Exhibit 10.5









Exhibit
10.5




Execution
Copy







 




AGREEMENT
FOR SALE AND PURCHASE OF HOTEL




COURTYARD
BY MARRIOTT, BROOKLINE, Massachusetts







By
and Between







WEBSTER
STREET HOTEL, LLC,




a
Delaware limited liability company













(“Seller”)







and







hersha
hospitality limited partnership,




a
Virginia limited partnership







(“Purchaser”)


























AGREEMENT
FOR SALE AND PURCHASE OF HOTEL




Table
of Contents









	
      Article
	 
	 	 
	
      ARTICLE
      I
	 
	
      DEFINITIONS
      AND REFERENCES
	
      1

	
      1.01
      Definitions
	
      1

	
      1.02
      References
	
      7

	 	 
	
      ARTICLE
      II
	 
	
      SALE
      AND PURCHASE; “AS-IS,” “WHERE-IS” SALE
	
      8

	
      2.01
      Sale and Purchase
	
      8

	
      2.02
      As-is, Where-is
	
      8

	 	 
	
      ARTICLE
      III
	 
	
      PURCHASE
      PRICE
	
      11

	
      3.01
      Purchase Price
	
      11

	
      3.02
      Earnest Money Escrow Agreement
	
      11

	 	 
	
      ARTICLE
      IV
	 
	
      INSPECTION
      PERIOD
	
      12

	
      4.01
      Inspection Period
	
      12

	
      4.02
      Review and Inspection
	
      12

	
      4.03
      Testing
	
      12

	
      4.04
      Acceptance or Rejection
	
      13

	
      4.05
      Confidentiality
	
      13

	
      4.06
      Indemnification; Restoration; Insurance
	
      13

	
      4.07
      Title and Survey
	
      14

	
      4.08
      Equipment Leases
	
      15

	 	 
	
      ARTICLE
      V
	 
	
      REPRESENTATIONS
      AND WARRANTIES
	
      15

	
      5.01
      Representations and Warranties of Seller
	
      15

	
      5.02
      Representations and Warranties of
    Purchaser
	
      16

	
      5.03
      Duration of Representations and
Warranties
	
      18

	 	 
	
      ARTICLE
      VI
	 
	
      CLOSING
      AND CLOSING DELIVERIES
	
      18

	
      6.01
      Closing
	
      18

	
      6.02
      Escrow
	
      19

	
      6.03
      Seller’s Deliveries
	
      19

	
      6.04
      Purchaser’s Deliveries
	
      20

	
      6.05
      Expenses
	
      20

	
      6.06
      Concurrent Transactions
	
      21

	
      6.07
      Possession
	
      21




 



-
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      ARTICLE
      VII
	 
	
      ADJUSTMENTS
      AND PRORATIONS CLOSING STATEMENTS
	
      21

	
      7.01
      Adjustments and Prorations
	
      21

	
      7.02
      Payment
	
      22

	
      7.03
      Cash and Accounts
	
      22

	
      7.04
      Closing Statements
	
      23

	 	 
	
      ARTICLE
      VIII
	 
	
      CONDITIONS
      TO SELLER’S OBLIGATIONS
	
      23

	
      8.01
      Conditions
	
      24

	 	 
	
      ARTICLE
      IX
	 
	
      CONDITIONS
      TO PURCHASER’S OBLIGATIONS
	
      24

	
      9.01
      Conditions
	
      24

	 	 
	
      ARTICLE
      X
	 
	
      ACTIONS
      AND OPERATIONS PENDING CLOSING
	
      25

	
      10.01
      Actions and Operations Pending Closing
	
      25

	 	 
	
      ARTICLE
      XI
	 
	
      CASUALTIES
      AND TAKINGS
	
      25

	
      11.01
      Casualties
	
      25

	
      11.02
      Takings
	
      26

	 	 
	
      ARTICLE
      XII
	 
	
      EMPLOYEES
	
      27

	
      12.01
      Employees
	
      27

	
      12.02
      Indemnity
	
      27

	 	 
	
      ARTICLE
      XIII
	 
	
      NOTICES
	
      27

	
      13.01
      Notices
	
      27

	 	 
	
      ARTICLE
      XIV
	 
	
      ADDITIONAL
      COVENANTS
	
      28

	
      14.01
      Additional Covenants
	
      29





 



-
ii -
















 


	
      ARTICLE
      XV
	 
	
      DEFAULTS
      AND REMEDIES
	
      31

	
      15.01
      Seller’s Remedies
	
      32

	
      15.02
      Purchaser’s Remedies
	
      32

	
      15.03
      Confidentiality
	
      32

	
      15.04
      Attorneys’ Fees
	
      33

	
      15.05
      No Reservation of Property
	
      33




 



-
iii -
















 


	
      Exhibit
      A:
	
      Land

	
      Exhibit
      B:
	
      Excluded
      Assets

	
      Exhibit
      C:
	
      Permitted
      Exceptions

	
      Exhibit
      D:
	
      Pending
      or Threatened Litigation

	
      Exhibit
      E:
	
      Notices
      of Violation

	
      Exhibit
      F:
	
      Assignment
      and Assumption of Ground Lease and Improvements

	
      Exhibit
      G:
	
      Bill
      of Sale

	
      Exhibit
      H:
	
      Assignment
      and Assumption of Hotel Contracts, Bookings, Permits, and Miscellaneous
      Hotel Assets

	
      Exhibit
      I:
	
      Certification
      of Non-Foreign Status




 




-
iv -


















AGREEMENT
FOR SALE AND PURCHASE OF HOTEL




THIS
AGREEMENT FOR SALE AND PURCHASE OF HOTEL
(“Agreement”), dated
as of May 4, 2005, is entered into by and between Webster Street Hotel, LLC, a
Delaware limited liability company (“Seller”), and
Hersha Hospitality Limited Partnership, a Virginia limited partnership
(“Purchaser”).




RECITALS:




A. Seller
is the leasehold owner of the Land, and Seller owns the Improvements on the
Land, commonly referred to as the Courtyard by Marriott, Brookline,
Massachusetts (the “Hotel”), the
Fixtures and Tangible Personal Property, Operating Equipment, Consumables, and
Miscellaneous Hotel Assets (as such terms are hereinafter defined).




B. Seller
desires to sell, and Purchaser desires to purchase, the Property (as hereinafter
defined) upon and subject to the terms and conditions hereinafter set
forth.




AGREEMENTS:




NOW,
THEREFORE, in
consideration of the representations, warranties, agreements, covenants, and
conditions contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser agree as follows:



ARTICLE
I




DEFINITIONS
AND REFERENCES




1.01
Definitions. As used
in this Agreement, the following terms shall have the meanings indicated
below:

 

Accountants:
Dworken,
Hillman, LaMorte & Sterczala, PC.




Account
Cash: The
balances of all cash and securities and other instruments held by Seller or by
Manager or for the benefit of Seller or the Property and deposited, held, or
contained in any account, bank, or vault, except for Cash-On-Hand.




Accounts
Receivable: All
accounts receivable with regard to the Hotel.




Additional
Earnest Money: Shall
have the meaning given to it in Section
6.01.




Affiliate: With
respect to a specific entity, any natural person or any firm, corporation,
partnership, association, trust, or other entity which, directly or indirectly,
controls or is under common control with the subject entity, and with respect to
any specific entity or person, any firm, corporation, partnership, association,
trust, or other entity which is controlled by the subject entity or person. For
purposes hereof, the term “control” shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of any such entity or the power to veto major policy decisions of any
such entity, whether through the ownership of voting securities, by contract, or
otherwise.

 







- 1
-












 

Agreement:
This
Agreement for Sale and Purchase of Hotel, including the exhibits attached hereto
and made a part hereof.




Bookings:
Contracts for the use or occupancy of guest rooms and meeting and banquet
facilities or other facilities of the Hotel, including any off-site catering for
which a deposit has been received or for which a written proposal has been made
and accepted for any time after the Cut-Off Time.




Books
and Records: All of
Seller's right, title and interest in and to (a) all Space Lessee
correspondence, billing and other files, (b) all structural reviews,
environmental assessments or audits, architectural drawings and engineering,
geophysical, soils, seismic, geologic, environmental (including with respect to
the impact of materials used in the construction or renovation of the
Improvements) and architectural reports, studies and certificates pertaining to
the Property, and (c) all on-site accounting, tax, financial, and other
books and records relating to the use, maintenance, leasing and operation of the
Property but excluding Seller’s asset management (as opposed to property
management) records.




Business
Day: Shall
mean all days of the year except Saturdays, Sundays, and holidays recognized by
the Federal Reserve Bank of Boston. If any deadline provided in this Agreement
falls on a day other than a Business Day, such deadline shall be extended until
the first Business Day thereafter.




Cash-On-Hand: Any and
all till money and house banks, and all checks, travelers’ checks, and bank
drafts paid by guests of the Hotel and located at the Property, specifically
excluding, however, all Account Cash.




Closing:
The
consummation of the transaction contemplated by this Agreement.




Closing
Date: The date
which is fifteen (15) days after the expiration of the Inspection
Period.




Compensation: The
direct salaries and wages paid to, or accrued for the benefit of, any Employee,
incentive compensation, vacation pay, severance pay, employer’s contributions
under F.I.C.A., unemployment compensation, workmen’s compensation or other
employment taxes, payments under Employee Benefit Plans, or
benefits.




Consumables: All food
and beverages (alcoholic, to the extent transferable under applicable law, and
non-alcoholic); engineering, maintenance, and housekeeping supplies, including
soap, cleaning materials and matches; stationery and printing; and other
supplies of all kinds, in each case whether partially used, unused, or held in
reserve storage for future use in connection with the maintenance and operation
of the Hotel, which are on hand on the date of this Agreement, subject to such
depletion and restocking as shall occur and be made in the normal course of
business but in accordance with present standards, excluding, however, (i)
Operating Equipment and (ii) all items of personal property owned by Space
Lessees, Manager, guests, employees, or persons furnishing food or services to
the Hotel (other than Seller or any Affiliate of Seller, unless denominated as
an Excluded Asset under this Agreement).









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-












 

Cut-off
Time: 11:59
P.M. (Eastern Daylight Savings Time) on the date prior to the Closing
Date.




Documents:
All
plans, specifications, drawings, blueprints, surveys, environmental reports, and
other documents in Seller’s possession that relate to the Property.




Due
Diligence: Shall
have the meaning given to it in Section
4.01.




Earnest
Money: Shall
have the meaning given to it in Section
3.01(a).    




Employee(s):
All
persons employed by Manager, or an Affiliate of Manager pursuant to Management
Agreement or Employment Contracts or otherwise.




Employee
Benefit Plans: All
employee benefit plans, as that term is defined in ERISA, and each other
employee benefit plan or program to which Seller contributes on behalf of any of
the Employees.




Employment
Contract(s): Those
contracts and agreements, oral or written, with all or any of the executives,
staff, and employees of Manager, or an Affiliate of Manager for work in or in
connection with the Hotel including, but not limited to, individual employment
agreements, union agreements, employee handbooks, group health insurance plans,
life insurance plans, and disability insurance plans (other than Employee
Benefit Plans).




Environmental
Laws: Any
federal, state and local laws, statutes, ordinances, rules, regulations
(including the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended from time to time (42 U.S.C. § 9601 et seq.) and the
applicable provisions of all applicable state and local statutes, as amended
from time to time, and rules and regulations promulgated thereunder),
authorizations, judgments, decrees, administrative orders, concessions, grants,
franchises, agreements and other governmental restrictions and requirements
relating to the environment.




Equipment
Leases: Shall
have the meaning given to it in Section
4.08.




ERISA: The
Employee Retirement Income Security Act of 1974, as amended.




Escrow: The
escrow, if any, created for the purpose of facilitating the transactions
contemplated by this Agreement pursuant to the Escrow Instructions.




Escrow
Company: First
American Title Insurance Company.




Escrow
Instructions: The
escrow instructions, if any, to be executed and delivered by the parties and the
Escrow Company, as escrowee in connection with the Escrow. 

 







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-












 

Excluded
Assets: Those
assets, if any, listed on Exhibit
“B” to this
Agreement, the Account Cash and the reserve for replacement of fixtures,
furnishings and equipment, all of which is owned and to be retained by Seller or
Affiliates of Seller.




Excluded
Permits: Those
permits and licenses required for the ownership and operation of the Hotel
which, under applicable law, are nontransferable.




Final
Closing Statement: The
Final Closing Statement required under Section
7.04.




Fixtures
and Tangible Personal Property: All
fixtures, furniture, furnishings, fittings, equipment, cars, trucks, machinery,
apparatus, signage, appliances, draperies, carpeting, keys, and other articles
of personal property now located on the Real Property and used or usable in
connection with any part of the Hotel, subject to such depletions, resupplies,
substitutions, and replacements as shall occur and be made in the normal course
of business but in accordance with present practices excluding, however: (i)
Consumables; (ii) Operating Equipment; (iii) Equipment Leases; (iv) property
owned by Space Lessees, Manager, guests, employees, or other persons furnishing
goods or services to the Hotel (other than Seller or any Affiliate of Seller,
unless denominated as an Excluded Asset); and (v) Improvements.




Franchise
Agreement. That
certain Courtyard by Marriott Franchise Agreement, dated as of June 28, 2001, as
amended by Amendment to Franchise Agreement dated as of October 30, 2001,
between Marriott International, Inc. ("Marriott") and Seller.




General
Assignment: Shall
have the meaning given to it in Section
6.03(c).




Ground
Lease: That
certain Ground Lease, dated as of May 2, 2001, between Seller and the Town of
Brookline, a Municipal corporation.




Ground
Lease Assignment. Shall
have the meaning given to it in Section
6.03(a).




Hotel: Shall
have the meaning given to it in Recital
A.




