Exhibit 10.2







Exhibit
10.2

 

PURCHASE
AND SALE AGREEMENT

 

THIS
PURCHASE AND SALE AGREEMENT, dated April 28, 2005, by and between McINTOSH
INN OF KING OF PRUSSIA, INC. ("Seller") with an address at 260 North Gulph
Road, King of Prussia, PA 19406 and HERSHA HOSPITALITY LIMITED PARTNERSHIP, a
Virginia limited partnership (“Buyer”) with an address at 148 Sheraton Drive,
New Cumberland, PA 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
Montgomery, Commonwealth of Pennsylvania, more particularly described in
Exhibit
“A”
attached hereto.

 

B.     Seller
owns and operates a hotel facility (the "Hotel") known as the Holiday Inn
Express Hotel & Suites - King of Prussia, which includes, among other
things, approximately one hundred fifty-five (155) guest rooms and parking
facilities.

 

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 Hotel 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
Communications Site Lease Agreements” shall
mean: (i) that certain communications site lease agreement dated August 19,
1998, as amended by Letter Agreement dated April 25, 2003, by and between
McIntosh Inn of King of Prussia, Inc., as Lessor, and Nextel Communications of
the Mid-Atlantic, Inc., a Delaware corporation, as Lessee; (ii) that certain
communications site lease agreement dated January 9, 1997, by and between
McIntosh Inn of King of Prussia, Inc., as Lessor, and Sprint Spectrum L.P., a
Delaware limited partnership, as Lessee; and (iii) that certain communications
facility lease agreement dated August 5, 1992, as amended by Letter Agreement
dated February 10, 1997, as further amended by a First Amendment of Lease
Agreement dated December 21, 2001, and further amended by Letter Agreement dated
January 4, 2002, by and between McIntosh Inn of King of Prussia, Inc., as
Lessor, and Bell Atlantic Mobile Systems, Inc., a Delaware corporation, as
Lessee. The Assigned Communications Site Lease Agreements are evidenced by
individual Assignment and Assumption of Communications Site Lease Agreements
executed by Seller and Buyer on a form similar to that which is set forth on
Exhibit
“H” attached
hereto.























 

“Assigned
Contracts” means
and refers to those contracts and agreements to which the Seller or McIntosh
Motor Inns, Inc. (“MMI”), the
Hotel’s manager,  is a
party which relate to the maintenance or repair of the Real Property or the
operation of the Hotel, 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
Commonwealth of Pennsylvania.

 

"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 Holiday Inn Express Hotel & Suites Conversion License
Agreement dated June 30, 2003 by and between Holiday Hospitality
Franchising, Inc., as Licensor, and McIntosh Inn of King of Prussia, Inc., as
Licensee.










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“Improvements” means
any and all buildings, structures, parking areas and other improvements,
including the hotel 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.

 

"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 the
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 the 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 the 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 the 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
May 17, 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.










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"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 the Hotel by Seller as of the Closing
Date.

 

"Seller's
Records" means
all records pertaining to Seller's operation of the 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 One Hundred Thousand and No/100
Dollars ($16,100,000) 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 Four Hundred
Thousand and No/100 Dollars ($400,000) 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 23-1871767 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.]













4












 

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.

 

(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.

 








5












 

(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.

 

(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.










6












 


	 	
      4.
	
      Closing
      Matters.




 

4.1     Closing.

 

(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 and Assigned Communications Site Lease Agreements. Copies
(or originals, if available) of all Assigned Contracts and Assigned
Communications Site Lease Agreements;

 

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










7












 

(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 the 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 the Hotel, as applicable, in reasonable detail so as to enable
Buyer to honor such reservations;

 

(vi)     Keys. All
keys respecting the Hotel;

 

(vii)     Books
and Records. All
non-privileged books, records, operating reports, and other operating files and
materials (“Operating Records”) relating to the operation of the 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 the 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.










8












 

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: (i) 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 the Hotel or Seller, as
applicable, in, and the Buyer assumes all of the rights and obligations of MMI
with respect to the Hotel or Seller, as applicable, under, the Assigned
Contracts; and (ii) individual
Assignment and Assumption of Communications Site Lease Agreements in the forms
attached hereto as Exhibit “H” (the
"Communications Site Lease Assignment Agreements"), pursuant to which Seller
assigns to the Buyer all of Seller's interest in, and the Buyer assumes all of
Seller’s rights and obligations under, the Assigned Communications Site Lease
Agreements.

