance with past practices of Seller and pursuant to and in compliance
with the Existing Management Agreement and the Existing Franchise Agreement,
including, without limitation, (i) using reasonable efforts to keep
available the services of all present employees at the Hotel and to preserve
its relations with guests, suppliers and other parties doing business with
Seller with respect to the Hotel, (ii) accepting booking contracts for the
use of the Hotel’s facilities retaining such bookings in accordance with the
terms of the Existing Management Agreement and the Existing Franchise
Agreement, (iii) maintaining the current level of advertising and other
promotional activities for the Hotel’s facilities, (iv) maintaining the
present level of insurance with respect to the Hotel in full force and effect
until the Closing Date for the Hotel and (v) remaining in compliance in
all material respects with all current Licenses;


 


(b)                                 Keep, observe, and perform in all
material respects all its obligations under and pursuant to the Leases, the
Service Contracts, the FF&E Leases, the Existing Management Agreement, the
Existing Franchise Agreement, the Contracts, Plans and Specs, the Warranties
and all other applicable contractual arrangements relating to the Hotel;


 


17














 


(c)                                  Not cause or permit the removal of
FF&E from the Hotel except for the purpose of discarding worn and valueless
items that have been replaced with FF&E of equal or better quality; timely
make all repairs, maintenance, and replacements to keep all FF&E and all
other Personal Property and all Real Property in good operating condition; keep
and maintain the Hotel in a good state of repair and condition, reasonable and
ordinary wear and tear excepted; and not commit waste of any portion of the
Hotel;


 


(d)                                 Maintain the levels and quality of the
Personal Property generally at the levels and quality existing on the date
hereof and keep merchandise, supplies and inventory adequately stocked,
consistent with good business practice, as if the sale of the Hotel hereunder
were not to occur, including, without limitation, maintaining linens and bath
towels at least at a 2-par level for all suites or rooms of the Hotel;


 


(e)                                  Advise Buyer promptly of any litigation,
arbitration, or administrative hearing before any court or governmental agency
concerning or affecting the Hotel which is instituted or threatened after the
date of this Contract or if any representation or warranty contained in this
Contract shall become false;


 


(f)                                    Not take, or purposefully omit to take,
any action that would have the effect of violating any of the representations,
warranties, covenants or agreements of Seller contained in this Contract;


 


(g)                                 Pay or cause to be paid all taxes,
assessments and other impositions levied or assessed on the Hotel or any part
thereof prior to the delinquency date, and comply with all federal, state, and
municipal laws, ordinances, regulations and orders relating to the Hotel;


 


(h)                                 Not sell or assign, or enter into any
agreement to sell or assign, or create or permit to exist any lien or
encumbrance (other than a Permitted Exception) on, the Property or any portion
thereof; and


 


(i)                                     Not allow any permit, receipt, license,
franchise or right currently in existence with respect to the operation, use,
occupancy or maintenance of the Hotel to expire, be canceled or otherwise
terminated.


 


Seller shall promptly furnish to Buyer copies of all new, amended or
extended FF&E Leases, Service Contracts, Leases and other contracts or
agreements (other than routine hotel room bookings entered into in the ordinary
course of business) relating to the Hotel and entered into by the Manager prior
to Closing; provided, however, that in the case of any of the foregoing entered
into by the Manager on its own behalf, only to the extent Seller has knowledge
thereof or a copy of which is obtainable from the Manager.  Buyer shall have the right to extend the
Review Period for a period of five (5) Business Days in order to review
any of the foregoing that are not received by Buyer at least five (5) Business
Days prior to the expiration of the Review Period.  Seller shall not, without first obtaining the
written approval of Buyer, which approval shall not be unreasonably withheld,
delayed or conditioned enter into any new FF&E Leases, Service Contracts,
Leases or other contracts or agreements related to the Hotel, or extend any
existing such agreements, unless such agreements (x) can be terminated,
without penalty, upon thirty (30) days’ prior notice or (y) will expire
prior to the Closing Date.


 


18

















 


8.3                                 Third Party Consents. 
Prior to the Closing Date, Seller shall, at its expense, (i) obtain
any and all third party consents and approvals (x) required in order to
transfer the Hotel to Buyer (other than the Franchisor, liquor licenses, and
all related licenses, permits or approvals which require issuance in Buyer’s
name) or (y) which, if not obtained, would materially adversely affect the
operation of the Hotel, including, without limitation, all consents and
approvals referred to on Exhibit D and (ii) use best efforts
to obtain all other third party consents and approvals (all of such consents
and approvals in (i) and (ii) above being referred to collectively
as, the “Third Party Consents”).


 


8.4                                 Employees.  Upon
reasonable prior notice to Seller by Buyer, Buyer and its employees,
representatives and agents shall have the right to communicate with Seller’s
staff, and, subject to the approval of the Manager, the Hotel staff and the
Manager’s staff, including without limitation the general manager, the director
of sales, the engineering staff and other key management employees of the
Hotel, at any time before Closing.  Buyer
shall not interfere with the operations of the Hotel while engaging in such
communication in a manner that materially adversely affects the operation of
any Property or the Existing Management Agreements.


 


8.5                                 Estoppel Certificates. 
Seller shall obtain from (i) each tenant under any Lease affecting
the Hotel which results in annual revenue greater than $12,000 (but not from
current or prospective occupants of hotel rooms and suites within the Hotel)
and (ii) each lessor under any FF&E Lease in excess of $100,000 for
the Hotel identified by Buyer as a material FF&E Lease, the estoppel certificates
substantially in the forms provided by Buyer to Seller during the Review
Period, and deliver to Buyer not less than five (5) days before the
Closing.