Hotel
Contracts: All
service contracts, maintenance contracts, purchase orders, leases, and other
contracts or agreements, including equipment leases capitalized for accounting
purposes, and any amendments thereto, with respect to the ownership,
maintenance, operation, provisioning, or equipping of the Hotel, or any of the
Property, as well as written warranties and guaranties relating thereto, if any,
including, but not limited to, those relating to heating and cooling equipment
and/or mechanical equipment, but exclusive, however, of (i) insurance policies,
(ii) the Bookings, (iii) the Employment Contracts, and (iv) the Employee Benefit
Plans.




Improvements: The
buildings, structures (surface and sub-surface), and other improvements,
including such fixtures as shall constitute real property, located on the
Land.




Indemnified
Parties: Shall
have the meaning given to it in Section
4.06.




Indemnitees:
A party’s
partners, trustees, officers, directors, employees, beneficiaries, shareholders,
members, managers, advisors, and other agents and their respective partners,
trustees, beneficiaries, employees, officers, directors, and
shareholders.

 







- 4
-












 

Inspection
Period: Shall
have the meaning given to it in Section
4.01.




Inventory: All
articles of personal property now located on the Real Property and used, usable,
or salable in connection with any part of the Hotel, subject to such depletions,
resupplies, substitutions and replacements as shall occur and be made in the
normal course of business, but in accordance with present practices excluding,
however: (i) Fixtures and Tangible Personal Property; (ii) Consumables; (iii)
Operating Equipment; (iv) Equipment Leases; (v) property owned by Manager,
guests, employees, or other persons furnishing goods or services to the Hotel
(other than Seller or any Affiliate of Seller, unless denominated as an Excluded
Asset); and (vi) Improvements.




Land: The
parcel of real estate leased by Seller pursuant to the Ground Lease, which
parcel is described in Exhibit
“A”,
together with all rights, title, and interest, if any, of Seller in and to all
land lying in any street, alley, road, or avenue, open or proposed, in front of
or adjoining said Land, to the centerline thereof, and all right, title, and
interest of Seller in and to any award made or to be made in lieu
thereof.




Legal
Requirements: All
laws, statutes, codes, acts, ordinances, orders, judgments, decrees,
injunctions, rules, regulations, permits, licenses, authorizations, directions,
and requirements of all governments and governmental authorities having
jurisdiction of the Hotel (including, for purposes of this Agreement, any local
Board of Fire Underwriters), and the operation of the Hotel.




Liabilities: All
liabilities, demands, liens, interest, claims, actions or causes of action,
assessments, losses, fines, penalties, costs (including, without limitation,
response and/or remedial costs), damages and expenses including, without
limitation, those asserted by any Federal, state or local governmental or
quasi-governmental agency, third party, or former or present employee, including
attorneys’, consultants’ and expert witness fees and expenses.




Liquor
License: Any and
all licenses and permits required by any applicable governmental authorities for
the sale and consumption of alcoholic beverages at the Hotel.




Management
Agreement: That
certain Webster Street Hotel Management Agreement, dated as of April 23, 2001,
between Seller and Manager pursuant to which Manager manages the
Hotel.




Manager:
Brookline
Hotel Management LLC, a Connecticut limited liability company.




Material
Contracts: All
Hotel Contracts which cannot be cancelled by ninety (90) days’ or less written
notice without penalty or premium payment.




Miscellaneous
Hotel Assets: All
contract rights, leases, concessions, trademarks, logos, copyrights, goodwill,
assignable warranties, and other items of intangible personal property relating
to the ownership or operation of Hotel, but such term shall not include (i)
Bookings; (ii) Hotel Contracts; (iii) the Management Agreement; (iv) Space
Leases; (v) Permits; (vi) Cash-On-Hand; (vii) Books and Records (except as
provided in Section
14.01(g)); (viii)
Accounts Receivable; (ix) refunds, rebates, or other claims, or any interest
thereon, for periods or events occurring prior to the Cut-off Time; (x) utility
and similar deposits; (xi) prepaid insurance or other prepaid items; or (xii)
prepaid license and permit fees; except to the extent that Seller receives a
credit on the Final Closing Statement for any such item or matter.

 







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Notice
and Notices: Shall
have the meanings given to them in Section
13.01.




Obligations: All
payments required to be made and all representations, warranties, covenants,
agreements, and commitments required to be performed under the provisions of
this Agreement by Seller or Purchaser, as applicable.




OFAC:
Shall
have the meaning given to it in Section
5.02(c).




Opening
of Escrow: Shall
mean the earliest date on which Escrow Company has received both a fully
executed copy of this Agreement and the Earnest Money.




Operating
Equipment: All
china, glassware, linens, silverware, and uniforms, whether in use or held in
reserve storage for future use, in connection with the operation of the Hotel,
which are on hand on the date of this Agreement subject to such depletion and
restocking as shall be made in the normal course of business but in accordance
with present practices.




Permits: All
licenses, franchises, and permits, certificates of occupancy, authorizations,
and approvals used in or relating to the ownership, occupancy, or operation of
any part of the Hotel, including, without limitation, those necessary for the
sale and on-premises consumption of food, liquor, and other alcoholic
beverages.




Permitted
Exceptions: The
liens, encumbrances, restrictions, exceptions, and other matters specified in
Exhibit “C”, as well as those matters approved or deemed approved under
Section
4.07 and such
other matters that arise subsequent to the date of the Title Commitment that are
acceptable to Purchaser, to which title to the Property shall be subject on the
Closing Date.




Personal
Property: All of
the Property other than the Real Property.




Preliminary
Closing Statement: The
Preliminary Closing Statement required by Section
7.04.




Property: (i) The
Real Property, (ii) the Fixtures and Tangible Personal Property; (iii) the
Operating Equipment; (iv) the Consumables; (v) the transferable right, title,
and interest of Seller in, to, and under the Hotel Contracts; (vi) the Bookings;
(vii) the Permits (other than Excluded Permits); (viii) the Documents; (ix) the
Warranties; (x) the Books and Records and (xi) the Miscellaneous Hotel Assets,
provided, however, that Property shall not include the Excluded
Assets.

 







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Proratable
Compensation:
Compensation exclusive of severance pay and Employee Benefit Plans.




Purchase
Price: Shall
have the meaning given to it in Section
3.01.




Real
Property: The
Ground Lease together with the Improvements located on the Land.




Space
Leases: All
leases, licenses, concessions, and other occupancy agreements for the use or
occupancy of any portion of the Real Property excluding, however,
Bookings.




Space
Lessee: Any
person or entity entitled to occupancy of any portion of the Real Property under
a Space Lease.




Survey: Shall
have the meaning given to it in Section
4.07.




Termination
Notice: Shall
have the meaning given to it in Section
4.04.




Title
Commitment: Shall
have the meaning given to it in Section
4.07.




Title
Company: First
American Title Insurance Company.




Title
Policy: A 1992
ALTA Leasehold Owner’s Title Insurance Policy issued by the Title Company
pursuant to the Title Commitment, in favor of Purchaser and in the amount of the
portion of the Purchase Price allocated to the Real Property, showing good and
marketable leasehold title in the Real Property to be vested in Purchaser,
subject to only the Permitted Exceptions.




Title
Review Date: Shall
have the meaning given to it in Section
4.07.




Transfer:
Shall
have the meaning given to it in Section
14.01(j).




UCC: The
Uniform Commercial Code in effect in Massachusetts.




UCC
Search: A search
of the filings (at the state and county levels) pursuant to the UCC with regard
to the Personal Property.




Unopened
Consumables: Consumables
which are in unopened containers, or if not purchased in “containers”,
Consumables which are in the state first received and which have not been placed
in service.




Warranties: All of
Seller's right, title and interest in and to all presently effective and
assignable warranties, guaranties, representations or covenants given to or made
in favor of either Seller in connection with the acquisition, development,
construction, maintenance, repair, renovation or inspection of any of the
Property, including any made under any construction contracts and the service or
maintenance contracts.

 



1.02
References. Except
as otherwise specifically indicated, all references to Section and Subsection
numbers refer to Sections and Subsections of this Agreement, and all references
to Exhibits refer to the Exhibits attached to this Agreement. The words
“hereby,”
“hereof,”
“herein,”
“hereto,”
“hereunder,”
“hereinafter,” and
words of similar import refer to this Agreement as a whole and not to any
particular section or subsection of this Agreement. Captions are for convenience
only and shall not be used to construe the meaning of any part of this
Agreement.

 







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ARTICLE
II




SALE
AND PURCHASE; “AS-IS,” “WHERE-IS” SALE

 



2.01
Sale
and Purchase. Seller
hereby agrees to sell to Purchaser, and Purchaser hereby agrees to purchase from
Seller, the Property on the terms and subject to the conditions of this
Agreement.

 



2.02
As-is,
Where-is. (a)
Purchaser represents that by reason of its business and financial experience,
and the business and financial experience of those persons retained by Purchaser
to advise it with respect to its investment in the Property, Purchaser has
sufficient knowledge, sophistication, and experience in business and financial
matters to evaluate the merits and risks of the prospective investment and is
able to bear the economic risk of such investment. Purchaser will have and has
had adequate opportunity and time to review and analyze the risks attendant to
the transactions contemplated in this Agreement with the assistance and guidance
of competent professionals. In addition, this Agreement gives Purchaser a period
of time to inspect, examine, and investigate the Property (and to review survey
and title matters relating to the Property) and, subject to the provisions of
this Agreement, the right to terminate this Agreement if Purchaser is
unsatisfied with the results of Purchaser’s inspections, examinations, and
investigations. Purchaser represents, warrants, and agrees that if Purchaser
elects to consummate the purchase of the Property after making such inspections,
examinations, and investigations, except as otherwise specifically set forth in
this Agreement, Purchaser is relying solely on its own inspections,
examinations, and investigations in making the decision to purchase the
Property.




(b)    Except for
the representations and warranties expressly set forth in Section
5.01,
Purchaser has not relied, and is not relying, upon any information, documents,
sales brochures, or other literature, maps or sketches, projections, pro formas,
statements, representations, guaranties, or warranties (whether express or
implied, oral or written, material or immaterial) that may have been given or
made by or on behalf of Seller.




(c)    Except as
otherwise provided herein, Purchaser is not relying and has not relied on Seller
or any of its members, or any of their respective officers, members, partners,
directors, shareholders, agents, attorneys, employees, or representatives as to
(i) the quality, nature, adequacy, or physical condition of the Property
including, but not limited to, the structural elements, foundations, roofs,
appurtenances, access, landscaping, parking facilities, electrical, mechanical,
HVAC, plumbing, sewage or utility systems, facilities, or appliances at the
Property or any portion of the Property, (ii) the quality, nature, adequacy, or
physical condition of soils or the existence of ground water at the Property,
(iii) the existence, quality, nature, adequacy, or physical condition of any
utility serving the Property, (iv) the ad valorem taxes now or hereafter payable
on the Property or the valuation of the Property for ad valorem tax purposes,
(v) the development potential of the Property or the habitability,
merchantability or fitness, suitability, or adequacy of the Property or any
portion of the Property for any particular use or purpose, (vi) the zoning or
other legal status of the Real Property, (vii) the compliance by the Property,
or any portion of the Property, or the operations conducted on or at the
Property, with any Legal Requirements or other covenants, conditions, or
restrictions, (viii) the quality of any labor or materials relating in any
manner to the Property, or (ix) except as otherwise expressly provided in this
Agreement, the condition of title to the Property or the nature, status, and
extent of any right-of-way, lease, right of redemption, possession, lien,
encumbrance, license, reservation, covenant, condition, restriction, or any
other matter affecting title to the Property.

 







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(d)    EXCEPT AS
OTHERWISE PROVIDED HEREIN, THE SALE AND CONVEYANCE BY SELLER TO PURCHASER OF ALL
RIGHT, TITLE, AND INTEREST OF SELLER IN AND TO THE PROPERTY WILL BE MADE WITHOUT
ANY WARRANTY OR RECOURSE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY
OF TITLE (EXCEPT AS TO ACTS OF SELLER), ABSENCE OF DEFECTS (WHETHER APPARENT OR
LATENT, KNOWN OR UNKNOWN, EASILY DISCOVERABLE OR HIDDEN), FITNESS FOR ANY
ORDINARY USE, OR FITNESS FOR ANY INTENDED USE OR PARTICULAR PURPOSE, EVEN FOR
THE RETURN OR REDUCTION OF THE PURCHASE PRICE OR OTHERWISE, THE SOLE PERIL AND
RISK OF EVICTION (EXCEPT AS A RESULT OF ACTS OF SELLER) TO BE ASSUMED BY
PURCHASER, BUT WITH FULL SUBSTITUTION AND SUBROGATION IN AND TO ALL OF THE
RIGHTS AND ACTIONS OF WARRANTY WHICH SELLER HAS OR MAY HAVE AGAINST ALL
PRECEDING OWNERS OR SELLERS; IT BEING UNDERSTOOD THAT PURCHASER WILL TAKE THE
PROPERTY “AS
IS” AND
“WHERE
IS”,
PURCHASER HEREBY ACKNOWLEDGING RELIANCE SOLELY ON ITS OWN TITLE EXAMINATION AND
INSPECTION OF THE PROPERTY, AND NOT ON ANY WARRANTIES OR REPRESENTATIONS FROM
SELLER.