 

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.

 

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 Hotel, if any, to the extent permitted by law or by the terms of
such items or documents. 

 


	 	
      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 Hotel is
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 the Hotel
and furnish Buyer with such financial data and other information in Seller’s
possession concerning the Seller and its operation of the 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.

 







10













 

(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.

 

(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 Hotel 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.










11












 

(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 or Assigned Communications Site Lease
Agreements.

 

(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 Holiday Inn Express franchisee); (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.










12












 

5.4     Maintenance
of the Hotel. Seller
shall maintain the Hotel in substantially the same condition that Seller
maintained the 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 the Hotel (except for agreements and contracts entered in the normal
course of operating the 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.

 

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 the 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 the 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. 










13












 

(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 Oxford Valley, Inc., McIntosh Inn of Malvern, Inc. and McIntosh
Inn of Wilmington, 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.

 

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. 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 Agreement. At
Closing, Seller shall terminate, at its sole cost and expense, the existing
Management Agreement between Seller and MMI. 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.










14












 


	 	
      6.
	
      Post-Closing
      Obligations.




 

6.1     Accounts
Receivable.

 

(a)     Pre-Closing
and Post-Closing Receivables. 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. 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.

 

(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 the 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 the Hotel during the Wind-Up Period to remove
from the 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 the Hotel by Buyer.
Buyer agrees that it will not use any credit card, bank accounts or other
financial accounts of Seller.










15












 

(b)     Issuance
of Documents. Buyer
shall prepare all documents required to be issued with respect to the operation
of the 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 the 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”).

 

(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 the
Hotel upon the Closing, which statement shall include (i) a notice that the
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 the 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.










16












 

(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. Seller
shall be responsible for payment of all accounts payable accruing prior to the
Closing Time.

 

6.5     Performance
of Assigned Contracts and Assigned Communications Site Lease
Agreements. 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 and Assigned
Communications Site Lease Agreements.

 

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.

 

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 Hotel guests reflected on the Hotel
ledger (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 Hotel
guests 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 the 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.










17












 

7.3     Cash
at Hotel. Buyer
shall pay to the Seller the amount of any cash on hand at the Hotel 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 the 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 the 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.

 


	 	
      8.
	
      Prorations.




 

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

 

(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;










18














 

(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 the Hotel and are expenditures which are consistent
with past Hotel practices.

 


	 	
      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.

 

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.










19












 

(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.

 

(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:










20












 

(a)     Seller is
a corporation duly incorporated and validly existing in good standing under the
laws of the Commonwealth of Pennsylvania 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
articles 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.

 

(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 Hotel (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.










21












 

(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 Hotel 

 

(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.










22












 


	 	
      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.

 

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.









23











 




	 	
      12.
	
      Franchise
      Matters.




 

12.1     Buyer
acknowledges that the Hotel 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 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 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.

 


	 	
      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 King of Prussia, Inc.

	 	 	
      c/o
      Cozen O’Connor

	 	 	
      1900
      Market Street

	 	 	
      Philadelphia,
      PA 19103

	 	 	
      Attention:
      Larry P. Laubach, Esquire




 








24














 



	 	
      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.

 

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.










25












 

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]










26












 

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 KING OF PRUSSIA, 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.]










27












 

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:
	 



 









28

















EXHIBIT
“A”

 

Legal
Description

 

ALL THAT
CERTAIN tract or parcel of land situated in the Township of Upper Merion, County
of Montgomery and Commonwealth of Pennsylvania, (known as Lot #3 on a plan of
Serdy, Bursich and Huth, Inc., dated May 4, 1976 and last revised November 8,
1976, said plan recorded in Plan Book #A-27 page 86 in the Montgomery County
Courthouse in Norristown, Pennsylvania, being more fully bounded and described
as follows, to wit:

 

BEGINNING
at an iron pin on the Southwesterly side of Pulaski Drive (33.00 feet wide) and
the right of way line of Ramp 10-A of the Pennsylvania Turnpike, Valley Forge
Interchange (limited access); thence partly along the said right of way line of
Pulaski Drive and partly along the parcel shown as the General Wayne property on
the said plan, South 68 degrees 02 minutes 03 seconds East 458.43 feet to a
point, a corner of Lot #2; thence along Lot #2 South 21 degrees 57 minutes 57
seconds West 365.31 feet to a point on the right of way line of the aforesaid
Ramp 10-A; thence along the right of way line of Ramp 10-A, the following four
courses and distances: (1) North 58 degrees 21 minutes 23 seconds West 233.88
feet to an iron pin; (2) North 51 degrees 14 minutes 15 seconds West, 52.36 feet
to an iron pin; (3) by a curve to the right with a radius of 259,71 feet an arc
distance of 374.27 feet to an iron pin and (4) North 31 degrees 19 minutes 57
seconds East 20.45 feet to a point on the right of way line of Pulaski Drive,
being the first mentioned point and place of beginning. 

