Exhibit 10.1







Exhibit
10.1

 

PURCHASE
AND SALE AGREEMENT

 

THIS
PURCHASE AND SALE AGREEMENT, dated April 28, 2005, by and between McINTOSH INN
OF WILMINGTON, INC., a Delaware corporation ("Seller") with an address at 300
Rocky Run Parkway, Wilmington, Delaware 19803 and HERSHA HOSPITALITY LIMITED
PARTNERSHIP, a Virginia limited partnership (“Buyer”) with an address at 148
Sheraton Drive, New Cumberland, Pennsylvania 17070 is entered into with
reference to the recitals set forth below and all of the terms and conditions of
this Agreement, and constitutes a contract of purchase and sale between the
parties.

 

RECITALS

 

A.     Seller is
the owner of that certain real property including all easements, appurtenances
and rights of way (collectively, the "Land") located in the County of New
Castle, State of Delaware, more particularly described in Exhibit
“A”
attached hereto.

 

B.     Seller
owns and operates two (2) hotel facilities (each a "Hotel" and collectively, the
“Hotels”) on the Land. The first Hotel is known as the Courtyard by Marriott,
which includes, among other things, approximately 78 guest rooms and parking
facilities (the “Marriott”). The second Hotel is the McIntosh Inn of Wilmington,
which includes, among other things, approximately 71 guest rooms and parking
facilities (the “McIntosh”).

 

C.     Seller
desires to sell, and Buyer desires to purchase, the Land, the Improvements (as
hereinafter defined) and certain Personal Property (as hereinafter defined) used
in connection with the Hotels on the terms and conditions set forth in this
Agreement.


 


	 	
      1.
	
      Definitions.




 


1.1     Defined
Terms. As used
in this Agreement, the terms defined in the recitals hereto shall have the
respective meanings assigned thereto in said recitals and the following terms
shall have the meanings given to them below, such definitions to be legally
applicable to the singular and plural forms thereof.

 

"Affiliate" means
and refers to any person or entity which, directly or indirectly, is in control
of, is controlled by, or is under common control with, a Party. For purposes of
this definition, a person or entity shall be deemed to be "controlled by" a
Party if a Party, directly or indirectly, (i)
possesses power to vote fifty (50%) percent or more of the securities having
ordinary voting power for the election of directors having ordinary voting power
for the election of directors of such person or (ii)
possesses power to direct or cause the direction of the management and policies
of such person whether by contract, as a general partner (or through control of
a general partner).

 

"Agreement" means
and refers to this Purchase and Sale Agreement between Seller and
Buyer.

 

“Assigned
Contracts” means
and refers to those contracts and agreements to which the Seller or McIntosh
Motor Inns, Inc. (“MMI”), the
manager of each Hotel, is a
party which relate to the maintenance or repair of the Real Property or the
operation of the Hotels, each of which is set forth on Exhibit “B” attached
hereto, subject to the consents required under Section 10.2.

 




















 

"Business
Day" means
and refers to any day other than a Saturday or Sunday or legal holiday in the
State of Delaware.

 

"Buyer" means
and refers to Hersha Hospitality Limited Partnership or its permitted assignee
pursuant to the provisions of Section 9.1 of this Agreement.

 

"Closing" means
the time and moment at which the Seller's Deed is delivered and the balance of
the Purchase Price paid.

 

"Closing
Date" means
and refers to the date on which the Closing shall occur.

 

"Closing
Time" means
12:01 A.M. Eastern Time on the Closing Date.

 

"Due
Diligence Period" means a
period of fifteen (15) days from the Effective Date.

 

"Effective
Date" means
and refers to the date this Agreement has been signed and delivered to both
Buyer and Seller.

 

"Escrow
Agent" shall
mean and refer to Hodges Ward Elliott, Inc.

 

"Excluded
Assets” shall
mean and refer to the following assets of the Seller which shall not be included
in the sale contemplated hereby and shall not be assigned or transferred to the
Buyer: (i) Seller’s
Records; (ii)
Pre-Closing Receivables; (iii) all cash
and cash equivalents of the Seller; (iv) the
property management hardware and software and related support systems;
(v) prepaid
taxes and any rights of Seller to any tax refunds; (vi) all
insurance policies of Seller and all rights of Seller arising under such
policies; (vii) all
rights and claims of Seller, contingent or otherwise, against third parties
relating to the Property or its operation by Seller prior to the Closing Time,
whether in tort, contract or otherwise, including causes of action, unliquidated
rights and claims pursuant to any warranties or guarantees made by advertisers,
manufacturers, suppliers, insurers or vendors; and (viii) all
rights of Seller under this Agreement. 

 

“Franchise
License” shall
mean that certain Courtyard by Marriott Franchise Agreement dated November 6,
1997 by and between Marriott International, Inc., as Licensor, and McIntosh Inn
of Wilmington, Inc., as Licensee.

 

“Improvements” means
any and all buildings, structures, parking areas and other improvements,
including the Hotels situated on the Land.

 

"Party" or
"Parties" means
Buyer and/or Seller, as the context may require.

 

"Permitted
Exceptions" means
(a) laws, regulations or ordinances of federal, state, county or local entities
or agencies having jurisdiction over the Property; (b) easements, covenants and
restrictions of record, provided that same do not materially and adversely
interfere with the use of the Property as a hotel; (c) all current real estate
taxes, assessments and other sums assessed against the Property and unpaid as of
the Closing, subject to prorations for the current year owing by Seller; and (d)
all other matters to which Buyer fails to timely object (or waives its
objection) in accordance with the provisions of Section 3.

 







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"Personal
Property" means
all items of tangible personal property to the extent owned by Seller and which
are affixed to or located at and used in connection with the operation of each
Hotel, including without limitation, furniture, fixtures, equipment, linens,
office supplies, cleaning and maintenance supplies and guest room supplies, but
excluding (i) any tangible personal property owned by tenants and used in or in
connection with the businesses operated by the separate tenants at each Hotel or
Property, if any, and (ii) any tangible personal property in the office of
MMI.

 

"Post-Closing
Adjustment Period" means
the sixty (60) day period subsequent to the Closing Date during which time
Seller and Buyer shall resolve certain issues, open items, or disputes pursuant
to the provisions of subsection 6.3(g) of this Agreement.

 

"Post-Closing
Business Arrangements" means
any of the business activities and/or obligations to be completed by Seller
pursuant to the provisions of Article 6 of this Agreement.

 

"Prime
Rate" means
the prime rate of interest as specified in The
Wall Street Journal on such
date or if such date is not a Business Day, then on the next preceding day that
is a Business Day.

 

"Pre-Closing
Receivables" means
any accounts receivable, notes receivable or other obligations arising from or
in connection with the ownership, operation and activities of each Hotel up to
the Closing Time and attributable to such period of time, including, without
limitation, charges for lodging, meals, beverages, conference facilities,
recreational activities, leases and facilities and all other matters connected
with each Hotel or Property.

 

"Property" means
collectively the Real Property and the Personal Property, but excluding the
Excluded Assets.

 

”Real
Property" means
the Land and the Improvements.

 

"Scheduled
Closing Date" means
June 3, 2005, or any later Closing Date to which the Closing is adjourned
by mutual agreement of Seller and Buyer, provided however, that: (i) Buyer may
adjourn the Scheduled Closing Date (not to exceed fourteen (14) days) without
Seller’s consent, if Buyer’s lender for financing purposes is unable to process
the required documentation and close on the Scheduled Closing Date; (ii) Seller
may adjourn the Scheduled Closing Date (not to exceed thirty (30) days) without
Buyer's consent if Seller elects to cure, remove or remedy a New Matter as set
forth in Section 3.1(c); and (iii) either party may adjourn the Scheduled
Closing Date in accordance with the provisions of
Section 12.1.

 

"Seller's
Deed" means a
special warranty deed to be used to convey title to the Real Property to Buyer
or to Buyer's permitted assignee, which deed shall be substantially in the form
of the deed attached hereto as Exhibit “C”.

 

"Seller's
Employees" means
all employees employed at each Hotel by Seller as of the Closing
Date.

 







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"Seller's
Records" means
all records pertaining to Seller's operation of each Hotel including, but not
limited to, procedures, manuals, invoices, bank account records, payroll
records, and sales records which will be retained by Seller in connection with
Seller's tax and accounting requirements.

 

"Wind-Up
Period" shall
mean the thirty (30) day period after the Closing Date (inclusive of the Closing
Date) during which time Seller and the Buyer shall attend to their respective
Post-Closing Business Arrangements.


 


	 	
      2.
	
      Purchase
      and Sale, Certain Adjustments and Contingencies.









 

2.1     Agreement
for Purchase and Sale. In
consideration of the payment of the Purchase Price, Seller agrees to sell the
Property to the Buyer, and the Buyer agrees to buy the Property from the Seller,
at the price and on the terms, covenants and conditions set forth in this
Agreement.

 

2.2     Purchase
Price. The
Buyer hereby agrees to pay Sixteen Million Eight Hundred Thousand and No/100
Dollars ($16,800,000.00) for the Property (hereinafter referred to as "Purchase
Price").

 

2.3     Price. The
Purchase Price shall be paid by the Buyer to the Seller as follows:

 

(a)     The Buyer
shall deliver to the Escrow Agent its check in the amount of Eight Hundred
Thousand Dollars ($800,000.00) concurrent with the execution of this Agreement
(the “Deposit”). The Deposit shall be non refundable to Buyer except as
otherwise specifically set forth in this Agreement. The Deposit shall be held by
the Escrow Agent in an interest bearing trust account, or certificate of
deposit, or money market account of a money center bank. Any interest which
shall be earned on the Deposit shall be paid to the party entitled to the
principal. The party to which the interest earned is paid shall be responsible
for paying the income tax, if any, thereon. The Seller's EIN is 51-0339899 and
the Buyer's EIN number is 25-1823761.

