Exhibit 10.79


 


St. Louis (Downtown), MO


(Hampton
Inn)


 


PURCHASE
CONTRACT


 


between


 


ST. LOUIS
LODGING ASSOCIATES, 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

  
	
   

  	
   

  	
   

  
	
  4.4

  	
  Existing Loan

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  TERMINATION
  OF MANAGEMENT AGREEMENT

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  BROKERS

  	
  12

  
	
   

  	
   

  	
   

  
	
  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

  	
  17

  
	
   

  	
   

  	
   

  
	
  7.3

  	
  Survival

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  ADDITIONAL
  COVENANTS

  	
  17

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Subsequent Developments

  	
  17

  
	
   

  	
   

  	
   

  
	
  8.2

  	
  Operations

  	
  18

  
	
   

  	
   

  	
   

  
	
  8.3

  	
  Third Party Consents

  	
  19

  



 


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  8.4

  	
  Employees

  	
  19

  
	
   

  	
   

  	
   

  
	
  8.5

  	
  Estoppel Certificates

  	
  19

  
	
   

  	
   

  	
   

  
	
  8.6

  	
  Access to Financial
  Information

  	
  20

  
	
   

  	
   

  	
   

  
	
  8.7

  	
  Bulk Sales

  	
  20

  
	
   

  	
   

  	
   

  
	
  8.8

  	
  Indemnification

  	
  20

  
	
   

  	
   

  	
   

  
	
  8.9

  	
  Escrow Funds

  	
  22

  
	
   

  	
   

  	
   

  
	
  8.10

  	
  Liquor Licenses

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  CONDITIONS
  FOR CLOSING

  	
  23

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Buyer’s Conditions for
  Closing

  	
  23

  
	
   

  	
   

  	
   

  
	
  9.2

  	
  Seller’s Conditions for
  Closing

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  CLOSING
  AND CONVEYANCE

  	
  25

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Closing

  	
  25

  
	
   

  	
   

  	
   

  
	
  10.2

  	
  Deliveries of Seller
  and Indemnitor

  	
  25

  
	
   

  	
   

  	
   

  
	
  10.3

  	
  Buyer’s Deliveries

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  COSTS

  	
  27

  
	
   

  	
   

  	
   

  
	
  11.1

  	
  Seller’s Costs

  	
  27

  
	
   

  	
   

  	
   

  
	
  11.2

  	
  Buyer’s Costs

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  ADJUSTMENTS

  	
  28

  
	
   

  	
   

  	
   

  
	
  12.1

  	
  Adjustments

  	
  28

  
	
   

  	
   

  	
   

  
	
  12.2

  	
  Reconciliation and
  Final Payment

  	
  29

  
	
   

  	
   

  	
   

  
	
  12.3

  	
  Employees

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  CASUALTY
  AND CONDEMNATION

  	
  30

  
	
   

  	
   

  	
   

  
	
  13.1

  	
  Risk of Loss; Notice

  	
  30

  
	
   

  	
   

  	
   

  
	
  13.2

  	
  Buyer’s Termination
  Right

  	
  30

  
	
   

  	
   

  	
   

  
	
  13.3

  	
  Procedure for Closing

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  DEFAULT
  REMEDIES

  	
  31

  
	
   

  	
   

  	
   

  
	
  14.1

  	
  Buyer Default

  	
  31

  
	
   

  	
   

  	
   

  
	
  14.2

  	
  Seller Default

  	
  31

  
	
   

  	
   

  	
   

  
	
  14.3

  	
  Attorney’s Fees

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV

  	
  NOTICES

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVI

  	
  MISCELLANEOUS

  	
  32

  
	
   

  	
   

  	
   

  
	
  16.1

  	
  Performance

  	
  32

  
	
   

  	
   

  	
   

  
	
  16.2

  	
  Binding Effect;
  Assignment

  	
  32

  



 


ii

















 


	
  16.3

  	
  Entire Agreement

  	
  32

  
	
   

  	
   

  	
   

  
	
  16.4

  	
  Governing Law

  	
  33

  
	
   

  	
   

  	
   

  
	
  16.5

  	
  Captions

  	
  33

  
	
   

  	
   

  	
   

  
	
  16.6

  	
  Confidentiality

  	
  33

  
	
   

  	
   

  	
   

  
	
  16.7

  	
  Closing Documents

  	
  33

  
	
   

  	
   

  	
   

  
	
  16.8

  	
  Counterparts

  	
  33

  
	
   

  	
   

  	
   

  
	
  16.9

  	
  Severability

  	
  33

  
	
   

  	
   

  	
   

  
	
  16.10

  	
  Interpretation

  	
  33

  
	
   

  	
   

  	
   

  
	