 


8.6                                 Access to Financial Information. 
Buyer’s representatives shall have access to, and Seller and its
Affiliates shall cooperate with Buyer and furnish upon request, all financial
and other information relating to the Hotel’s operations to the extent
necessary to enable Buyer’s representatives to prepare audited financial
statements in conformity with Regulation S-X of the Securities and Exchange
Commission (the “SEC”) and
other applicable rules and regulations of the SEC and to enable them to
prepare a registration statement, report or disclosure statement for filing
with the SEC on behalf of Buyer or its Affiliates, whether before or after
Closing and regardless of whether such information is included in the Records
to be transferred to Buyer hereunder. 
Seller shall also provide to Buyer’s representative a signed
representation letter in form and substance reasonably acceptable to Seller
sufficient to enable an independent public accountant to render an opinion on
the financial statements related to the Hotel. 
Buyer will reimburse Seller for costs reasonably incurred by Seller to
comply with the requirements of the preceding sentence to the extent that
Seller is required to incur costs not in the ordinary course of business for
third parties to provide such representation letters.  The provisions of this Section shall
survive Closing or termination of this Contract.


 


8.7                                 Bulk Sales.  At Seller’s
risk and expense, Seller shall take all steps necessary to comply with the
requirements of a transferor under all bulk transfer laws, if any, that are
applicable to the transactions contemplated by this Contract.


 


8.8                                 Indemnification. 
If the transactions contemplated by this Contract are consummated as
provided herein:


 


19

















 


(a)                                  Indemnification of Buyer. 
Without in any way limiting or diminishing the warranties,
representations or agreements herein contained or the rights or remedies
available to Buyer for a breach hereof (except as expressly provided therein),
Seller hereby agrees to indemnify, defend and hold harmless Buyer, its
Affiliates and its and such Affiliates’ officers, shareholders and employees
from and against all losses, judgments, liabilities, claims, damages or
expenses (including reasonable attorneys’ fees) of every kind, nature and
description in existence before, on or after Closing, whether known or unknown,
absolute or continent, joint or several, arising out of or relating to:


 


(i)                                     any claim made or asserted against Buyer
or any of the Property by a creditor of Seller, including any claims based on
or alleging a violation of any bulk sales act or other similar laws;


 


(ii)                                  the breach of any representation,
warranty, covenant or agreement of Seller contained in this Contract but
subject to the Agreed-Upon Limit;


 


(iii)                               any liability or obligation of Seller not
expressly assumed by Buyer pursuant to this Contract or otherwise;


 


(iv)                              any claim made or asserted by an employee
of Seller arising out of Seller’s decision to sell the Property; and


 


(v)                                 the conduct and operation by or on behalf
of Seller of its Hotel or the ownership, use or operation of its Property prior
to Closing.


 


(b)                                 Indemnification of Seller. 
Without in any way limiting or diminishing the warranties,
representations or agreements herein contained or the rights or remedies
available to Seller for a breach hereof, Buyer hereby agrees, with respect to
this Contract, to indemnify, defend and hold harmless Seller from and against
all losses, judgments, liabilities, claims, damages or expenses (including
reasonable attorneys’ fees) of every kind, nature and description in existence
before, on or after Closing, whether known or unknown, absolute or contingent,
joint or several, arising out of or relating to:


 


(i)                                     the breach of any representation,
warranty, covenant or agreement of Buyer contained in this Contract;


 


(ii)                                  the conduct and operation by Buyer of its
business at the Hotel or the ownership, use of or operation of its Property
after the Closing; and


 


(iii)                               any liability or obligation of Buyer
expressly assumed by Buyer at Closing.


 


(c)                                  Indemnification Procedure for Claims of
Third Parties.  Indemnification, with respect to claims
resulting from the assertion of liability by those not parties to this Contract
(including governmental claims for penalties, fines and assessments), shall be
subject to the following terms and conditions:


 


20

















 


(i)                                     The party seeking indemnification (the “Indemnified Party”) shall give
prompt written notice to the party or parties from which it is seeking
indemnification (the “Indemnifying Party”) of any assertion of liability by a
third party which might give rise to a claim for indemnification based on the
foregoing provisions of this Section 8.8, which notice shall state the
nature and basis of the assertion and the amount thereof, to the extent known;
provided, however, that no delay on the part of the Indemnified Party in giving
notice shall relieve the Indemnifying Party of any obligation to indemnify
unless (and then solely to the extent that) the Indemnifying Party is
prejudiced by such delay.


 


(ii)                                  If in any action, suit or proceeding (a “Legal Action”) the relief sought is
solely the payment of money damages, and if the Indemnifying Party specifically
agrees in writing to indemnify such Indemnified Party with respect thereto and
demonstrates to the reasonable satisfaction of such Indemnified Party its
financial ability to do so, the Indemnifying Party shall have the right,
commencing thirty (30) days after such notice, at its option, to elect to
settle, compromise or defend, pursuant to this paragraph, by its own counsel
and at its own expense, any such Legal Action involving such Indemnified Party’s
asserted liability.  If the Indemnifying
Party does not undertake to settle, compromise or defend any such Legal Action,
such settlement, compromise or defense shall be conducted in the sole
discretion of such Indemnified Party, but such Indemnified Party shall provide
the Indemnifying Party with such information concerning such settlement,
compromise or defense as the Indemnifying Party may reasonably request from
time to time.  If the Indemnifying Party
undertakes to settle, compromise or defend any such asserted liability, it
shall notify such Indemnified Party in writing of its intention to do so within
thirty (30) days of notice from such Indemnified Party provided above.