 

(b)     Prior to the
Closing, Buyer shall deliver to the Escrow Agent funds in an amount aggregating
the Purchase Price less the Deposit, which funds shall be disbursed by the
Escrow Agent to Seller in accordance with the disbursement instructions given by
Seller to the Escrow Agent at or prior to Closing.

 

2.4     [Intentionally
omitted.]

 

2.5     Transfer
and Recording Charges. At
Closing, Seller and Buyer shall equally share the expense for all real estate
transfer taxes, recording taxes or documentary stamps imposed by any
governmental authority on the Seller's Deed to Buyer. Seller shall bear the cost
of recording the satisfaction of any mortgages discharged by Seller at Closing
and the cost of any other closing or recording charges normally paid by a seller
in a real estate transaction in the state and county where the Property is
located. Buyer shall bear the cost of recording charges in order to record the
Seller's Deed, the cost of any expenses associated with the giving or recording
of any mortgage given by Buyer in connection with its acquisition of the
Property, any title insurance premiums, survey costs and the cost of any other
closing or recording charges.

 

2.6     Escrow
Agent.

 







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(a)     Buyer and
Seller hereby agree that Hodges Ward Elliott, Inc. shall be the Escrow Agent
under this Agreement.

 

(b)     Escrow
Agent shall hold the Deposit in accordance with the terms of Section 2.3.
In the event of any disagreement among the parties to this Agreement or among
them and any other person, resulting in adverse claims and demands being made in
connection with the Deposit, Escrow Agent shall be entitled to refuse to comply
with any such claims or demands as long as such disagreement may continue, and
in so refusing, shall make no delivery or other disposition of the Deposit then
held by it under this Agreement, and in doing so, Escrow Agent shall not become
liable in any way for such refusal, and Escrow Agent shall be entitled to
continue to refrain from acting until (i) the
rights of adverse claimants shall have been finally settled or adjudicated in a
court having jurisdiction thereof, or (ii) all
differences shall have been settled by agreement signed by both parties
hereto.

 

(c)     Escrow Agent
shall be responsible solely for the safekeeping of the Deposit. Escrow Agent
shall not be liable to Seller or Buyer for the performance or nonperformance of
any term of this Agreement by Seller or Buyer and shall not be required to
determine any questions of fact or law. Escrow Agent is authorized to act upon
any documents which it reasonably believes to be genuine without incurring any
liability with respect thereto. In the event litigation is commenced involving
the Deposit or this Agreement, Escrow Agent shall have the right to deposit the
Deposit with the clerk of the court in which the litigation is pending, or if
the Escrow Agent is a party to such litigation, to interplead all interested
parties in any court of competent jurisdiction and deposit the Deposit with the
clerk of such Court. Seller and Buyer agree that the Escrow Agent shall not be
liable for any error of judgment, or for any act or omission, other than willful
misconduct, or for any negligence other than gross negligence.


 


	 	
      3.
	
      Title
      and Default.





 

3.1          
Title.

 

(a)     After the
execution of this Agreement by the Parties, Buyer shall order a commitment for
title insurance in the amount of the Purchase Price together with copies of all
documents identified in the title commitment (collectively, the "Title
Documents") from All American Abstract Company, Inc. (the "Title Company").
Buyer shall pay for the cost of the issuance of the title
commitment.

 

(b)     The Buyer
shall have a period of fifteen (15) days from the date it shall have received
the Title Documents to examine title (the "Title Date"); provided that in no
event shall the Title Date extend beyond the expiration of the Due Diligence
Period. On or before the Title Date, Buyer shall notify Seller in writing of any
objections Buyer may have to the condition of title which do not constitute
Permitted Exceptions and that would prevent the issuance of title insurance at
commercially reasonable rates by a title company licensed to do business in the
state in which the Land is located ("Title Objections"). Seller shall notify
Buyer in writing within ten (10) days of receipt of the Title Objections whether
Seller will undertake to cure, remove or remedy each Title Objection ("Title
Response"). Within five (5) days of receipt of the Title Response, Buyer shall
either (i) accept
title subject to the undertakings set forth in the Title Response, or
(ii) reject
title. In the event Buyer rejects title, this Agreement shall be terminated by
written notice to Seller and the Deposit shall be returned to
Buyer.

 







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(c)     Upon
acceptance of title as set forth above, all matters then affecting title shall
be deemed acceptable and satisfactory to Buyer, except for the matters set forth
in the Title Response and except for matters coming of record subsequent to the
report date referred to on the title report issued by the Title Company and of
which Seller has received written notice (the "New Matter(s)"). Seller shall not
be obliged to cure, remove or remedy any New Matter, except for removal of liens
or encumbrances caused by Seller in amounts aggregating not more than $150,000
(exclusive of first and second mortgages). Except as set forth in this
Section 3.1, if Seller refuses for any reason or no reason to cure, remove
or remedy any such New Matter, Buyer shall have the option of terminating this
Agreement by written notice to Seller or accepting title in its then state and
condition.

 

(d)     If Buyer
terminates this Agreement in accordance with Buyer's right to do so as set forth
in Section 3.1(b) or (c), the Deposit and all interest earned thereon shall
be returned by the Escrow Agent to the Buyer forthwith and, upon doing so,
neither Party shall have any further or continuing obligation or responsibility
to the other (except with respect to any restoration and indemnity obligations
under this Agreement which survive termination).

 

(e)     At the
Closing, Buyer shall cause to be issued to Buyer a title policy in the amount of
the Purchase Price in accordance with the Title Response (the "Title Policy").
Buyer shall pay all costs incurred in obtaining the Title Documents, the Title
Policy and the Survey (as defined below).

 

3.2     Buyer's
Default. If the
Seller shall be ready, willing and able to deliver title to the Property to the
Buyer in accordance with the terms of this Agreement and shall otherwise comply
with the provisions hereof, and the Buyer shall default in its obligation to
purchase the Property and pay the Purchase Price by the Scheduled Closing Date
as provided in this Agreement and such default continues uncured for
five (5) days after written notice is given to Buyer of the specific
default, then the Seller shall, as its sole remedy, be entitled by notice to the
Buyer and the Escrow Agent to terminate this Agreement and cause the Escrow
Agent to deliver the Deposit to the Seller and the Seller shall retain the
Deposit as liquidated and agreed damages, it being agreed that it is difficult
to ascertain actual damages in the event of a default and that the liquidated
damages set forth herein represent a fair and reasonable estimate of such
damages.

 

3.3     Seller's
Default. If the
Buyer shall be ready, willing and able to purchase the Property in accordance
with the terms of this Agreement and shall otherwise comply with the provisions
hereof, and the Seller shall be unable to deliver title to the Property by the
Scheduled Closing Date as provided in this Agreement and such inability
continues uncured for five (5) days after written notice is given to Seller
of such specific inability, the Seller's sole obligation shall be to terminate
this Agreement by notice to the Buyer and the Escrow Agent and direct the Escrow
Agent to refund the Deposit to Buyer, together with all interest earned thereon,
and upon such refund, this Agreement shall wholly cease and terminate and
neither Party shall have any further claim against the other under or by reason
of this Agreement. Buyer agrees that Buyer shall not (and hereby waives any
right to) ever file or assert any lis pendens against
the Property nor commence or maintain any action against Seller for specific
performance under this Agreement nor for a declaratory judgment as to Buyer’s
rights under this Agreement.


 


	 	
      4.
	
      Closing
      Matters.





 

4.1    Closing.

 







6












 

(a)     Except as
may be provided elsewhere in this Agreement, the Closing Date shall be no later
than the Scheduled Closing Date. The Parties may mutually agree to close prior
to the Scheduled Closing Date.

 

(b)     The
Closing shall take place either at the offices of Cozen O’Connor, 1900 Market
Street, Philadelphia, PA 19103, or such other place as Buyer and Seller mutually
agree, at 10:00 A.M. on the Scheduled Closing Date.

 

4.2     Buyer's
Deliveries. At the
Closing, the Buyer shall (a) cause
the Escrow Agent to deliver to the Seller the sum(s) set forth in Section 2.3,
(b) deliver
the documents required to be executed and delivered by Buyer under this
Agreement, and (c) deliver
the amount, if any, required of Buyer under Article 8 entitled "Proration" and
all other sums of money required to be paid by Buyer as of the Closing Date in
order to consummate the transactions contemplated by this Agreement or owed by
Buyer to Seller as of the Closing Date pursuant to any provision of this
Agreement.

 

4.3     Certain
Seller Deliveries. At the
Closing, Seller shall deliver to the Buyer all of the documents required to be
delivered by the Seller pursuant to the terms of this Agreement, including the
following:

 

(a)     Seller's
Deed. Seller
shall deliver Seller's Deed conveying the Real Property to Buyer, executed and
acknowledged by Seller in recordable form. The Real Property to be acquired by
Buyer shall be acquired subject to the terms and provisions of this
Agreement.

 

(b)     Property
Documents. Seller
shall deliver the property documents described below, to the extent not
previously delivered (collectively "Property Documents"):

 

(i)     Assigned
Contracts. Copies
(or originals, if available) of all Assigned Contracts;

 

(ii)     Governmental
Permits. Copies
of all permits, licenses, and other governmental authorizations relating to the
Real Property or operation of each Hotel which are in the Seller's possession or
control and that are assignable and have been assigned to Buyer;

 

(iii)     Real
Estate Tax Bills. All
current real estate and personal property tax bills with respect to the Property
in the Seller’s or MMI’s possession or under its direct control;

 

(iv)     Drawings/Plans. A copy
of the “As-Built” drawing or plans for each Hotel, to the extent such plans
exist and are in Seller’s or MMI’s possession or direct control;

 

(v)     Advance
Room Reservation. A
complete list of all advance room reservations, conferences or other similar
functions at each Hotel, as applicable, in reasonable detail so as to enable
Buyer to honor such reservations;

 

(vi)     Keys. All
keys respecting each Hotel;

 







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(vii)     Books
and Records. All
non-privileged books, records, operating reports, and other operating files and
materials (“Operating Records”) relating to the operation of each Hotel, to the
extent such Operating Records exist and are in the Seller’s or MMI’s possession
or direct control, but excluding the Seller’s Records; and

 

(viii)     Guest
Registration Cards. All
guest registration cards, guest transcripts and guests histories for each Hotel,
to the extent such documents exist and are in the Seller’s or MMI’s possession
or direct control.