(e)    EXCEPT AS
OTHERWISE PROVIDED HEREIN, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
PURCHASER ACKNOWLEDGES THAT SELLER HAS MADE NO REPRESENTATIONS OR WARRANTIES OF
ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY
INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR REPRESENTATIONS AS TO TITLE
(EXCEPT AS TO ACTS OF SELLER), ABSENCE OF DEFECTS (WHETHER APPARENT OR LATENT,
KNOWN OR UNKNOWN, EASILY DISCOVERABLE OR HIDDEN), HABITABILITY, MERCHANTABILITY,
FITNESS FOR ANY ORDINARY USE, FITNESS FOR ANY INTENDED USE OR PARTICULAR
PURPOSE, ZONING, TAX CONSEQUENCES, PHYSICAL CONDITION, UTILITIES, OPERATING
HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE
PROPERTY WITH LEGAL REQUIREMENTS, INCLUDING WITHOUT LIMITATION THE AMERICANS
WITH DISABILITIES ACT OF 1990, 42 U.S.C. 12101, ET SEQ., THE
TRUTH, ACCURACY, OR COMPLETENESS OF ANY MATERIALS, DATA, OR INFORMATION PROVIDED
BY OR ON BEHALF OF SELLER TO PURCHASER, OR THE MANNER OR QUALITY OF THE
CONSTRUCTION OR MATERIALS INCORPORATED INTO THE PROPERTY OR THE MANNER OF
REPAIR, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY OR ANY
PORTION THEREOF. ALL SUCH WARRANTIES WITH RESPECT TO THE PROPERTY ARE HEREBY
DISCLAIMED BY SELLER AND EXPRESSLY WAIVED BY PURCHASER. PURCHASER HAS NOT RELIED
AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR
IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS, OR INFORMATION
PERTAINING OR RELATING TO THE PROPERTY MADE OR FURNISHED BY SELLER, ANY PARTY
ACTING OR PURPORTING TO ACT FOR SELLER, OR ANY REAL ESTATE BROKER OR AGENT
REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN,
DIRECTLY OR INDIRECTLY, VERBALLY OR IN WRITING. PURCHASER FURTHER HAS NOT RELIED
ON SELLER’S SKILL OR JUDGMENT IN SELECTING THE PROPERTY. PURCHASER SHALL HAVE NO
RIGHT OR CAUSE OF ACTION IN WARRANTY OR OTHERWISE AGAINST SELLER IN ANY
CONTROVERSY, CLAIM, DEMAND, OR LITIGATION ARISING FROM OR IN CONNECTION WITH THE
PROPERTY, AND PURCHASER HEREBY WAIVES ANY SUCH RIGHT OR CAUSE OF
ACTION.

 







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(f)    EXCEPT AS
OTHERWISE PROVIDED HEREIN, SELLER HAS NOT, DOES NOT AND WILL NOT MAKE ANY
REPRESENTATIONS OR WARRANTIES WITH REGARD TO (A) COMPLIANCE WITH ANY
ENVIRONMENTAL LAWS OR LAND USE LAWS, RULES, REGULATIONS, ORDERS, OR REQUIREMENTS
INCLUDING, BUT NOT LIMITED TO, THOSE PERTAINING TO THE HANDLING, GENERATING,
TREATING, STORING OR DISPOSING OF ANY HAZARDOUS MATERIAL OR (B) ABSENCE OF ANY
CLAIMS, WHETHER ASSERTED OR UNASSERTED, WITH RESPECT TO COMPLIANCE WITH
ENVIRONMENTAL LAWS OR ENVIRONMENTAL CONDITIONS AT THE PROPERTY. PURCHASER
RELEASES SELLER FROM ANY AND ALL CLAIMS PURCHASER MAY HAVE AGAINST SELLER OF
WHATEVER KIND OR NATURE NOW OR HEREAFTER RESULTING FROM OR IN ANY WAY CONNECTED
WITH THE ENVIRONMENTAL CONDITION OF THE PROPERTY, INCLUDING ANY AND ALL CLAIMS
PURCHASER MAY HAVE AGAINST SELLER UNDER THE COMPREHENSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION, AND LIABILITY ACT,42 U.S.C. §9601 ET
SEQ., AS
AMENDED OR REAUTHORIZED, OR ANY OTHER ENVIRONMENTAL LAW OR COMMON LAW,
PROVIDED, THAT NO
RELEASE IS INTENDED WITH RESPECT TO CLAIMS THAT PURCHASER MAY HAVE AGAINST
SELLER’S PREDECESSORS IN TITLE UNDER APPLICABLE LAW.




(g)    SELLER SHALL
NOT BE LIABLE TO PURCHASER FOR ANY PROSPECTIVE OR SPECULATIVE PROFITS, OR
SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON
CONTRACT, TORT, OR NEGLIGENCE OR IN ANY OTHER MANNER ARISING FROM THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. 




(h)    PURCHASER
FURTHER DECLARES AND ACKNOWLEDGES THAT THE FOREGOING WAIVERS HAVE BEEN BROUGHT
TO THE ATTENTION OF PURCHASER AND EXPLAINED IN DETAIL TO IT AND THAT PURCHASER
HAS VOLUNTARILY AND KNOWINGLY CONSENTED TO THE FOREGOING WAIVER.

 







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ARTICLE
III




PURCHASE
PRICE

 



3.01
Purchase
Price. The
purchase price (“Purchase
Price”) to be
paid by Purchaser to Seller at the Closing shall be Fifty-Four Million Five
Hundred Thousand Dollars ($54,500,000.00), plus or minus prorations and
adjustments as provided in this Agreement. The Purchase Price shall be payable
by Purchaser as follows:




(a)    simultaneously
with the full execution and delivery of this Agreement, Purchaser shall deposit
with the Escrow Company, as escrow agent, the amount of Five Hundred Thousand
Dollars ($500,000.00) by a certified check or wire transfer of immediately
available United States of America funds as an earnest money deposit (together
with the interest earned thereon, the “Earnest
Money”), One
Hundred Thousand Dollars ($100,000.00) of which the Escrow Company shall
immediately pay to Seller. 




(b)    Purchaser
shall have the right to cancel this Agreement for any reason or no reason prior
to the expiration of the Inspection Period. If Purchaser cancels the Agreement
prior to the expiration of the Inspection Period, it shall be entitled to a
refund of the Earnest Money (except for the $100,000 paid to Seller at the
signing of this Agreement pursuant to Section
3.01(a)).





(c)    Unless
Purchaser has terminated this Agreement as provided in Section
4.04 before
the expiration of the Inspection Period, the Escrow Company shall pay Seller the
remaining Earnest Money upon the expiration of the Inspection
Period.




(d)    On the date
of Closing, Purchaser shall pay the balance of the Purchase Price, subject to
the prorations and adjustments provided for in this Agreement, in cash by
certified check or wire transfer of immediately available United States of
America funds to the Escrow Company, as escrow agent, in accordance with the
terms and conditions of this Agreement. Purchaser shall be responsible for any
income taxes payable with respect to any interest and/or dividends earned with
respect to the Earnest Money. For those purposes, Purchaser’s federal taxpayer
identification number is 25-1823761.

 



3.02
Earnest
Money Escrow Agreement. The
Earnest Money shall be held and disbursed by the Escrow Company acting as escrow
agent. The parties agree to execute any additional escrow instructions
reasonably required for such purpose by the Escrow Company which are consistent
with this Agreement. The Earnest Money shall be invested in a federally issued
or insured interest bearing instrument and shall be paid to the party to which
the Earnest Money is paid pursuant to the provisions of this Agreement. If the
sale of the Property is consummated in accordance with the terms of this
Agreement, the Earnest Money and Additional Earnest Money (if any) shall be
applied to the Purchase Price to be paid by Purchaser at the Closing. In the
event of a default under this Agreement by Purchaser or Seller, the Earnest
Money and Additional Earnest Money (if any) shall be applied as provided in this
Agreement.

 







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ARTICLE
IV




INSPECTION
PERIOD

 



4.01
Inspection
Period. The
“Inspection
Period” shall
commence on the date hereof and terminate at 5:00 P.M. (Eastern Daylight Savings
Time) on May 31, 2005. Purchaser and its representatives shall be permitted to
enter upon the Property at any reasonable time and from time to time during the
Inspection Period to examine, inspect, and investigate the Property as well as
all records and other documentation located at the Property (collectively,
“Due
Diligence”). The
Due Diligence shall be subject to the terms, conditions, and limitations set
forth in this Article
IV, and
Purchaser’s conduct shall be in strict compliance with the covenants and
agreements contained in this Article
IV.

 



4.02
Review
and Inspection.
Purchaser shall have a right to enter upon the Property for the purpose of
conducting its Due Diligence (each a "Due Diligence Visit") provided that in
each such instance (i) Purchaser notifies Seller in writing of its intent to
enter the Property to conduct its Due Diligence not less than twenty-four (24)
hours prior to such entry; (ii) the date and approximate time period are
scheduled with Seller or Manager; and (iii) Purchaser is in full compliance with
the insurance requirements set forth in Section
4.06. At
Seller’s election, a representative of Seller or Manager shall be present during
any entry by Purchaser or its representatives upon the Property for a Due
Diligence Visit. Purchaser shall take all reasonable precautions to ensure that
neither it nor any of its representatives interfere with the Space Lessees or
guests of the Hotel or ongoing operations occurring at the Property. Purchaser
agrees to discontinue any Due-Diligence promptly upon notice from Seller in the
event such Due-Diligence presents a danger to the life, health or safety of the
public or would otherwise materially and adversely impact the Property.
Purchaser shall not cause or permit any mechanic liens, materialmen’s liens, or
other liens to be filed against the Property as a result of its Due
Diligence.

 



4.03
Testing.
Purchaser
shall have the right to conduct, at its sole cost and expense, any inspections,
studies or tests that Purchaser deems appropriate in determining the condition
of the Property, provided, however, Purchaser is not permitted to perform any
sampling, boring, drilling or other physically intrusive testing into the
structures or ground comprising the Property, including, without limitation, a
Phase I or Phase II environmental assessment, without (i) submitting to Seller
the scope of such testing and a statement from Purchaser's environmental
consultant that such testing is reasonably necessary; (ii) providing Seller with
reasonable assurances of its ability, financial or otherwise, to perform its
obligations to restore the Property under Section
4.06; and
(iii) obtaining the prior written consent of Seller for such testing, which
consent shall not be unreasonably withheld, conditioned, or delayed.
Notwithstanding the foregoing, Purchaser shall have the right to conduct a
non-intrusive Phase I environmental assessment without obtaining Seller's prior
consent provided that such Phase I shall not include any sampling, boring,
drilling or other physically intrusive testing into the structures or ground
comprising the Property. If Purchaser or anyone acting on behalf of Purchaser
takes any samples from the Property in connection with any environmental
testing, then, upon Seller's request, Purchaser shall provide Seller with a
portion of such sample to allow Seller, if it so chooses, to perform its own
testing. Purchaser agrees that in the event the need arises under applicable law
to notify any governmental authority of any condition at the Property as a
result of the findings of any environmental assessment or any other
Due-Diligence, Purchaser shall immediately notify Seller and Seller, not
Purchaser or anyone acting on behalf of Purchaser, shall make such disclosure as
Seller deems appropriate unless otherwise required by applicable
law. 










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4.04
Acceptance
or Rejection. Purchaser
shall have until the expiration of the Inspection Period to conduct its Due
Diligence and to determine whether the Property is acceptable to Purchaser.
Purchaser may, for any or no reason, terminate this Agreement by giving written
notice of termination (“Termination
Notice”) to
Seller and the Escrow Company on or before the expiration of the Inspection
Period. Upon receipt by Seller and the Escrow Company of such Termination
Notice, (i) this Agreement shall be terminated, and the parties shall have no
further obligations to or recourse against each other (except for any provisions
of this Agreement which are expressly stated to survive the termination of this
Agreement, including, without limitation, the indemnification set forth in
Section
4.06) and
(ii) Purchaser and Seller shall promptly by joint notice, instruct the Escrow
Company to return to Purchaser the Earnest Money not previously paid to Seller
pursuant to Section
3.01(a), less
the amount of any damages payable to Seller pursuant to the indemnification set
forth in Section
4.06 or as a
result of any other defaults under this Agreement by Purchaser. If Purchaser
does not timely give a Termination Notice as aforesaid, Purchaser shall be
deemed to have fully and knowingly waived any right to terminate this Agreement
for any reason whatsoever, other than as provided in Section
15.02, or the
failure of any other express material condition to Purchaser’s obligation to
close under this Agreement, which breach or failure is not waived by Purchaser
or cured prior to the expiration of any applicable grace, cure, and notice
periods.

 



4.05
Confidentiality.
Prior to
Closing, Purchaser agrees and covenants with Seller not to disclose to any third
party (other than its agents and employees, lenders, accountants, attorneys, and
other professionals and consultants in connection with the transaction
contemplated in this Agreement who shall also be obligated under this
Section
4.05 not to
disclose) without Seller’s prior written consent, unless Purchaser is obligated
by law to make such disclosure (including any requirements of the Securities and
Exchange Commission to make such disclosure with respect to any publicly traded
company affiliated with Purchaser), any of the reports or any other
documentation or information obtained by Purchaser which relates to the Property
or Seller in any way, all of which shall be used by Purchaser and its agents
solely in connection with the transaction contemplated by this Agreement. If
this Agreement is terminated, Purchaser agrees that all such information will
continue to be held in strict confidence and, to the extent possible, be
returned or delivered to Seller.