 

CONTAINING
3.230 acres of land, be the same more or less.

 

TOGETHER
with a perpetual easement of right of way for ingress and egress of vehicular or
pedestrian traffic (but not including the right to park vehicles) to and from
Pulaski Drive, North Gulph Road (Route 363) and Goddard Boulevard (hereinafter
collectively referred to as the "public roads") over and across the paved areas,
roadway, entranceways and driveways now or hereafter constructed on the
hereinafter described contiguous premises:

 

ALL THAT
CERTAIN tract or parcel of land situated in the Township of Upper Merion, County
of Montgomery and Commonwealth of Pennsylvania, known as Lot #1 on a plan of
Serdy, Bursich and Huth, Inc., dated May 4, 1976 and last revised November 8,
1976, said plan recorded in Plan Book #A-27 page 86 in the Montgomery County
Courthouse in Norristown, Pennsylvania, being more fully bounded and described
as follows, to wit:

 

BEGINNING
at a point on the Northerly right of way line of North Gulph Road LR 201,
Pennsylvania Route 363 (130.00 feet wide) and a corner of Lot #2 which point is
measured 177.54 along the said right of way line from the intersection of the
right of way line of Ramp 10-A of the Pennsylvania Turnpike, Valley Forge
Interchange; thence from said beginning point along Lot #2 the following two
courses and distances: (1) North 01 degrees 57 minutes 23 seconds West 226.72
feet and (2) North 21 degrees 57 minutes 57 seconds East 100.00 feet to a point
in line of lands now or late of Alberta M. Lysle; thence along the same South 68
degrees 02 minutes 03 seconds East 312.00 feet to a point on the Westerly side
of Goddard Boulevard; thence along the same the following courses and distances:
(1) along a line of curve to the right with a radius of 912.43 feet an arc
distance of 72.52 feet to a point of compound curve; (2) along a line of curve
to the right with a radius of 138.50 feet an arc distance of 136.10 feet to a
point on the right of way line of North Gulph Road, aforesaid; thence along the
same South 88 degrees 02 minutes 37 seconds West 281.53 feet to the first
mentioned point and place of beginning.










29












 

CONTAINING
1.914 acres of land, be the same more or less.

 

ALL THAT
CERTAIN tract or parcel of land situated in the Township of Upper Merion, County
of Montgomery and Commonwealth of Pennsylvania, known as Lot #2 on a plan of
Serdy, Bursich and Huth, Inc., dated May 4, 1976 and last revised November 8,
1976, said plan recorded in Plan Book #A-27 page 86 in the Montgomery County
Courthouse in Norristown, Pennsylvania, being more fully bounded and described
as follows, to wit:

 

BEGINNING
at an iron pin on the Northerly right of way line of North Gulph Road LR 201
Pennsylvania Route 363 (130.00 feet wide) and the right of way line of the
Pennsylvania Turnpike Valley Forge Interchange (limited access); then from said
beginning point along the right of way line of Ramp 10-A North 58 degrees 21
minutes 23 seconds West 82.82 feet to a corner of Lot #3; thence along Lot #3
North 21 degrees 57 minutes 57 seconds East 365.31 feet to a point on the right
of way line of Pulaski Drive (13.00 feet wide); thence leaving Pulaski Drive and
along lands now or late of Alberta M. Lysle South 68 degrees 02 minutes 03
seconds East 152.00 feet to a corner of Lot #1; thence along Lot #1 the
following two courses and distances: (1) South 21 degrees 57 minutes 57 seconds
West 100.00 feet arid (2) South 01 degrees 57 minutes 23 seconds East 226.72
feet to a point on the right of way line of North Gulph Road, aforesaid; thence
along the same South 88 degrees 02 minutes 37 seconds West 177.54 feet to the
first mentioned point and place of beginning.