 

(c)     Certification. A
certification from Seller confirming that, as of the Closing Date, the Seller’s
representations and warranties in Section 10.2 of this Agreement are true and
correct in all material respects.

 

(d)     Additional
Documents. All
other instruments or documents expressly required from Seller under this
Agreement or otherwise reasonably required by the Title Company in order to
insure title pursuant to Section 3.1; provided that in no event shall Seller be
required to deliver escrow deposits, escrow agreements or any indemnity
agreements hereunder unless the Seller otherwise agrees to do so.

 

4.4     FIRPTA
Affidavit. At the
Closing, Seller shall deliver a FIRPTA affidavit certifying that Seller is a
non-foreign person in the form of the affidavit attached hereto as Exhibit “D” and
incorporated herein.

 

4.5     Advance
Deposits. At the
Closing, Seller shall turn over to Buyer all Advance Deposits pursuant to the
provisions of Section 7.4 of this Agreement.

 

4.6     Buyer
Authority. On or
before the Closing Date, Buyer shall deliver to Seller (a) a
certificate of good standing from the Buyer’s jurisdiction of organization, and
(b) a
certified copy of resolutions evidencing Buyer's authority to consummate this
transaction, in form and substance reasonably satisfactory to Seller, and any
other evidence of Buyer's authority to consummate this transaction required by
the Title Company to issue the Title Policy.

 

4.7     Assignment
of Agreements. At the
Closing, Buyer and Seller shall have executed and delivered, and Seller shall
have caused MMI to execute and deliver, an Assignment and Assumption Agreement
in the form attached hereto as Exhibit “E” (the
"Assignment Agreement"), pursuant to which Seller or MMI, as applicable, assigns
to the Buyer all of the interest of MMI with respect to each Hotel or Seller, as
applicable, in, and the Buyer assumes all of the rights and obligations of MMI
with respect to each Hotel or Seller, as applicable, under, the Assigned
Contracts.

 

4.8     Bill
of Sale. At the
Closing, Seller shall deliver to Buyer an executed Bill of Sale, in the form
attached hereto as Exhibit “F” ("Bill
of Sale"), conveying all of Seller's interest in the Personal
Property.

 

4.9     Seller
Authority. On or
before the Closing Date, Seller shall deliver to Buyer (a) a certificate of good
standing from the Seller’s jurisdiction of organization and (b) a certified copy
of resolutions evidencing Seller’s authority to consummate this transaction, in
form and substance reasonably satisfactory to Buyer, and any other evidence of
Seller’s authority to consummate this transaction as reasonably required by the
Title Company to issue the Title Policy.

 







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4.10     General
Quitclaim Agreement. At the
Closing, Buyer and Seller shall have executed and delivered, a General Quitclaim
Agreement in the form attached hereto as Exhibit
“G”
(“General Assignment”), pursuant to which Seller assigns to Buyer all
warranties, permits, approvals and certificates of occupancy relating to the
Property or the Hotels, if any, to the extent permitted by law or by the terms
of such items or documents. 

 

4.11      License
Agreement. At the
Closing, Seller shall have caused MMI to execute and deliver, and Buyer shall
execute and deliver, a License Agreement in the form attached hereto as
Exhibit “H”
(“License Agreement”), licensing to Buyer on a nonexclusive basis for a term of
one (1) year the marks set forth in the License Agreement.


 


	 	
      5.
	
      Certain
      Conditions.





 

5.1          
Inspection
of Property.

 

(a)     After the
execution of this Agreement by the Parties, but prior to the expiration of the
Due Diligence Period, Buyer shall have the right, at its sole cost and expense,
to obtain a Phase I Environmental Report (the "Environmental Report") for the
Property and shall have the right, at its sole cost and expense, to obtain a
survey of the Real Property (the “Survey”). However, the Buyer shall not conduct
or permit any invasive testing (including any Phase II investigations) to be
conducted at the Property without the Seller’s prior written consent, which
consent shall not be unreasonably withheld, conditioned or delayed.

 

(b)     Other
than as disclosed in any environmental reports provided to Buyer by Seller,
if a
defect is revealed on the Survey and/or in the Environmental Report which (i)
materially and adversely impairs the Buyer’s use of the Property as the Hotels
are currently operated or (ii) constitutes a material violation of applicable
environmental laws and (iii) that would require (in the case of (ii), a
remediation required by an applicable governmental authority involving) the
expenditure of more than $25,000 to remedy such defect (a “Material Defect”),
Buyer shall, by no later than the earlier of (x) the expiration of the Due
Diligence Period and (y) the 10th day after the date the Buyer shall have
received the respective Survey or Environmental Report, notify Seller in writing
of any Material Defect revealed by such Survey or Environmental Report and
include a detailed description of such Material Defect. Seller shall notify
Buyer in writing within ten (10) days after any receipt of such notice from
Buyer of a Material Defect whether Seller will undertake to cure, remove or
remedy each such Material Defect ("Material Defect Response"). Within five (5)
days of receipt of the Material Defect Response, Buyer shall have the right, at
its option, to (i) terminate this Agreement by giving written notice to Seller
to such effect, or (i) accept in a written notice to Seller the undertakings of
Seller contained in such Material Defect Response. If Buyer does not give
written notice to Seller of a Material Defect on or before the end of the Due
Diligence Period or, if notice of a Material Defect is given, and the Buyer does
not give written notice to Seller within such five (5) day period after receipt
of a Material Defect Response, then Buyer shall be conclusively deemed to have
accepted any defects that are or might have been reflected in the Survey and any
defects relating to the environmental condition of the Property and to have
waived any rights to terminate this Agreement pursuant to this Section 5.1 (b),
and the parties shall proceed to consummate the transaction as herein
provided.

 







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(c)     During the
period from the date of this Agreement to the Closing Date, Seller will, during
ordinary business hours and with at least twenty-four (24) hours prior
notice to Seller before each and every entry onto the Property by Buyer or its
agents, give Buyer and its representatives reasonable access to the Property and
to all books and records of Seller relating to the operation of each Hotel and
furnish Buyer with such financial data and other information in Seller’s
possession concerning the Seller and its operation of each Hotel, as Buyer may
from time to time reasonably request. During any entry by Buyer or its agents
onto the Property, Buyer shall minimize any disturbance to Seller’s employees,
guests and business operations. None of the information obtained pursuant to
this Section 5.1(c) shall give the Buyer the right to terminate this
Agreement except as otherwise specifically provided in Section 5.1(b). In
connection with any entry by Buyer or its agents, employees, consultants or
representatives onto the Property to conduct any inspection, review or testing
(collectively, the “Inspections”), any such Inspections shall be subject to all
of the following:

 

(i)     All
inspections, reports, surveys and studies (the “Inspection Documents”) shall be
performed at Buyer’s sole cost and expense; provided, however, that Buyer shall
promptly cause a copy of all relevant Inspection Documents to be delivered to
Seller (x) simultaneously with Buyer giving notice of a Title Objection pursuant
to Section 3.1(b) or a Material Defect pursuant to Section 5.1(b) or (y)
simultaneously with a claim for indemnification pursuant to Section
5.5(b)(iii).

 

(ii)     Buyer
and/or its contractors and agents shall maintain liability insurance coverage
for its employees, agents and representatives inspecting the Property or
conducting testing in an amount not less than One Million Dollars
($1,000,000.00) per occurrence and workmen’s compensation insurance coverage as
required by law, and prior to entering onto the Property provide Seller with a
certificate evidencing same (or the renewal thereof), which shall name Seller as
an additional insured.

 

(iii)     Buyer agrees
to keep the Property free and clear of any liens, which may arise as a result of
any such Inspections, which covenant shall survive Closing or any termination of
this Agreement.

 

(iv)     Buyer
shall restore promptly any physical damage caused by the Inspections to
substantially the condition which existed prior to the Inspections, which
covenant shall survive Closing or any termination of this
Agreement.

 

(v)     Buyer
hereby agrees to indemnify, defend and hold Seller and its employees, agents and
representatives harmless from and against all loss, cost, liability, lien,
damage, expense (including reasonable attorney’s fees and costs), injury,
claims, causes of action, which are sustained, suffered or incurred against or
by Seller, its agents, employees or representatives caused by Buyer or its
agents in connection with any Inspections. This indemnity shall survive Closing
or any termination of this Agreement.

 







10












 

(d)     Without
limiting the provisions in Section 5.1, during the Due Diligence Period, Seller
shall provide Buyer with copies of its existing “as-built” ATLA survey, its
vesting deed to the Property, its existing owners title policy and any existing
Phase-I or Phase-II environmental reports; provided that the same exist and are
in Seller’s or MMI’s possession or direct control.

 

5.2          
Purchase
As-Is.

 

(a)     Except as
provided in Section 10.2, Buyer is relying, and will rely, solely upon its
own inspections, investigations and analyses of the Property and the Hotels in
entering into this Agreement and is not relying in any way upon any
representations, statements, agreements, warranties, studies, reports,
descriptions, guidelines or other information or material furnished by Seller or
its representatives, whether oral or written, express or implied, of any nature
whatsoever regarding any such matters, including without limitation, any
marketing materials, and is purchasing the Property in an "as-is"
condition.