 


(iii)                               Notwithstanding the provisions of the
previous subsection of this Contract, until the Indemnifying Party shall have
assumed the defense of the Legal Action, the defense shall be handled by the
Indemnified Party.  Furthermore, (x) if
the Indemnified Party shall have reasonably concluded that there are likely to
be defenses available to it that are different from or in addition to those
available to the Indemnifying Party; (y) if the Legal Action involves
other than money damages and seeks injunctive or other equitable relief; or (z) if
a judgment against Buyer, as the Indemnified Party, in the Legal Action will,
in the good faith opinion of Buyer, establish a custom or precedent which will
be adverse to the best interest of the continuing business of the Hotel, the
Indemnifying Party, shall not be entitled to assume the defense of the Legal
Action and the defense shall be handled by the Indemnified Party, provided
that, in the case of clause (z), the Indemnifying Party shall have the right  to approve legal counsel selected by the
Indemnified Party, such approval not to be unreasonably withheld, delayed or
conditioned.  If the defense of the Legal
Action is handled by the Indemnified Party under the provisions of this
subsection, the Indemnifying Party shall pay all legal and other expenses
reasonably incurred by the Indemnified Party in conducting such defense.


 


(iv)                              In any Legal Action initiated by a third
party and defended by the Indemnified Party (w) the Indemnified Party
shall have the right to be represented by advisory counsel and accountants, at
its own expense, (x) the Indemnifying Party shall 


 


21

















 


keep the
Indemnified Party fully informed as to the status of such Legal Action at all
stages thereof, whether or not the Indemnified Party is represented by its own
counsel, (y) the Indemnifying Party shall make available to the
Indemnified Party and its attorneys, accountants and other representatives, all
books and records of Seller relating to such Legal Action and (z) the
parties shall render to each other such assistance as may be reasonably
required in order to ensure the proper and adequate defense of such Legal
Action.


 


(v)                                 In any Legal Action initiated by a third
party and defended by the Indemnifying Party, the Indemnifying Party shall not
make settlement of any claim without the written consent of the Indemnified
Party, which consent shall not be unreasonably withheld, delayed or
conditioned.  Without limiting the
generality of the foregoing, it shall not be deemed unreasonable to withhold
consent to a settlement involving injunctive or other equitable relief against
Buyer or its respective assets, employees, Affiliates or business, or relief
which Buyer reasonably believes could establish a custom or precedent which
will be adverse to the best interests of its continuing business.


 


8.9                                 Escrow Funds. 
To provide for the timely payment of any post-closing claims by Buyer
against Seller hereunder, at Closing, Seller shall deposit an amount equal to
One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) (the “Escrow Funds”) which shall be
withheld from the Purchase Price payable to Seller and shall be deposited for a
period of one (1) year in an escrow account with the Title Company
pursuant to an escrow agreement reasonably satisfactory in form and substance
to Buyer and Seller (the “Post-Closing Agreement”),
which escrow and Post-Closing Agreement shall be established and entered into
at Closing and shall be a condition to Buyer’s obligations under this Contract.
All earnings accrue to Seller and Seller may direct investment thereof.  If no claims have been asserted by Buyer
against Seller, or all such claims have been satisfied, within such 1-year
period, the Escrow Funds deposited by Seller shall be released to Seller.


 


8.10                           Liquor Licenses. 
As a condition to Buyer’s obligations under this Contract, (i) the
Manager or an Affiliate thereof approved by Buyer shall have or shall have
obtained all liquor licenses and alcoholic beverage licenses necessary or
desirable to operate any restaurants, bars and lounges presently located within
the Hotel (collectively, the “Liquor Licenses”)
and, in the case of an Affiliate of the Manager, the Hotel has the right to use
such Liquor License, (ii) if permitted under the laws of the jurisdiction
in which the Hotel is located, the Manager shall execute and file any and all
necessary forms, applications and other documents (and Seller shall cooperate
with the Manager in filing such forms, applications and other documents) with
the appropriate liquor and alcoholic beverage authorities prior to Closing so
that the Liquor Licenses remain in full force and effect upon completion of
Closing.


 


ARTICLE
IX

CONDITIONS FOR CLOSING


 


9.1                                 Buyer’s Conditions for Closing. 
Unless otherwise waived in writing, and without prejudice to Buyer’s
right to cancel this Contract during the Review Period, the duties and
obligations of Buyer to proceed to Closing under the terms and provisions of
this Contract are 


 


22

















 


and shall be expressly subject to strict compliance
with, and satisfaction or waiver of, each of the conditions and contingencies
set forth in this Section 9.1, each of which shall be deemed material to
this Contract.  In the event of the
failure of any of the conditions set forth in this Section 9.1 or of any
other condition to Buyer’s obligations provided for in this Contract, which
condition is not waived in writing by Buyer, Buyer shall have the right at its option
to declare this Contract terminated, in which case the Earnest Money Deposit
and any interest thereon shall be immediately returned to Buyer and each of the
parties shall be relieved from further liability to the other, except as
otherwise expressly provided herein, with respect to this Contract.


 


(a)                                  All of Seller’s representations and
warranties contained in or made pursuant to this Contract shall be true and
correct in all material respects as if made again on the Closing Date.


 


(b)                                 Buyer shall have received all of the
instruments and conveyances listed in Section 10.2.


 


(c)                                  Seller shall have performed, observed and
complied in all material respects with all of the covenants, agreements,
closing requirements and conditions required by this Contract to be performed,
observed and complied with by Seller, as and when required hereunder.


 


(d)                                 All Liquor Licenses shall be in full
force and effect and shall remain in full force and effect following Closing
and shall have been or shall be transferred to, or new Liquor Licenses issued
to, the Manager or an Affiliate thereof approved by Buyer at or as of Closing,
and Buyer shall have received satisfactory evidence thereof.


 


(e)                                  Third Party Consents in form and
substance satisfactory to Buyer shall have been obtained and furnished to
Buyer.


 


(f)                                    The Escrow Funds shall have been
deposited in the escrow account pursuant to the Post-Closing Agreement and the
parties thereto shall have entered into the Post-Closing Agreement.


 


(g)                                 The Existing Management Agreement and the
Existing Franchise Agreement shall have been terminated.


 


(h)                                 Buyer and the Manager shall have executed
and delivered the New Management Agreement and Buyer and the Franchisor shall
have executed and delivered the New Franchise Agreement, in each case upon
terms and conditions acceptable to Buyer in its sole and absolute discretion.


 


9.2                                 Seller’s Conditions for Closing. 
Unless otherwise waived in writing, and without prejudice to Seller’s
right to cancel this Contract during the Review Period, the duties and
obligations of Seller to proceed to Closing under the terms and provisions of
this Contract are and shall be expressly subject to strict compliance with, and
satisfaction or waiver of, each of the conditions and contingencies set forth
in this Section 9.2, each of which shall be deemed material to this
Contract.  In the event of the failure of
any of the conditions set forth in this Section 9.2, which condition is
not waived in writing by Seller, Seller shall have the right at its option to 


 


23

















 


declare this Contract terminated and null and void, in
which case the remaining Earnest Money Deposit and any interest thereon shall
be immediately paid to Buyer and each of the parties shall be relieved from
further liability to the other, except as otherwise expressly provided herein.


 


(a)                                  All of Buyer’s representations and
warranties contained in or made pursuant to this Contract shall be true and
correct in all material respects as if made again on the Closing Date.


 


(b)                                 Seller shall have received all of the
money, instruments and conveyances listed in Section 10.3.


 


(c)                                  Buyer shall have performed, observed and
complied in all material respects with all of the covenants, agreements,
closing requirements and conditions required by this Contract to be performed,
observed and complied with by Buyer, as and when required hereunder.


 


ARTICLE
X

CLOSING AND CONVEYANCE


 


10.1                           Closing.  Unless
otherwise agreed by Buyer and Seller, the Closing on the Property shall occur
on a date selected by Buyer that is the later to occur of (a) fifteen (15)
business days after expiration of the Review Period or (b) receipt by
Buyer of the New Franchise Agreement, provided that in each case all conditions
to Closing by Buyer hereunder have been satisfied.  The date on which the Closing is to occur as
provided in this Section 10.1, or such other date as may be agreed upon by
Buyer and Seller, is referred to in this Contract as the “Closing
Date” for the Property. 
The Closing shall be held at 10:00 a.m. at the offices of the Title
Company, or as otherwise determined by Buyer and Seller.


 


10.2                           Deliveries of Seller and Indemnitor. 
At Closing, Seller or Indemnitor, as applicable, shall deliver to Buyer
the following, and, as appropriate, all instruments shall be properly executed
and conveyance instruments to be acknowledged in recordable form (the terms,
provisions and conditions of all instruments not attached hereto as Exhibits
shall be mutually agreed upon by Buyer and Seller prior to such Closing):


 


(a)                                  Deed.  A Special
Warranty deed conveying to Buyer fee simple title to the Real Property, subject
only to the Permitted Exceptions (the “Deed”).


 


(b)                                 Bills of Sale. 
Bills of sale to Buyer and/or its designated Lessee, conveying title to
the tangible Personal Property (other than the alcoholic beverage inventories,
which, at Buyer’s election and if permitted by applicable law, shall be
transferred by Seller to the Manager as holder of the Liquor Licenses required
for operation of the Hotel).


 


(c)                                  Existing Management and Franchise
Agreements.  The termination of the Existing Management
Agreement and the Existing Franchise Agreement.


 


(d)                                 General Assignments. 
Assignments of all of Seller’s right, title and interest in and to all
FF&E Leases, Service Contracts and Leases identified on Exhibit C
hereto (the “Hotel Contracts”).  The assignment shall also be a general
assignment and shall provide 


 


24

















 


for the assignment of all of Seller’s right, title and
interest in all Records, Warranties, Licenses, Tradenames (except “Cool Pool”TM), Contracts, Plans and Specs and all other intangible
Personal Property applicable to the Hotel.


 


(e)                                  FIRPTA; 1099. 
A FIRPTA Affidavit or Transferor’s Certificate of Non-Foreign Status as
required by Section 1445 of the Internal Revenue Code and an IRS Form 1099.


 


(f)                                    Title Company Documents. 
All affidavits, gap indemnity agreements and other documents reasonably
required by the Title Company.  At Buyer’s
sole expense, Buyer shall have obtained an irrevocable commitment directly from
the Title Company (or in the event the Title Company is not willing to issue
said irrevocable commitment, then from such other national title company as may
be selected by either Buyer or Seller) for issuance of an Owner’s Policy of
Title Insurance to Buyer insuring good and marketable fee simple absolute title
to the Real Property constituting part of the Property, subject only to the
Permitted Exceptions in the amount of the Purchase Price.


 


(g)                                 Possession; Estoppel Certificates. 
Possession of the Property, subject only to rights of guests in
possession and tenants pursuant to written leases included in the Leases, and
estoppel certificates from tenants under Leases and the lessors under FF&E
Leases in form and substance acceptable to Buyer.


 


(h)                                 Vehicle Titles. 
The necessary certificates of titles duly endorsed for transfer together
with any required affidavits and other documentation necessary for the transfer
of title or assignment of leases from Seller to Buyer of any motor vehicles
used in connection with the Hotel’s operations.


 


(i)                                     Authority Documents. 
Certified copy of resolutions of the Managing Members of Seller
authorizing the sale of the Property contemplated by this Contract, and/or
other evidence reasonably satisfactory to Buyer and the Title Company that the
person or persons executing the closing documents on behalf of Seller have full
right, power and authority to do so, along with a certificate of good standing
of Seller from the State in which the Property is located.


 


(j)                                     Miscellaneous. 
Such other instruments as are contemplated by this Contract to be
executed or delivered by Seller, reasonably required by Buyer or the Title
Company, or customarily executed in the jurisdiction in which the Hotel is
located, to effectuate the conveyance of property similar to the Hotel, with
the effect that, after the Closing, Buyer will have succeeded to all of the
rights, titles, and interests of Seller related to the Hotel and Seller will no
longer have any rights, titles, or interests in and to the Hotel.