 



4.06
Indemnification;
Restoration; Insurance. Purchaser
agrees to indemnify, protect, defend, and hold Seller and its partners,
trustees, officers, directors, employees, beneficiaries, shareholders, members,
managers, advisors, and other agents, and their respective partners, trustees,
officers, directors, employees, beneficiaries, shareholders, members, managers,
advisors and agents (collectively, the “Indemnified
Parties”)
harmless from and against any and all liabilities, demands, actions, causes of
action, suits, claims, losses, damages, costs, and expenses (including, without
limitation, reasonable attorneys’ fees, court costs, and litigation expenses)
suffered or incurred by any of the Indemnified Parties as a result of or in
connection with any activities of Purchaser (including activities of any of
Purchaser’s employees, consultants, contractors, or other agents) relating to
the inspection of the Property, including, without limitation, mechanics’ liens,
damage to the Property, injury to persons or property resulting from such
activities in connection therewith or a violation of the confidentiality
provisions of this Agreement; notwithstanding the foregoing, Purchaser's
indemnification obligations hereunder shall not include any obligation or duty
whatsoever with respect to any such claims (including claims that the Real
Property has declined in value) arising out of, resulting from or incurred in
connection with (a) the discovery or presence of any hazardous substances,
or (b) the results or findings of any tests or analyses of Purchaser's
environmental or other Due Diligence of the Property. If the Property is
disturbed or altered in any way as a result of such activities, Purchaser, at
its sole cost and expense, shall promptly restore the Property to its condition
existing prior to the commencement of such activities which disturb or alter the
Property. Furthermore, Purchaser agrees to maintain and cause any of its
representatives or agents conducting any Due Diligence to maintain and have in
effect commercial general liability insurance with limits of not less than Two
Million Dollars ($2,000,000.00) for personal injury, including bodily injury and
death, and property damage, naming Seller as an additional insured party, and
containing a waiver of subrogation. Purchaser shall deliver to Seller a copy of
the certificate of insurance effectuating the insurance required under this
Section
4.06 prior to
the commencement of such activities, which certificate shall provide that such
insurance shall not be terminated or modified without at least thirty (30) days’
prior written notice to Seller.










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4.07
Title
and Survey. Prior to
or promptly upon execution of this Agreement, Purchaser shall obtain, at
Purchaser’s sole cost and expense, a commitment for title insurance along with a
copy of each instrument listed as an exception thereon (the “Title
Commitment”) on the
Real Property issued by the Title Company, and shall have or promptly order a
current survey (the “Survey”) of the
Land and Improvements. Purchaser shall have until the expiration of the
Inspection Period to examine the Title Commitment, the Survey, and the results
of any UCC Search (if ordered by Purchaser) and to make any objections thereto
to Seller in writing. If Purchaser fails to make any objections on or before the
expiration of the Inspection Period, Purchaser shall be deemed to have accepted
all exceptions contained in the Title Commitment, the form and substance of the
Survey and all matters shown thereon (or any matters which would have been shown
on a current ALTA survey if Purchaser fails to have obtained one), and all
matters disclosed pursuant to the UCC Search (or any matters which would have
been shown on a UCC Search if Purchaser fails to have obtained one); all such
exceptions and matters and any exceptions or matters caused by or through
Purchaser shall be “Permitted
Exceptions” as used
in this Agreement. If any objections to the Title Commitment, the Survey, or the
results of the UCC Search are made properly on or before the expiration of the
Inspection Period, then Seller shall have the right, but not the obligation,
exercisable by written notice to Purchaser within five (5) days after delivery
of Purchaser's objections, to cure (by removal, endorsement over, or otherwise)
such objections to Purchaser's reasonable satisfaction, on or before the Closing
Date. If no such notice from Seller concerning such election is received by
Purchaser by such date, then Seller shall be deemed to have elected not to cure
any such objections. If any such objections are not cured by Seller by the
scheduled Closing Date, then Purchaser may as its only option, elect to either:
(y) waive such objection(s) and consummate the transaction contemplated by this
Agreement without adjustment to the Purchase Price or (z) terminate this
Agreement, in which event the Earnest Money shall be returned to Purchaser
(except for the $100,000 paid to Seller at the signing of this Agreement
pursuant to Section
3.01(a)) and
neither party shall have any further Obligations to the other
party.










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4.08
Equipment
Leases. If the
Hotel Contracts include any equipment leases (the "Equipment
Leases"),
Purchaser agrees to assume all obligations thereunder arising from and after the
date of Closing and agrees to indemnify and hold Seller (and any affiliate of
Seller which is a lessee thereunder) from and against any cost, expense, claim
or liability from and after the date of Closing.




ARTICLE
V




REPRESENTATIONS
AND WARRANTIES

 



5.01
Representations
and Warranties of Seller. Seller
hereby represents and warrants the following matters to Purchaser. Whenever a
representation or warranty or other reference is made in this Agreement on the
basis of the actual knowledge, best of knowledge or otherwise with reference to
the knowledge of Seller, such representation, warranty or reference is made (i)
solely on the basis of the actual, as distinguished from implied, imputed and
constructive, knowledge, on the date that such representation or warranty is
made, of David J. Buffam (“Seller’s
Representative”),
without inquiry or investigation or duty; and (ii) with the exclusion of any
facts disclosed to or otherwise actually known by Purchaser. The Seller
represents and warrants that Seller's Representative is the individual
responsible for overseeing the sale of the Property to Purchaser and is
knowledgeable concerning the ownership and management of the Property
..




(a)    Due
Organization. Seller is
a limited liability company duly formed, validly existing and in good standing
under the laws of Delaware, and Seller is qualified to do business in
Massachusetts. Seller has full power and authority, and has taken all corporate
and other action necessary to authorize Seller to make, execute, deliver, and
perform this Agreement except as otherwise provided herein. The person executing
this Agreement on behalf of Seller has been duly authorized to do so. This
Agreement is a binding and legal agreement of Seller, enforceable against Seller
in accordance with its terms.




(b)    No
Conflict. The
execution and delivery of this Agreement and the closing documents to be
executed in connection herewith and the consummation of the transactions
contemplated hereby and thereby, except as otherwise provided herein, do not
require the consent or approval of any governmental authority, nor shall such
execution and delivery result in a breach or violation of any Legal Requirement,
or conflict with, breach, result in a default (or an event which with notice and
passage of time or both will constitute a default) under, or violate any
contract or agreement to which Seller is a party or by which it or the Property
is bound.










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(c)    Pending
Litigation. To
Seller’s actual knowledge, except as described in Exhibit
“D”, there
are no actions, suits, or proceedings, pending or threatened against Seller or
affecting any of Seller’s rights, in each case, with respect to the Property
which might result in any order, injunction, decree or judgment having a
material adverse effect on the Hotel or the Property. To Seller’s actual
knowledge, except as noted in Exhibit
“E”, Seller
has not received any notice of any violation of a Legal Requirement which would
have a material impact on the operations of the Hotel and which has not been
corrected.

 


(d)    Condemnation. To
Seller’s actual knowledge, there are no pending, or threatened, condemnation
proceedings, or condemnation actions against the Property.




(e)    Employees.
No union
is presently serving as collective bargaining agent for any
Employees.




(f)    Ground
Lease. Upon
execution of this Agreement, Seller shall provide Purchaser with a true and
complete copy of the Ground Lease.




(g)    Management
Agreement. The
Management Agreement is in full force and effect, the Manager has been paid to
date and there are not defaults under the Management Agreement that would
interfere with the sale of the Property to Purchaser.




(h)    Licenses
and Permits. To the
best of Seller's knowledge, Seller has not received any written notice from any
governmental or quasi-governmental agency having jurisdiction over the Property
that any material license, permit or approval has been violated or is in
default.




(i)    Notice
of Assessment. To best
of Seller's knowledge, Seller has not received written notice of any special
assessments or taxes against the Property from any governmental agency which
relate to any planned public improvements with respect to the
Property.




(j)    Environmental
Notice. To the
best of Seller's knowledge, Seller represents that it has not received any
notices of violation of any Environmental Laws regarding any environmental
conditions at the Hotel.




(k)    Space
Lessees. There
are no Space Lessees.




(l)    Financial
Statements. Upon
execution of this Agreement, Seller shall provide Purchaser with audited
financial statements for fiscal years 2003 and 2004 and monthly profit and loss
statements for 2005. To the best of Seller's knowledge, the monthly profit and
loss statements for 2005 are true and correct in all material
respects.




(m)    Latent
Defects. To the
best of Seller's knowledge, there are no latent defects contained on, above,
beneath, within or about the Property which are not readily discoverable through
diligent inquiry by Purchaser.










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5.02
Representations
and Warranties of Purchaser.
Purchaser hereby represents and warrants the following to Seller:




(a)    Due
Organization.
Purchaser is a limited partnership duly formed, validly existing and in good
standing under the laws of Virginia, qualified to do business in Massachusetts.
Purchaser has full power and authority to enter into and perform this Agreement
and the transactions contemplated by this Agreement, and Purchaser has taken all
corporate and other action necessary to authorize Purchaser to make, execute,
deliver, and perform this Agreement and the transactions contemplated by this
Agreement.




(b)    No
Conflict. The
execution and delivery of this Agreement and the closing documents to be
executed in connection herewith and the consummation of the transactions
contemplated hereby and thereby, except as otherwise provided herein, do not
require the consent or approval of any governmental authority, nor shall such
execution and delivery result in a breach or violation of any Legal Requirement
or conflict with, breach, result in a default (or an event which with notice and
passage of time or both will constitute a default) under, or violate any
contract or agreement to which Purchaser or an Affiliate of Purchaser is a party
or by which it or its property is bound.




(c)    OFAC.
Neither
Purchaser nor any of its affiliates or constituents have engaged in any dealings
or transactions, directly or indirectly, (i) in contravention of any U.S.,
international or other money laundering regulations or conventions, including,
without limitation, the United States Bank Secrecy Act, the United States Money
Laundering Control Act of 1986, the United States International Money Laundering
Abatement and Anti-Terrorist Financing Act of 2001, Trading with the Enemy Act
(50 U.S.C. §1 et seq., as amended), or any foreign asset control regulations of
the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) or any enabling legislation or executive order relating thereto, or
(ii) in contravention of Executive Order No. 13224 dated September 24, 2001
issued by the President of the United States (Executive Order Blocking Property
and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or
Support Terrorism), as may be amended or supplemented from time to time
("Anti-Terrorism Order") or on behalf of terrorists or terrorist organizations,
including those persons or entities that are included on any relevant lists
maintained by the United Nations, North Atlantic Treaty Organization,
Organization of Economic Cooperation and Development, Financial Action Task
Force, U.S. Office of Foreign Assets Control, U.S. Securities & Exchange
Commission, U.S. Federal Bureau of Investigation, U.S. Central Intelligence
Agency, U.S. Internal Revenue Service, or any country or organization, all as
may be amended from time to time. Neither Purchaser nor any of its affiliates or
constituents nor, to the best of Purchaser’s knowledge, any brokers or other
agents of same, (i) are or will be conducting any business or engaging in any
transaction with any person appearing on the U.S. Treasury Department’s Office
of Foreign Assets Control list of restrictions and prohibited persons, or (ii)
are a person described in section 1 of the Anti-Terrorism Order, and to the best
of Purchaser’s knowledge neither Purchaser nor any of its affiliates have
engaged in any dealings or transactions, or otherwise been associated with any
such person. If at any time this representation becomes false than it shall be
considered a default under this Agreement and Seller shall have the right to
exercise all of the remedies set forth in this Agreement in the event of a
default or to terminate this Agreement immediately.

 







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(d)    Qualified
Franchisee.
Purchaser has been approved by Marriott as a Courtyard by Marriott franchisee in
connection with other hotel properties, is currently a Marriott franchisee of
other Courtyard by Marriott hotels, and is not a "competitor" as such term is
defined in Article XV of the Franchise Agreement.




(e)    As-is,
Where-is.
Purchaser understands that subject to the provisions of this Agreement it will
take the Property "as-is" and "where-is" and hereby reaffirms the
representations and warranties contained in Section
2.02.
Purchaser hereby acknowledges that Seller has made it aware that Level P3 of the
Hotel requires work and such work is currently in the design phase and will not
have commenced at Closing. 

 



5.03
Duration
of Representations and Warranties. All
representations and warranties contained in this Agreement shall be deemed
remade as of the Closing and shall survive the Closing for a period of six (6)
months and shall not merge into any of the closing documents; provided, however,
that no person, firm, or entity shall have any liability or obligation with
respect to any representation or warranty contained in this Agreement unless on
or prior to the date that is six (6) months following the Closing Date, the
party seeking to assert liability under such representation or warranty shall
have notified the other party in writing setting forth specifically the
representation or warranty allegedly breached and a detailed description of the
alleged breach. All liabilities and obligations of both parties under any
representation or warranty shall lapse and be of no further force or effect with
respect to any matter not contained in a written notice delivered as
contemplated above on or prior to the date that is six (6) months after the
Closing Date. Notwithstanding the foregoing, Purchaser acknowledges and agrees
that Seller shall have no liability for any breach of a representation or
warranty set forth in this Agreement (a) unless and until the aggregate
liability of Seller with respect to any and all claims of Purchaser relating to
breaches of representations or warranties of Seller contained in this
Article
V shall
exceed One Hundred Thousand Dollars ($100,000), and then only with respect to
the amount by which such claims shall exceed One Hundred Thousand Dollars
($100,000) and (b) to the extent such liability shall exceed Five Hundred
Thousand Dollars ($500,000) in the aggregate.




ARTICLE
VI




CLOSING
AND CLOSING DELIVERIES

 



6.01
Closing.
The
Closing shall take place at the offices of Ropes & Gray LLP on the Closing
Date, or through escrow by the necessary delivery of documents and funds to
Escrow Company on or prior to the Closing Date, or at such other place as agreed
in writing by Purchaser and Seller. The Closing shall if requested by Seller or
Purchaser be effected pursuant to the Escrow Instructions. Each of Purchaser and
Seller acknowledges that its respective undertakings to close this transaction
promptly on the Closing Date is a material inducement to the other to execute
this Agreement, that time is of the essence, and that neither party shall have
any obligation to extend, postpone or reschedule the Closing, except as
expressly set forth herein. Notwithstanding the foregoing, at Seller's election
by delivery of written notice to Purchaser on or before the Closing Date, the
Closing Date shall be extended for a period of up to sixty (60) days in the
event that Marriott has not accepted or rejected Purchaser's application for a
Courtyard by Marriott franchise with respect to the Hotel by the Closing Date;
provided that if Seller elects not to extend the Closing Date pursuant to this
Section
6.01, at
Purchaser's election by depositing with Escrow Company, as escrow agent, on or
before the Closing Date, the amount of Two Hundred Thousand Dollars
($200,000.00) by certified check or wire transfer of immediately available
United States of America funds as an additional earnest money deposit (the
"Additional
Earnest Money"), the
full amount of which the Escrow Company shall immediately pay to Seller, the
Closing Date shall be extended for up to twenty-one (21) days. If
either Seller or Purchaser elects to extend the Closing Date pursuant to this
Section
6.01, the
term "Closing Date" shall mean the Closing Date as so extended.