 

(b)     EXCEPT AS
EXPRESSLY SET FORTH IN SECTION 10.2 SELLER HEREBY SPECIFICALLY DISCLAIMS ANY
WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE,
OF, AS TO, OR CONCERNING THE NATURE AND CONDITION OF THE PROPERTY INCLUDING,
WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, AND THE SUITABILITY THEREOF AND
OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH THE BUYER MAY ELECT TO
CONDUCT THEREON, AND THE EXISTENCE OF ANY ENVIRONMENTAL HAZARDS OR CONDITIONS
THEREON OR COMPLIANCE WITH ENVIRONMENTAL LAWS, ZONING LAWS, LAND USE LAWS,
RULES, REGULATIONS, ORDERS OR REQUIREMENTS. BUYER ACKNOWLEDGES THAT IT HAS
INSPECTED THE PROPERTY AND BUYER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF
THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER.
BUYER EXPRESSLY ACKNOWLEDGES THAT, IN CONSIDERATION OF THE AGREEMENTS OF SELLER
HEREIN, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN SECTION 10.2, SELLER
MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED OR ARISING BY OPERATION
OF LAW, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY,
MERCHANTABILITY, TENANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RESPECT
OF THE PROPERTY.

 

(c)     Buyer,
for itself and its successors and assigns, hereby releases Seller, Seller’s
affiliates and their respective officers, directors, shareholders, employees and
agents of, from and against any and all claims, losses or damages arising from
the foregoing.

 

(d)     Except as
provided in Section 10.2, Seller makes no warranties or representations to
Buyer, either express or implied, regarding the assignability or transferability
of the Assigned Contracts.

 







11












 

(e)     Buyer is
represented by very capable and experienced people and has had the opportunity
to review the Property prior to the Effective Date. Buyer will rely entirely
upon such review and the advice of Buyer's consultants in Buyer's determination
to purchase the Property. Buyer, by its execution of this Agreement,
acknowledges and agrees that a material inducement to Seller's decision to sell
the Property to Buyer at the Purchase Price provided in this Agreement was the
agreement of Buyer to conduct Buyer's own studies and purchase the Property in
an "as-is" condition, except as expressly provided in
Section 10.2.

 

(f)     Except as may
be specifically provided herein, Seller shall have no obligation to correct any
conditions or alleged defects or deficiencies discovered by Buyer in the course
of Buyer's investigations or inspections with respect to the Property or
thereafter.

 

5.3    Non-Disclosure
of Confidential Information.

 

(a)     Any
information furnished by Seller or its agents to Buyer or Buyer's agents in
connection with the transaction contemplated hereby shall be governed by that
letter agreement dated October 1, 2004 between Bradford Holdings, Inc. and Buyer
(the “Confidentiality Agreement”). The failure of Buyer to comply with its
obligations under the Confidentiality Agreement or this Section 5.3 shall
constitute a material breach of this Agreement and, in such case, the Seller
shall be entitled to terminate this Agreement (and be paid the Deposit) and
pursue any remedy at law or equity against the Buyer, including injunctive
relief provided for in the Confidentiality Agreement.

 

(b)     Notwithstanding
anything to the contrary set forth in this Agreement or the Confidentiality
Agreement, nothing contained herein shall limit the right of the Buyer to report
any information relating to this transaction required to be reported to any
governmental entity, in connection with tax reporting information filed by the
Buyer with the governmental entity or as may be required by any other
governmental regulatory entity. Provided, however, Buyer agrees that in
connection with any and all such required reporting (i) Buyer
shall not, and shall cause its ultimate parent not to, disclose the name of any
principal or shareholder of Seller’s parent; (ii) Buyer
may disclose, and may cause its ultimate parent to, disclose the name of the
Seller in any filing with the Securities and Exchange Commission and any stock
exchange if the identity of the Seller is required to be disclosed by applicable
regulations, but shall not disclose the name of the Seller in any press release
with respect to the transaction (but may identify the Seller in any press
release as a Marriott Courtyard franchisee and the owner of a nonfranchised
hotel); (iii) Buyer
shall not, and shall cause its ultimate parent not to, file a copy of this
Agreement with any governmental authority until the filing of its Form 10-Q
covering the period during which this Agreement is signed; and (iv) Buyer
shall not, and shall cause its ultimate parent not to, make a filing with any
governmental authority or issue any press release concerning the execution of
the Agreement until the fourth business day after execution by both parties of
this Agreement, unless Seller agrees otherwise. Seller shall have the right to
review and approve in advance any such filings to confirm compliance with this
Section 5.3.

 

5.4     Maintenance
of Each Hotel. Seller
shall maintain each Hotel in substantially the same condition that Seller
maintained each respective Hotel before and as of the Effective Date, normal
wear and tear excepted, up to the Closing. Seller shall not enter into any new
agreements with respect to each Hotel (except for agreements and contracts
entered in the normal course of operating each Hotel and cancellable on thirty
(30) days' notice), without the prior written consent of Buyer, which consent
shall not be unreasonably withheld or delayed. The failure of Buyer to deliver
written notice of approval or disapproval of any such proposed agreement within
three (3) Business Days of delivery of such agreement(s) to Buyer shall be
deemed to be Buyer's approval thereof.

 







12












 

5.5    Indemnity.

 

(a)     Buyer
hereby agrees to indemnify, defend and hold Seller, its affiliates and their
respective officers, directors, shareholders, employees and agents
(collectively, “Seller Indemnitees”) harmless from and against any and all
claims, actions, causes of action, costs, expenses (including reasonable
attorneys' fees and costs), damages and liabilities (collectively, “Losses”)
relating to or arising out of (i) Buyer's
operation of each Hotel or use of the Property following the Closing Time;
(ii) Buyer’s
failure duly to perform its obligations under this Agreement or any other
agreement executed by Buyer pursuant to this Agreement; and (iii) Buyer’s breach
of any of its representations or warranties contained in Section 10.1 of this
Agreement. Notwithstanding the foregoing, Buyer shall not be responsible for
payment of Seller's attorney's fees in any particular third party action or
proceeding following the time that Buyer tenders a defense of Seller in such
action or proceeding, with counsel reasonably acceptable to Seller. The
indemnification obligations contained in Section 5.5(a)(i) and (ii) shall
survive the Closing or the earlier termination of this Agreement. The
indemnification obligations contained in Section 5.5(a)(iii) shall survive for
six (6) months after the Closing Date.

 

(b)     Seller
hereby agrees to indemnify, defend and hold Buyer, its affiliates and their
respective officers, directors, shareholders, employees and agents
(collectively, “Buyer Indemnitees”) harmless from and against any and all Losses
relating to or arising out of (i) Seller's
operation of each Hotel or use of the Property prior to the Closing Time;
(ii) Seller’s
failure duly to perform its obligations under this Agreement or any other
agreement executed by Seller pursuant to this Agreement; and (iii) Seller’s
breach of any of its representations or warranties contained in Section 10.2 of
this Agreement. Notwithstanding the foregoing, Seller shall not be responsible
for payment of Buyer's attorney's fees in any particular third party action or
proceeding following the time that Seller tenders a defense of Buyer in such
action or proceeding, with counsel reasonably acceptable to Buyer. The
indemnification obligations contained in Section 5.5(b)(i) and (ii) shall
survive the Closing or the earlier termination of this Agreement. The
indemnification obligations contained in Section 5.5(b)(iii) shall survive for
six (6) months after the Closing Date. 

 

(c)     In the
event Buyer assigns its rights under this Agreement in accordance with
Section 9.1 and such assignee takes title to the Property, such assignee
shall also be responsible for Buyer’s obligations under this Section 5.5.


 

(d)     Seller shall
not have any obligation to indemnify the Buyer Indemnitees for claims under
Section 5.5 (b)(iii) until the Losses of the Buyer Indemnitees with respect to
such claims shall exceed $50,000 in the aggregate (the “Threshold”), following
which the total amount of such Losses in excess of the Threshold shall be
recoverable by the Buyer Indemnitees in accordance with the terms hereof,
subject to the provisions of this Section 5.5 (d). In no event shall the
total obligation of Seller under the indemnification provided in
Section 5.5(b)(iii) exceed an amount equal to (x) $500,000 less (y) the
amount of any indemnification paid to Buyer Indemnitees by Seller pursuant to
Section 5.5(b)(iii) of this Agreement, less (z) the amount of any
indemnification paid to Buyer Indemnitees (as defined in each such agreement) by
affiliates of the Seller pursuant to the Purchase and Sale Agreements between
Buyer and each of McIntosh Inn of King of Prussia, Inc., McIntosh Inn of Oxford
Valley, Inc. and McIntosh Inn of Malvern, Inc. Unless the person seeking
indemnity pursuant to Section 5.5 (a)(iii) or Section 5.5(b)(iii) provided the
Seller or Buyer, as applicable, with proper written notice of a request for
indemnification and describing the claim or event for which indemnification is
sought pursuant to such section during the sixth month period after the Closing
Date, the person seeking indemnification pursuant to those sections shall not be
entitled to obtain any indemnification pursuant thereto.

 







13












 

5.6     Return
of Documents. If this
Agreement fails to close for any reason (other than Seller's willful default),
then all Property Documents, Confidential Information and any other information
delivered by Seller or its agents to Buyer shall be returned to Seller within
five (5) Business Days of the termination of this Agreement. The covenants
contained herein shall survive the termination of this Agreement.

 

5.7     Sales and
Use Taxes. With
respect to each Hotel, Seller shall be responsible for the payment of all hotel,
sales and/or use taxes or income or personal property taxes incurred or related
to periods prior to the Closing Time and Buyer shall be responsible for the
payment of all hotel, sales and/or use taxes or income or personal property
taxes incurred at and subsequent to the Closing Time; provided, however, that
Buyer shall be responsible for the payment of any and all sales taxes which may
be due and payable as a result of the sale of the Personal Property to Buyer
pursuant to the terms of this Agreement. The covenants contained herein shall
survive the Closing of this Agreement.