 

CONTAINING
1.547 acres of land, be the same more or less.

 

BEING
part of the same premises which Gateway Associates, a Limited Partnership, by
deed dated March 21, 1977 and recorded in the Recorder of Deeds in and for the
County of Montgomery in Deed Book 4187, page 5, granted and conveyed unto
Econo-Travel Development Corporation, a Virginia Corporation, in
fee.

 

BEING
Parcel Numbers and 58-00-14086-16-6.

 

UNDER AND
SUBJECT to certain easements and restrictions as of record.

 







30














 

EXHIBIT
“B”

 

Assigned
Contracts


 







31














 

EXHIBIT
“C”

 

Form
of Deed


 







32














 

EXHIBIT
“D”

 

Form
of FIRPTA Affidavit


 







33














 

EXHIBIT
“E”

 

Form
of Assignment and Assumption Agreement





 







34














 

EXHIBIT
“F”

 

Form
of Bill of Sale


 







35












 

EXHIBIT
“G”

 

General
Quitclaim Agreement


 







36












 

EXHIBIT
“H”

 

Form
of Assignment and Assumption of Communications Site Lease
Agreements

 










37












 

SCHEDULE
10.2

 

Consents
Required

 

1.     CEI
Networks Maintenance Agreement between D&E Communications, Inc., as
successor in interest to CEI Networks, and McIntosh Inn of King of Prussia, Inc.
dated October 27, 2000, which provides, pursuant to Section 6 of the Addendum,
that the CEI Networks Maintenance Agreement ceases upon divestiture of McIntosh
Inn of King of Prussia, Inc. unless both parties provide prior written consent
to continue the contract.

 

2.     Agreement
between Global Security Sys. Inc. and McIntosh Inn of King of Prussia, Inc.
dated February 28, 1997, as amended by the Letter Amendment dated July 1, 2003,
which provides, pursuant to Section 15, that the Agreement is not assignable by
McIntosh Inn of King of Prussia, Inc. except upon the written consent of Global
Security Sys. Inc., which shall be at Global Security Sys. Inc.’s sole
option.

 

Contracts
3, 4 and 5 were entered into in connection with the grant of the Holiday Inn
Express Hotel & Suites franchise license by Holiday Hospitality Franchising,
Inc., to McIntosh Inn of King of Prussia, Inc. In order to assign the rights
with respect to the Seller under the below listed contracts, Holiday Hospitality
Franchising, Inc. will need to enter into a new Holiday Inn Express Hotel &
Suites Conversion License Agreement with Buyer.

 

3.     Master
Technology Agreement between Six Continents Hotels, Inc. and McIntosh Inn of
King of Prussia, Inc. dated June 3, 2004, as amended by the Letter Amendment to
the hotel from Intercontinental Hotels Group dated July 13, 2004, which
provides, pursuant to Section 13, that the hotel’s assignment or transfer or
attempt to assign or transfer this Agreement without express, separate, written
agreement of Six Continents Hotels, Inc. is an event of default.

 

4.     Intellectual
Property Site License and Support Agreement between McIntosh Inn of King of
Prussia, Inc. and MICROS Systems, Inc. dated July 26, 2004, as amended by the
First Amendment dated July 26, 2004, which provides, pursuant to Section 12.2,
that McIntosh Inn of King of Prussia, Inc. may not assign or transfer the
Agreement without the prior written consent of MICROS Systems, Inc. and,
pursuant to the First Amendment, that MICROS Systems, Inc. shall consent to one
(1) transfer of the license rights under the Agreement provided certain
conditions are met.

 

5.     VCRO
Contract between Six Continents Hotels, Inc. and McIntosh Inn of King of
Prussia, Inc. dated August 31, 2004.

 

6.     Service
Agreement between McIntosh Inns and SimplexGrinnell dated March 25, 2003, which
applies to multiple McIntosh Inns. In order to assign the rights with respect to
the Seller under this Service Agreement, SimplexGrinnell will need to enter into
a new service agreement with Buyer.

 

7.     Satellite
Programming License between World Cinema, Inc. and McIntosh Inns, Inc. dated
March 14, 2001, as amended by the Letter Agreements to McIntosh Inns, Inc. from
 World
Cinema dated May 4, 2004, which applies to multiple McIntosh Inns. In order to
 assign
the rights with respect to the Seller under this Satellite Programming
License.

 

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