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6.02
Escrow. This
Agreement shall not be merged into any Escrow Instructions, but any Escrow
Instructions shall be deemed auxiliary to this Agreement and, as between
Purchaser and Seller, the provisions of this Agreement shall govern and
control.

 



6.03
Seller’s
Deliveries. At
Closing, Seller shall execute (to the extent required) and deliver, or cause to
be delivered, to Purchaser or the Escrow Company as appropriate:




(a)    a
recordable assignment (“Ground
Lease Assignment”) of all
of Seller’s right, title, and interest in, to, and under the Ground Lease and
Improvements subject to only the Permitted Exceptions in the form attached to
this Agreement as Exhibit
“F”;




(b)    a Bill of
Sale transferring to Purchaser all of Seller’s right, title, and interest in and
to each and every item of Personal Property to be transferred in the form
attached to this Agreement as Exhibit
“G”;




(c)    an
assignment (“General
Assignment”) of all
of Seller’s right, title, and interest in, to, and under the Bookings, Hotel
Contracts, Permits (other than Excluded Permits), Books and Records, Warranties
and Miscellaneous Hotel Assets in the form of Exhibit
“H”;




(d)    the
certificate referred to in Section
9.01(b);




(e)    an
affidavit of Seller stating that Seller is not a “foreign person” within the
meaning of Section 1445 of the Internal Revenue Code of 1986, as amended in the
form of Exhibit
“I”;




(f)    notices to
Space Lessees and parties to Material Contracts of change in ownership of the
Hotel, if requested by Purchaser;




(g)    the
Preliminary Closing Statement;




(h)    any
required real estate transfer tax declarations or similar documentation required
to evidence the payment of any tax imposed by any state, county, or municipality
together with any change of ownership statements required under applicable law;
and




(i)    copies of
such documents relating to Seller as the Title Company shall reasonably require
in connection with this transaction.

 







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(j)    all key
codes, access codes and combinations to locks to the extent known by, or in the
possession of, Seller.




(k)    a title
insurance affidavit.

 



6.04
Purchaser’s
Deliveries. At the
Closing, Purchaser shall execute (to the extent required) and deliver, or cause
to be delivered, to Seller or the Escrow Company as appropriate:




(a)    the
Purchase Price required to be paid pursuant to Section
3.01;




(b)    the Bill of
Sale;




(c)    the
General Assignment;




(d)    the
certificate referred to in Section
8.01(b);




(e)    the
Preliminary Closing Statement;




(f)    copies of
such documents relating to Purchaser as Seller or the Title Company shall
reasonably require in connection with this transaction; 




(g)    any
required real estate transfer tax declarations or similar documentation required
to evidence the payment of any tax imposed by any state, county, or municipality
together with any change of ownership statements required under applicable
law;




(h)    a signed
letter from Marriott approving Purchaser's application to be a Courtyard by
Marriott franchisee with respect to the Hotel; and




(i)    the Ground
Lease Assignment, which shall contain the covenant of assumption pursuant to
Section Seventeen D of the Ground Lease.

 



6.05
Expenses.

 

(a)    Seller shall
pay the following expenses: (i) 50% of all closing Escrow fees; (ii) Seller’s
legal fees and expenses; (iii) the commission due Broker; and (iv) the fee for
recording the Ground Lease Assignment.




(b)    Purchaser
shall pay the following expenses: (i) the cost of the Title Commitment, Title
Policy and the cost of any endorsements to the Title Policy; (ii) the cost of
any reinsurance of the Title Policy; (iii) the cost of the Survey; (iv) 50%
of all closing Escrow fees; (v) all costs and expenses incurred in connection
with the transfer of any transferable permits, warranties, or licenses in
connection with the ownership or operation of the Property; (vi) all costs and
expenses associated with Purchaser’s financing, if any; (vii) all city, county,
and other stamp and transfer taxes payable in connection with the sale of the
Property; and (viii) Purchaser’s legal fees and expenses.




(c)    Any other
ordinary and usual closing costs and expenses, except as expressly provided in
this Agreement, in connection shall be allocated between Purchaser and Seller in
accordance with the customary practice in the county where the Property is
located.

 







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The
provisions of this Section
6.05 shall
survive Closing or any termination of this Agreement. 

 



6.06
Concurrent
Transactions. All
documents or other deliveries required to be made by Purchaser or Seller at
Closing, and all transactions required to be consummated concurrently with
Closing, shall be deemed to have been delivered and to have been consummated
simultaneously with all other transactions and all other deliveries, and no
delivery shall be deemed to have been made, and no transaction shall be deemed
to have been consummated, until all deliveries required by Purchaser and Seller
shall have been made, and all concurrent or other transactions shall have been
consummated.

 



6.07
Possession.
Possession
of the Property shall be delivered at Closing, provided the transaction closes.
Excluded Assets shall be removed from the Hotel by Seller, at its expense, on,
or within thirty (30) days after, the Closing Date. Seller, at its expense shall
make all repairs necessitated by such removal but shall have no obligation to
replace any Excluded Asset so removed.

 

ARTICLE
VII




ADJUSTMENTS
AND PRORATIONS-CLOSING STATEMENTS

 



7.01
Adjustments
and Prorations. THE
FOLLOWING MATTERS AND ITEMS SHALL BE APPORTIONED BETWEEN THE PARTIES OR, WHERE
APPROPRIATE, CREDITED IN TOTAL TO A PARTICULAR PARTY, AS OF THE CUT-OFF TIME AS
PROVIDED BELOW:




(a)    Accounts
Receivable; Trade Accounts Payable. Accounts
Receivable and trade accounts payable shall be identified as of the Cut-off
Time. Purchaser is purchasing Accounts Receivable and Seller shall receive a
credit at the Closing for Accounts Receivable as of the Cut-off Time. Seller
shall pay off all trade accounts payable as of the Cut-off Time. Notwithstanding
the introductory sentence of this Section
7.01, revenue
from room rentals (including food and beverage receivables charged to guest room
accounts) shall belong to Seller to the extent attributable to any period prior
to the Closing Date; provided, however, room charges for the night immediately
preceding the Closing Date shall be divided equally between Purchaser and
Seller. Revenue from the Hotel attributable to food and beverages (including
alcoholic beverages) and other sales or services through the close of business
on the night immediately preceding the Closing Date shall belong to Seller (such
revenue to be determined based on completion of the night auditor’s run on the
night of the Cut-Off Time). Thereafter, revenue from the Hotel attributable to
food and beverage and other sales or services shall belong to Purchaser. Each of
Purchaser and Seller shall be responsible for the payment of any sales and/or
hotel/motel occupancy taxes collected or otherwise due and payable in connection
with the revenue allocated to such party under this Section
7.01(a)
..

 







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(b)    Taxes
and Assessments. All ad
valorem taxes, special or general assessments, assessments under any Permitted
Exceptions, personal property taxes, water and sewer rents, rates and charges,
vault charges, canopy permit fees, and other municipal permit fees shall be
prorated as of the Cut-off Time. If the amount of any such item is not
ascertainable on the Closing Date, the credit therefor shall be based on the
most recent available bill and shall be re-prorated upon receipt of the actual
tax bill.




(c)    Utility
Contracts. Telephone
and telex contracts and contracts for the supply of heat, steam, electric power,
gas, lighting, internet access and any other utility service shall be prorated
as of the Cut-off Time, with Seller receiving a credit for each deposit, if any,
made by Seller as security under any such public service contracts if the same
is transferable and provided such deposit remains on deposit for the benefit of
Purchaser. Where possible, readings as of the Cut-off Time will be secured for
all utilities on the Closing Date.




(d)    Hotel
Contracts. Any
amounts prepaid or payable under any Hotel Contracts shall be prorated as of the
Cut-off Time, with Seller receiving a credit for each deposit, if any, made by
Seller as security under any such Hotel Contract if the same is transferable and
provided such deposit remains on deposit for the benefit of Purchaser. Any
percentage rentals under Space Leases shall be prorated on the basis of the
ratio of the number of days expired before Closing to the number of days after
Closing, for the current percentage rent period of the Space Lease. All security
deposits shall be transferred to Purchaser and all obligations with respect to
such security deposits shall be assumed by Purchaser.




(e)    License
Fees. Fees paid
or payable for Permits (other than Excluded Permits) shall be prorated as of the
Cut-off Time.




(f)    Hotel
Matters.
Purchaser shall receive a credit for: (i) advance payments, if any, under
Bookings for Hotel facilities and, (ii) commissions due to credit and referral
organizations. Seller shall receive a credit for coin machine, telephone,
washroom, and checkroom income relating to the period pre-Closing.




(g)    Employment
Contracts.
Proratable Compensation of Employees shall be prorated as of the Cut-off Time.





(h)    Unopened
Consumable Items; Inventory. The cost
of any Unopened Consumables and of any Operating Equipment and Inventory shall
be credited to Seller.




(i)    Other.
Such
other items as are provided for in this Agreement or as are normally prorated
and adjusted in the sale of a hotel shall be prorated as of the Cut-off
Time.

 



7.02
Payment.
Any net
credit due to Seller as a result of the adjustments and prorations under
Section
7.01 shall be
paid to Seller in cash at the time of Closing. Any net credit due to Purchaser
as a result of the adjustments and prorations under Section
7.01 shall be
credited against the Purchase Price at the time of Closing.










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7.03
Cash
and Accounts. At the
Closing, Seller shall transfer to Purchaser all Cash-On-Hand and Seller shall
receive a credit at the Closing for such Cash-On-Hand. All Account Cash is and
shall remain the property of Seller and shall be retained by Seller after the
Closing.

 



7.04
Closing
Statements.




(a)    Preparation.
Each
party shall cause its designated representatives to enter the Hotel only at
reasonable times and without unreasonably interfering with operations, both
before and after the Closing Date, for the purpose of making such inventories,
examinations, and audits of the Hotel, and of the books and records of the
Hotel, as they deem necessary to make the adjustments and prorations required
under this Article
VII, or
under any other provisions of this Agreement. Based upon such inventories,
examinations, and audits, at the Closing, the representatives of the parties
shall jointly prepare and deliver to each party a preliminary closing statement
(the “Preliminary
Closing Statement”) which
shall show the net amount due either to Seller or Purchaser as a result thereof,
and such net amount will be added to, or subtracted from the payment of the
Purchase Price to be paid to Seller pursuant to Section 3.01 hereof.
Within thirty (30) days following the Closing Date, Seller and Purchaser shall
agree on a final closing statement (the “Final
Closing Statement”)
setting forth the final determination of all items to be included on the Closing
Statement. The net amount due Seller or Purchaser, if any, by reason of
adjustments to the Preliminary Closing Statement as shown in the Final Closing
Statement, shall be paid in cash by the party obligated therefor within ten (10)
days following the date of the Final Closing Statement.




(b)    Disputes.
In the
event the representatives of the parties are unable to reach agreement with
respect to preparation of the Preliminary Closing Statement then, except as
hereinafter provided, the disputed amount shall be held in a joint order Escrow,
pending agreement of the parties or the determination of the Accountants and the
Closing shall occur as scheduled. Purchaser shall be required to deposit in the
Escrow any additional sum of the disputed amount which it may be required to
pay. Any such dispute shall survive and be subject to later resolution pursuant
to this Section
7.04. In the
event the representatives of the parties are unable to reach agreement with
respect to either the Preliminary Closing Statement or the Final Closing
Statement, the parties shall submit their dispute to a firm of independent
certified public accountants of recognized standing in the hotel industry, which
if the parties cannot agree shall be the Accountants, and the determination of
such firm shall be conclusive and binding on both parties hereto.




(c)    Period
for Recalculation. Notwithstanding
the foregoing, if at any time within six (6) months following the Closing Date,
either party discovers any items which should have been included in the Final
Closing Statement but were omitted therefrom, then such items shall be adjusted
in the same manner as if their existence had been known at the time of the
preparation of the Final Closing Statement. The foregoing limitations shall not
apply to any items which, by their nature, cannot be finally determined within
the periods specified.










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ARTICLE
VIII




CONDITIONS
TO SELLER’S OBLIGATIONS

 



8.01
Conditions.
Seller’s
obligation to close the transaction contemplated by this Agreement shall be
subject to the occurrence of each of the following conditions, any one or more
of which may be waived by Seller in writing:

 

(a)    Purchaser’s
Compliance with Obligations. Purchaser
shall have complied with all material Obligations required by this Agreement to
be complied with by Purchaser.




(b)    Truth
of Purchaser’s Representations and Warranties. The
representations and warranties of Purchaser contained in this Agreement were
true in all material respects when made, and are true in all material respects
on the Closing Date, and Seller shall have received a certificate to that effect
signed by Purchaser. In the event any of the Purchaser’s representations become
untrue during the term of the Agreement, Seller may terminate this Agreement
without thereby waiving any right or remedy.