 


(k)                                  Plans, Keys, Records, Etc. 
To the extent not previously delivered to and in the possession of
Buyer, all Contracts, Plans and Specs, all keys for the Hotel (which keys shall
be properly tagged for identification), all Records, including, without
limitation, all Warranties, Licenses, Leases, FF&E Leases and Service
Contracts for the Hotel.


 


(l)                                     Closing Statements. 
Seller’s Closing Statement, and a certificate confirming the truth of
Seller’s representations and warranties hereunder as of the Closing Date.


 


25

















 


(m)                               Indemnification Agreement. 
At Closing, Indemnitor shall deliver to Buyer the Indemnification
Agreement.


 


10.3                           Buyer’s Deliveries. 
At Closing of the Hotel, Buyer shall deliver the following:


 


(a)                                  Purchase Price. 
The balance of the Purchase Price, adjusted for the adjustments provided
for in Section 12.1, below, and less any sums to be deducted therefrom as
provided in Section 2.3.


 


(b)                                 Authority Documents. 
Certified copy of resolutions of the Board of Directors of Buyer
authorizing the purchase of the Hotel contemplated by this Contract, and/or
other evidence satisfactory to Seller and the Title Company that the person or
persons executing the closing documents on behalf of Buyer have full right,
power and authority to do so.


 


(c)                                  Counterpart to assignments of the Hotel
Contracts pursuant to which Buyer agrees to perform assumed contracts and to
hold Seller harmless therefrom.


 


(d)                                 Counterpart to Indemnification Agreement.


 


(e)                                  Execution of a new Franchise Agreement.


 


(f)                                    Execution of Management Agreement with
Indemnitor.


 


(g)                                 Miscellaneous. 
Such other instruments as are contemplated by this Contract to be
executed or delivered by Buyer, reasonably required by Seller or the Title
Company, or customarily executed in the jurisdiction in which the Hotel is
located, to effectuate the conveyance of property similar to the Hotel, with
the effect that, after the Closing, Buyer will have succeeded to all of the
rights, titles, and interests of Seller related to the Hotel and Seller will no
longer have any rights, titles, or interests in and to the Hotel.


 


(h)                                 Closing Statements. 
Buyer’s Closing Statement, and a certificate confirming the truth of
Buyer’s representations and warranties hereunder as of the Closing Date.


 


ARTICLE
XI


COSTS


 


All Closing costs shall
be paid as set forth below:


 


11.1                           Seller’s Costs. 
In connection with the sale of the Property contemplated under this
Contract, Seller shall be responsible for costs and expenses of its attorneys,
accountants, appraisers and other professionals, consultants and
representatives as well as all transfer and recordation taxes (except any
related to the clerk’s fee or per page fee for recording of the deed),
including, without limitation, all transfer, mansion, sales, use or bulk
transfer taxes or like taxes on or in connection with the transfer of the Real
Property and the Personal Property constituting part of the Property pursuant
to the Bill of Sale, and all accrued taxes of Seller prior to Closing and
income, sales and use taxes and other such taxes of Seller attributable to the
sale of the Property to Buyer.  Seller
shall be responsible for all costs related to the termination of the 


 


26

















 


Existing Management Agreement as provided in Article V.  Seller shall also be responsible for payment
of all prepayment penalties and other amounts payable in connection with the
pay-off of any liens and/or indebtedness encumbering the Property including,
without limitation, all mortgages, liens, vehicle loans/leases and all other
loans.


 


11.2                           Buyer’s Costs. 
In connection with the purchase of the Property contemplated under this
Contract, Buyer shall be responsible for the costs and expenses of its
attorneys, accountants and other professionals, consultants and
representatives.  Buyer shall also be
responsible for the costs and expenses in connection with the preparation of
any environmental report, any update to the survey and the costs and expenses
of preparation of the title insurance commitment and the issuance of the title
insurance policy contemplated by Article IV and the per page recording
charges and clerk’s fee for the Deed (if applicable).  Buyer shall also be responsible for any fees
for the performance of the property improvement plan (PIP) review and report by
the Franchisor and the cost of completing the PIP items.


 


ARTICLE
XII


ADJUSTMENTS


 


12.1                           Adjustments. 
Unless otherwise provided herein, at Closing, adjustments between the
parties shall be made as of 11:59 p.m. on the Closing Date (the “Cutoff Time”), with the income and
expenses accrued prior to the Closing Date being allocated to Seller and the
income and expenses accruing on and after the Closing Date being allocated to
Buyer, all as set forth below.  All of
such adjustments and allocations shall be made in cash at Closing and shall be
collected through and/or adjusted in accordance with the terms of the Existing
Management Agreement.  Except as
otherwise expressly provided herein, all apportionments and adjustments shall
be made on an accrual basis in accordance with generally accepted accounting
principles.  Buyer and Seller shall
request that the Manager  determine the
apportionments, allocations, prorations and adjustments as of the Cutoff Time.


 


(a)                                  Taxes.  All real
estate taxes, personal property taxes, or any other taxes and special
assessments (special or otherwise) of any nature upon the Property levied,
assessed or pending for the calendar year in which the Closing occurs
(including the period prior to Closing, regardless of when due and payable)
shall be prorated as of the Cutoff Time and, if no tax bills or assessment
statements for such calendar year are available, such amounts shall be
estimated on the basis of the best available information for such taxes and
assessments that will be due and payable on the Hotel for the calendar year in
which Closing occurs.


 


(b)                                 Utilities.  All suppliers
of utilities shall be instructed to read meters or otherwise determine the
charges owing as of the Closing Date for services prior thereto, which charges
shall be allocated to Seller.  Charges
accruing after Closing shall be allocated to Buyer.  If elected by Seller, Seller shall be given
credit, and Buyer shall be charged, for any utility deposits transferred to and
received by Buyer at Closing.


 


(c)                                  Income/Charges. 
All rents, income and charges receivable or payable under any Leases and
Hotel Contracts applicable to the Property, and any deposits, prepayments and
receipts thereunder, shall be prorated between Buyer and Seller as of the
Cutoff Time.


 


27














 


(d)           Accounts.  All Lender
Required Reserves, as well as all FF&E accounts, and all PIP accounts, but
excluding amounts held in tax and insurance escrow accounts and utility
deposits to the extent excluded from the definition of Deposits, shall become
the property of Buyer, without additional charge to Buyer and without Buyer
being required to fund the same.


 


(e)           Guest Ledger. 
Subject to (f) below, all accounts receivable of registered guests
at the Hotel who have not checked out and were occupying rooms as of the Cutoff
Time, shall be prorated as provided herein.


 


(f)            Room Rentals. 
All receipts from guest room rentals and other suite revenues for the
night in which the Cutoff Time occurs shall be split equally between Buyer and
Seller.


 


(g)           Advance Deposits. 
All prepaid rentals, room rental deposits, and all other deposits for
advance registration, banquets or future services to be provided on and after
the Closing Date shall be credited to Buyer.


 


(h)           Accounts Receivable. 
To the extent not apportioned at Closing and subject to (e) and (f) above,
all accounts receivable and credit card claims as of the Cutoff Time shall
remain the property of Seller, and Seller and Buyer agree that the monies
received from debtors owing such accounts receivable balances after Closing,
unless otherwise provided in the New Management Agreement, shall be applied as
expressly provided in such remittance, or if not specified then to the Seller’s
outstanding invoices to such account debtors in chronological order beginning
with the oldest invoices, and thereafter, to Buyer’s account.


 


(i)            Accounts Payable. 
To the extent not apportioned at Closing, any indebtedness, accounts
payable, liabilities or obligations of any kind or nature related to Seller or
the Property for the periods prior to and including the Closing Date shall be
retained by Seller and promptly allocated to Seller and evidence thereof shall
be provided to Buyer, and Buyer shall not be or become liable therefor, except
as expressly assumed by Buyer pursuant to this Contract or otherwise, and
invoices received in the ordinary course of business prior to Closing shall be
allocated to Seller at Closing.


 


(j)            Restaurants, Bars, Machines, Other Income. 
All monies received in connection with bar, restaurant, banquet and similar
and other services at the Hotel (other than amounts due from any guest and
included in room rentals) prior to the close of business for each such
operation for the night in which the Cutoff Time occurs shall belong to Seller,
and all other receipts and revenues (not previously described in this Section 12.1)
from the operation of any department of the Hotel shall be prorated between
Seller and Buyer at Closing.


 


12.2         Reconciliation and Final Payment. 
Seller and Buyer shall reasonably cooperate after Closing to make a
final determination of the allocations and prorations required under this
Contract within one hundred eighty (180) days after the Closing Date; provided,
however, failure to make a final reconciliation within 180 days shall not
relieve the parties’ obligations under this section to make a final
reconciliation.  Upon the final
reconciliation of the allocations and prorations under this Section, the party
which owes the other party any sums hereunder shall pay such party such sums
within ten (10) days after the reconciliation of such sums.  The obligations 


 


28

















 


to calculate such prorations, make such
reconciliations and pay any such sums shall survive the Closing.


 


12.3         Employees.  Unless Buyer
or the Manager expressly agrees otherwise, none of the employees of the Hotel
shall become employees of Buyer, as of the Closing Date; instead, such
employees shall become employees of the Manager or Affiliate of Manager.  Seller shall not give notice under any
applicable federal or state plant closing or similar act, including, if
applicable, the Worker Adjustment and Retraining Notification Provisions of 29
U.S.C., Section 2102, the parties having agreed that a mass layoff, as
that term is defined in 29 U.S.C., 2101(a)(3), will not have occurred.  Any liability for payment of all wages,
salaries and benefits, including, without limitation, accrued vacation pay,
sick leave, bonuses, pension benefits, COBRA rights, and other benefits accrued
or earned by and due to employees at the Hotel through the Cutoff Time,
together with F.I.C.A., unemployment and other taxes and benefits due with
respect to such employees for such period, shall be charged to Seller, in
accordance with the Existing Management Agreement, for the purposes of the
adjustments to be made as of the Cutoff Time. 
All liability for wages, salaries and benefits of the employees accruing
in respect of and attributable to the period from and after Closing shall be
charged to Buyer, in accordance with the New Management Agreement.  To the extent applicable, all such
allocations and charges shall be adjusted in accordance with the provisions of
the Existing Management Agreement.


 


ARTICLE XIII

CASUALTY AND CONDEMNATION


 


13.1         Risk of Loss; Notice.  Prior to
Closing and the delivery of possession of the Property to Buyer in accordance
with this Contract, all risk of loss to the Property (whether by casualty,
condemnation or otherwise) shall be borne by Seller.  In the event that (a) any loss or damage
to the Hotel shall occur prior to the Closing Date as a result of fire or other
casualty, or (b) Seller receives notice that a governmental authority has
initiated or threatened to initiate a condemnation proceeding affecting the
Hotel, Seller shall give Buyer immediate written notice of such loss, damage or
condemnation proceeding (which notice shall include a certification of (i) the
amounts of insurance coverages in effect with respect to the loss or damage and
(ii) if known, the amount of the award to be received in such
condemnation).