  16.11

  	
  (Intentionally Omitted)

  	
  33

  
	
   

  	
   

  	
   

  
	
  16.12

  	
  Further Acts

  	
  33

  
	
   

  	
   

  	
   

  
	
  16.13

  	
  Joint and Several
  Obligations

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVII

  	
  JOINDER
  BY INDEMNITOR

  	
  34

  
	
   

  	
   

  	
   

  
	
  17.1

  	
  Indemnification by Indemnitor

  	
  34

  
	
   

  	
   

  	
   

  
	
  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

  	
   

  
	
  Exhibit H

  	
  Existing Loan
  Information

  	
   

  



 


iii

















 


PURCHASE
CONTRACT


 


This PURCHASE CONTRACT
(this “Contract”) is made and entered into
as of March 16, 2010, by and between ST. LOUIS LODGING ASSOCIATES, 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
190-room hotel property commonly known as the Hampton Inn St. Louis Downtown at
the Arch located at 333 Washington Ave., St. Louis, Missouri 63102 (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 


 


1

















 


ingress and egress, tenements, hereditaments,
privileges, and appurtenances in any way 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 Hampton Inn, 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 Loan” shall mean the loan identified on Exhibit H.


 


“Existing Lender” shall mean the lender identified on Exhibit H.


 


“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).


 


3

















 


“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, 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.


 


4

















 


“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 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 


 


5

















 


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 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 and the Existing Loan),
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 Twenty-three Million and No/100 Dollars
($23,000,000.00) (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, less the outstanding principal
balance of the Existing Loan, 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


 


7

















 


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 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


 


8

















 


or affecting the Hotel.  If the Hotel is purchased by Buyer, all such
documents and information 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.


 


(g)                                 All documents related to the Existing
Loan.


 


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


 


9

















 


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.


 


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


 


10

















 


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 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.


 


4.4                                 Existing Loan. 
Seller represents and warrants that the Existing Loan is the only
indebtedness secured by the Property and that the information contained on Exhibit H is true, correct and complete.  Neither Seller nor any guarantor is in
default or breach of any provisions of the documents evidencing the Existing
Loan and no event or circumstance has occurred or exists which but for the
passage of time would be a default under the Existing Loan.  At Closing, Buyer shall assume the Existing
Loan and Buyer shall pay all administrative fees, assumption fees and
underwriting costs, if any, charged by the Existing Lender in connection with
said assumption.  Seller shall cooperate
with Buyer in Buyer’s efforts related to the assumption of the Existing Loan
including executing such applications, certificates and other documents
required by the Lender and providing any information required by the Lender in
connection with the assumption of the Existing Loan.  Seller shall be responsible for the costs of
its attorneys, and Buyer shall be responsible for the costs of its
attorneys.  In addition, Buyer shall be
responsible for the cost, if any, of Existing Lender’s attorneys, related to
the assumption of the Existing Loan.


 


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


 


11

















 


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.


 


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”); provided, however,
the assumption of the Existing Loan by Buyer is subject to the consent and
approval of the Existing Lender.


 


(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).


 


12

















 


(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 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 


 


13

















 


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) “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.


 


14














 


(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.


 


(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 


 


15

















 


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 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 


 


16

















 


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 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.


 


17

















 


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;


 


(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;


 


18

















 


(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.


 


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.


 


19

















 


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:


 


(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.


 


20

















 


(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:


 


(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 


 


21

















 


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 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 


 


22

















 


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 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 


 


23

















 


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.


 


(i)                                     The Existing Lender shall have approved
and authorized the closing of the assumption of the Existing Loan by Buyer.


 


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 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.


 


24














 


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, or (c) the date that Existing Lender
has unconditionally committed to close on the assumption of the Existing Loan
by, and consent to the transfer of the Property to, Buyer;  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 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 


 


25

















 


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.


 


(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.


 


26

















 


(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 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 (other than the Existing Loan), 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.


 


27

















 


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.


 


(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.


 


28

















 


(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.


 


(k)                                  Existing Loan Interest.  
Interest on the outstanding principal balance of the Existing Loan shall
be prorated between Seller and Buyer as of the Closing Date with interest up to
and including the Closing Date being allocated to Seller.  If interest is paid to the Existing Lender in
arrears, then Seller shall credit Buyer with the interest payment for the month
in which Closing occurs.


 


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 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 


 


29

















 


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.


 


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.


 


30














 


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.


 


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 


 


31

















 


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:

  	
  St. Louis Lodging Associates, 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.


 


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.


 


32

















 


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 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 


 


33

















 


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.


 


[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:

  
	
   

  	
   

  
	
   

  	
  ST. LOUIS LODGING
  ASSOCIATES, LLC, a Wisconsin limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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