 

5.8     Existing
Financing. At
Closing, Seller shall pay off all existing financing created by Seller which
constitutes a lien on the Property, and shall bear all costs and expenses
associated therewith, including, but not limited to, the recording costs for
releases of any deeds of trust, mortgages or other financing documents in
connection therewith.

 

5.9     Existing
Hotel Management Agreements. At
Closing, Seller shall terminate, at its sole cost and expense, the existing
Management Agreements between Seller and MMI for each Hotel. In the event such
agreement cannot be terminated, this Agreement shall terminate and Buyer shall
receive a full refund of the Deposit with interest thereon.


 


	 	
      6.
	
      Post-Closing
      Obligations.





 

6.1    Accounts
Receivable.

 

(a)     Pre-Closing
and Post-Closing Receivables. With
respect to each Hotel, all Pre-Closing Receivables shall belong to Seller and
nothing contained in this Agreement is intended to transfer any right, title or
interest in such Pre-Closing Receivables to Buyer. Following the Closing, Seller
shall have the right to collect all Pre-Closing Receivables. During the Wind-Up
Period, Buyer shall cooperate with Seller so that Seller can collect its
Pre-Closing Receivables. Any Pre-Closing Receivables which are not collected by
Seller during such Wind-Up Period shall be collected by Seller upon the
expiration of the Wind-Up Period and Buyer shall execute any documents necessary
to assist Seller in such collection.

 

(b)     Application
of Receivables. With
respect to each Hotel, any collections received by Buyer with respect to
Pre-Closing Receivables shall be paid over to Seller within five (5) days
of receipt without offset or deduction unless the payor of such monies is
obligated on both Pre-Closing Receivables and Post-Closing Receivables and the
payor has independently and specifically identified such payment as one which
should be applied to Post-Closing Receivables. Except in the event of a bona
fide dispute between Seller and a customer which dispute has been documented in
a writing, or tenants who are in arrears for more than one (1) month, any
collections received from parties obligated on both Pre-Closing Receivables and
Post-Closing Receivables shall be applied first to the longest outstanding
unpaid invoices of the payor. In the case of monies received from parties
obligated on both Pre-Closing Receivables and Post-Closing Receivables and where
the amount attributable to Pre-Closing Receivables is the subject of a bona fide
dispute with customer or in the case of arrearages from tenants, is in arrears
in excess of one month (the "Disputed Items"), Buyer will not be obligated to
pay the first monies it receives to Seller, but Seller shall directly deal with
the applicable third party in connection with the collection of the Disputed
Items.

 







14












 

(c)     Seller's
Right to Examine and Photocopy Books and Records. After
the Closing, Seller and its agents and employees shall have the right to examine
and photocopy Buyer's records with respect to collection of Pre-Closing
Receivables and with respect to guests or other persons obligated on both
Pre-Closing Receivables and Post-Closing Receivables, all at reasonable times
and upon reasonable notice.

 

(d)     Office
Space.
Following the Closing, Buyer shall provide to Seller, during the Wind-Up Period,
and from time to time thereafter as Seller may require for an audit or other
accounting procedure, a desk at each Hotel, mutually acceptable to Seller and
Buyer, for Seller and Seller's agents to use in connection with its collection
of its Pre-Closing Receivables, its payroll and accounts payable obligations and
any other auditing procedures deemed necessary by Seller. 

 

6.2     Seller's
Records. Seller
shall be entitled to access to each Hotel during the Wind-Up Period to remove
from each Hotel originals, or at Seller's election, copies of all of Seller's
Records with respect to the periods prior to the Closing, without the prior
consent of Buyer. If the Seller takes originals, it will provide copies thereof
to the Buyer.

 

6.3     Other
Post-Closing Business Arrangements.

 

(a)     Bank
and Other Accounts. Upon
Closing, Buyer shall open new bank accounts, credit card accounts and any other
financial accounts necessary for the continued operation of each Hotel by Buyer.
Buyer agrees that it will not use any credit card, bank accounts or other
financial accounts of Seller.

 

(b)     Issuance
of Documents. Buyer
shall prepare all documents required to be issued with respect to the operation
of each Hotel from and after the Closing Time by the Internal Revenue Service or
any other applicable governmental agency, including, but not limited to, W-2
forms and 1099 forms.

 

(c)     Employees.

 

(i) Buyer
shall offer to hire at least seventy-five percent (75%) of Seller’s active
Employees at each Hotel. Buyer shall deliver prior to the expiration of the Due
Diligence Period a written list of all of Seller’s Employees to be offered
employment by Buyer after Closing (“Rehired Employees”).

 







15












 

(ii)     Payment
of Employees. Seller
shall pay all wages, salaries and benefits (including accrued vacation and sick
pay) and any termination obligations accrued up to the Closing Time for the
Rehired Employees who accept employment with the Buyer.

 

(iii)     Notice
to Employees. Seller
and Buyer shall prepare a joint statement to be distributed to employees at each
Hotel upon the Closing, which statement shall include (i) a notice that each
respective Hotel is, as of the Closing Time, owned by Buyer and (ii) such other
information deemed reasonably necessary by both Seller and Buyer.

 

(d)     Further
Assurances by Parties.
Following the Closing, both Parties shall execute and deliver any further
instruments and take all actions that may be necessary or appropriate to confirm
that all of the rights and privileges contemplated herein have been transferred
to Buyer.

 

(e)     Post-Closing
Cooperation Obligations. Buyer
covenants and agrees that it will, subsequent to the Closing, reasonably
cooperate with Seller in order for Seller to complete its Post-Closing Business
Arrangements under this Article 6 and shall provide reasonable assistance to
Seller, including, without limitation, support, secretarial and clerical
assistance and access to all records at each Hotel to facilitate the preparation
of Seller's tax records and accounting records and to assist Seller with any
claims and/or to comply with any governmental reporting
requirements.

 

(f)     Notices
to Vendors. In
addition to the statement to be prepared by Seller and Buyer pursuant to other
provisions of this Agreement, Seller and Buyer shall also prepare a statement
which shall be delivered, at or soon after the closing, to vendors, consultants
and any other parties deemed necessary by the parties to announce the transfer
of the Property to Buyer.

 

(g)     Post-Closing
Adjustment Period. In the
event Seller and Buyer fail to reach agreement on the prorations pursuant to the
provisions of Article 8 of this Agreement, Seller and Buyer shall meet, during
the sixty (60) day period following the Closing to resolve the dispute and make
such adjustments as may be necessary ("Post-Closing Adjustment Period"). In the
event the Parties are unable to resolve any dispute by the end of the
Post-Closing Adjustment Period, the Parties shall submit the dispute for
resolution by an independent accounting firm mutually agreeable to the Seller
and Buyer. The dispute shall be resolved in accordance with accounting industry
practices. The fee of such accounting firm shall be borne by the Parties
equally.

 

6.4     Accounts
Payable. With
respect to each Hotel, Seller shall be responsible for payment of all accounts
payable accruing prior to the Closing Time.

 

6.5     Performance
of Assigned Contracts. Buyer
shall perform and pay when due each of the obligations of the Seller arising
after the Closing Time pursuant to all of the Assigned Contracts.

 

6.6     Seller’s
Financial Books and Records. For
six (6) months after the Closing Date, Seller shall give Buyer access, upon
reasonable advance notice, to its financial books and records covering the
three (3) year period prior to the Closing Date in order for the Buyer to
prepare, at Buyer’s sole cost and expense, audited financial statements for such
three-year period. Buyer shall reimburse Seller for its out-of-pocket expenses
in connection with providing such access or Buyer’s preparing such financial
statements.

 







16












 

6.7    Survival
of Article 6. The
provisions of Article 6 shall survive the Closing or earlier termination of this
Agreement. 


 


	 	
      7.
	
      Closing
      Procedures.





 

7.1     Guests. As of
12:01 p.m. of the Closing Date, all guests of each Hotel reflected on the
respective Hotel ledgers (including direct bill guests), shall be checked out by
Seller (who may process the account charges for collection), and shall be
re-checked in by Buyer (from which time all such accounts shall be invoiced by
and belong to Buyer). The Seller shall be entitled to room rental for the night
immediately preceding and the morning of the Closing. Seller shall collect and
pay all room and other tax surcharges on all of the foregoing accounts checked
out by Seller and for all check outs occurring prior to the
Closing.

 

7.2    Guests'
Baggage/Safe Deposit Boxes. On the
Closing Date, authorized representatives of Buyer and Seller shall take
inventory of (i) all baggage, suitcases, luggage, valises and trunks of the
guests of each Hotel checked or left in the care of Seller and all items
designated as lost and found held by Seller and (ii) all contents in the safe
deposit boxes maintained exclusively by each Hotel, but no such baggage,
suitcases, luggage, valises, trunks, items or safe deposit boxes shall be
opened. All such baggage and other items shall be sealed in a manner to be
agreed upon by the Parties and listed in an inventory thereof prepared and
signed jointly by said representatives of Buyer and Seller as of the Closing
Date, and Buyer shall be solely responsible thereafter for all items listed in
such inventory and, where the seals have been broken, for the contents thereof,
and Buyer agrees to indemnify, defend and hold Seller harmless from and against
any and all Losses in connection therewith. Seller shall be responsible for such
contents if the seals have not been broken, and will similarly indemnify Buyer
therefor.

 

7.3     Cash
at Hotels. Buyer
shall pay to the Seller the amount of any cash on hand at the Hotels as of the
Closing Time and such cash shall become the property of the Buyer as of the
Closing. At the Closing, Seller's Employees shall count all cash in any cash
registers or any other location within each Hotel, and such amount shall be
verified jointly by Seller and Buyer.

 

7.4     Advance
Deposits. The
parties acknowledge and agree that, at the Closing, Seller shall hold certain
amounts in cash or other forms of payment or security constituting advance
deposits for reservations for space at each Hotel subsequent to the Closing
("Advance Deposits"). The Advance Deposits which are held in cash ("Cash Advance
Deposits") shall be prorated at the Closing with Seller receiving from the
Advance Deposits any amounts or charges earned by Seller prior to the Closing
Date and Buyer receiving the balance.

 

7.5    Utilities. Seller
shall use its reasonable best efforts to have all utilities, including water,
gas and electricity meters read by the appropriate utility companies no earlier
than three (3) Business Days prior to the Closing. To the extent that a utility
bill from any applicable utility company cannot be issued, Seller and Buyer
shall, within sixty (60) days after the Closing, prorate any amounts due and
payable for utilities (including without limitation for sewer charges). During
such sixty (60) day period, Seller and Buyer shall also prorate to the Closing
Time, as necessary, charges payable to the appropriate telephone
company.


 







17












 


	 	
      8.
	
      Prorations.





 

8.1     Prorations. The
parties will prorate (i.e., apportion), in cash, to the Closing Time the
following items for each Hotel:

 

(a)     Taxes. County,
city, municipality, and special district (if any) taxes and assessments of any
kind or nature for the Property, based on the latest information available. If
Closing occurs at a date when the current year's millage is not fixed and
current year's assessment is available, taxes will be prorated based upon such
assessment and the prior year's millage. If current year's assessment is not
available, then taxes will be prorated on the prior year's tax assessment. If
there are completed improvements on the Real Property by January 1st
of year
of Closing which improvements were not in existence on January 1st of the
prior year, then taxes shall be prorated based upon the prior year's millage and
at an equitable assessment to be agreed upon between the parties, failing which,
request will be made to the County Property Appraiser for an informal assessment
taking into consideration available exemptions. Any tax proration based on an
estimate shall, at request of either Buyer of Seller, be subsequently readjusted
upon receipt of the tax bill on condition that a statement to that effect is in
the closing statement;

 

(b)     Rents. Prepaid
rents based on Seller's and Buyer's written statement thereof;

 

(c)     Advance
Deposits. Advance
Deposits based on information to be provided by Seller;

 

(d)     Current
Bookings. Any
amounts due as a result of current bookings;

 

(e)    Security
Deposits. Any
amount held as security for any lease at the Property and any interest earned
thereon;

 

(f)     Utility
Deposits. If
assignable, any amounts retained by a utility company as a deposit credited to
Buyer;

 

(g)     Cash
on Hand. The
amount of cash on hand determined pursuant to Section 7.3 shall be credited to
the Seller;

 

(h)     Special
Assessments.
Certified, confirmed and ratified special assessment liens due and payable as of
the Closing Date are to be paid by Seller. Pending liens or installments not yet
due and payable as of the Closing Date shall be assumed by Buyer;
and

 

(i)     Other
Prorations. Any
other prorations referred to elsewhere in this Agreement and any other items
related to the operation of each Hotel and are expenditures which are consistent
with past practices of Seller for each Hotel.


 


	 	
      9.
	
      Assignment.




 


9.1     Assignment
by Buyer. Buyer
may not assign or otherwise transfer any of its rights or obligations under this
Agreement without obtaining the prior written consent of Seller, which consent
shall not be unreasonably withheld. Notwithstanding the foregoing, Buyer may
assign its rights under this Agreement to an Affiliate of Buyer without first
obtaining Seller's consent. Notwithstanding any assignment pursuant to this
Section, in no event shall Buyer be released from any of the obligations under
this Agreement. Any assignment in violation of this section shall be null and
void.

 







18












 

9.2     Bankruptcy
of Buyer. Buyer
agrees that in the event all or substantially all of Buyer's assets are placed
in the hands of a receiver or trustee, and such receivership or trusteeship
continues for a period of thirty (30) days, or should Buyer make an assignment
for the benefit of creditors, become the subject of an order for relief under
the United States Bankruptcy Code, or should Buyer institute any proceedings
under the United States Bankruptcy Act or under any amendment thereof which may
hereafter be enacted or under any other act relating to the subject of
bankruptcy wherein Buyer seeks to be adjudicated a bankrupt, or to be discharged
of its debts, or to effect a plan of liquidation, composition or reorganization,
or should any involuntary proceeding be filed against Buyer under any such
bankruptcy laws and Buyer consents thereto or acquiesces therein by pleading or
default, or if such involuntary proceeding is not dismissed within sixty (60)
days, then this Agreement shall not become an asset in any of such proceedings,
and in any such event it shall be lawful for Seller to declare this Agreement
terminated, and Buyer shall have no further claim on the Property hereunder or
otherwise and Buyer shall have no right to the return of the Deposit or interest
thereon.


 


	 	
      10.
	
      Representations
      and Warranties.





 

10.1     Buyer’s
Representations and Warranties. The
Buyer represents and warrants to Seller as follows:

 

(a)     Buyer is a
limited partnership duly organized and validly existing in good standing under
the laws of the Commonwealth of Virginia and has full power and authority to
enter into and perform its obligations under this Agreement and the other
agreements executed in connection herewith and the transactions contemplated
hereby. The execution, delivery and performance by the Buyer of each of this
Agreement and the other agreements executed by it in connection herewith and the
consummation of the transactions contemplated hereby and thereby have been duly
and validly authorized by all necessary partnership action of the Buyer, and all
necessary action by the general partner of Buyer. Each of this Agreement and the
other agreements executed by it in connection herewith has been duly and validly
executed and delivered by the Buyer and is valid and binding upon it and
enforceable against it in accordance with its terms, except as may be limited by
bankruptcy, reorganization, insolvency, moratorium or similar laws of general
application relating to or affecting the enforcement of creditors’ rights
generally and except that enforceability of its obligations hereunder is subject
to general principles of equity.

 

(b)     Neither
the execution nor the delivery of this Agreement by the Buyer, nor the
incurrence by the Buyer of the obligations herein set forth, nor the
consummation by the Buyer of the transactions herein contemplated nor compliance
by the Buyer with the terms of this Agreement will conflict with, or result in a
breach of any of the terms, conditions or provisions of, or constitute a default
under (i) the
certificate of limited partnership or the limited partnership agreement of
Buyer, (ii) any
bond, note or other evidence of indebtedness of any contract, indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which the Buyer is a party or by which any of the Buyer's properties may be
bound, or (iii) any law,
regulation, judgment, order, writ or decree of any court, governmental body or
administrative agency of any jurisdiction.

 







19












 

(c)     Buyer is
financially capable of completing the transactions contemplated by this
Agreement and this Agreement is not subject to any financing contingency
whatsoever.

 

(d)     Except as
set forth in Section 10.2, neither Seller nor any agent, attorney, employee or
representative of the Seller has made any representation whatsoever regarding
the subject matter of this sale, or any part thereof, including (without
limiting the generality of the foregoing) representations as to the physical
condition of the Improvements or the suitability thereof for any purpose; and
that Buyer, in executing, delivering and performing this Agreement, does not
rely upon any statement or information to whomever made or given, directly or
indirectly, verbally or in writing, by any individual, firm or corporation,
except as expressly provided in Section 10.2.

 



(e)     Neither
Buyer, nor any of its respective affiliates, nor any of its respective partners,
members, shareholders or other equity owners, and none of its respective
employees, officers, directors, representatives or agents is, nor through the
Closing Date, will become, a person or entity with whom United States persons or
entities are restricted from doing business under regulations of the Office of
Foreign Asset Control (“OFAC”) of the Department of the Treasury (including
those names on OFAC’s Specially Designated and Blocked Persons List) or under
any statute, executive order (including the September 23, 2001, Executive Order
Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten
to Commit, or Support Terrorism), or other governmental action and is not and
will not engage in any dealings or transactions or be otherwise associated with
such persons or entities.

 

The
representations and warranties in this Section 10.1 shall survive Closing Date
for a period of six (6) months.

 

10.2    Seller's
Representations and Warranties. The
Seller represents and warrants to the Buyer as follows, except as set forth in
Schedule 10.2:

 

(a)    Seller is
a corporation duly incorporated and validly existing in good standing under the
laws of the State of Delaware and has full power and authority to enter into and
perform its obligations under this Agreement and the other agreements executed
by it in connection herewith and the transactions contemplated hereby. The
execution, delivery and performance by the Seller of each of this Agreement and
the other agreements executed by it in connection herewith and the consummation
of the transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate action of the Seller. Each of this
Agreement and the other agreements executed by it in connection herewith has
been duly and validly executed and delivered by the Seller and is valid and
binding upon it and enforceable against it in accordance with its terms, except
as may be limited by bankruptcy, reorganization, insolvency, moratorium or
similar laws of general application relating to or affecting the enforcement of
creditors’ rights generally and except that enforceability of its obligations
hereunder is subject to general principles of equity.

 

(b)     Neither
the execution nor the delivery of this Agreement by the Seller, nor the
incurrence by the Seller of the obligations herein set forth, nor the
consummation by the Seller of the transactions herein contemplated nor
compliance by the Seller with the terms of this Agreement will conflict with, or
result in a breach of any of the terms, conditions or provisions of, or
constitute a default under (i) the
certificate of incorporation or bylaws of Seller; (ii) any
bond, note or other evidence of indebtedness of any contract, indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which the Seller is a party or by which any of the Seller's properties may be
bound, or (iii) any law,
regulation, judgment, order, writ or decree of any court, governmental body or
administrative agency of any jurisdiction.