(c)    Franchise
Agreement. Except
for any amounts owed from Seller or Manager to Marriott prior to Closing,
Seller, Manager and their respective Affiliates shall be released from all
obligation and liabilities under the Franchise Agreement and any other related
agreements between Seller or Manager and Marriott relating to the Property. The
Franchise Agreement shall be terminated on or before the Closing Date at the
sole cost and expense of Seller.

 



ARTICLE
IX




CONDITIONS
TO PURCHASER’S OBLIGATIONS

 

9.01
Conditions.
Purchaser’s
obligation to close the transaction contemplated by this Agreement shall be
subject to the occurrence of each of the following conditions, any one or more
of which may be waived by Purchaser in writing:

 

(a)    Seller’s
Compliance with Obligations. Seller
shall have complied with all material Obligations required by this Agreement to
be complied with by Seller.




(b)    Truth
of Seller’s Representations and Warranties. The
representations and warranties of Seller contained in this Agreement were true
in all material respects when made, and are true in all material respects on the
Closing Date, and Purchaser shall have received a certificate to that effect
signed by Seller.




(c)    Title
Policy. The
Title Company shall be irrevocably committed to issue to Purchaser the Title
Policy.




(d)    Management
Agreement. The
Management Agreement and any other related agreements with Manager relating to
the Property shall be terminated on or before the Closing Date at the sole cost
and expense of Seller.




(e)    Franchise
Application. Marriott
shall have approved Purchaser's application to be a Courtyard by Marriott
franchisee with respect to the Hotel.










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ARTICLE
X




ACTIONS
AND OPERATIONS PENDING CLOSING

 



10.01
Actions
and Operations Pending Closing. Seller
agrees that at all times prior to the Closing Date:




(a)    Subject
to conditions beyond Seller’s reasonable control, the Hotel will continue to be
operated and maintained substantially in accordance with present
practices.




(b)    From and
after the expiration of the Inspection Period, Seller will not enter into any
new Material Contract or Space Lease, or cancel, modify, or renew any existing
Material Contract that is not cancelable upon thirty (30) days notice, without
the prior written consent of Purchaser, which consent shall not be unreasonably
withheld, conditioned or delayed. If Purchaser fails to respond to a request for
consent within ten (10) days after receipt of such request, such consent shall
be deemed given. 




(c)    Seller
shall have the right, without notice to or consent of Purchaser, to make
Bookings in the ordinary course of business, at no less than the Hotel’s
standard rates including customary discounted rates.




(d)    Seller
shall use commercially reasonable efforts to preserve in force all existing
Permits and to cause all those expiring on or before the Closing Date to be
renewed prior to the Closing Date. If any such Permit shall be suspended or
revoked, Seller shall promptly notify Purchaser and shall take commercially
reasonable measures to cause the reinstatement of such Permit.




(e)    Seller
will maintain in effect all policies of casualty and liability insurance, or
similar policies of insurance, with the same limits of coverage which it now
carries with respect to the Hotel.




(f)    Seller
shall not
remove any furniture, fixtures, furnishings or equipment located, installed or
used in the Hotel as of the date hereof (except Excluded Assets, if applicable)
other than in the ordinary course of business.




(g)    Seller shall
provide copies of any notices received by governmental or quasi-governmental
organizations regarding any violations of Legal Requirements.

 



ARTICLE
XI




CASUALTIES
AND TAKINGS

 

11.01
Casualties.




(a)    If any
damage to the Property shall occur prior to the Closing Date by reason of fire,
windstorm, earthquake, hail, explosion or other casualty, and if the cost of
repairing such damage will equal or exceed One Million Dollars ($1,000,000.00),
Seller will promptly notify Purchaser and Purchaser may then elect to (i)
terminate this Agreement by giving written notice to Seller in which event
neither party shall have any further Obligations or liability whatsoever to the
other hereunder or (ii) receive an assignment of all of Seller’s rights to any
insurance proceeds (excluding business interruption proceeds) relating to such
damage and acquire the Property with an appropriate adjustment in the Purchase
Price equal to the deductible under the applicable insurance policy (to the
extent such deductible is not applied by Seller for repairs prior to
Closing).

 







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(b)    If the
cost of repairing such damage will not exceed One Million Dollars
($1,000,000.00), the transactions contemplated hereby shall close with an
appropriate adjustment in the Purchase Price equal to the deductible under the
applicable insurance policy (to the extent such deductible is not applied by
Seller for repairs prior to Closing) and Purchaser shall receive an assignment
of all of Seller’s rights to any insurance proceeds (excluding business
interruption proceeds).

 



11.02
Takings. If,
prior to the Closing Date, all or any portion of the Real Estate is taken by
eminent domain or by an act of governmental authority, or if an action for such
taking is initiated or threatened, Seller shall promptly give Purchaser written
notice thereof, and the following shall apply:




(a)    If a
material part of a Real Estate is taken, or is to be taken, Purchaser may,
within five (5) days after the giving of Seller’s notice, by written notice to
Seller, elect to terminate this Agreement. In the event that Purchaser shall so
elect, this Agreement shall terminate and neither party hereto shall have any
further Obligations or liability whatsoever to the other hereunder.




(b)     If a
material part of the Real Estate is taken, or is to be taken, but Purchaser does
not elect to terminate this Agreement pursuant to paragraph (a) above, or if an
immaterial part of the Real Estate is taken by an act of governmental authority,
Purchaser shall have no right to terminate this Agreement, and the parties shall
nonetheless proceed to the Closing in accordance with this Agreement, without
any abatement of the Purchase Price or any liability or Obligations on the part
of Seller by reason of such taking, provided, however, that Seller shall, at the
Closing, (i) assign and turn over, and Purchaser shall be entitled to receive
and keep, the net proceeds of any award or other proceeds of such taking which
may have been collected by Seller as a result of such taking, less any portion
thereof applied to the cost of repairs made by Seller prior to the Closing, or
(ii) if no award or other proceeds shall have been collected, deliver to
Purchaser an assignment of Seller’s right to any such award or other proceeds
which may be payable to Seller as a result of such taking, less an amount equal
to the cost of any repairs made by Seller prior to the Closing, which amount
shall be paid to Seller by Purchaser at the Closing. If all or any part of the
payment proceeds are paid to the holder of any mortgage or deed of trust or
reversionary interest in the Real Estate, then, at the Closing, Seller shall
credit such amount against the Purchase Price.




(c)    For the
purposes hereof, a “material
part” shall
be deemed to mean any taking (i) which causes a reduction in the size of any of
the buildings comprising the Real Estate or materially interferes with the
present use and operation of any of the buildings comprising the Real Estate or
(ii) which results in the elimination of any required means of legal ingress
and/or egress from the Real Estate to public roads, with no comparable,
convenient, legal substitute ingress and/or egress being available.










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ARTICLE
XII




EMPLOYEES

 

12.01
Employees.
Purchaser shall not take or omit to take any act the effect of which may cause
Seller or Manager to incur any liability under 29 USC §2101 et seq., the Worker
Adjustment and Retraining Notification Act (“WARN
Act”). 

 



12.02
Indemnity.
Purchaser shall indemnify Seller and its Affiliates and hold each of them
harmless from and against any losses (including, but not limited to, payments
made to Manager) which may be incurred or suffered by any of them (i) under the
WARN Act arising out of, or relating to, any actions taken by Purchaser prior
to, on or after the Closing Date; (ii) in connection with any claim made by any
current Employee by reason of the Purchaser’s failure to continue to employ or
cause the continuation of employment of such Employee on or after the Closing
Date at substantially the same salary or wages (excluding bonus, commission, and
sales incentive programs) and/or on substantially the same terms and conditions
as in effect immediately prior to the Closing Date (including any claim made by
reason of the Employee not receiving benefits under any Employee Benefit Plan or
receiving any particular benefit or level of benefit); (iii) in connection with
any claim made by an Employee for any severance pay or other compensation or
benefit entitlements by reason of any Employee’s termination or deemed
termination of employment as a result of the transactions contemplated hereby;
(iv) by reason of Purchaser’s failure to comply with any of the provisions of
this Article
XII; (v) in
connection with any employment taxes that, pursuant to Section
7.01(g), have
become the obligation of Purchaser to pay; (vi) in connection with any liability
arising out of Purchaser’s employment policies, practices, or procedures; or
(vii) in connection with Purchaser’s violation or noncompliance with any
applicable federal or state employment law, including, without limitation, the
Consolidated Omnibus Budget Reconciliation Act (COBRA), the Health Insurance
Portability and Accountability Act of 1996 (HIPAA), ERISA, the Family and
Medical Leave Act of 1993 (FMLA), the Fair Labor Standards Act (FLSA), and the
Occupational Safety and Health Act (OSHA).




ARTICLE
XIII




NOTICES

 

13.01
Notices.
Except as
otherwise provided in this Agreement, all notices, demands, requests, consents,
approvals, and other communications (each a “Notice”,
collectively “Notices”)
required or permitted to be given under this Agreement, or which are to be given
with respect to this Agreement, shall be in writing and shall be personally
delivered, transmitted by facsimile transmission, or sent by registered or
certified mail, postage prepaid, return receipt requested, or by overnight
express courier, postage prepaid, addressed to the party as designated
below:

 







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If
intended for Seller, to:




Webster
Street Hotel, LLC

c/o New
Castle Hotels

Two
Corporate Drive, Suite 334

Shelton,
Connecticut 06484

Attn:
David J. Buffam

Telephone:
(203) 925-8370 x7013

Fax:
(203) 925-8376

 

with a
copy to:




Ropes
& Gray LLP

One
International Place

Boston,
Massachusetts 02110

Attn:
Claire McGuire, Esq.

Telephone:
(617) 951-7000

Fax:
(617) 951-7050




If
intended for Purchaser, to:




Hersha
Hospitality Limited Partnership

510
Walnut Street, 9th Floor

Philadelphia,
PA 19106

Attn: Jay
H. Shah

Telephone:
(215) 238-1046

Fax:
(215) 238-0157




with a
copy to:




Wolf,
Block, Schorr & Solis

1650 Arch
Street

Philadelphia,
Pennsylvania 19103

Attn:
James Ray, Esq.

Telephone:
(215) 977-2218

Fax:
(215) 405-3818




Notice
mailed by registered or certified mail shall be deemed received by the addressee
three (3) days after mailing thereof. Notice personally delivered shall be
deemed received when delivered. Notice mailed by overnight express courier shall
be deemed received by the addressee on the next Business Day after mailing
thereof. Notice transmitted by facsimile shall be deemed received by the
addressee upon sender’s receipt of confirmation thereof. Either party may at any
time change the address for notice to such party by mailing a Notice as
aforesaid.










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ARTICLE
XIV




ADDITIONAL
COVENANTS

 



14.01
Additional
Covenants. In
addition, the parties agree as follows:




(a)    Liquor
License. Purchaser
and Seller shall use diligent, good faith efforts to effect the transfer of the
existing Liquor License to Purchaser on the Closing Date. Purchaser agrees to
pay all fees, charges, and related costs in connection with the transfer of the
existing Liquor License. Within ten (10) days following the date of this
Agreement, Purchaser shall complete, execute and file with the applicable liquor
licensing authority all necessary applications for transfer of the Liquor
License. Purchaser specifically acknowledges and agrees that the transfer of the
Liquor License to Purchaser on the Closing Date shall not be a condition to
Purchaser’s obligation to close the transaction contemplated under this
Agreement. 




(b)    Brokerage.
Purchaser and Seller warrant and represent to each other that they have not had
any dealings with any broker, agent, or finder relating to the sale of the
Property or the transactions contemplated hereby other than Pinnacle Realty
Investments (the "Broker”) which
is the Seller’s exclusive representative. Each Party agrees to indemnify and
hold the other and its Indemnitees harmless against and from any and all
Liabilities incurred by the other party arising out of or resulting from any
claim for brokerage commissions, compensation or fees by any broker, agent, or
finder other than the Broker, who Seller is compensating under a separate
agreement in connection with the sale of the Property or the transactions
contemplated hereby resulting from the acts of the indemnifying party. The
provisions of this Section
14.01(b) shall
survive Closing or any termination of this Agreement.




(c)    Guest
Baggage. All
baggage of guests who are still in the Hotel on the Closing Date, which has been
checked with or left in the care of Seller shall be inventoried, sealed, and
tagged jointly by Seller and Purchaser on the Closing Date. Purchaser hereby
indemnifies Seller and its Indemnitees against any Liabilities in connection
with such baggage arising out of the acts of omissions of Purchaser or its
Affiliates (or any of their employees or agents) after the Closing Date. Seller
hereby indemnifies Purchaser and its Indemnitees against any Liabilities in
connection with such baggage arising out of the acts or omissions of Seller or
its Affiliates (or any of their employees or agents) prior to the Closing
Date.




(d)    Safe
Deposits. Immediately
after the Closing, Seller shall send written notice to guests or tenants or
other persons who have safe deposit boxes, if any, advising of the sale of the
Hotel to Purchaser and requesting immediate removal of the contents thereof or
the removal thereof and concurrent re-deposit of such contents pursuant to new
safe deposit agreements with Purchaser. Seller shall have a representative
present when the boxes are opened, in the presence of a representative of the
Purchaser. Any property contained in the safe deposit boxes after such
re-deposit shall be the responsibility of Purchaser, and Purchaser agrees to
indemnify and hold harmless Seller and its Indemnitees from and against any
Liabilities arising out of or with respect to such property.




(e)    Tax
Appeal Proceedings. Seller
shall be entitled to receive and retain the proceeds from any tax appeals or
protests for tax fiscal years prior to the tax fiscal year in which the Closing
Date occurs. In the event an application to reduce real estate taxes is filed
for the period during which Seller was the owner of the Real Property, Seller
shall be entitled to a re-proration of real estate taxes upon receipt of and
based upon the reduction. Seller shall continue to process any pending appeals
or protests with respect to the tax fiscal year in which the Closing Date
occurs, and the net proceeds from any such proceedings, after payment of
attorneys’ fees and other costs associated with such process, will be prorated
between the parties, when received, as of the Closing Date.