 


13.2         Buyer’s Termination Right. 
If, prior to Closing and the delivery of possession of the Property to
Buyer in accordance with this Contract, (a) any condemnation proceeding
shall be pending against a substantial portion of the Hotel or (b) there
is any substantial casualty loss or damage to the Hotel, Buyer shall have the
option to terminate this Contract, provided Buyer delivers written notice to
Seller of its election within twenty (20) days after the date Seller has
delivered Buyer written notice of any such loss, damage or condemnation as
provided above, and in such event, the Earnest Money Deposit, and any interest
thereon, shall be delivered to Buyer and thereafter, except as expressly set
forth herein, no party shall have any further obligation or liability to the
other under this Contract.  In the
context of condemnation, “substantial” shall mean condemnation of such portion
of a Hotel (or access thereto) as could, in Buyer’s reasonable judgment, render
use of the remainder impractical or unfeasible for the uses herein
contemplated, and, in the context of casualty loss or damage, “substantial”
shall mean a loss or damage in excess of One Hundred Thousand and No/100
Dollars ($100,000.00) in value.


 


29

















 


13.3         Procedure for Closing.  If Buyer
shall not timely elect to terminate this Contract under Section 13.2
above, or if the loss, damage or condemnation is not substantial, each
applicable Seller agrees to pay to Buyer at the Closing all insurance proceeds
or condemnation awards which Seller has received as a result of the same, plus
an amount equal to the insurance deductible, and assign to Buyer all insurance
proceeds and condemnation awards payable as a result of the same, in which
event the Closing shall occur without Seller replacing or repairing such
damage.  In the case of damage or
casualty, at Buyer’s election, Seller shall repair and restore the Property to
its condition immediately prior to such damage or casualty and shall assign to
Buyer all excess insurance proceeds.


 


ARTICLE XIV

DEFAULT REMEDIES


 


14.1         Buyer Default.  If Buyer
defaults under this Contract after the Review Period, and such default
continues for thirty (30) days following written notice from Seller (provided
no notice shall extend the time for Closing), then at Seller’s election by
written notice to Buyer, this Contract shall be terminated and of no effect, in
which event the Earnest Money Deposit, including any interest thereon, shall be
paid to and retained by the Seller as Seller’s sole and exclusive remedy
hereunder, and as liquidated damages for Buyer’s default or failure to close,
and both Buyer and Seller shall thereupon be released from all obligations
hereunder.


 


14.2         Seller Default.  If Seller
defaults under this Contract, and such default continues for thirty (30) days
following written notice from Buyer, Buyer may elect, as Buyer’s sole and
exclusive remedy, either (i) to terminate this Contract by written notice
to Seller delivered to that Seller at any time prior to the completion of such
cure, in which event the Earnest Money Deposit, including any interest thereon,
shall be returned to the Buyer, and thereafter both the Buyer and Seller shall
thereupon be released from all obligations with respect to this Contract,
except as otherwise expressly provided herein; or (ii) to treat this
Contract as being in full force and effect by written notice to Seller
delivered to Seller at any time prior to the completion of such cure, in which
event the Buyer shall have the right to an action against the defaulting Seller
for damages, specific performance and all other rights and remedies available
at law or in equity. In the absence of an election of remedy on or before the
end of any cure period (but in no event later than thirty (30)  days after initial notice of default), the
remedy set forth in 14.2(i) above shall be deemed elected.


 


14.3         Attorney’s Fees.  Anything to
the contrary herein notwithstanding, if it shall be necessary for either the Buyer
or Seller to employ an attorney to enforce its rights pursuant to this Contract
because of the default of the other party, then the non-prevailing party shall
reimburse the prevailing party for the prevailing party’s reasonable attorneys’
fees, costs and expenses.


 


14.4         Limitation of Claims. No claim on account of a Seller default under Section 14.2
above, shall be brought against Seller unless damages exceed the Agreed-Upon
Limit. Any such claim of Seller default which does not result in the termination
of this Offer must be asserted within one (1) year of the Closing Date or
it shall be deemed waived.


 


30

















 


ARTICLE XV

NOTICES


 


All notices required herein shall be deemed to have been validly given,
as applicable:  (i) if given by
telecopy, when the telecopy is transmitted to the party’s telecopy number
specified below and confirmation of complete receipt is received by the
transmitting party during normal business hours or on the next Business Day if
not confirmed during normal business hours, (ii) if hand delivered to a
party against receipted copy, when the copy of the notice is receipted or
rejected, (iii) if given by certified mail, return receipt requested,
postage prepaid, two (2) Business Days after it is posted with the U.S.
Postal Service at the address of the party specified below or (iv) on the
next delivery day after such notices are sent by recognized and reputable
commercial overnight delivery service marked for next day delivery, return
receipt requested or similarly acknowledged:


 


	
  If to Buyer:

  	
   

  	
  Apple Nine Hospitality
  Ownership, Inc.

  814 E. Main Street

  Richmond, Virginia 23219

  Attention: Sam Reynolds

  Fax No.: (804) 344-8129

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  Apple REIT
  Nine, Inc.

  814 E. Main Street

  Richmond, Virginia 23219

  Attention: Legal Dept.

  Fax No.: (804) 344-8129

  
	
   

  	
   

  	
   

  
	
  If to Seller:

  	
   

  	
  Rogers Lodging Associates 58, LLC

  c/o Raymond Management Company

  8333 Greenway Blvd., Ste. 200

  Middleton, WI 53562

  Attention: Bob Bruni

  Fax No.: (608) 662-8365

  
	
   

  	
   

  	
   

  
	
  If to Indemnitor

  	
   

  	
  Raymond Management
  Company

  8333 Greenway Blvd., Ste 200

  Middleton, WI 53562

  Attn: Bob Bruni

  Fax No.: (608) 662-8365

  



 


Addresses may be changed by the parties hereto by written notice in
accordance with this Section.


 


31

















 


ARTICLE XVI

MISCELLANEOUS


 


16.1         Performance.  Time is of
the essence in the performance and satisfaction of each and every obligation
and condition of this Contract.


 


16.2         Binding Effect; Assignment. 
This Contract shall be binding upon and shall inure to the benefit of
each of the parties hereto, their respective successors and assigns.


 


16.3         Entire Agreement.  This Contract
and the Exhibits constitute the sole and entire agreement between Buyer and
Seller with respect to the subject matter hereof.  No modification of this Contract shall be
binding unless signed by both Buyer and Seller.


 


16.4         Governing Law.  The validity,
construction, interpretation and performance of this Contract shall in all ways
be governed and determined in accordance with the laws of the State in which
the Real Property is located (without regard to conflicts of law principles).


 


16.5         Captions.  The captions
used in this Contract have been inserted only for purposes of convenience and
the same shall not be construed or interpreted so as to limit or define the
intent or the scope of any part of this Contract.


 


16.6         Confidentiality.  Except as
either party may reasonably determine is required by law (including without
limitation laws and regulations applicable to Buyer or its Affiliates who may
be public companies):  (i) prior to
Closing, Buyer and Seller shall not disclose the existence of this Contract or
their respective intentions to purchase and sell the Property or generate or
participate in any publicity or press release regarding this transaction,
except to Buyer’s and Seller’s legal counsel and lender, Buyer’s consultants
and agents, the Manager, the Manager, the Franchisor and the Title Company and
except as necessitated by Buyer’s Due Diligence Examination, unless both Buyer
and Seller agree in writing and as necessary to effectuate the transactions
contemplated hereby and (ii) following Closing, the parties shall
coordinate any public disclosure or release of information related to the
transactions contemplated by this Contract, and no such disclosure or release
shall be made without the prior written consent of Buyer, and no press release
shall be made without the prior written approval of Buyer and Seller.


 


16.7         Closing Documents.  To the extent
any Closing documents are not attached hereto at the time of execution of this
Contract, Buyer and Seller shall negotiate in good faith with respect to the
form and content of such Closing documents prior to Closing.


 


16.8         Counterparts.  This Contract
may be executed in counterparts by the parties hereto, and by facsimile
signature, and each shall be considered an original and all of which shall
constitute one and the same agreement.


 


16.9         Severability.  If any
provision of this Contract shall, for any reason, be adjudged by any court of
competent jurisdiction to be invalid or unenforceable, such judgment shall not
affect, impair or invalidate the remainder of this Contract but shall be
confined in its operation to the provision or provisions hereof directly involved
in the controversy in which such judgment shall have been rendered, and this
Contract shall be construed as if such provision had never existed, unless such
construction would operate as an undue hardship on Seller or Buyer or 


 


32

















 


would constitute a substantial deviation from the
general intent of the parties as reflected in this Contract.


 


16.10       Interpretation.  For purposes
of construing the provisions of this Contract, the singular shall be deemed to
include the plural and vice versa and the use of any gender
shall include the use of any other gender, as the context may require.


 


16.11       (Intentionally Omitted)


 


16.12       Further Acts.  In addition
to the acts, deeds, instruments and agreements recited herein and contemplated
to be performed, executed and delivered by Buyer and Seller, Buyer and Seller
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, the Franchisor, licensing authority, or the Title Company may reasonably
require to consummate the transaction contemplated hereunder.


 


16.13       Joint and Several Obligations. 
If Seller consists of more than one person or entity (but not including
member or members of Seller), each such person or entity shall be jointly and
severally liable with respect to the obligations of Seller under this Contract.


 


ARTICLE XVII  

JOINDER BY INDEMNITOR


 


17.1         Indemnification
by Indemnitor.  Indemnitor hereby covenants and agrees that:


 


(a)           Indemnitor is and shall be jointly and severally
liable with Seller for the performance of all of Seller’s obligations and
liabilities under this Contract and all documents and instruments executed in
connection therewith, including, without limitation, all of Seller’s
obligations and liabilities that survive Closing;


 


(b)           The obligations of Indemnitor hereunder shall not be
limited, diminished or impaired in any way by virtue of any right or remedy
Buyer may have against Seller under this Contract or by virtue of any other
provision of this Contract;


 


(c)           Buyer shall not be obligated to proceed first against
Seller before resorting to Indemnitor under this Article XVII for payment
and performance;


 


Indemnification claims
and procedures with respect to the indemnification obligations of Indemnitor
under this Article XVII shall be consistent with those provided for in Section 8.8(c) of
this Contract.  Seller shall cause
Indemnitor to provide, and Indemnitor shall provide, at Closing an
indemnification agreement in form and substance satisfactory in form and
substance to Buyer with respect to the foregoing indemnifications (the “Indemnification Agreement”), which
shall be a condition to Buyer’s obligation to close under this Contract.  Except as provided in this Contract, the
covenants, agreements, representations and warranties of Indemnitor set forth
in this Article XVII shall be continuing, and shall not be deemed to merge
into or be waived by the Deeds or other closing documents and shall survive
Closing on the Property.


 


33

















 


[Signatures Begin
on Following Page]


 


34

















 


IN WITNESS WHEREOF, this
Contract has been executed, to be effective as of the date first above written,
by the Buyer and Seller.


 


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  ROGERS LODGING
  ASSOCIATES 58, LLC, a Wisconsin limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Arkansas Lodging
  Properties, LLC, its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ C.J. Raymond

  
	
   

  	
   

  	
  Name: C.J. Raymond

  
	
   

  	
   

  	
  Title: Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INDEMNITOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  RAYMOND MANAGEMENT
  COMPANY, INC, a Wisconsin Corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ C.J. Raymond

  
	
   

  	
  Name: C.J. Raymond

  
	
   

  	
  Title: President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BUYER:

  
	
   

  	
   

  
	
   

  	
  APPLE NINE HOSPITALITY
  OWNERSHIP, INC., a Virginia corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Justin G. Knight

  
	
   

  	
  Name:

  	
  Justin G. Knight

  
	
   

  	
  Title:

  	
  President

  



 


35