 







20












 

(c)     At
Closing, there will be no mechanic's liens applicable to the Real Property and
Seller will provide either (x) an affidavit at Closing that no work has been
performed or material furnished and not paid for, for which a mechanic's lien
can be filed or (y) an amount to be deposited with the title company sufficient
to cover the cost thereof plus interest.

 

(d)     Except as
disclosed in any environmental reports provided to Buyer, (i) Seller has not
received any written notice of any material violation of any applicable then
existing federal or state environmental laws (“Applicable Laws”) which has not
been cured in accordance with Applicable Laws; and (ii) during Seller’s
ownership of the Real Property, to the best of Seller’s knowledge, Seller has
not used any portion of the Real Property for the purpose of storage,
generation, manufacture, disposal, transportation or treatment of any hazardous
substances in material violation of Applicable Laws.

 

(e)     The
Seller has not received written notice of (i) any pending or threatened
condemnation or eminent domain proceedings against the Real Property or (ii) any
change or proposed change in the route, grade or width of any public street or
road adjacent or connecting to the Real Property.

 

(f)     There is
no action, lawsuit or proceeding pending, or to the best of Seller’s knowledge,
threatened in writing against Seller or the Hotels (i) which is not covered by
insurance, (ii) which would impair in any material respect Buyer's ability to
purchase or operate the Hotel, or (iii) which seeks to restrain or prohibit the
transactions contemplated by this Agreement.

 

(g)    The
copies of the Assigned Contracts are true, correct and complete in all material
respects and there are no defaults by Seller and, to Seller’s knowledge, by any
other party under the Assigned Contracts.

 

(h)     Seller is
not subject to any bankruptcy filings or proceedings, and no other similar
insolvency event has occurred with respect to Seller.

 

(i)     Seller
has not entered into any contract or agreement with respect to the Property
which will be binding on Buyer after the Closing, except for the Assigned
Contracts and other agreements which are terminable upon not more than thirty
(30) days notice without payment of premium or penalty.

 

(j)     Seller is
not a “foreign person” or “foreign corporation” within the meaning of Section
1445 of the United States Revenue Code of 1986, and the regulations promulgated
thereunder.

 

(k)     Seller is
not a party to any union or collective bargaining agreement with respect to the
employees of the Seller. To the best of Seller’s knowledge, there are no
current, material labor disputes pending or threatened in writing with respect
to the operation of the Hotels.

 







21












 

(l)     To the
best of Seller’s knowledge, Seller possesses all material licenses, permits and
approvals of any governmental or quasi-governmental agency having jurisdiction
over the Property which are necessary or required for the ownership, use and
operation of the Property as a limited service hotel (“Authorizations”). Seller
has not received any written notice that any of the Authorizations have been
violated or are in default in any material respect which violations or defaults
have not been cured.

 

(m)    Seller
has not received written notice of any special assessments or taxes against the
Property which relate to any planned public improvements with respect to the
Property.

 

The
representations and warranties in this Section 10.2 shall survive the Closing
Date for a period of six (6) months. For purposes of this Agreement, the phrases
“to the Seller’s knowledge”, “ to the best of Seller’s knowledge”, and “Seller
has not received written notice” shall mean the actual knowledge, without
investigation or inquiry, concerning such matter of Thomas Scattaregia,
President of Seller; Terry O’Leary, Vice President of Seller; the President of
MMI; and Edward Puodziunas, the District Manager with respect to the
Seller.

 

10.3     Commissions. Each of
the Seller and Buyer represents and warrants to the other that, other than the
commission payable by Seller to Hodges Ward Elliott, Inc. (the “Broker”), no
other brokerage commissions shall be due or payable on account of this
transaction arising out of the acts of such party. Each party shall indemnify,
defend and hold the other party harmless from and against any Losses incurred by
such other party as a result of such party’s breach of this representation.
Seller shall pay a commission to Broker pursuant to a separate written agreement
between Seller and Broker.


 


	 	
      11.
	
      Destruction
      or Damage and Condemnation.









 

11.1     Destruction
or Damage. In the
event of damage or destruction to all or any portion of the Real Property (a
“Casualty”) prior to the Closing, the following provisions shall
apply:

 

(a)     Seller
shall immediately notify Buyer thereof in writing (the “Casualty
Notice”).

 

(b)    If the
Property is the subject of a Casualty, Buyer shall have the right, at its sole
option, of terminating this Agreement (by written notice to Seller and Escrow
Agent given within ten (10) business days after receipt of the Casualty Notice
from Seller), unless (i) the cost of restoration for the portion of the Property
which was damaged or destroyed as a result of the Casualty will not exceed Two
Hundred Fifty Thousand Dollars ($250,000.00), and (ii) the insurance company
issuing the insurance policy has confirmed in writing prior to the end of such
ten (10) business day period that such Casualty is covered by the policy, and
(iii) any loan commitment or term sheet which has been extended to Buyer is not
cancelled or suspended as a result of such Casualty. If a Casualty Notice is
given to Buyer less than ten (10) business days prior to Closing, at Buyer’s
option, Closing shall be postponed to a date not earlier than ten (10)
business days after Buyer’s receipt of the Casualty Notice.

 

(c)     If Buyer
does not terminate, or is not entitled to terminate, this Agreement, the
proceeds of any insurance with respect to the Property paid between the date of
this Agreement and the Closing Date, together with an amount equal to Seller’s
deductible under the policy, shall be paid to Buyer at the time of Closing and
all unpaid claims and rights in connection with losses to the Property shall be
assigned to Buyer at Closing without in any manner affecting the Purchase
Price.

 







22












 

11.2     Condemnation. If any
governmental taking is contemplated, pending or completed (hereinafter a
"condemnation") at or prior to Closing, for (i) twenty (20%) percent or more of
the Land or any portion of the Land which materially and adversely affects
access to or parking on the Land or (ii) any portion of any building located on
the Land, the following provision shall apply:

 

(a)    Seller
shall immediately notify Buyer thereof in writing.

 

(b)     Buyer
shall have the option to: (i) terminate this Agreement and receive a refund of
the Deposit, in which event neither party shall have any further right,
obligation or liability under this Agreement to or against the other and this
Agreement shall be of no further force or effect (except for any restoration or
indemnity obligations which expressly survive any termination) or (ii) continue
this Agreement in accordance with subsection (c) of this Section 11.2. Said
option shall be exercised by written notice of election to Seller within
thirty (30) days after Buyer's receipt of written notice from Seller of the
condemnation proceeding (including a description of the portion of the Real
Property subject to said condemnation proceeding). If no such election is given
by Buyer within said thirty (30) days, then this Agreement shall continue in
accordance with subsection (c) of this Section 11.2.

 

(c)     If the
condemnation proceedings are for less than the portion of the Real Property
described above, or if Buyer does not terminate this Agreement under subsection
(b) above, then the Closing shall be held as otherwise herein provided, and the
Buyer shall take title to the Land and Improvements subject to the condemnation
proceedings. In such event, all condemnation awards made prior to or after the
date of Closing shall belong to Buyer and Seller shall pay over the proceeds
received at Closing and execute any documents needed to effect the assignment to
Buyer of all of Seller's right, title and interest in or to any such
awards.


 


	 	
      12.
	
      Franchise
      Matters.





 

12.1     Buyer
acknowledges that the Marriott is subject to the Franchise License. Buyer shall
apply to the licensor under the Franchise License (“Licensor”) within five (5)
business days after the Effective Date for a new license agreement (“New
License”) to replace the Seller’s Franchise License for the Marriott at the
Property, Seller shall consent to such application to the extent required by the
Franchise License. Buyer shall provide all information requested by the Licensor
in connection with such application for the New License and shall use its best
efforts to diligently and promptly obtain approval from Licensor of such
application for the New License for the Marriott at the Property. It is a
condition precedent to the Closing that such application for the New License be
approved by Licensor by the Scheduled Closing Date and that any guarantees in
connection with the Seller’s Franchise License by any affiliate of the Seller be
terminated in writing by Licensor. If the New License or guaranty termination is
not obtained by the Scheduled Closing Date, either Buyer or Seller may give
written notice to the other party to extend the Scheduled Closing Date by thirty
(30) days. If the New License or guaranty termination is not obtained by the end
of such thirty (30) day period, either Buyer or Seller may terminate this
Agreement by written notice to the other party and the Buyer shall be entitled
to receive the Deposit plus interest from the Escrow Agent. Buyer specifically
agrees that any conditions to approval of the New License imposed by Licensor,
including without limitation, upgrade requirements, any property improvement
plans, term of the new license agreement and fees required to be paid, shall be
Buyer’s sole responsibility and shall not in any way affect Buyer’s obligation
to complete the transaction contemplated by this Agreement. Notwithstanding the
foregoing, Seller shall be responsible for all costs and fees imposed by
Licensor on the Seller to terminate the Seller’s Franchise License.


 







23












 


	 	
      13.
	
      Miscellaneous





 

13.1     Entire
Agreement. This
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous agreements
and understandings, both written and oral, between the parties with respect
thereto.

 

13.2    Notice. All
notices, demands, requests, consents, approvals and other communications
required or permitted hereunder must be in writing and will be effective (a)
when delivered, if delivered by hand (with written confirmation of receipt), (b)
the next Business Day, if sent by nationally recognized overnight delivery
specifying next day delivery, or (c) three (3) Business Days after depositing in
the United States mails, if sent by certified mail, postage prepaid, return
receipt requested, addressed to a party’s address set forth below or to such
other address as any party may give to the other in writing for such
purpose.






	 	
      If
      to Seller:
	
      McIntosh
      Inn of Wilmington, Inc.

	 	 	
      c/o
      Cozen O’Connor

	 	 	
      1900
      Market Street

	 	 	
      Philadelphia,
      PA 19103

	 	 	
      Attention:
      Larry P. Laubach, Esquire

	 	 	 
	 	
      If
      to the Buyer:
	
      Hersha
      Hospitality Limited Partnership

	 	 	
      148
      Sheraton Drive

	 	 	
      New
      Cumberland, PA 17070

	 	 	
      Attention:
      Neil H. Shah

	 	 	 
	 	
      With
      a copy to:
	
      Shah
      & Byler, LLP

	 	 	
      510
      Walnut Street, 9th
      Floor

	 	 	
      Philadelphia,
      PA 19106

	 	 	
      Attention:
      Lok Mohapatra, Esquire






 

13.3     Time. Seller
and Buyer agree that all times and periods for performance set forth herein
shall be of the essence.

 

13.4    No
Recording; Tender. Buyer
covenants and agrees that it shall not record this Agreement or any memorandum
of this Agreement. Tender of the executed Seller’s Deed or of the Purchase Price
is hereby waived.

 

13.5     Interpretation. This
Agreement shall be interpreted without regard to any presumption or other rule
requiring construction against the party which drafted this Agreement. Words of
the masculine gender shall mean and include correlative words of the feminine
and neuter genders and words imparting the singular number shall mean and
include the plural number and vice versa.

 







24












 

13.6     No
Waiver. No
course of dealing between Buyer and Seller and no failure to exercise or delay
in exercising on the part of either party any right, power or privilege under
the terms of this Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or
thereunder preclude any other or further exercise. The rights and remedies
provided herein or in any other agreement are cumulative and not exclusive or in
derogation of any rights or remedies provided therein and thereof, by law or
otherwise.

 

13.7     Illegality. The
provisions of this Agreement are independent of and separable from each other
and in case any one or more of the provisions contained in this Agreement should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.

 

13.8     Amendments. No
amendment, supplement, modification or waiver of this Agreement shall be binding
unless executed in writing by both parties.

 

13.9     Expenses. All
expenses incurred by or on behalf of the parties hereto in connection with this
Agreement, including, without limitation, all fees and expenses of agents,
financial advisors, counsel and accountants, shall be borne solely by the party
who has incurred the charge, and the other party hereto shall not have any
responsibility with respect thereto, whether or not the transactions
contemplated by this Agreement are consummated.

 

13.10     Counterpart
Signatures. This
Agreement may be signed in any number of counterpart copies and by the parties
hereto on separate counterparts, but all such copies shall constitute one and
the same instrument. Delivery of an executed counterpart of a signature page to
this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart. Any party so executing this Agreement by
facsimile transmission shall promptly deliver a manually executed counterpart,
provided that any failure to do so shall not affect the validity of the
counterpart executed by facsimile transmission.

 

13.11     Survival. Unless
otherwise specified herein, no covenant, condition, warranty and representation
set forth herein shall survive the Closing and delivery of the Seller’s Deed and
other documents contemplated hereby. The acceptance of the Seller’s Deed by
Buyer shall be deemed an acknowledgement by the Buyer that Seller has fully
complied with all of its obligations under this Agreement and shall be deemed to
have released Seller from any and all known and unknown claims that Buyer may
have by reason of any defect in title, except for the special warranty set forth
in the Seller’s Deed.

 

13.12    Successors
and Assigns. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.

 

13.13    Governing
Law. This
Agreement and all acts and transactions pursuant hereto and the rights and
obligations of the parties hereto shall be governed, construed and interpreted
in accordance with the internal laws of the state in which the Land is located,
without giving effect to its principles of conflicts of law.

 

[SIGNATURES
ON FOLLOWING PAGE]










25












 

IN
WITNESS WHEREOF, this Agreement has been executed by the parties hereto,
intending to be legally bound hereby, as of the date set forth at the beginning
hereof.






	
      SELLER:
	 	
      BUYER:
	 
	 	 	 	 
	
      McINTOSH
      INN OF WILMINGTON, INC.
	 	
      HERSHA
      HOSPITALITY LIMITED
	 
	 	 	
      PARTNERSHIP
	 
	 	 	 	 
	 	 	
      By:   
      Hersha Hospitality Trust, a 
	 
	 	 	
               
      Maryland business trust, its sole
	 
	 	 	
               
      general partner
	 
	 	 	 	 
	
      By:
	 	 	
      By:
	 	 
	
      Name:
      Terence M. O’Leary
	 	
      Name:
      Jay H. Shah
	 
	
      Title:
      Vice President
	 	
      Title:
      President & COO
	 






 

 

[JOINDER
BY ESCROW AGENT ON FOLLOWING PAGE.]



 










26












 

JOINDER
BY ESCROW AGENT

 

Hodges
Ward Elliott, Inc., the Escrow Agent named in this Purchase and Sale Agreement,
joins to evidence its agreement to hold the Deposit and otherwise perform its
obligations as Escrow Agent under the Purchase and Sale Agreement.




	 	 	 
	 	
      ESCROW
      AGENT:
	 
	 	 	 
	 	
      Hodges
      Ward Elliott, Inc.
	 
	 	 	 
	 	 	 
	 	
      By:
	
       
	 
	 	
      Name:
	 
	 	
      Title:
	 



 








27














 

EXHIBIT
“A”

 

Legal
Description

 

ALL that
certain lot, piece or parcel of land, with improvements thereon erected being
shown as Parcel 6B on a Record Resubdivision Plan for Parcel 6-Brandywine
Commons, prepared by Landmark Engineering, dated December 27, 1990 as revised
February 7, 1991 and recorded in the Office of the Recorder of Deeds in and for
New Castle County, State of Delaware, in Microfilm No. 10911, and being more
particularly bounded and described as follows, to wit:

 

BEGINNING
at a point on the southwesterly side of Rocky Run Parkway (100.00 feet wide)
said point being located North 65° 37' 54" West, 90.28 feet from the
northwesterly end of a radius junction curve joining the southwesterly side of
Rocky Run Parkway (100.00 feet) with the northwesterly side of Concord Turnpike,
U.S. Route 202 (137 feet wide); thence, from the point of Beginning passing
through Parcel 6 and along the proposed Parcel 6-A, Brandywine Commons,
stormwater management area South 24° 22' 06" West, 316.52 feet to a point;
thence, along Parcel 7, Brandywine Commons, Natural Protection Area the
following four (4) courses and distances: (1) North 07° 10' 40" West, 80.38 feet
to a point; (2) North 65° 40' 42" West, 412.50 feet to a point; (3) South 51°
46' 48" West, 24.00 feet to a point; (4) North 65° 27' 42" West, 58.50 feet to a
point; thence, along lands now or formerly of Woodlawn Trustees, Inc. the
following two (2) courses and distances: (1) North 20° 40' 13" East, 92.81 feet
to an existing monument; (2) North 71 ° 50' 53" West, 66.95 feet to a point;
thence passing through Parcel 6 and along the proposed Parcel 6-C, Brandywine
Commons, North 21° 53' 09" East, 359.34 feet to a point; thence, along the
southwesterly side of Rocky Run Parkway at varying widths, the following three
(3) courses and distances: (1) by an arc of a circle curving to the left an arc
distance of 341.94 feet (Radius = 335.00 feet chord bearing = South 36° 23' 25"
East, 327.29 feet) to a point; (2) South 61° 21' 22" East, 201.19 feet to a
point; (3) South 65° 37' 54" East, 125.99 feet to a point, the first mentioned
point and place of Beginning. Containing within said metes and bounds 165,479±
square feet or 3.799± acres.

 

TOGETHER
with the easement rights as contained in a Water Detention Cross-Easement and
Maintenance Declaration dated July 3, 1991 and recorded in the Office of the
Recorder of Deeds in and for New Castle County, State of Delaware, in Deed
Book_____, Page _____.

 

SUBJECT
to an Agreement between Del Concord L.P. and The Diamond State Telephone
Company, dated May 22, 1990 and recorded in the Office as aforesaid in Deed Book
1047, Page 313.

 

SUBJECT
to an Agreement between Del Concord L.P. and The Diamond State Telephone
Company, dated October 25, 1990 and recorded in the Office as aforesaid in Deed
Book 1108, Page 154.

 

SUBJECT
to a Utility Easement Agreement between Del-Concord Associates L.P. and Delmarva
Power & Light Company, dated March 5, 1990 and recorded in the Office as
aforesaid in Deed Book 1028, Page 135.

 







28












 

SUBJECT
to a Declaration of Restrictions by Daniel L. Berger, et al., dated July 11,
1988 and recorded in the Office as aforesaid in Deed Book 730, Page
123.

 

SUBJECT
to an Easement between Del Concord Associates, L.P. and Wilmington Suburban
Water Corporation, dated February 7, 1991 and recorded in the Office as
aforesaid in Deed Book 1164, Page 37.

 

BEING the
same lands and premises which Del-Concord Associates, L.P. (a Delaware limited
partnership) and Del-Concord Associates, L.P., as Trustee for Highfield
Partnership, L.P. (a Delaware limited partnership), on the one part, conveyed
unto McIntosh Inn of Wilmington, Inc. (a Delaware corporation), on the other
part, in fee, by deed dated July 18, 1991, and recorded on July 18, 1991, in
Deed Book 1203, beginning on Page 0265, of the Recorder of Deeds in and for New
Castle County, Delaware.

 







29














 

EXHIBIT
“B”

 

Assigned
Contracts

 















30














 

EXHIBIT
“C”

 

Form
of Deed

 

 







31














 

EXHIBIT
“D”

 

Form
of FIRPTA Affidavit

 

 







32














 

EXHIBIT
“E”

 

Form
of Assignment and Assumption Agreement

 

 







33














 

EXHIBIT
“F”

 

Form
of Bill of Sale

 

 







34












 

EXHIBIT
“G”

 

General
Quitclaim Agreement

 

 







35












 

EXHIBIT
“H”

 

License
Agreement

 

 

36