 







- 29
-












 

(f)    Books
and Records. The
transaction contemplated hereby includes all the books and records of Seller
pertaining to the business of the Hotel. Purchaser covenants and agrees that
such books and records will remain in the Hotel for examination and audit by
Seller and its agents after the Closing as provided in this Section 14.01(g). Books
and records not pertaining to the business of the Hotel may be removed by Seller
within a reasonable time after the Closing Date. Purchaser agrees to preserve
all books and records, files and correspondence, for at least five (5) years
after the Closing Date, and not to destroy or dispose of the same, for at least
five (5) years after the Closing Date. Purchaser agrees to provide access to
Seller and its representatives, to such books, records, files and correspondence
at all reasonable times.




(g)    Survival.
Subject
to Section 5.03, the
representations, warranties, obligations, covenants, agreements, undertakings,
and indemnifications of Seller and Purchaser contained in this Agreement and in
any closing documents delivered in connection with this Agreement, which are
intended and anticipated to survive Closing, shall survive the
Closing.




(h)    Construction.
This
Agreement shall not be construed more strictly against one party than against
the other, merely by virtue of the fact that it may have been prepared primarily
by counsel for one of the parties, it being recognized that both Purchaser and
Seller have contributed substantially and materially to the preparation of this
Agreement.




(i)    Publicity.
All
notice to third parties and all other publicity concerning the transactions
contemplated by this Agreement shall be jointly planned and coordinated by and
between Purchaser and Seller. Neither party shall act unilaterally in this
regard without the prior written approval of the other; however, this approval
shall not be unreasonably withheld or delayed.




(j)    Assignment.
Neither
all nor any portion of Purchaser’s interest under this Agreement may be sold,
assigned, encumbered, conveyed, or otherwise transferred, whether directly or
indirectly, voluntarily or involuntarily, or by operation of law or otherwise
including, without limitation, by a transfer of interest in Purchaser
(collectively, a “Transfer”),
without the prior written
consent of Seller, which consent may be granted or denied in Seller’s sole and
absolute discretion. Any attempted Transfer without Seller’s consent shall be
null and void. Any request by Purchaser for Seller’s consent to a Transfer shall
set forth in writing the details of the proposed Transfer, including, without
limitation, the name, ownership, and financial condition of the prospective
transferee and the financial details of the proposed Transfer. Notwithstanding
the foregoing, Purchaser, upon prior written notice to Seller given not less
than seven (7) business days prior to the Closing (which time period is agreed
to be material and is required to permit Seller properly to prepare, execute and
deliver the items required to be delivered by it pursuant to this Agreement)
which notice specifies the exact legal name, address and any other information
necessary for the preparation of the closing documents to be delivered under
this Agreement, may assign its rights and delegate is duties under this
Agreement to an entity which is owned or controlled, directly or indirectly, by
Purchaser for the purposes of closing on the transaction provided (i) only one
such assignment shall be made; (ii) such assignment shall not delay the Closing;
(iii) such assignment shall not require Seller to obtain any additional or
revised third party consents, certificates or approvals; and (iv) the assignee
shall have a net worth reasonably acceptable to Seller, or Purchaser shall
guaranty the obligations of such assignee under this Agreement and the documents
executed and delivered at Closing. In the event Purchaser so assigns and
delegates its rights and duties under this Agreement, it shall deliver to Seller
at or prior to Closing an instrument of assignment and assumption evidencing
such assignment and delegation. In addition, Purchaser shall provide Seller with
copies of all Transfer documentation, certified by Purchaser to be true,
correct, and complete, and with all other information which Seller may
reasonably request. No transfer, whether with or without Seller’s consent: (i)
shall operate to release Purchaser or alter Purchaser’s primary liability to
perform the obligations of Purchaser under this Agreement or (ii) shall cause
Seller to incur any cost or other economic detriment in connection with such
Transfer. Purchaser shall pay any and all additional costs and expenses
(including, without limitation, reasonable attorneys’ fees, charges, and
disbursements) incurred by Seller that would not otherwise have been incurred by
Seller had Purchaser not caused a Transfer.

 







- 30
-












 

(k)    Estoppel
Certificate for Ground Lease. Seller
agrees to use commercially reasonable efforts to obtain an estoppel certificate
from the landlord under the Ground Lease. It is understood that the failure to
provide an estoppel certificate with respect to the Ground Lease is not a
condition precedent to the Closing and shall not entitle Purchaser to terminate
this Agreement or defer the Closing Date or seek any other remedy.




(l)    General.
Time is
of the essence in the performance of the respective Obligations of Seller and
Purchaser. This Agreement may be executed in any number of counterparts, each of
which shall constitute an original but all of which, taken together, shall
constitute but one and the same instrument. This Agreement (including all
exhibits) contains the entire agreement between the parties with respect to the
subject matter hereof, supersedes all prior letters of intent, understandings,
or other agreement, whether written or oral, if any, with respect thereto and
may not be amended, supplemented, or terminated, nor shall any Obligation
hereunder or condition hereof be deemed waived, except by a written instrument
to such effect signed by the party to be charged. This Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts. The warranties, representations, agreements, and undertakings
contained herein shall not be deemed to have been made for the benefit of any
person or entity, other than the parties hereto and their permitted successors
and assigns. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective permitted successors and
assigns.










- 31
-












 

ARTICLE
XV




DEFAULTS
AND REMEDIES

 



15.01
Seller’s
Remedies. IF
PURCHASER FAILS TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT FOR ANY REASON
EXCEPT SELLER DEFAULT, SELLER SHALL BE ENTITLED AS ITS SOLE REMEDY TO TERMINATE
THIS AGREEMENT AND RECOVER THE EARNEST MONEY AS LIQUIDATED DAMAGES AND NOT AS A
PENALTY, IN FULL SATISFACTION OF ANY CLAIMS AGAINST PURCHASER; PROVIDED,
HOWEVER, THAT THIS PROVISION SHALL NOT LIMIT SELLER’S RIGHTS TO RECEIVE
REIMBURSEMENT FOR COSTS, FEES AND EXPENSES (INCLUDING, WITHOUT LIMITATION,
ATTORNEYS’ FEES AND COSTS) PURSUANT TO SECTION
15.04, BELOW,
IN ADDITION TO THE EARNEST MONEY IN THE EVENT OF A DISPUTE REGARDING THE
DISPOSITION OF THE EARNEST MONEY, NOR SHALL THIS PROVISION BE DEEMED TO WAIVE OR
AFFECT SELLER’S RIGHTS AND PURCHASER’S INDEMNITY OBLIGATIONS UNDER OTHER
SECTIONS OF THIS AGREEMENT. SELLER AND PURCHASER AGREE THAT THE SELLER’S DAMAGES
RESULTING FROM PURCHASER’S DEFAULT ARE DIFFICULT TO DETERMINE AND THE AMOUNT OF
THE EARNEST MONEY IS A FAIR ESTIMATE OF THOSE DAMAGES. 

 



15.02
Purchaser’s
Remedies. If
Seller fails to perform its obligations under this Agreement for any reason
except the failure of any condition precedent to Seller’s obligations under this
Agreement, then Purchaser’s sole remedies shall be: (a) to terminate this
Agreement by giving Seller written notice of such election prior to or at
Closing whereupon (i) the Escrow Company shall promptly return to Purchaser the
Earnest Money (except for the $100,000 paid to Seller at the signing of this
Agreement pursuant to Section
3.01(a)) and the
Additional Earnest Money (if any), and (ii) Purchaser shall be entitled to all
out-of-pocket costs incurred by Purchaser in connection with this transaction in
an amount not to exceed One Hundred Thousand Dollars ($100,000.00); (b) to waive
the default and close; or (c) to seek specific performance of this Agreement
against Seller.

 



15.03
Confidentiality. Unless
the other party specifically and expressly otherwise agrees in writing, each
party hereby agrees that all information regarding the Property or this
transaction, of whatsoever nature made available to it (“Proprietary
Information”) is
confidential and shall not be disclosed to any other person except those
reasonably assisting said party with the transaction, or Purchaser’s lender, if
any (and then only upon Purchaser making such person aware of the
confidentiality restriction and procuring such person’s agreement to be bound
thereby). In the event that the transaction contemplated by this Agreement fails
to close for any reason whatsoever, Purchaser agrees to return to Seller, or
cause to be returned to Seller, all Proprietary Information and Purchaser agrees
not to retain any copy of the Proprietary Information and to instruct all
persons and entities that have received a copy or copies of the Proprietary
Information to immediately destroy the Proprietary Information. Further,
Purchaser agrees not to use or allow to be used any Proprietary Information for
any purpose other than to determine whether to proceed with the transaction
contemplated by this Agreement, or if the same is consummated, in connection
with the operation of the Property post-Closing. Notwithstanding any other
provision of this Agreement, the provisions of this Section
15.03 shall
survive the Closing or the termination of this Agreement.










- 32
-












 

15.04
Attorneys’
Fees.  If any
action or proceeding is commenced by either party to enforce their rights under
this Agreement or to collect damages as a result of the breach of any of the
provisions of this Agreement, the prevailing party in such action or proceeding,
including any bankruptcy, insolvency or appellate proceedings, shall be entitled
to recover all reasonable costs and expenses, including, without limitation,
reasonable attorneys’ fees and court costs, in addition to any other relief
awarded by the court.

 



15.05
No
Reservation of Property. The
preparation and/or delivery of unsigned drafts of this Agreement shall not
create any legally binding rights in the Property and/or obligations of the
parties, and Purchaser and Seller acknowledge that this Agreement shall be of no
effect until it is duly executed by both Purchaser and Seller.




[The
signature page follows]


 








- 33
-













 

IN
WITNESS WHEREOF, the
parties hereto have executed or caused this Agreement to be executed, all as of
the day and year first above written.

 

                SELLER:




WEBSTER
STREET HOTEL, LLC,

a
Delaware limited liability company








	 	
      By:
	
      New
      Castle/ Brookline Hotel, LLC, 




a
Delaware limited liability company, 

its sole
manager








	 	
      By:
	
      Brookline
      Hotel Equity, LLC, 



	 	 	a Delaware limited liability company,


	 	 	its sole manager

                            





	 	
      By:
	
      _____________________________










                PURCHASER:




HERSHA
HOSPITALITY LIMITED PARTNERSHIP,

a
Virginia limited partnership





	 	
      By:
	
      
      _____________________________





 

 

Signature
Page to P&S


 





















 

EXHIBIT
“A”




LAND




[ATTACHED]


























 

EXHIBIT
"B"




EXCLUDED
ASSETS




Certain
computer programs, operating manuals and materials and other personal property
used in the operation and management of the Hotel consisting of:

 



	 	
      1.
	
      New
      Castle Hotels' Profitsage reporting System;





	 	
      2.
	
      NICE
      Sales Tracking System;





	 	
      3.
	
      Sales
      Report Program;





	 	
      4.
	
      Accounting,
      F&B, Sales, Human Resources, General Managers, and Engineering SOP
      manuals;





	 	
      5.
	
      Employee
      files and all other employee and employee benefit and payroll related
      materials;





	 	
      6.
	
      Insurance
      related files and materials;





	 	
      7.
	
      OSHA
      Logs;





	 	
      8.
	
      Legal
      files;





	 	
      9.
	
      New
      Castle Hotels' Forms; and 





	 	
      10.
	
      Items
      bearing the logo of New Castle Hotels or its
  subsidiaries.




 

























 

EXHIBIT
“C”




PERMITTED
EXCEPTIONS







[ATTACHED]


 






















 

EXHIBIT
“D”




PENDING
OR THREATENED LITIGATION




1.    The
Hotel is a defendant in a Massachusetts state court action on a mechanics lien
claim arising out of the payment dispute between Suffolk Construction Company
("Suffolk"), the general contractor for construction of the Hotel, and Ostrow
Electrical Company, the electrical subcontractor. The case is captioned
Ostrow
Electrical Co. v. Suffolk Construction Company, Inc., et al., Civil
Docket No: 04-0536, Norfolk County Superior Court. Suffolk has confirmed in
writing that it will defend, indemnify and hold harmless, at its expense, the
Hotel. The Hotel and the other defendants have filed answers to the complaint,
but other activity in the case has been suspended by agreement of the parties
pending settlement discussions. Thus far, those discussions have resulted in
payment by Suffolk and a reduction of the plaintiff's claim from $677,052.26 to
approximately $415,000.00 plus interest and costs. 




2.    September
8, 2004 Notice of Contract in favor of G. Conway, Inc. for $103,629.56 bonded
off on January 26, 2005 by Suffolk. Suffolk has agreed to indemnify Seller with
respect to this matter.




3.    Subsequent
to completion of construction, a water infiltration problem was noted on the
third (lowest) level of parking ("P-3"). Investigation with the assistance of
Simpson Gumphertz & Heger ("SGH"), consulting engineers, revealed that the
P-3 parking slab and waterproofing were not installed in accordance with
construction and contract documents. Suffolk has acknowledged the problem and
has accepted responsibility for correction. Suffolk has been working
cooperatively with Seller and SGH to examine alternative solutions. Both the
responsibility and work product to date will be assigned to Purchaser in order
that the corrective action can be implemented at a time most appropriate to
minimize disruption to hotel operations.






















EXHIBIT
“E”




NOTICES
OF VIOLATION




None

 























EXHIBIT
“F”







Page 1 of
_




Record
and Return to:

 

ASSIGNMENT
AND ASSUMPTION OF GROUND LEASE AND IMPROVEMENTS




This
Assignment and Assumption of Ground Lease and Improvements (this “Agreement”) is
made as of _________________, 2005 by and between
___________________, a
________________ (“Assignor”),
having a business address ___________________________, and
______________________________, a
__________________________(“Assignee”),
having an address
_________________________________________________________.







W I T N E S S E T H:

 

LOCUS:




WHEREAS,
by Ground Lease dated __________ (the “Ground
Lease”),
notice of which has been filed with the _______________________ (the
“Registry”) in
Book ___ at Page ____, ______________________ (the “Landlord”) leased
to _____________ (the “Tenant”)
certain
real property located at ______________________ (the “Real
Property”), which
is more particularly described in Exhibit
A attached
hereto;




WHEREAS,
Assignor holds title to the Improvements located on the Real
Property;




WHEREAS,
Assignor and Assignee are parties to a certain Sale and Purchase Agreement dated
as of ______________, 2005 (the “P&S”) with
respect to, inter alia, the
sale and purchase of Assignor’s interest in the Ground Lease and the
Improvements;




WHEREAS,
under the P&S, Assignor agreed to sell all of its right, title, and interest
in and to the Ground Lease and the Improvements to Assignee, and Assignee agreed
to assume prospectively all of Assignor’s obligations and liabilities under the
Ground Lease and with respect to the Improvements; and




WHEREAS,
all capitalized terms used herein but not defined herein shall have the meanings
given them in the P&S;




NOW
THEREFORE, for Ten Dollars ($10.00) and other good and valuable consideration,
the mutual receipt and legal sufficiency of which are hereby acknowledged,
Assignor and Assignee agree as follows:




1.    Assignment
to Assignee.
Effective as of the date hereof, Assignor assigns, transfers, sells, grants,
conveys, and sets over unto Assignee all of Assignor’s right, title, and
interest in, to, and under the Ground Lease and the Improvements, subject in
each case to the Permitted Encumbrances, to have and to hold the same unto
Assignee, its successors and assigns, subject to the terms, covenants, and
conditions contained in the Ground Lease. Assignor shall remain liable for all
of Assignor’s obligations under the Ground Lease that have accrued prior to the
date hereof, other than those with respect to which Assignor is released or
otherwise held harmless under the P&S. 

 





















2.    Assumption
by Assignee.
Assignee accepts the assignment, transfer, sale, grant and conveyance of the
Ground Lease and the Improvements from Assignor and assumes and agrees to
observe and perform all of the obligations, terms, covenants, and conditions of
the Ground Lease accruing on or after the date hereof, that are to be observed
or performed by Assignor thereunder. This covenant of assumption is intended to
satisfy the requirements of Section Seventeen D of the Ground Lease.





3.    Indemnity.





(a)    Assignor
shall indemnify, defend and hold Assignee and its Indemnitees harmless against
all claims, suits, obligations, liabilities, damages, losses, costs, and
expenses, including without limitation, reasonable attorneys’ fees and
disbursements, based upon, arising out of, or resulting from Assignor’s breach
of the terms and provisions of the Ground Lease occurring prior to the Closing
Date.




(b)    Assignee
shall indemnify and hold Assignor and its Indemnitees harmless against all
claims, suits, obligations, liabilities, damages, losses, costs, and expenses,
including, without limitation, reasonable attorneys’ fees and disbursements,
based upon, arising out of, or resulting from Assignee’s breach of the terms and
provisions of the Ground Lease occurring on or after the Closing
Date.




4.    Disclaimer.
Assignee
acknowledges that Assignor has not made and does not make any representations or
warranties of any kind whatsoever, oral or written, express or implied, with
respect to any of the Ground Lease and the Improvements. In addition, and
notwithstanding anything contained in this Assignment to the contrary, this
Assignment is subject to all disclaimers and qualifications by Assignor and all
encumbrances set forth in the P&S with respect to the Ground Lease and the
Improvements, including, without limitation, those set forth in Section
2.02, and all
such disclaimers, qualifications, and encumbrances are hereby incorporated into
this Agreement by reference and made a part of this Assignment.




5.    Miscellaneous. This
Agreement shall be binding upon and enforceable against, and shall inure to the
benefit of, Assignor and Assignee and their respective successors and assigns.
This Agreement shall be governed by, construed under, and interpreted and
enforced in accordance with, the laws of The Commonwealth of Massachusetts. This
Agreement may be executed in several counterparts, each of which will be deemed
an original, and all of such counterparts together shall constitute one and the
same instrument. 






















IN
WITNESS WHEREOF, the parties hereto have executed this Agreement, as a sealed
instrument, as of the date first above written.







ASSIGNOR




________________________







By:_____________________

Name:

Title:







ASSIGNEE




________________________







By:_____________________

Name:

Title:


 























COMMONWEALTH
OF MASSACHUSETTS




_________________,
ss.




On this
___ day of __________, 2005, before me, the undersigned notary public,
personally appeared _________________, who proved to me through satisfactory
evidence of identification, which was __________________________, to be the
person whose name is signed on the preceding or attached document, and he
acknowledged to me that he signed it as _____________ of __________________,
voluntarily for its stated purpose.








	
      ______________________________

	
      Notary
      Public

	
      My
      commission expires on:

	
      [AFFIX/IMPRINT
      NOTARIAL SEAL]
















COMMONWEALTH
OF MASSACHUSETTS




_________________,
ss.




On this
___ day of __________, 2005, before me, the undersigned notary public,
personally appeared _________________, who proved to me through satisfactory
evidence of identification, which was __________________________, to be the
person whose name is signed on the preceding or attached document, and he
acknowledged to me that he signed it as _____________ of __________________,
voluntarily for its stated purpose.








	
      ______________________________

	
      Notary
      Public

	
      My
      commission expires on:

	
      [AFFIX/IMPRINT
      NOTARIAL SEAL]




 






















 

Exhibit
A 

to

Exhibit
"F"




Legal
Description 





















EXHIBIT
“G”





BILL
OF SALE




THIS BILL
OF SALE (“Bill of Sale”) is made as of ____________, 2005 by and between
_______________, a ________________ (“Seller”), and ________________________, a
____________________ (“Purchaser”). 




W I T N E S S E T H:




WHEREAS,
Assignor and Assignee are parties to a certain Sale and Purchase Agreement dated
as of ______________, 2005 (the “P&S”) with
respect to, inter alia, the
sale and purchase of Assignor’s interest in the Fixtures
and Tangible Personal Property, Documents, Consumables, Inventory, and Operating
Equipment, not including Excluded Assets and subject in each case to the
Permitted Exceptions (the "Personal Property");




WHEREAS,
under the P&S, Assignor agreed to sell all of its right, title, and interest
in and to the Personal
Property to
Assignee; and




WHEREAS,
all capitalized terms used herein but not defined herein shall have the meanings
given them in the P&S;




NOW
THEREFORE, for Ten Dollars ($10.00) and other good and valuable consideration,
the mutual receipt and legal sufficiency of which are hereby acknowledged,
Seller and Purchaser agree as follows:







1.    Sale
to Assignee. Seller
does hereby sell, assign, transfer, grant, convey and set over unto Purchaser
all of its right, title, and interest in, to, and under the Personal Property to
have and to hold the same unto Purchaser, its legal representatives, successors
and assigns, forever. 




2.    Disclaimer. Seller
makes no warranty (express or implied) as to the condition of the Personal
Property or its merchantability or fitness for a particular purpose. In
addition, and notwithstanding anything contained in this Bill of Sale to the
contrary, this Bill of Sale is subject to all disclaimers and qualifications by
Seller and all encumbrances set forth in the P&S with respect to said
Personal Property, including, without limitation, those set forth in
Section
2.02, and all
such disclaimers, qualifications, and encumbrances are hereby incorporated in
this Bill of Sale by reference and made a part of this Bill of Sale. By its
acceptance of this Bill of Sale, Purchaser acknowledges that it has fully
inspected the Personal Property and accepts the same in its present use and
"AS-IS" condition.




3.    Miscellaneous. This
Bill of Sale shall be binding upon and enforceable against, and shall inure to
the benefit of, Seller and Purchaser and their respective successors and
assigns. This Bill of Sale shall be governed by, construed under, and
interpreted and enforced in accordance with, the laws of The Commonwealth of
Massachusetts. This Bill of Sale may be executed in several counterparts, each
of which will be deemed an original, and all of such counterparts together shall
constitute one and the same instrument.







[Signature
Page Follows]

 




















 

IN
WITNESS WHEREOF, Seller has executed this Bill of Sale, as a sealed instrument,
as of the date first above written.








	
      SELLER:
      

	 
	
       

	 
	
      By:
	
       











	
      ACCEPTED:

	 
	
      PURCHASER:

	 
	
      By:
	
       




 























EXHIBIT
“H”




ASSIGNMENT
AND ASSUMPTION OF HOTEL CONTRACTS,

BOOKINGS,
PERMITS AND MISCELLANEOUS HOTEL ASSETS

 

This
Assignment and Assumption of Hotel Contracts, Bookings, Permits and
Miscellaneous Hotel Assets (this "Agreement") is made as of _______________,
2005 by and between __________________________, a ____________________
(“Assignor”) and __________________________, a ____________________
(“Assignee”).




W I T N E S S E T H:




WHEREAS,
Assignor and Assignee are parties to a certain Sale and Purchase Agreement dated
as of ______________, 2005 (the “P&S”) with
respect to, inter alia, the
sale and purchase of Assignor’s interest in the Hotel
Contracts, Bookings, Permits (except Excluded Permits) and Miscellaneous Hotel
Assets (collectively,
the "Assigned Assets");




WHEREAS,
under the P&S, Assignor agreed to sell all of its right, title, and interest
in and to the Assigned Assets to Assignee, and Assignee agreed to assume
prospectively all of Assignor’s obligations and liabilities with respect to the
Assigned Assets;
and




WHEREAS,
all capitalized terms used herein but not defined herein shall have the meanings
given them in the P&S;




NOW
THEREFORE, for Ten Dollars ($10.00) and other good and valuable consideration,
the mutual receipt and legal sufficiency of which are hereby acknowledged,
Assignor and Assignee agree as follows:




1.    Assignment
to Assignee.
Effective as of the date hereof, Assignor does hereby sell, assign, transfer,
grant, convey and set over unto Assignee all of its right, title, and interest
in, to, and under the Assigned Assets to have and to hold the same unto
Assignee, its legal representatives, successors and assigns,
forever.




2.    Assumption
by Assignee.
Assignee does hereby accept the sale, assignment, transfer, grant and conveyance
of the Assigned Assets and hereby assumes and agrees to observe and perform all
of the obligations, terms, covenants and conditions of the Assigned Assets
accruing after the date hereof. 




3.    Indemnity.





(b)    Assignor
shall indemnify, defend and hold Assignee and its Indemnitees harmless against
all claims, suits, obligations, liabilities, damages, losses, costs, and
expenses, including without limitation, reasonable attorneys’ fees and
disbursements, based upon, arising out of, or resulting from Assignor’s breach
of the terms and provisions of the Assigned Assets occurring prior to the
Closing Date.























 

(b)    Assignee
shall indemnify and hold Assignor and its Indemnitees harmless against all
claims, suits, obligations, liabilities, damages, losses, costs, and expenses,
including, without limitation, reasonable attorneys’ fees and disbursements,
based upon, arising out of, or resulting from Assignee’s breach of the terms and
provisions of the Assigned Assets occurring on or after the Closing
Date.




4.    Disclaimer.
Assignee
acknowledges that Assignor has not made and does not make any representations or
warranties of any kind whatsoever, oral or written, express or implied, with
respect to any of the Assigned Assets. In addition, and notwithstanding anything
contained in this Assignment to the contrary, this Assignment is subject to all
disclaimers and qualifications by Assignor and all encumbrances set forth in the
P&S with respect to the Assigned Assets, including, without limitation,
those set forth in Section
2.02, and all
such disclaimers, qualifications, and encumbrances are hereby incorporated into
this Agreement by reference and made a part of this Assignment.




5.    Miscellaneous. This
Agreement shall be binding upon and enforceable against, and shall inure to the
benefit of, Assignor and Assignee and their respective successors and assigns.
This Agreement shall be governed by, construed under, and interpreted and
enforced in accordance with, the laws of The Commonwealth of Massachusetts. This
Agreement may be executed in several counterparts, each of which will be deemed
an original, and all of such counterparts together shall constitute one and the
same instrument. 







[Signature
Page Follows]

 




















 

IN
WITNESS WHEREOF, the parties hereto have executed this Agreement, as a sealed
instrument, as of the date first above written.

 


ASSIGNOR




________________________







By:_____________________

Name:

Title:







ASSIGNEE




________________________







By:_____________________

Name:

Title:

 
























EXHIBIT
“I”







CERTIFICATION
OF NON-FOREIGN STATUS







Section
1445 of the Internal Revenue Code provides that a transferee of a United States
real property interest must withhold the tax if the transferor is a foreign
person. To inform the transferee, __________________ (“Transferee”) that
withholding of tax is not required upon the disposition of a United States real
property interest by ________________ (“Transferor”) and with the knowledge that
the Transferee will rely upon the following statements, the undersigned hereby
certifies the following on behalf of Transferor:




1.    Transferor is
not a foreign corporation, foreign partnership, foreign trust, foreign estate,
or foreign person (as those terms are defined in the Internal Revenue Code and
Income Tax Regulations);




2.    Transferor’s
United States employer identification number/social security number is
___-______________; and




3.    Transferor’s
office address is _________________________________________.




Transferor
understands that this certification may be disclosed to the Internal Revenue
Service by Transferee and that any false statement contained herein could be
punished by fine, imprisonment, or both.




Under
penalties of perjury, I declare that I have examined this Certification and to
the best of my knowledge and belief it is true, correct and complete, and I
further declare that I have authority to sign this document on behalf of
Transferor.




Dated:
________, 2005




 

TRANSFEROR: