**EXHIBIT 10.6**  AGREEMENT OF PURCHASE AND SALEbetweenLEPERCQ ATLANTA RENAISSANCE PARTNERS, L.P., the SELLERandINTERSTATE ATLANTA AIRPORT, LLC, the BUYERDated as of May 4, 2007The Westin Atlanta Airport, City of College Park, Georgia  
 

 
**TABLE OF CONTENTS**       **Page** ARTICLE I. DEFINITIONS  1 SECTION 1.1 Defined Terms  1      ARTICLE II. SALE, PURCHASE PRICE AND CLOSING  7 SECTION 2.1 Sale of Asset  7 SECTION 2.2 Purchase Price  10 SECTION 2.3 Earnest Money  11 SECTION 2.4 The Closing  11      ARTICLE III. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER  12 SECTION 3.1 General Seller Representations and Warranties  12 SECTION 3.2 Representations and Warranties of the Seller as to the Asset  14 SECTION 3.3 Limitations on Representations and Warranties of the Seller  15 SECTION 3.4 Covenants of the Seller Prior to Closing  15 SECTION 3.5 Amendment to Schedules  17      ARTICLE IV. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BUYER  17 SECTION 4.1 Representations and Warranties of the Buyer  17 SECTION 4.2 Covenants of the Buyer Prior to Closing  19 SECTION 4.3 Employee Matters  20 SECTION 4.4 Bookings  21 SECTION 4.5 Franchise Agreement  21 SECTION 4.6 Manager Defaults  22 SECTION 4.7 Tax Clearance Certificates  22      ARTICLE V. CONDITIONS PRECEDENT TO CLOSING  23 SECTION 5.1 Conditions Precedent to the Seller’s Obligations  23 SECTION 5.2 Conditions to the Buyer’s Obligations  24 SECTION 5.3 Waiver of Conditions Precedent  24      ARTICLE VI. CLOSING DELIVERIES  24 SECTION 6.1 The Buyer Closing Deliveries  24 SECTION 6.2 The Seller Closing Deliveries  25      ARTICLE VII. INSPECTIONS; RELEASE  27 SECTION 7.1 Right of Inspection  27 SECTION 7.2 Examination; No Contingencies  28 SECTION 7.3 RELEASE  30      ARTICLE VIII. TITLE AND PERMITTED EXCEPTIONS  31 SECTION 8.1 Title Insurance and Survey  31 SECTION 8.2 Title Commitment; Survey  31 SECTION 8.3 Delivery of Title  32 SECTION 8.4 Cooperation  33 
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       **Page**      ARTICLE IX. TRANSACTION COSTS; RISK OF LOSS  33 SECTION 9.1 Transaction Costs  33 SECTION 9.2 Risk of Loss  33      ARTICLE X. ADJUSTMENTS  34 SECTION 10.1 Adjustments  34 SECTION 10.2 Re-Adjustment  38 SECTION 10.3 Accounts Receivable  38      ARTICLE XI. INDEMNIFICATION  39 SECTION 11.1 Indemnification by the Seller  39 SECTION 11.2 Indemnification by the Buyer  39 SECTION 11.3 Limitations on Indemnification  40 SECTION 11.4 Survival  40 SECTION 11.5 Indemnification as Sole Remedy  40      ARTICLE XII. DEFAULT AND TERMINATION  41 SECTION 12.1 The Seller’s Termination  41 SECTION 12.2 The Buyer’s Termination  42      ARTICLE XIII. TAX CERTIORARI PROCEEDINGS  42 SECTION 13.1 Prosecution and Settlement of Proceedings  42 SECTION 13.2 Application of Refunds or Savings  43 SECTION 13.3 Survival  43      ARTICLE XIV. MISCELLANEOUS  43 SECTION 14.1 Use of Blackstone Name and Address  43 SECTION 14.2 Exculpation of the Seller  43 SECTION 14.3 Brokers  43 SECTION 14.4 Confidentiality; Press Release; IRS Reporting Requirements  44 SECTION 14.5 Escrow Provisions  45 SECTION 14.6 Successors and Assigns; No Third-Party Beneficiaries  45 SECTION 14.7 Assignment  46 SECTION 14.8 Further Assurances  46 SECTION 14.9 Notices  46 SECTION 14.10 Entire Agreement  48 SECTION 14.11 Amendments  48 SECTION 14.12 No Waiver  48 SECTION 14.13 Governing Law  48 SECTION 14.14 Intentionally Omitted  48 SECTION 14.15 Severability  48 SECTION 14.16 Section Headings  48 SECTION 14.17 Counterparts  48 SECTION 14.18 Acceptance of Deed  48 SECTION 14.19 Construction  48 SECTION 14.20 Recordation  49 SECTION 14.21 WAIVER OF JURY TRIAL  49 SECTION 14.22 Time is of the Essence  49 SECTION 14.23 Bulk Sale; Occasional Sale  49 
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Schedules     Schedule A — LandSchedule 1.1 — Title CommitmentSchedule 3.1(c) — ConsentsSchedule 3.2(a) — Operating AgreementsSchedule 3.2(c) — Tenant LeasesSchedule 3.2(d) — Brokerage CommissionsSchedule 3.2(f) — LitigationSchedule 3.2(g) — BookingsExhibits     Exhibit A — Form of Assignment of LeasesExhibit B — Form of Assignment of ContractsExhibit C — Form of Limited Warranty DeedExhibit D — Form of Bill of SaleExhibit E — Form of Assignment of IntangiblesExhibit F — Form of FIRPTA CertificateExhibit G — Forms of Title AffidavitsExhibit H — Form of AffidavitExhibit I — Form of Broker’s Lien WaiverExhibit J — Form of Buyer’s Update Certificate of RepresentationsExhibit K — Form of Seller’s Update Certificate of RepresentationsExhibit L — Form of Quitclaim Deed
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AGREEMENT OF PURCHASE AND SALE     AGREEMENT OF PURCHASE AND SALE (this “Agreement”), made as of the 4th day of May, 2007between LEPERCQ ATLANTA RENAISSANCE PARTNERS, L.P., a Delaware limited partnership (the“Seller”), and INTERSTATE ATLANTA AIRPORT, LLC, a Delaware limited liability company (the“Buyer”).Background     A. The Seller is the owner of the land more particularly described in Schedule Aattached hereto (the “Land”). The Seller is also the owner of the hotel facility locatedon the Land having an address at 4736 Best Road, Atlanta, Georgia 30337, and commonly known as the“Westin Atlanta Airport” (the “Hotel”). The Land and the Hotel (including withoutlimitation Seller’s interest in all improvements and structures constituting real property locatedon, over or under the Land) shall be referred to herein, collectively, as the “Property”;the Property and the Asset-Related Property (as defined below) shall be referred to herein as the“Asset”.     B. The Seller desires to sell to the Buyer, and the Buyer desires to purchase from the Seller,the Asset on the terms and conditions hereinafter set forth.AGREEMENT      NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth inthis Agreement, and for other good and valuable consideration, the receipt and sufficiency of whichare hereby acknowledged, the parties hereby agree as follows:ARTICLE I.DEFINITIONS     SECTION 1.1 Defined Terms. The capitalized terms used herein will have the following meanings.          “Accounts Receivable” means all amounts which the Seller is entitled to receive fromthe operation of the Hotel, but are not paid, as of the Closing, including, without limitation,charges for the use or occupancy of any guest, conference, meeting or banquet rooms or otherfacilities at the Hotel, or any other goods or services provided by or on behalf of the Seller atthe Hotel, but expressly excluding any credit card charges and checks which the Seller hassubmitted for payment as of the Closing.          “Agreement” shall mean this Agreement of Purchase and Sale, together with the exhibitsand schedules attached hereto, as the same may be amended, restated, supplemented or otherwisemodified.          “Allocation” shall have the meaning assigned thereto in subsection 2.2(c).
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          “Anti-Money Laundering and Anti-Terrorism Laws” shall have the meaning assignedthereto in subsection 3.1(f)(i).          “Asset” shall have the meaning assigned thereto in “Background” paragraph A.          “Asset File” shall mean the materials with respect to the Asset previously deliveredto the Buyer or its representatives by or on behalf of the Seller or made available to the Buyer atthe Property or in Manager’s possession.          “Asset-Related Property” shall have the meaning assigned thereto in subsection 2.1(b).          “Assigned Accounts Receivable” shall have the meaning assigned thereto in subsection10.3(b)(i).          “Assignment of Contracts” shall have the meaning assigned thereto in subsection6.1(a)(ii).          “Assignment of Intangibles” shall have the meaning assigned thereto in subsection6.2(a)(v).          “Assignment of Leases” shall have the meaning assigned thereto in subsection6.1(a)(i).          “Basket Limitation” shall mean an amount equal to $150,000.          “Bill of Sale” shall have the meaning assigned thereto in subsection 6.2(a)(ii).          “Bookings” shall have the meaning assigned thereto in subsection 2.1(b)(viii).          “Books and Records” shall have the meaning assigned thereto in subsection 2.1(b)(xvi).          “Broker” shall mean Hodges Ward Elliott, Inc.          “Business Day” shall mean any day other than a Saturday, Sunday or other day on whichbanks are authorized or required by law to be closed in New York City, New York.          “Buyer” shall have the meaning assigned thereto in the Preamble to this Agreement.          “Buyer-Related Entities” shall have the meaning assigned thereto in Section 11.1.          “Buyer’s Knowledge” shall mean the actual knowledge of the Buyer based upon the actualknowledge of Leslie Ng, David Lee and Christopher Bennett without any duty on the part of suchPerson to conduct any independent investigation or make any inquiry of any Person.          “Buyer Waived Breach” shall have the meaning assigned thereto in 11.3.
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          “Cap Limitation” shall mean an amount equal to $3,000,000.          “Claims” shall have the meaning assigned thereto in Section 7.3.          “Closing” shall have the meaning assigned thereto in subsection 2.4(a).          “Closing Date” shall have the meaning assigned thereto in subsection 2.4(a).          “Closing Documents” shall mean any certificate, assignment, instrument or otherdocument delivered pursuant to this Agreement.          “Code” means the Internal Revenue Code of 1986, as amended from time to time, or anysuccessor statute. Any reference herein to a particular provision of the Code shall mean, whereappropriate, the corresponding provision in any successor statute.          “Condition of the Asset” shall have the meaning assigned thereto in subsection 7.2(b).          “Cut-Off Time” shall have the meaning assigned thereto in subsection 10.1.          “Deed” shall have the meaning assigned thereto in subsection 6.2(a)(i).          “Earnest Money” shall have the meaning assigned thereto in subsection 2.3(a).          “Employees” shall mean, at any time, all persons who are employed by the Seller orManager (whether on a full-time or part-time basis) at the Hotel at such time to operate the Hotel.          “Environmental Laws” shall have the meaning assigned thereto in subsection 3.2(h).          “Equipment Leases” shall have the meaning assigned thereto in subsection 2.1(b)(vii).          “Escrow Account” shall have the meaning assigned thereto in subsection 14.5(a).          “Escrow Agent” shall have the meaning assigned thereto in subsection 2.3(a).          “Executive Order” shall have the meaning assigned thereto in subsection 3.1(f)(i).          “Existing Survey” shall mean that certain survey of the Property prepared by Paul LeeConsulting Engineering Associates, Inc., dated March 31, 1983, last revised September 19, 1996.          “Extension Option” shall have the meaning assigned thereto in subsection 2.4(b).          “FIRPTA” shall have the meaning assigned thereto in subsection 6.2(a)(vii).          “Financing Liens” shall have the meaning assigned thereto in subsection 8.3(a).
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          “FF&E” shall have the meaning assigned thereto in subsection 2.1(b)(ii).          “Franchise Agreement” shall mean that certain License Agreement, dated June 1, 2006,with Effective Date of May 2, 2006, by and between Franchisor and the Seller.          “Franchisor” shall mean Westin Hotel Management, L.P.          “Georgia Residency Affidavits” shall have the meaning assigned thereto in subsection6.2(a)(xii).          “Governmental Authority” shall mean any federal, state or local government or otherpolitical subdivision thereof, including, without limitation, any agency or entity exercisingexecutive, legislative, judicial, regulatory or administrative governmental powers or functions, ineach case to the extent the same has jurisdiction over the Person or property in question.          “Government List” shall mean any of (i) the two lists maintained by the United StatesDepartment of Commerce (Denied Persons and Entities), (ii) the list maintained by the United StatesDepartment of Treasury (Specially Designated Nationals and Blocked Persons), and (iii) the twolists maintained by the United States Department of State (Terrorist Organizations and DebarredParties).          “Guest Ledger” means any and all charges accrued to the open accounts of any guests orcustomers at the Hotel as of the Cut-Off Time for the use and occupancy of any guest, conference,meeting or banquet rooms or other facilities at the Hotel, any restaurant, bar or banquet services,or any other goods or services provided by or on behalf of the Seller.          “Hazardous Materials” shall have the meaning assigned thereto in subsection 7.2(b)(i).          “Hotel” shall have the meaning assigned thereto in “Background” paragraph A.          “Intangible Property” shall have the meaning assigned thereto in subsection2.1(b)(xiii).          “Inventories” shall have the meaning assigned thereto in subsection 2.1(b)(xi).          “IRS” shall mean the Internal Revenue Service.          “IRS Reporting Requirements” shall have the meaning assigned thereto in subsection14.4(c).          “Land” shall have the meaning assigned thereto in “Background” paragraph A.          “Licenses and Permits” shall have the meaning assigned thereto in subsection2.1(b)(iii).          “Liquor Holder” shall mean Interstate Management Company.
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          “Liquor Authorities” shall have the meaning assigned thereto in subsection4.2(a)(iii).          “Liquor License” shall mean the liquor license(s) in effect with respect to theProperty.          “Losses” shall have the meaning assigned thereto in Section 11.1.          “Management Agreement” shall mean that certain Hotel Management Agreement, which isdated as of January 1,2001 between MeriStar Hotel Lessee, Inc. and Manager, as assigned to theSeller pursuant to that certain Assignment and Assumption Agreement dated as of May 2, 2006 amongMeriStar Hotel Lessee, Inc., the Seller and MeriStar Hospitality Operating Partnership, L.P.pursuant to which Manager is to provide management and other services with respect to the Property.          “Manager” shall mean Interstate Management Company L.L.C., successor in interest toMeriStar Management Company, L.L.C.          “Material Casualty” shall have the meaning assigned thereto in subsection 9.2(b).          “Material Condemnation” shall have the meaning assigned thereto in subsection 9.2(b).          “Miscellaneous Personal Property” shall have the meaning assigned thereto insubsection 2.1(b)(xv).          “Natural Hazard Expert” shall have the meaning assigned thereto in subsection 7.4(b).          “Operating Agreements” shall mean all maintenance, service and supply contracts,management agreements, credit card service agreements, booking and reservation agreements, and allother contracts and agreements which are held by the Seller in connection with the operation of theHotel, other than the Franchise Agreement, the Management Agreement, Tenant Leases, EquipmentLeases, the Bookings and Licenses and Permits.          “Outside Closing Date” shall have the meaning assigned thereto in subsection 4.5(b).          “Permitted Exceptions” shall mean (i) the items set forth in Schedule B, Part 1, items1 (subject to the Seller’s and the Buyer’s proration obligations under subsection 10.1(a)), 2, 3(but limited to only those Tenant Leases as contemplated under clause (iii) below), 4, 5, 6, 7, 8,9, 10, 11 and 12 in the Title Commitment, (ii) the matters shown on the Existing Survey, (iii) theTenant Leases set forth in Schedule 3.2(c) attached hereto and the Operating Agreements andany Tenant Leases, Operating Agreements or other contracts entered into after the date hereof, andin accordance with the terms of this Agreement, (iv) discrepancies, conflicts in boundary lines,shortages in area, encroachments and any other state of facts as disclosed on a new survey of theproperty that were not shown on the Existing Survey and that do not have a material adverse effecton the use or value of the Property, (v) subject to the adjustments provided for herein, any
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service, installation, connection or maintenance charge, and charges for sewer, water,electricity, telephone, cable television or gas first due from and after the Cut-Off Time, (vi)rights of tenants to remove trade fixtures at the expiration of the term of the Tenant Leases ofsuch tenants to the extent set forth in the applicable Tenant Lease, (vii) right of tenants astenants only under the Tenant Leases permitted in clause (iii) above, (viii) laws, regulations,resolutions or ordinances, including, without limitation, building, zoning and environmentalprotection, as to the use, occupancy, subdivision, development, conversion or redevelopment of theProperty currently or hereinafter imposed by any governmental or quasi governmental body orauthority, and (ix) any title exception which is waived by the Buyer pursuant to subsection 8.3(b).          “Person” shall mean a natural person, partnership, limited partnership, limitedliability company, corporation, trust, estate, association, unincorporated association or otherentity.          “Post Effective Date Monetary Encumbrance” shall have the meaning assigned thereto insubsection 8.3(c).          “Post Effective Date Seller Encumbrance” shall have the meaning assigned thereto insubsection 8.3(a).          “Property” shall have the meaning assigned thereto in “Background” paragraph A.          “Property and Equipment” shall have the meaning assigned thereto in subsection2.1(b)(x).          “Purchase Price” shall have the meaning assigned thereto in subsection 2.2(a).          “Releasees” shall have the meaning assigned thereto in Section 7.3.          “Reporting Person” shall have the meaning assigned thereto in subsection 14.4(c).          “Retail Merchandise” shall have the meaning assigned thereto in subsection2.1(b)(xii).          “Retained Accounts Receivable” shall have the meaning assigned thereto in subsection10.3(b)(ii)          “Seller” shall have the meaning assigned thereto in the Preamble to this Agreement.          “Seller-Related Entities” shall have the meaning assigned thereto in Section 11.2.          “Seller’s Knowledge” shall mean the actual knowledge of the Seller based upon theactual knowledge of Robert Harper, Larry Doyle and Kenneth Caplan without any duty on the part ofsuch Persons to conduct any independent investigation or make any inquiry of any Person.          “Survival Period” shall have the meaning assigned thereto in Section 11.4.
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          “Tax Clearance Certificates” shall have the meaning assigned thereto in Section4.7(a).          “Tax Liens” shall have the meaning assigned thereto in subsection 8.3(a).          “Tenant Leases” shall have the meaning assigned thereto in subsection 2.1(b)(vi).          “Termination Option” shall have the meaning assigned thereto in subsection 4.5(b).          “Title Company” shall mean Lawyers Title Insurance Corporation.          “Title Commitment” shall mean that certain Owners Pro Forma title report issued byLawyers Title Insurance Corporation referred to as File No. 07-018170 and attached hereto asSchedule 1.1.          “Title Policy” shall mean a standard form ALTA Owner’s Policy of Title Insurancewithout endorsements issued by the Title Company pursuant to the Title Commitment insuring theBuyer’s title to the Property subject only to the Permitted Exceptions in an amount equal to thePurchase Price.          “Trade Payables” shall have the meaning assigned thereto in subsection 10.1(k).          “Transferred Employees” shall have the meaning assigned thereto in subsection 4.3(b).          “UCC” shall mean the Uniform Commercial Code.          “Uniform System of Accounts” shall have the meaning assigned thereto in subsection2.1(b)(x).          “WARN Act” means the Worker’s Adjustment and Retraining Notification Act of 1988, 29U.S.C. § 2101, etseq., and any similar state and local applicable law, as amendedfrom time to time, and any regulations, rules and guidance issued pursuant thereto.ARTICLE II.SALE, PURCHASE PRICE AND CLOSING     SECTION 2.1 Sale of Asset.          (a) On the Closing Date and pursuant to the terms and subject to the conditions set forth inthis Agreement, the Seller shall sell to the Buyer, and the Buyer shall purchase from the Seller,the Asset.
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          (b) The transfer of the Asset to the Buyer shall include the transfer of all Asset-RelatedProperty. For purposes of this Agreement, “Asset-Related Property” shall mean thefollowing:     (i) all of the Seller’s right, title and interest in and to all easements,covenants and other rights appurtenant to the Land and all right, title and interestof the Seller, if any, in and to any (A) land lying in the bed of any street, road,avenue or alley, open or closed, in front of or adjoining the Land and to the centerline thereof, and (B) unpaid award or payment which may hereafter be payable withrespect to any taking by condemnation;     (ii) all furniture, furnishings, fixtures, vehicles, rugs, mats, carpeting,appliances, devices, engines, telephone and other communications equipment,televisions and other video equipment, plumbing fixtures and other equipment, andall other equipment and other personal property which are now, or may hereafterprior to the Closing Date be, placed in or on or attached to the Property and areused in connection with the operation of the Property (but not including items ownedor leased by tenants or which are leased under the Equipment Leases by the Seller orManager) (the “FF&E”);     (iii) all of the Seller’s right, title and interest in and to and to the extenttransferable under applicable law, all licenses, permits and authorizationspresently issued in connection with the operation of all or any part of the Propertyas it is presently being operated, other than the existing Liquor License (the“Licenses and Permits”);     (iv) all of the Seller’s right, title and interest in and to and to the extentassignable, all warranties, if any, issued to the Seller by any manufacturer orcontractor in connection with construction or installation of equipment or anycomponent of the improvements included as part of the Property or FF&E;     (v) all of the Seller’s right, title and interest in and to and to the extentassignable all Operating Agreements;     (vi) all of the Seller’s right, title and interest in and to all leases,subleases, licenses, contracts and other agreements, granting a real propertyinterest to any other Person (including without limitation, any usufruct) for theuse and occupancy of all or any part of the Property, other than the Bookings (the“Tenant Leases”) and all security and escrow deposits or other security heldby or for the benefit of, or granted to the Seller in connection with, such TenantLeases;     (vii) all of the Seller’s right, title and interest in and to all leases andpurchase money security agreements for any equipment, machinery, vehicles, furnitureor other personal property located at the Hotel and used in the operation of theHotel which are held by or on behalf of the Seller (the “Equipment Leases”),together with all deposits made thereunder;
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     (viii) all of the Seller’s right, title and interest in and to all bookings andreservations for guest, conference, meeting and banquet rooms or other facilities atthe Hotel for dates from and after the Closing Date (the “Bookings”),together with all deposits held by the Seller with respect thereto;     (ix) all of the Seller’s right, title and interest in and to all AssignedAccounts Receivable as set forth in Section 10.3;     (x) all items included within the definition of “Property and Equipment” underthe Uniform System of Accounts for the Lodging Industry, Ninth Revised Edition, aspublished by the Hotel Association of New York City, Inc. (the “Uniform Systemof Accounts”) and used in the operation of the Hotel, including, withoutlimitation, linen, china, glassware, tableware, uniforms and similar items(“Property and Equipment”);     (xi) all “Inventories” as defined in the Uniform System of Accounts and used inthe operation of the Hotel, such as provisions in storerooms, refrigerators,pantries, and kitchens, beverages in wine cellars and bars, other merchandiseintended for sale or resale, fuel, mechanical supplies, stationery, guest supplies,maintenance and housekeeping supplies and other expensed supplies and similar itemsand including all food and beverages which are located at the Hotel, or ordered forfuture use at the Hotel as of the Closing, but expressly excluding any alcoholicbeverages to the extent the sale or transfer of the same is not permitted underapplicable law (the “Inventories”);     (xii) all merchandise located at the Hotel and held for sale to guests andcustomers of the Hotel, or ordered for future sale at the Hotel as of the Cut-OffTime, but not including any such merchandise owned by any tenant at the Property orby Manager (“Retail Merchandise”);     (xiii) all of the Seller’s right, title and interest in and to and to theextent the Seller’s rights and interests therein are assignable, all names,tradenames, trademarks, service marks, logos, and other similar proprietary rightsand all registrations or applications for registration of such rights used by theSeller in the operation of the Hotel (the “Intangible Property”);     (xiv) any ownership right Seller or any of its affiliates may have, if any,with respect to the Liquor License;     (xv) all of the Seller’s right, title and interest in and to and to the extentnot included in subsection 2.1(b)(ii) above and to the extent owned by the Seller,the Hotel’s telephone numbers, printed marketing materials and any slides, proofs ordrawings used by the Seller to produce such materials, to the extent such slides,proofs or drawings are in the Seller’s possession (“Miscellaneous PersonalProperty”); and     (xvi) to the extent in the Seller’s possession or control, all surveys,architectural, consulting and engineering blueprints, plans and specifications and
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reports, if any, related to the Hotel, all books and records, if any, relatedto the Hotel (collectively, “Books and Records”), and any goodwill of theSeller related to the Hotel; provided, however, that the Seller mayretain a copy of all such books and records.          (c) Excluded Property. Notwithstanding anything to the contrary in Section 2.1(a) and(b), the property, assets, rights and interests set forth in this subsection 2.1(c) are expresslyexcluded from the Asset:     (i) Cash. Except for deposits expressly included in subsections 2.1(a)and (b) and except for any cash on hand or in house banks for which the Sellerreceives a credit under subsection 10.1(l), all cash on hand or on deposit in anyhouse bank, operating account or other account maintained in connection with theownership of the Hotel, including, without limitation, any reserves maintained bythe Seller or Manager required by the Management Agreement (subject to subsection10.1(l)); and     (ii) Third Party Property. Any fixtures, personal property orequipment owned by (A) the lessor under any Equipment Leases, (B) the supplier orvendor under any other Operating Agreements, (C) the tenant under any Tenant Lease,(D) any Employees, (E) Manager or (F) any guests or customers of the Hotel,including, without limitation, those items set forth on Schedule 2.1(c) attachedhereto.     SECTION 2.2 Purchase Price.          (a) The consideration for the purchase of the Asset shall be $74,000,000 (the “PurchasePrice”), which shall be paid by the Buyer to the Seller at the Closing in immediately availablefunds by wire transfer to such accounts or accounts that the Seller shall designate to the Buyer;provided that such amount shall be reduced by the Earnest Money and adjusted for Closingadjustments and credits provided for in Article X and elsewhere in the Agreement.          (b) No adjustment shall be made to the Purchase Price except as explicitly set forth in thisAgreement.          (c) The Seller and the Buyer agree that the Purchase Price shall be allocated among the Assetsas determined by agreement of the parties prior to the Closing for federal, state and local taxpurposes in accordance with Section 1060 of the Code. The Buyer shall, within 10 days after thedate of this Agreement, prepare and deliver to the Seller for its review a schedule allocating thePurchase Price (and any other items that are required for federal income tax purposes to be treatedas part of the purchase price) among the Assets (such schedule, the “Allocation”). The Sellershall review such Allocation and provide any objections to the Buyer within 10 days after thereceipt thereof. If the Seller raises any objection to the Allocation, the parties hereto willnegotiate in good faith to resolve such objection(s). Upon reaching an agreement on theAllocation, the Buyer and the Seller shall (i) cooperate in the filing of any forms (including Form8594 under Section 1060 of the Code) with respect to the Allocation as finally resolved, includingany amendments to such forms required pursuant to this Agreement
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with respect to any adjustment to the Purchase Price and (ii) shall file all federal, stateand local tax returns and related tax documents consistent with such allocation, as the same may beadjusted pursuant to Section 9.1 or any other provisions of this Agreement. Notwithstanding theforegoing, if, after negotiating in good faith, the parties hereto are unable to agree on amutually satisfactory Allocation, each of the Buyer and the Seller shall use its own allocation forpurposes of this subsection 2.2(c).     SECTION 2.3 Earnest Money.          (a) On the date hereof, the Buyer shall deposit with the Title Company, as escrow agent (insuch capacity, “Escrow Agent”), cash in an amount equal to $4,100,000 (together with allaccrued interest thereon, the “Earnest Money”) in immediately available funds by wire tosuch account as Escrow Agent shall designate to the Buyer. The Earnest Money shall benonrefundable to the Buyer except as otherwise expressly provided in this Agreement. If theEarnest Money is not deposited by the Buyer by 5:00 p.m. (New York Time) on the date of thisAgreement, the Seller shall have the right, in the Seller’s sole and absolute discretion, uponwritten notice to the Buyer delivered prior to the Buyer’s deposit of the Earnest Money with theTitle Company, to terminate this Agreement whereupon neither party hereto shall have any furtherrights or obligations hereunder except for those that expressly survive the termination of thisAgreement.          (b) Upon delivery by the Buyer to Escrow Agent and upon receipt of an executed form W-9, theEarnest Money will be deposited by Escrow Agent in an interest-bearing account acceptable to theBuyer and the Seller and shall be held in escrow in accordance with the provisions of Section 14.5.All interest earned on the Earnest Money while held by Escrow Agent shall be paid to the party towhom the Earnest Money is paid, except that if the Closing occurs, the Buyer shall receive a creditfor such interest in accordance with subsection 2.2(a).     SECTION 2.4 The Closing.          (a) The closing of the sale and purchase of the Asset (the “Closing”) shall take placeon June 4, 2007 (such date, the “Closing Date”), **Time Being Of The Essence with respect tothe Buyer’s and the Seller’s obligations hereunder on the Closing Date**, subject only to the rightsto adjourn the Closing Date as is expressly permitted in this Agreement.          (b) The Buyer shall have the right to extend the Closing Date (as it may have otherwise beenextended in accordance with Section 4.5) for up to 15 days (the “Extension Option”) inaccordance with the terms of this subsection 2.4(b). In order to exercise the Extension Option,the Buyer must deliver written notice to the Seller and Escrow Agent of such extension no laterthan two Business Days prior to the then scheduled Closing Date. Notwithstanding the provisions ofthis subsection 2.4(b), the parties agree and acknowledge that in no event shall the Buyer have theright to extend the Closing Date under this subsection 2.4(b) beyond the Outside Closing Date. Ifthe Closing Date is extended under any other provision of this Agreement, the length of theExtension Option shall be reduced accordingly so that the Closing Date shall not be extended underthis subsection 2.4(b) beyond the Outside Closing Date.
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          (c) The Closing shall be held on the Closing Date at 10:00 A.M. (Eastern time) at the officesof the Escrow Agent or at such other location agreed upon by the parties hereto.          (d) Notwithstanding any other provision herein to the contrary, there shall be no requirementthat the Seller and the Buyer physically attend the Closing, and all funds and documents to bedelivered at the Closing may be delivered to Escrow Agent unless the parties hereto mutually agreeotherwise. The Buyer and the Seller hereby authorize their respective attorneys to execute anddeliver to Escrow Agent any additional or supplementary instructions as may be necessary orconvenient to implement the terms of this Agreement and facilitate the closing of the transactionscontemplated hereby, provided that such instructions are consistent with and merely supplement thisAgreement and shall not in any way modify, amend or supersede this Agreement.ARTICLE III.REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER     SECTION 3.1 General Seller Representations and Warranties. The Seller hereby represents and warrantsto the Buyer as follows:          (a) Formation; Existence. It is a limited partnership, duly formed, validly existingand in good standing under the laws of the State of Delaware and the State of Georgia.          (b) Power and Authority. It has all requisite power and authority to enter into thisAgreement, to perform its obligations hereunder and to consummate the transactions contemplatedhereby. The execution, delivery and performance of this Agreement, the sale of the Assets and theconsummation of the transactions provided for in this Agreement have been duly authorized by allnecessary action on its part. This Agreement has been duly executed and delivered by it andconstitutes its legal, valid and binding obligation, enforceable against it in accordance with itsterms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization,moratorium or other laws affecting creditors’ rights and by general principles of equity (whetherapplied in a proceeding at law or in equity).          (c) No Consents. Except as set forth in Schedule 3.1(c), no consent, license,approval, order, permit or authorization of, or registration, filing or declaration with, anycourt, administrative agency or commission or other Governmental Authority or instrumentality,domestic or foreign, is required to be obtained or made in connection with the execution, deliveryand performance of this Agreement or any of the transactions required or contemplated hereby.          (d) No Conflicts. The execution, delivery and compliance with, and performance of theterms and provisions of, this Agreement, and the sale of the Asset, will not (i) conflict with orresult in any violation of its organizational documents, (ii) conflict with or result in anyviolation of any provision of any bond, note or other instrument of indebtedness, contract,indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to
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which it is a party in its individual capacity, or (iii) violate any existing term orprovision of any order, writ, judgment, injunction, decree, statute, law, rule or regulationapplicable to it or its assets or properties.          (e) Foreign Person. It is not a “foreign person” as defined in Internal Revenue CodeSection 1445 and the regulations issued thereunder.          (f) Anti-Terrorism Laws.     (i) None of the Seller or, to Seller’s Knowledge, its affiliates, is inviolation of any laws relating to terrorism, money laundering or the Uniting andStrengthening America by Providing Appropriate Tools Required to Intercept andObstruct Terrorism Action of 2001, Public Law 107-56 and Executive Order No. 13224(Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten toCommit, or Support Terrorism) (the “Executive Order”) (collectively, the“Anti-Money Laundering and Anti-Terrorism Laws”).     (ii) None of the Seller or, to Seller’s Knowledge, its affiliates, is acting,directly or indirectly, on behalf of terrorists, terrorist organizations ornarcotics traffickers, including those persons or entities that appear on the Annexto the Executive Order, or are included on any relevant lists maintained by theOffice of Foreign Assets Control of U.S. Department of Treasury, U.S. Department ofState, or other U.S. government agencies, all as may be amended from time to time.     (iii) None of the Seller or, to Seller’s Knowledge, its affiliates or, withoutinquiry, any of its brokers or other agents, in any capacity in connection with thepurchase of the Property (A) conducts any business or engages in making or receivingany contribution of funds, goods or services to or for the benefit of any personincluded in the lists set forth in the preceding paragraph; (B) deals in, orotherwise engages in any transaction relating to, any property or interests inproperty blocked pursuant to the Executive Order; or (C) engages in or conspires toengage in any transaction that evades or avoids, or has the purpose of evading oravoiding, or attempts to violate, any of the prohibitions set forth in anyAnti-Money Laundering and Anti-Terrorism Laws.     (iv) The Seller understands and acknowledges that the Buyer may become subjectto further anti-money laundering regulations, and agrees to execute instruments,provide information, or perform any other acts as may reasonably be requested by theBuyer, for the purpose of: (A) carrying out due diligence as may be required byapplicable law to establish the Seller’s identity and source of funds; (B)maintaining records of such identities and sources of funds, or verifications orcertifications as to the same; and (C) taking any other actions as may be requiredto comply with and remain in compliance with anti-money laundering regulationsapplicable to the Seller.
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     (v) Neither the Seller, nor any person controlling or controlled by the Seller,is a country, territory, individual or entity named on a Government List, and themonies used in connection with this Agreement and amounts committed with respectthereto, were not and are not derived from any activities that contravene anyapplicable anti-money laundering or anti-bribery laws and regulations (includingfunds being derived from any person, entity, country or territory on a GovernmentList or engaged in any unlawful activity defined under Title 18 of the United StatesCode, Section 1956(c)(7)).     SECTION 3.2 Representations and Warranties of the Seller as to the Asset. The Seller hereby representsand warrants to the Buyer as follows:          (a) Operating Agreements. To Seller’s Knowledge, (i) all material OperatingAgreements (and any amendments or modification thereof) affecting the Property as of the datehereof are set forth on Schedule 3.2(a) attached hereto, (ii) the same have not beenmodified or amended, except as shown in such documents, (iii) all material Operating Agreements arein full force and effect, (iv) the Seller has delivered to the Buyer true and complete copies ofeach material Operating Agreement to the extent in the Seller’s possession and (v) there are nomaterial defaults by any party under any material Operating Agreement.          (b) Employees. The Seller does not have any employees. The Seller is not a party toany collective bargaining agreement or other contract or agreement with any labor organization.The Seller has not entered into any agreements with any Employees except through Manager.          (c) Tenant Leases and Equipment Leases. To Seller’s Knowledge, Schedule3.2(c) sets forth a correct and complete list of the Tenant Leases and all material EquipmentLeases for the Hotel as of the date hereof. Except as set forth in Schedule 3.2(c), as ofthe date hereof, (i) to Seller’s Knowledge, all material Equipment Leases and Tenant Leases are infull force and effect and the Seller has delivered to the Buyer true and complete copies of allmaterial Equipment Leases and Tenant Leases to the extent in the Seller’s possession, and (ii) theSeller has not given or, to Seller’s Knowledge, received any written notice of any breach ordefault under any of the Tenant Leases or Equipment Leases that has not been cured.          (d) Brokerage Commissions. To Seller’s Knowledge, there are no unpaid brokeragecommissions or finders’ fees payable by the landlord with respect to the current or any renewalterm of any of the Tenant Leases other than those set forth on Schedule 3.2(d) attachedhereto and the Seller has no agreement with any broker with respect to any renewal term of anyTenant Lease except as set forth in Schedule 3.2(d).          (e) Condemnation. As of the date hereof, there is no pending condemnation or similarproceedings affecting the Property, and to Seller’s Knowledge, no such action is threatened orcontemplated.          (f) Litigation. To Seller’s Knowledge and except as disclosed in Schedule3.2(f) attached hereto, as of the date hereof, there are no actions, suits or proceedingspending against or affecting the Asset or the Seller in any court or before or by an arbitration
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tribunalor regulatory commission, department or agency and to Seller’s Knowledge, no such actions, suitsor proceedings has been threatened or contemplated.          (g) Bookings. To Seller’s Knowledge, Schedule 3.2(g) sets forth a correct listof all Bookings for the Hotel as of the date hereof.          (h) Environmental Matters. The Seller has not received any written notice from anygovernmental or regulatory authority of a violation of any applicable Environmental Laws, whichhave not been corrected. For the purposes of this subsection 3.2(h), “Environmental Laws”means any and all federal, state, county and local statutes, laws, regulations and rules in effecton the date of this Agreement relating to the protection of the environment or to the use,transportation and disposal of Hazardous Materials.          (i) Title to Personal Property. Other than FF&E, Property and Equipment, RetailMerchandise and Inventories covered by an Equipment Lease or as it relates to the rights, if any,of Franchisor under the Franchise Agreement therein, the Seller shall own the FF&E, Property andEquipment, Retail Merchandise and Inventories free and clear of all liens and encumbrances as ofthe Closing Date.          (j) Franchise Agreement. The Seller has delivered to the Buyer a true and completecopy of the Franchise Agreement. To Seller’s Knowledge, (i) the Franchise Agreement is in fullforce and effect and (ii) there are no material defaults by any party thereunder as of the datehereof.          (k) Violation of Law. The Seller has not received any written notice from anygovernmental or regulatory authority of a violation of any applicable material law within the pasttwo years, which have not been remedied.          (l) Liquor Holder. To Seller’s Knowledge, the Liquor Holder is the holder of theLiquor License and Seller has taken and will take no action which would cause such interest to beencumbered as of the Closing.     SECTION 3.3 Limitations on Representations and Warranties of the Seller. If the representations andwarranties relating to the Operating Agreements set forth in Section 3.2 and the status of thecontract parties thereunder (other than the Seller or its affiliates) contained herein were trueand correct as of the date of this Agreement, no change in circumstances or status of such contractparty (e.g., defaults, bankruptcies or other adverse matters relating to such contract party)occurring after the date hereof shall permit the Buyer to terminate this Agreement or constitutegrounds for the Buyer’s failure to close.     SECTION 3.4 Covenants of the Seller Prior to Closing. From the date hereof until Closing or earliertermination of this Agreement, the Seller or the Seller’s agents shall:          (a) Insurance. Keep the Property insured against fire and other hazards in coverage,amounts and deductibles not materially less than those in effect as of the date of this Agreementand otherwise under such terms as the Seller deems advisable consistent with past practices.
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          (b) New Operating Agreements. Without the prior written consent of the Buyer, whichconsent shall not be unreasonably withheld or delayed, not enter into any Operating Agreements orEquipment Leases, or renew, amend or supplement any such contracts; provided that the Seller mayenter into or renew such contracts, or amend or supplement such contracts, without the Buyer’sconsent if such contract is entered into (or renewed, amended, or supplemented, as the case may be)in the course of customary maintenance and repairs at the Property, or is necessary as a result ofan emergency at the Property and in either case, is terminable on 30 days or less notice, withoutpenalty. If the Seller enters into or renews any such contracts, or amends or supplements any suchcontracts, after the date of this Agreement, then the Seller shall promptly provide written noticeand a copy thereof to the Buyer and unless the same required the Buyer’s approval pursuant to thisparagraph and such approval was not obtained, the Buyer shall assume such contract at Closing andthe schedule of contracts attached to the Assignment of Contracts shall be so modified, and suchcontract shall be deemed added to Schedule 3.2(a) attached hereto and Schedule3.2(a) shall be deemed amended at the Closing to include such contracts. If a new contract, ora renewal, amendment or supplement to an existing contract, requires the Buyer’s approval or Sellerotherwise requests Buyer’s approval and the Buyer does not object within seven days after receiptof a copy of such contract, then the Buyer shall be deemed to have approved such contract. TheSeller shall observe and perform all of its material obligations under the material OperatingAgreements and Equipment Leases excluding any such agreements which may be terminated in theordinary course of the operation of the Hotel or as a result of a default by the other party.          (c) New Tenant Leases. Without the prior consent of the Buyer, not execute any newlease, or renew, amend or supplement any existing lease (unless required by the terms thereof), forspace at the Property. If the Buyer’s approval was obtained on a new lease or the renewal,amendment or supplement of an existing lease, the Buyer shall assume such lease at Closing and theschedule of leases attached to the Assignment of Leases shall be so modified, and such lease shallbe deemed added to Schedule 3.2(c) attached hereto and Schedule 3.2(c) shall bedeemed amended at the Closing to include such leases. If the Buyer does not object within sevendays after receipt of a copy of a request for approval of a new lease, or to the renewal, amendmentor supplement of an existing lease (unless required by the terms thereof), then the Buyer shall bedeemed to have approved such new lease, renewal, amendment or supplement, as the case may be.          (d) Franchise Agreement. Observe and perform all of its material obligations underthe Franchise Agreement. Without the prior consent of the Buyer, the Seller shall not amend,supplement or terminate the Franchise Agreement.          (e) Assets. Shall not sell, exchange, assign, transfer, convey or otherwise disposeof all or any of the Asset or any interest therein except for any FF&E, Inventories, RetailMerchandise, Miscellaneous Personal Property or Property and Equipment that are sold, replaced orconsumed in the ordinary course of business and shall, to the extent within the Seller’s controlunder the Management Agreement, maintain levels of Inventory and Property and Equipment in a mannersubstantially consistent with the Seller’s customary operating practices and historical practice atthe Property.
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          (f) Operation. Shall, to the extent within the Seller’s control under the ManagementAgreement, continue to operate and maintain the Hotel in substantially the same manner in which itis being operated and maintained as of the date hereof, provided that, except for emergencyrepairs, the Seller shall not perform any capital improvements at the Hotel including, withoutlimitation, any capital improvements or expenditures as may be contemplated by the existing capitalexpenditure budget for the Hotel.          (g) Management Agreement. At or prior to the Closing, the Seller shall terminate (andthe Buyer shall cause the Manager to terminate without payment of any termination fee, terminationpenalty or termination damages being payable by Seller or its affiliates) the Management Agreementeffective as of the Cut-Off Time.     SECTION 3.5 Amendment to Schedules. Notwithstanding anything to the contrary in this Agreement, theSeller shall have the right to amend and supplement the schedules to this Agreement from time totime prior to the Closing to reflect changes since the date of this Agreement by providing awritten copy of such amendment or supplement to the Buyer; provided, however, thatany amendment or supplement to the schedules to this Agreement shall have no effect for thepurposes of determining whether subsection 5.2(a) has been satisfied if the matter raised in suchsupplement has a material adverse effect on the Asset, but shall have effect only for the purposesof limiting the defense and indemnification obligations of the Seller for the inaccuracy or untruthof the representation or warranty qualified by such amendment or supplement.ARTICLE IV.REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BUYER     SECTION 4.1 Representations and Warranties of the Buyer. The Buyer hereby represents and warrants tothe Seller as follows:          (a) Formation; Existence. It is a limited liability company duly organized, validlyexisting and in good standing under the laws of the State of Delaware.          (b) Power; Authority. It has all requisite power and authority to enter into thisAgreement, to perform its obligations hereunder and to consummate the transactions contemplatedhereby. The execution, delivery and performance of this Agreement, the purchase of the Asset andthe consummation of the transactions provided for herein have been duly authorized by all necessaryaction on the part of the Buyer. This Agreement has been duly executed and delivered by the Buyerand constitutes the legal, valid and binding obligation of the Buyer enforceable against the Buyerin accordance with its terms, except as such enforceability may be limited by bankruptcy,insolvency, reorganization, moratorium or other laws affecting creditors’ rights and by generalprinciples of equity (whether applied in a proceeding at law or in equity).          (c) No Consents. No consent, license, approval, order, permit or authorization of, orregistration, filing or declaration with, any court, administrative agency or commission or
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other Governmental Authority or instrumentality, domestic or foreign, is required to beobtained or made in connection with the execution, delivery and performance of this Agreement orany of the transactions required or contemplated hereby.          (d) No Conflicts. The execution, delivery and compliance with, and performance of theterms and provisions of, this Agreement, and the purchase of the Asset, will not (i) conflict withor result in any violation of its organizational documents, (ii) conflict with or result in anyviolation of any provision of any bond, note or other instrument of indebtedness, contract,indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to whichit is a party in its individual capacity, or (iii) violate any existing term or provision of anyorder, writ, judgment, injunction, decree, statute, law, rule or regulation applicable to it or itsassets or properties.          (e) Anti-Terrorism Laws.     (i) None of the Buyer or, to the Buyer’s Knowledge, its affiliates, is inviolation of the Executive Order or any Anti-Money Laundering and Anti-TerrorismLaw.     (ii) None of the Buyer or, to the Buyer’s Knowledge, its affiliates, is acting,directly or indirectly, on behalf of terrorists, terrorist organizations ornarcotics traffickers, including those persons or entities that appear on the Annexto the Executive Order, or are included on any relevant lists maintained by theOffice of Foreign Assets Control of U.S. Department of Treasury, U.S. Department ofState, or other U.S. government agencies, all as may be amended from time to time.     (iii) None of the Buyer or, to the Buyer’s Knowledge, its affiliates or,without inquiry, any of its brokers or other agents, in any capacity in connectionwith the purchase of the Property (A) conducts any business or engages in making orreceiving any contribution of funds, goods or services to or for the benefit of anyperson included in the lists set forth in the preceding paragraph; (B) deals in, orotherwise engages in any transaction relating to, any property or interests inproperty blocked pursuant to the Executive Order; or (C) engages in or conspires toengage in any transaction that evades or avoids, or has the purpose of evading oravoiding, or attempts to violate, any of the prohibitions set forth in anyAnti-Money Laundering and Anti-Terrorism Laws.     (iv) The Buyer understands and acknowledges that the Seller may become subjectto further anti-money laundering regulations, and agrees to execute instruments,provide information, or perform any other acts as may reasonably be requested by theSeller, for the purpose of: (A) carrying out due diligence as may be required byapplicable law to establish the Buyer’s identity and source of funds; (B)maintaining records of such identities and sources of funds, or verifications orcertifications as to the same; and (C) taking any other actions as may be requiredto comply with and remain in compliance with anti-money laundering regulationsapplicable to the Buyer.
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     (v) Neither the Buyer, nor any person controlling or controlled by the Buyer,is a country, territory, individual or entity named on a Government List, and themonies used in connection with this Agreement and amounts committed with respectthereto, were not and are not derived from any activities that contravene anyapplicable anti-money laundering or anti-bribery laws and regulations (includingfunds being derived from any person, entity, country or territory on a GovernmentList or engaged in any unlawful activity defined under Title 18 of the United StatesCode, Section 1956(c)(7)).     SECTION 4.2 Covenants of the Buyer Prior to Closing.          (a) Licenses and Permits.     (i) The Buyer shall use all commercially reasonable and good faith efforts toobtain the transfer of all Licenses and Permits (to the extent transferable) or theissuance of new licenses and permits. The Buyer, at its cost and expense, shallsubmit all necessary applications and other materials to the appropriateGovernmental Authority and take such other actions to effect the transfer ofLicenses and Permits or issuance of new licenses and permits, as of the Closing, andthe Seller shall use commercially reasonable efforts (at no cost or expense to theSeller) to cooperate with the Buyer to cause the Licenses and Permits to betransferred or new licenses and permits to be issued to the Buyer. It shall not bea condition to the Closing hereunder that the Buyer has obtained any transfer ofLicenses or Permits or issuance of any new licenses or permits.     (ii) Intentionally Omitted.     (iii) The Seller and the Buyer acknowledge and agree that the Liquor Licenseeis currently an affiliate of the Buyer, and that any interest, beneficial orotherwise, which the Seller may have in the Liquor License is being conveyed to theBuyer as part of the Asset-Related Property. Promptly after the date hereof, theBuyer shall (and to the extent required by law, the Seller shall at no material costor expense to Seller) execute and file with the appropriate state and/or localalcoholic beverage agency and any other Governmental Authority that maintainsjurisdiction over liquor-related matters at the Hotel (the “LiquorAuthorities”) such filings, if any, as may be required by law to be filed by theSeller and/or the Buyer with respect to the Liquor License in connection with thetransactions set forth in this Agreement. Notwithstanding anything to the contrarycontained herein, the Seller shall not incur any material cost or expense or anyliability in connection with the transfer of the Liquor License to the Buyer and norepresentations or warranties shall be made by the Seller or its affiliates as tosuch conveyance, except for any representations and warranties specifically setforth herein. Without limitation on the foregoing, in no event shall the transferor assignment of the Liquor License be deemed or construed to be a condition to theobligations of either the Seller or the Buyer hereunder.
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          (b) Operating Agreements and Equipment Leases. To the extent any Operating Agreementor Equipment Lease requires the consent of the vendor party for the assignment of such agreementsfrom the Seller to the Buyer, the Buyer shall use commercially reasonable good faith efforts toobtain such consent as of the Closing, provided, in any event the Buyer shall assume allOperating Agreements and Equipment Leases as of the Closing even if such consent has not beenobtained.     SECTION 4.3 Employee Matters.          (a) Employees. The Buyer acknowledges that the Employees are currently employed by anaffiliate of the Buyer. At the Closing, the Buyer shall (or shall cause its manager to) offeremployment at the Hotel to all of the Employees in accordance with the terms of subsection 4.3(b).          (b) Continuity of Employees. The parties intend that there will be continuity ofemployment with respect to all of the Employees. It is agreed that prior to, or in connectionwith, the Closing, the Buyer shall take no action to cause the Seller or Manager to terminate theemployment of any Employee, and neither the Seller nor the Manager shall be under any obligation toterminate any Employee prior to or on the Closing Date. It is further agreed that on or prior tothe Closing Date, the Buyer shall offer employment at the Hotel (or cause its manager to continueemployment of), commencing on the Closing Date to all Employees, including those on vacation, leaveof absence, disability or layoff, on the same terms and conditions (including, without limitation,compensation, salary, employee benefits, job responsibility and descriptions, location, seniorityand deemed length of service) as those provided to such employees by Manager on the day immediatelypreceding the Closing Date. Those Employees who accept the Buyer’s (or its manager’s) offer ofemployment and commence (or continue) employment with the Buyer (or its manager) on the ClosingDate shall hereafter be referred to as “Transferred Employees.”          (c) Indemnity. The Seller shall pay all wages, payroll taxes and fringe benefits(including accrued vacation pay to the extent actually earned) as well as social security,unemployment compensation, health, life and disability insurance and pension fund contributions, ifany, of the Employees through the Closing Date, provided, that, the Seller shall have no liabilityor obligation to pay for any sick pay or accrued but unearned vacation pay. The Seller shallindemnify, defend and hold the Buyer harmless from and against any and all claims, actions, suits,demands, proceedings, losses, expenses, damages, obligations and liabilities (including costs ofcollection, attorney’s fees and other costs of defense) made by an Employee to the extent relatingto an event occurring prior to or an obligation relating to a period prior to the Closing Date,provided that such indemnity shall not apply with respect to any losses incurred by the Buyer withrespect to the amount of employee expenses that have been prorated under subsection 10.1(m) or suchmatters for which Manager would be liable to the Seller under the Management Agreement. The Buyershall indemnify, defend and hold the Seller harmless from and against any and all claims, actions,suits, demands, proceedings, losses, expenses, damages, obligations and liabilities (includingcosts of collection, attorney’s fees and other costs of defense) arising out of or otherwise inrespect of (i) the termination of any Employees in connection with the transactions contemplated bythis Agreement; (ii) failure of the Buyer (or its manager) to continue the employment of anyTransferred Employee on the same terms and
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conditions as said employee enjoys on the day immediately preceding the Closing Date; (iii) abreach by the Buyer of the covenants set forth in subsection 4.3(b); (iv) failure of the Buyer tocomply with its obligations including, but not limited to, any statutory obligations with respectto the Transferred Employees; (v) any claim made by any Employee for severance pay; or (vi) anyclaim made by any Employee arising with respect to acts or omissions at the Property which acts oromissions occurred on or after the Closing Date.          (d) WARN Act. The Buyer (or its manager) shall not, at any time prior to 90 daysafter the Closing Date, effectuate a “plant closing” or “mass layoff,” as those terms are definedin the WARN Act, affecting in whole or in part any site of employment, facility, operating unit orEmployee, without notifying the Seller in advance and without complying with the noticerequirements and other provisions of the WARN Act. In addition, the Buyer shall provide a fulldefense to, and indemnify the Seller for any Losses which the Seller may incur in connection withany suit or claim of violation brought against or affecting the Seller under the WARN Act for anyactions taken by the Buyer (or its manager or any of its and Manager’s affiliates) with regard tothe Hotel or any Employee affected by this Agreement subsequent to the Closing Date.          (e) Survival. The provisions of this Section 4.3 shall survive the Closing.     SECTION4.4 Bookings. The Buyer shall honor all existing Bookings and all other Bookings made inaccordance with this Agreement for any period on or after the Closing Date. The provisions of thisSection 4.4 shall survive the Closing.     SECTION 4.5 Franchise Agreement.          (a) The parties acknowledge that the transfer of the franchise rights granted under theFranchise Agreement to the Buyer is subject to the prior written consent of Franchisor under theFranchise Agreement. Immediately following the date of this Agreement, (i) the Seller shallproceed promptly and in good faith to give the notices required under the Franchise Agreement withrespect to the transactions contemplated hereby and (ii) the Buyer shall proceed promptly and ingood faith to effect the consent of Franchisor to the transfer of such franchise rights to theBuyer, which may require the execution of a new franchise agreement with Franchisor. Accordingly,the Buyer shall promptly submit to Franchisor a complete application to become a franchisee ofFranchisor’s franchise system accompanied by payment of the applicable application fee. As part ofthe application process, the Buyer shall provide any and all information and documentation thatFranchisor requires (including, without limitation, financial statements, organizational documents,background information regarding the owners of the Buyer and other documentation supporting itsapplication). Without limiting the foregoing, the Buyer shall use commercially reasonable effortsto obtain the consent of the Franchisor to the transfer of the franchise rights and a new franchiseagreement in place of the Franchise Agreement, which may entail promptly responding to requestsfrom Franchisor and otherwise promptly complying with all obligations of a transferee under theFranchise Agreement. The Seller agrees to reasonably cooperate, at no cost, in good faith with theBuyer and Franchisor in such process. The Buyer shall agree with Franchisor to accept and be boundby any property improvement plan required by Franchisor in connection with obtaining such consent(which may consist of the property improvement plan currently incorporated into the FranchiseAgreement,
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and to complete such property improvement plan within the time periods set forth in suchproperty improvement plan. In connection with the transfer of the franchise rights, the Buyershall be required to pay any and all fees and charges associated therewith (including, withoutlimitation, any transfer fee mandated under the Franchise Agreement).          (b) If Franchisor has not agreed to terminate the Franchise Agreement and enter into a newfranchise agreement with the Buyer by the then scheduled Closing Date, the Closing Date shall beextended to a date that is the earlier of (i) ten Business Days after receipt of such agreement and(ii) July 3, 2007 (the “Outside Closing Date”). In the event Franchisor has not deliveredsuch new franchise agreement by the Outside Closing Date, the Buyer and the Seller shall each havethe option to terminate this Agreement by written notice to the other party (the “TerminationOption”). In the event the Termination Option is elected by either the Seller or the Buyer,this Agreement shall terminate and provided the Buyer is not in default of any of its obligationspursuant to subsection 4.5(a) or otherwise, the Earnest Money shall be refunded to the Buyer andneither party shall have any further rights or obligations hereunder except for those thatexpressly survive the termination of this Agreement.     SECTION 4.6 Manager Defaults. The Buyer acknowledges that an affiliate of the Buyer is Manager andthat the Buyer is knowledgeable about the Asset. Notwithstanding anything to the contrarycontained herein, (a) the Buyer agrees that the Seller shall have no liability under this Agreementfor a breach hereof, including without limitation, any breach under Sections 3.2 and 3.4, to theextent such breach was caused by an act or omission of Manager (other than such acts taken byManager at the specific direction of the Seller) and any such act or omission shall not serve as abasis for the Buyer failing to close on the purchase of the Assets in accordance with the terms ofthis Agreement or any recourse against the Seller and (b) to the extent Manager has actualknowledge of any inaccuracy or breach of any representation or warranty of the Seller contained inthis Agreement, such knowledge shall be imputed to the Buyer and the Buyer shall be precluded fromasserting a failure of the condition set forth in subsection 5.2(a) related thereto as it relatesto the representations and warranties made by the Seller in this Agreement as of the date hereof(but not as the same are re-made as of the Closing pursuant to this Agreement). The provisions ofthis Section 4.6 shall survive the Closing.SECTION 4.7 Tax Clearance Certificates          (a) The Seller shall promptly after the execution of this Agreement file the Application forTax Clearance Certification, Georgia Department of Revenue, Taxpayer Services Division, FormTSD-10, in order to apply for, and shall thereafter use commercially reasonable efforts to obtainand deliver to the Buyer and the Title Company on or prior to the Closing, municipal, state andcounty tax clearance certificates or letters demonstrating the payment of all tax liabilitieswhich, if unpaid, could impose successor liability on the Buyer (“Tax ClearanceCertificates”). To the extent the Seller is unable to deliver such Tax Certificates on orprior to the Closing, the Seller shall use commercially reasonable efforts to obtain suchcertificates as soon as practicable following the Closing. The Seller shall be liable for thepayment of all amounts which may be required to be paid to obtain all Tax Clearance Certificates.The Seller shall indemnify, defend and hold the Buyer harmless from and against (x) any and allamounts which may be required to be paid to obtain all Tax Clearance Certificates and (y) anyclaims or other liabilities arising out of the Seller’s failure to obtain all such Tax ClearanceCertificates, each to
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the extent due with respect to the operation of the Hotel prior to the Closing. Theprovisions of this subsection 4.7(a) shall survive the Closing.          (b) The Buyer acknowledges and agrees that the delivery of the Tax Clearance Certificates bythe Seller pursuant to this Section 4.7 or any matters disclosed therein shall not be a conditionprecedent to the obligation of the Buyer to purchase and pay for the Asset in accordance with theterms of this Agreement. Notwithstanding the foregoing, to the extent such matters are raised asexceptions to the Title Policy, the Seller shall deliver such affidavits or indemnities asreasonably required by the Title Company to omit such matters from the Title Policy.ARTICLE V.CONDITIONS PRECEDENT TO CLOSING     SECTION 5.1 Conditions Precedent to the Seller’s Obligations. The obligation of the Seller toconsummate the transfer of the Asset to the Buyer on the Closing Date is subject to thesatisfaction (or waiver by the Seller) as of the Closing of the following conditions:          (a) Each of the representations and warranties made by the Buyer in this Agreement shall betrue and correct in all material respects when made and on and as of the Closing Date as thoughsuch representations and warranties were made on and as of the Closing Date, subject to any changespermitted pursuant to this Agreement.          (b) The Buyer shall have performed or complied in all material respects with each obligationand covenant required by this Agreement to be performed or complied with by the Buyer on or beforethe Closing.          (c) No order or injunction of any court or administrative agency of competent jurisdiction norany statute, rule, regulation or executive order promulgated by any Governmental Authority ofcompetent jurisdiction shall be in effect as of the Closing which restrains or prohibits thetransfer of the Asset or the consummation of any other transaction contemplated hereby.          (d) The Seller shall have received all of the documents required to be delivered by the Buyerunder subsection 6.1(a).          (e) The Seller shall have received the Purchase Price in accordance with subsection 2.2(a) andall other amounts due to the Seller from the Buyer hereunder.          (f) The Seller shall have received evidence that (i) Franchisor has consented to the transferof the franchise rights associated with the Franchise Agreement in accordance with subsection4.5(a), and (ii) the Seller and any affiliates thereof have been released by Franchisor pursuant tosuch release as contemplated by the Franchise Agreement.
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          (g) Manager shall have agreed to the termination of the Management Agreement without anytermination fee, penalty or damages being payable by Seller or its affiliates.     SECTION 5.2 Conditions to the Buyer’s Obligations. The obligation of the Buyer to purchase and pay forthe Asset is subject to the satisfaction (or waiver by the Buyer) as of the Closing of thefollowing conditions:          (a) Each of the representations and warranties made by the Seller in this Agreement shall betrue and correct in all material respects when made and on and as of the Closing Date as thoughsuch representations and warranties were made on and as of Closing Date subject to (i) the Seller’sright to cure the same prior to the Closing as expressly provided in this Agreement, (ii) anychanges permitted pursuant to this Agreement, and (iii) any changes relating to matters arisingafter the date hereof in connection with the representations and warranties as set forth insubsections 3.2(e) and 3.2(g).          (b) The Seller shall have performed or complied in all material respects with each obligationand covenant required by this Agreement to be performed or complied with by the Seller on or beforethe Closing.          (c) No order or injunction of any court or administrative agency of competent jurisdiction norany statute, rule, regulation or executive order promulgated by any Governmental Authority ofcompetent jurisdiction shall be in effect as of the Closing which restrains or prohibits thetransfer of the Asset or the consummation of any other transaction contemplated hereby.          (d) Title to the Property shall be delivered to the Buyer in the manner required under Section8.1.          (e) The Buyer shall have received all of the documents required to be delivered by the Sellerunder Section 6.2, and all of the consents set forth on Schedule 3.1(c) shall have beenobtained.          (f) Franchisor shall have issued a new franchise agreement to the Buyer in accordance withSection 4.5(a).     SECTION 5.3 Waiver of Conditions Precedent. The Closing shall constitute conclusive evidence that theSeller and the Buyer have respectively waived any conditions which are not satisfied as of theClosing.ARTICLE VI.CLOSING DELIVERIESSECTION 6.1 The Buyer Closing Deliveries.          The Buyer shall deliver the following documents at Closing:
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          (a) with respect to the Asset:     (i) an assignment and assumption of the Seller’s interest in the Tenant Leases(an “Assignment of Leases”) duly executed by the Buyer in substantially theform of Exhibit A attached hereto;     (ii) an assignment and assumption of the Operating Agreements, Equipment Leasesand Bookings (an “Assignment of Contracts”) duly executed by the Buyer insubstantially the form of Exhibit B attached hereto; and     (iii) a certificate of Buyer, substantially in the form of Exhibit J(the “Buyer’s Representation Certificate”) that the representations andwarranties of Buyer set forth in Section 4.1 hereof are true and correct in allmaterial respects as of the Closing Date, subject to changes occurring in accordancewith this Agreement disclosed in such certificate.          (b) with respect to the transactions contemplated hereunder:     (i) a duly executed and sworn officer’s certificate from the Buyer (or thegeneral partner or managing member of the Buyer, where appropriate) certifying thatthe Buyer has taken all necessary action to authorize the execution of all documentsbeing delivered hereunder and the consummation of all of the transactionscontemplated hereby and that such authorization has not been revoked, modified oramended;     (ii) an executed and acknowledged incumbency certificate from the Buyer (or thegeneral partner or managing member of the Buyer, where appropriate) certifying theauthority of the officers of the Buyer (or the general partner or managing member ofthe Buyer, where appropriate) to execute this Agreement and the other documentsdelivered by the Buyer to the Seller at the Closing;     (iii) all transfer tax returns which are required by law and the regulationsissued pursuant thereto in connection with the payment of all state or local realproperty transfer taxes that are payable or arise as a result of the consummation ofthe transactions contemplated by this Agreement, in each case, as prepared andapproved by the Seller and the Buyer and duly executed by the Buyer;     (iv) an affidavit of the Buyer regarding commercial real estate brokers, in theform attached as Exhibit H hereto; and     (v) a closing statement prepared and approved by the Seller and the Buyer,consistent with the terms of this Agreement.     SECTION 6.2 The Seller Closing Deliveries.          The Seller shall deliver the following documents at Closing:
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          (a) with respect to the Asset:     (i) a limited warranty deed (a “Deed”) in substantially the form ofExhibit C attached hereto and in recordable form in Georgia, duly executed andacknowledged by the Seller, and if the legal description of the Land drawn from anynew boundary line survey of the Land prepared by Buyer differs from the legaldescription contained on Schedule A hereto, then, if requested by the Buyer and inaddition to the Deed, Seller shall execute and deliver a quitclaim deed in the formof Exhibit L attached hereto based on the legal description drawn from the newsurvey of the Land prepared for Buyer;     (ii) a bill of sale (a “Bill of Sale”) duly executed by the Seller insubstantially the form of Exhibit D attached hereto, transferring the FF&E,Property and Equipment, Inventories, Retail Merchandise, Books and Records,Miscellaneous Personal Property and Accounts Receivable to the Buyer;     (iii) the Assignment of Leases duly executed by the Seller, together with acopies, and if available, originals of the Tenant Leases referred to in suchassignment;     (iv) the Assignment of Contracts duly executed by the Seller, together withcopies, and if available, originals of all contracts and agreements assignedthereby;     (v) a general assignment of the Licenses and Permits and Intangible Property(the “Assignment of Intangibles”) duly executed by the Seller insubstantially the form of Exhibit E attached hereto;     (vi) all keys and keycards in the Seller’s possession and security and accesscodes to the Property;     (vii) an affidavit that the Seller is not a “foreign person” within the meaningof the Foreign Investment in Real Property Tax Act of 1980, as amended, insubstantially the form of Exhibit F attached hereto (the “FIRPTA”);     (viii) a closing statement prepared and approved by the Seller and the Buyer,consistent with the terms of this Agreement;     (ix) all Books and Records and receipts in the Seller’s possession relating tothe ownership, operating and management of the Hotel;     (x) the title affidavits and documents referred to in Section 8.4;     (xi) evidence reasonably acceptable to the Title Company, to the extentrequired, of the termination of the Management Agreement;     (xii) affidavits or certifications required to exempt Seller from the State ofGeorgia withholding tax, and the Georgia State withholding tax requirements
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on non-residents contained in O.C.G.A. §48-7-128 and the regulationspromulgated thereunder, or if Seller is not exempt from such withholding taxrequirements, Buyer shall be permitted to withhold from the Purchase Price paid toSeller such amounts as are required to be withheld pursuant to such statute andregulations, and Seller shall deliver to Buyer such standard form affidavits orcertificates as are required to determine the amount to be withheld (all suchaffidavits or certificates delivered to Buyer pursuant to this subsection, the“Georgia Residency Affidavits”);     (xiii) an affidavit of the Seller regarding commercial real estate brokers, inthe form of Exhibit H attached hereto; and     (xiv) a certificate of Seller substantially in the form of Exhibit K(“Seller’s Representation Certificate”) that the representations andwarranties of Seller set forth in Sections 3.1 and 3.2 hereof are true and correctin all material respects as of the Closing Date subject to changes occurring inaccordance with this Agreement disclosed in such certificate.          (b) with respect to the transactions contemplated hereunder:     (i) a duly executed and sworn officer’s certificate from the general partner ofthe Seller certifying that the Seller has taken all necessary action to authorizethe execution of all documents being delivered hereunder and the consummation of allof the transactions contemplated hereby and that such authorization has not beenrevoked, modified or amended;     (ii) an executed and acknowledged incumbency certificate from the generalpartner of the Seller certifying the authority of the officers of the generalpartner of the Seller to execute this Agreement and the other documents delivered bythe Seller to the Buyer at the Closing;     (iii) intentionally omitted     (iv) all transfer tax returns which are required by law and the regulationsissued pursuant thereto that are required as a result of the consummation of thetransactions contemplated by this Agreement, in each case, as prepared and approvedby the Seller and the Buyer and duly executed by the Seller.ARTICLE VII.INSPECTIONS; RELEASE          SECTION 7.1 Right of Inspection. Prior to the Closing, the Buyer and its agents shall have the right,upon reasonable prior written notice to the Seller (which shall in any event be at least 24 hoursin advance) and at the Buyer’s sole cost, risk and expense, to inspect the Property during businesshours, provided that any such inspection shall not unreasonably impede the
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normal day to day business operation of the Property, and provided further that the Seller shall beentitled to accompany the Buyer and its agents on such inspection. Notwithstanding the foregoing,the Buyer shall not have the right to do any invasive testing of the Property without the priorwritten consent of the Seller which may be granted or denied in the Seller’s sole and absolutediscretion. The Seller shall be entitled to accompany the Buyer and its agents on any suchpermitted interviews and testing. The Buyer’s right of inspection of the Property shall be subjectto the rights of the tenants and Hotel guests and the rights of Manager under the ManagementAgreement. Prior to any such inspection, the Buyer shall deliver to the Seller certificatesreasonably satisfactory to the Seller evidencing that the Buyer’s consultants and agents carry andmaintain such general liability insurance policies with such companies and in such scope andamounts as are acceptable to the Seller in its reasonable discretion, in all cases naming theSeller as an additional insured and loss payee thereunder. The Buyer hereby indemnifies and agreesto defend and hold the Seller harmless from and against all loss, cost (including, withoutlimitation, reasonable attorneys’ fees), claim or damage arising out of, resulting from relating toor in connection with or from any such inspection by the Buyer or its agents, except to the extentsuch claim or damage was caused solely by the Seller or the Seller’s agents. The provisions ofthis Section 7.1 shall survive the Closing and any termination of this Agreement. Notwithstandingthe foregoing rights to inspect, the Buyer acknowledges that there is no “due diligence period” or“due diligence termination right” in this Agreement and the Buyer does not have the right toterminate this Agreement based on the results of such inspections other than pursuant to an expresstermination right set forth in this Agreement.     SECTION 7.2 Examination; No Contingencies.          (a) Before entering into this Agreement, the Buyer has made such examination of the Asset andall other matters affecting or relating to the transactions contemplated hereunder as the Buyer hasdeemed necessary. In entering into this Agreement, the Buyer has not been induced by and has notrelied upon any written or oral representations, warranties or statements, whether express orimplied, made by the Seller or any partner of the Seller, or any affiliate, agent, employee, orother representative of any of the foregoing or by any broker or any other person representing orpurporting to represent the Seller with respect to the Asset, the Condition of the Asset or anyother matter affecting or relating to the transactions contemplated hereby, other than thoseexpressly set forth in this Agreement or in the Closing Documents. The Buyer’s obligations underthis Agreement shall not be subject to any contingencies, diligence or conditions except asexpressly set forth in this Agreement or in the Closing Documents. The Buyer acknowledges andagrees that, except as expressly set forth herein or in the Closing Documents, the Seller makes norepresentations or warranties whatsoever, whether express or implied or arising by operation oflaw, with respect to the Asset or the Condition of the Asset. THE BUYER AGREES THAT THE ASSET WILLBE SOLD AND CONVEYED TO (AND ACCEPTED BY) THE BUYER AT THE CLOSING IN THE THEN EXISTING CONDITIONOF THE ASSET, AS IS, WHERE IS, WITH ALL FAULTS, AND WITHOUT ANY WRITTEN OR VERBAL REPRESENTATIONSOR WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED OR ARISING BY OPERATION OF LAW, OTHER THAN ASEXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE CLOSING DOCUMENTS. Without limiting the generalityof the foregoing, except as set forth in this Agreement or in the Closing Documents, thetransactions contemplated by this Agreement are without statutory, express or implied warranty,representation, agreement, statement or
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expression of opinion of or with respect to the Condition of the Asset or any aspect thereof,including, without limitation, (i) any and all statutory, express or implied representations orwarranties related to the suitability for habitation, merchantability, or fitness for a particularpurpose, (ii) any statutory, express or implied representations or warranties created by anyaffirmation of fact or promise, by any description of the Asset or by operation of law and (iii)all other statutory, express or implied representations or warranties by the Seller whatsoever.The Buyer acknowledges that the Buyer has knowledge and expertise in financial and business mattersthat enable the Buyer to evaluate the merits and risks of the transactions contemplated by thisAgreement.          (b) For purposes of this Agreement, the term “Condition of the Asset” means thefollowing matters:     (i) Physical Condition of the Property. The quality, nature andadequacy of the physical condition of the Property, including, without limitation,the quality of the design, labor and materials used to construct the improvementsincluded in the Property; the condition of structural elements, foundations, roofs,glass, mechanical, plumbing, electrical, HVAC, sewage, and utility components andsystems; the capacity or availability of sewer, water, or other utilities; thegeology, flora, fauna, soils, subsurface conditions, groundwater, landscaping, andirrigation of or with respect to the Property, the location of the Property in ornear any special taxing district, flood hazard zone, wetlands area, protectedhabitat, geological fault or subsidence zone, hazardous waste disposal or clean-upsite, or other special area, the existence, location, or condition of ingress,egress, access, and parking; the condition of the personal property and anyfixtures; and the presence of any asbestos or other Hazardous Materials, dangerous,or toxic substance, material or waste in, on, under or about the Property and theimprovements located thereon. “Hazardous Materials” means (A) thosesubstances included within the definitions of any one or more of the terms“hazardous substances,” “toxic pollutants”, “hazardous materials”, “toxicsubstances”, and “hazardous waste” in the Comprehensive Environmental Response,Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (as amended), the HazardousMaterials Transportation Act, as amended, 49 U.S.C. Sections 1801 et seq., theResource Conservation and Recovery Act of 1976 as amended, 42 U.S.C. Section 6901 etseq., Section 311 of the Clean Water Act, 15 U.S.C. § 2601 et seq., 33 U.S.C. §1251 et seq., 42 U.S.C. 7401 et seq. and the regulations and publications issuedunder any such laws, (B) petroleum, radon gas, lead based paint, asbestos orasbestos containing material and polychlorinated biphenyls and (C) mold or waterconditions which may exist at the Property or other matters governed by anyapplicable federal, state or local law or statue.     (ii) Adequacy of the Asset. The economic feasibility, cash flow andexpenses of the Asset, and habitability, merchantability, fitness, suitability andadequacy of the Property for any particular use or purpose.     (iii) Legal Compliance of the Asset. The compliance or non-complianceof the Seller or the operation of the Property or any part thereof in
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accordance with, and the contents of, (A) all codes, laws, ordinances,regulations, agreements, licenses, permits, approvals and applications of or withany governmental authorities asserting jurisdiction over the Property, including,without limitation, those relating to zoning, building, public works, parking, fireand police access, handicap access, life safety, subdivision and subdivision sales,and Hazardous Materials, dangerous, and toxic substances, materials, conditions orwaste, including, without limitation, the presence of Hazardous Materials in, on,under or about the Property that would cause state or federal agencies to order aclean up of the Property under any applicable legal requirements and (B) allagreements, covenants, conditions, restrictions (public or private), condominiumplans, development agreements, site plans, building permits, building rules, andother instruments and documents governing or affecting the use, management, andoperation of the Property.     (iv) Matters Disclosed in the Schedules and the Asset File. Thosematters referred to in this Agreement and the documents listed on the Schedulesattached hereto and the matters disclosed in the Asset File.     (v) Insurance. The availability, cost, terms and coverage ofliability, hazard, comprehensive and any other insurance of or with respect to theProperty.     (vi) Condition of Title. The condition of title to the Property,including, without limitation, vesting, legal description, matters affecting title,title defects, liens, encumbrances, boundaries, encroachments, mineral rights,options, easements, and access; violations of restrictive covenants, zoningordinances, setback lines, or development agreements; the availability, cost, andcoverage of title insurance; leases, rental agreements, occupancy agreements, rightsof parties in possession of, using, or occupying the Property; and standby fees,taxes, bonds and assessments.     SECTION7.3     RELEASE. THE BUYER HEREBY AGREES THAT THE SELLER, AND EACH OF THEIR PARTNERS, MEMBERS,TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, PROPERTY MANAGERS, ASSET MANAGERS,AGENTS, ATTORNEYS, AFFILIATES AND RELATED ENTITIES, HEIRS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY,THE “RELEASEES”) SHALL BE, AND ARE HEREBY, FULLY AND FOREVER RELEASED AND DISCHARGED FROMANY AND ALL LIABILITIES, LOSSES, CLAIMS (INCLUDING THIRD PARTY CLAIMS), DEMANDS, DAMAGES (OF ANYNATURE WHATSOEVER), CAUSES OF ACTION, COSTS, PENALTIES, FINES, JUDGMENTS, REASONABLE ATTORNEYS’FEES, CONSULTANTS’ FEES AND COSTS AND EXPERTS’ FEES (COLLECTIVELY, THE “CLAIMS”) WITHRESPECT TO ANY AND ALL CLAIMS, WHETHER DIRECT OR INDIRECT, KNOWN OR UNKNOWN, FORESEEN ORUNFORESEEN, THAT MAY ARISE ON ACCOUNT OF OR IN ANY WAY BE CONNECTED WITH THE ASSET OR THE PROPERTYINCLUDING, WITHOUT LIMITATION, THE PHYSICAL, ENVIRONMENTAL AND STRUCTURAL CONDITION OF THE PROPERTYOR ANY LAW OR REGULATION APPLICABLE THERETO, INCLUDING, WITHOUT LIMITATION, ANY CLAIM OR MATTER(REGARDLESS OF WHEN IT FIRST APPEARED) RELATING TO OR ARISING FROM (A)
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THE PRESENCE OF ANY ENVIRONMENTAL PROBLEMS, OR THE USE, PRESENCE,STORAGE, RELEASE, DISCHARGE, OR MIGRATION OF HAZARDOUS MATERIALS ON,IN, UNDER OR AROUND THE PROPERTY REGARDLESS OF WHEN SUCH HAZARDOUSMATERIALS WERE FIRST INTRODUCED IN, ON OR ABOUT THE PROPERTY, (B) ANYPATENT OR LATENT DEFECTS OR DEFICIENCIES WITH RESPECT TO THEPROPERTY, (C) ANY AND ALL MATTERS RELATED TO THE PROPERTY OR ANYPORTION THEREOF, INCLUDING WITHOUT LIMITATION, THE CONDITION AND/OROPERATION OF THE PROPERTY AND EACH PART THEREOF, AND (D) THEPRESENCE, RELEASE AND/OR REMEDIATION OF ASBESTOS AND ASBESTOSCONTAINING MATERIALS IN, ON OR ABOUT THE PROPERTY REGARDLESS OF WHENSUCH ASBESTOS AND ASBESTOS CONTAINING MATERIALS WERE FIRST INTRODUCEDIN, ON OR ABOUT THE PROPERTY, PROVIDED, HOWEVER, THAT IN NO EVENTSHALL RELEASEES BE RELEASED FROM (X) ANY CLAIMS ARISING PURSUANT TOTHE PROVISIONS OF THIS AGREEMENT OR THE SELLER’S OBLIGATIONS, IF ANY,UNDER THE CLOSING DOCUMENTS OR (Y) ANY CLAIMS ARISING FROM ANYFRAUDULENT ACTS COMMITTED BY THE SELLER TO THE BUYER IN CONNECTIONWITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THE BUYERFURTHER AGREES THAT THE WAIVERS AND RELEASES HEREIN HAVE BEENNEGOTIATED AND AGREED UPON IN LIGHT OF THAT REALIZATION AND THAT THEBUYER NEVERTHELESS HEREBY INTENDS TO RELEASE, DISCHARGE AND ACQUITTHE SELLER FROM ANY SUCH UNKNOWN CLAIMS, DEBTS, AND CONTROVERSIESWHICH MIGHT IN ANY WAY BE INCLUDED AS A MATERIAL PORTION OF THECONSIDERATION GIVEN TO THE SELLER BY THE BUYER IN EXCHANGE FOR THESELLER’S PERFORMANCE HEREUNDER. THE SELLER HAS GIVEN THE BUYERMATERIAL CONCESSIONS REGARDING THIS TRANSACTION IN EXCHANGE FOR THEBUYER AGREEING TO THE PROVISIONS OF THIS SECTION 7.3. THE SELLER ANDTHE BUYER HAVE EACH INITIALED THIS SECTION 7.3 TO FURTHER INDICATETHEIR AWARENESS AND ACCEPTANCE OF EACH AND EVERY PROVISION HEREOF.THE PROVISIONS OF THIS SECTION 7.3 SHALL SURVIVE THE CLOSING ANDSHALL NOT BE DEEMED MERGED INTO ANY INSTRUMENT OR CONVEYANCEDELIVERED AT THE CLOSING.  SELLER’S INITIALS:              BUYER’S INITIALS:            ARTICLE VIII.TITLE AND PERMITTED EXCEPTIONS     SECTION 8.1 Title Insurance and Survey.          The Property shall be sold and is to be conveyed, and the Buyer agrees to purchase theProperty, subject only to the Permitted Exceptions.     SECTION 8.2 Title Commitment; Survey.
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          The Buyer has received and reviewed a copy of the Title Commitment and the Existing Survey.     SECTION 8.3 Delivery of Title.          (a) At or prior to the Closing, the Seller shall obtain releases of (i) all deeds to securedebts and/or mortgage liens and other financing items encumbering the Asset (“FinancingLiens”), (ii) tax liens (other than liens for taxes not yet due and payable) encumbering theProperty (“Tax Liens”) and (iii) any liens encumbering the Property affirmatively placed onthe Property by the Seller on or after March 25, 2007 (“Post Effective Date SellerEncumbrance”). Other than as set forth in this Agreement (including without limitation thefirst sentence of this subsection 8.3(a), and subsection 8.3(c)), the Seller shall not be requiredto take or bring any action or proceeding or any other steps to remove any title exception or toexpend any moneys therefor, nor shall the Buyer have any right of action against the Seller, at lawor in equity, for the Seller’s inability to convey title subject only to the Permitted Exceptions.          (b) Subject to the Seller’s obligations under subsections 8.3(a) and 8.3(c), in the event thatthe Seller is unable to convey title subject only to the Permitted Exceptions, and the Buyer hasnot, prior to the Closing Date, given notice to the Seller that the Buyer is willing to waiveobjection to each title exception which is not a Permitted Exception, the Seller shall have theright, in the Seller’s sole and absolute discretion, to (i) take such action as the Seller shalldeem advisable to attempt to discharge each such title exception which is not a Permitted Exceptionor (ii) terminate this Agreement. In the event that the Seller shall elect to attempt to dischargesuch title exceptions which are not Permitted Exceptions, the Seller shall proceed to attempt todischarge such title exceptions diligently and in good faith and for so long as it is so attemptingto discharge such title objections shall be entitled to one or more adjournments of the ClosingDate for a period not to exceed 60 days in the aggregate. If, for any reason whatsoever, theSeller has not discharged such title exceptions which are not Permitted Exceptions prior to theexpiration of the last of such adjournments, and if the Buyer is not willing to waive objection tosuch title exceptions, this Agreement shall be terminated as of the expiration of the last of suchadjournments. In the event of a termination of this Agreement pursuant to this subsection 8.3(b),the Earnest Money shall be refunded to the Buyer and neither party shall have any further rights orobligations hereunder except for those that expressly survive the termination of this Agreement.Nothing in this clause (b) shall require the Seller, despite any election by the Seller to attemptto discharge any title exceptions, to take or bring any action or proceeding or any other steps toremove any title exception or to expend any moneys therefor, other than with respect to the PostEffective Date Seller Encumbrance, the Post Effective Date Monetary Encumbrance, Financing Liensand Tax Liens.          (c) Notwithstanding the foregoing, at the Closing, in addition to releasing all FinancingLiens, Tax Liens and Post Effective Date Seller Encumbrances which the Buyer does not waive itsobjection to pursuant to Section 8.3(b), the Seller shall obtain a release of any lien encumberingthe Property on or after March 25, 2007 which may be removed by the payment of a sum of money (a“Post Effective Date Monetary Encumbrances”); provided that Seller shall not be obligatedto spend more than $250,000 in the aggregate to remove any Post-Effective Date MonetaryEncumbrances.
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     SECTION 8.4 Cooperation. In connection with obtaining the Title Policy, the Buyer and the Seller, asapplicable, and to the extent requested by the Title Company, will deliver to the Title Company (a)evidence sufficient to establish (i) the legal existence of the Buyer and the Seller and theirrespective signatories and (ii) the authority of the respective signatories of the Seller and theBuyer to bind the Seller and the Buyer, as the case may be, (b) certificates of good standing ofthe Seller in Delaware and, if applicable, Georgia; and (c) the affidavits of the Seller in theforms attached hereto as Exhibit G.ARTICLE IX.TRANSACTION COSTS; RISK OF LOSS     SECTION 9.1 Transaction Costs.          (a) The Buyer and the Seller agree to comply with all real estate transfer tax laws applicableto the sale of the Asset. At Closing, the Seller shall pay the applicable documentary transfertaxes as a result of the conveyance of the Asset to Buyer pursuant to this Agreement. In additionto their respective apportionment obligations hereunder, (i) the Seller and the Buyer shall each beresponsible for the payment of the costs of their respective legal counsel, advisors and otherprofessionals employed thereby in connection with the sale of the Asset, and (ii) the Buyer shallbe responsible for all costs and expenses associated with (A) the Buyer’s due diligence, (B) anyextended coverage or endorsements to the Title Policy, (C) the policy premiums in respect of anymortgage title insurance obtained by the Buyer, (D) all costs for any new survey and search costswith respect to the Property and updates related thereto, (E) payment, at the Closing, of therecording charges and fees (other than deed recordation taxes) for the documents necessary totransfer the Asset, (F) obtaining any financing the Buyer may elect to obtain (including any fees,financing costs, transfer taxes, mortgage and recordation taxes and intangible taxes in connectiontherewith), and (G) all other costs which are the responsibility under applicable law for the Buyerto pay (including, without limitation, all sales and use taxes due as a result of the sale of theAsset). Seller shall pay the basic policy premium with respect to the Title Policy. Seller shallbe entitled to receive at Closing any title policy reissue credits applicable to the issuance ofthe Title Policy. The fees, if any, of the Escrow Agent shall be equally divided between theSeller and the Buyer.          (b) Each party to this Agreement shall indemnify the other parties and their respectivesuccessors and assigns from and against any and all loss, damage, cost, charge, liability orexpense (including court costs and reasonable attorneys’ fees) which such other party may sustainor incur as a result of the failure of either party to timely pay any of the aforementioned taxes,fees or other charges for which it has assumed responsibility under this Section. The provisionsof this Article IX shall survive the Closing or the termination of this Agreement.     SECTION 9.2 Risk of Loss.          (a) If, on or before the Closing Date, (i) the Property or any portion thereof shall bedamaged or destroyed by fire or other casualty or (ii) any Governmental Authority or
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other entity having condemnation authority shall take the property or any portion thereof orinstitute an eminent domain proceeding by delivering written notice thereof to the Seller and thesame is not dismissed prior to the Closing, then the Seller shall promptly notify the Buyer and atClosing, the Seller will credit against the Purchase Price payable by the Buyer at the Closing anamount equal to the net proceeds (other than on account of business or rental interruption relatingto the period prior to Closing), if any, received by the Seller on or prior to the Closing as aresult of such casualty or condemnation, plus the amount of any deductible, less any amounts spentto restore the Property. If as of the Closing Date, the Seller has not received all or any portionof such insurance or condemnation proceeds, then the parties shall nevertheless consummate on theClosing Date the conveyance of the Asset (without any credit for such as yet unpaid insurance orcondemnation proceeds except for a credit for any deductible under such insurance) and the Sellerwill at Closing assign to the Buyer all rights of the Seller, if any, to the insurance orcondemnation proceeds (other than on account of business or rental interruption relating to theperiod prior to Closing but including all business or rental interruption relating to the period onor after Closing) and to all other rights or claims arising out of or in connection with suchcasualty or condemnation and the Buyer may notify all appropriate insurance companies of itsinterest in the insurance proceeds.          (b) Notwithstanding the provisions of subsection 9.2(a), if, on or before the Closing Date,the Property or any portion thereof shall be (i) damaged or destroyed by a Material Casualty or(ii) taken as a result of a Material Condemnation, the Buyer shall have the right, exercised bynotice to the Seller no more than ten Business Days after the Buyer has received notice of suchMaterial Casualty or Material Condemnation, to terminate this Agreement, in which event the EarnestMoney shall be refunded to the Buyer and neither party shall have any further rights or obligationshereunder other than those which expressly survive the termination of this Agreement. If the Buyerfails to timely terminate this Agreement in accordance with this subsection 9.2(b), the provisionsof subsection 9.2(a) shall apply. As used in this subsection 9.2(b), a “Material Casualty”shall mean any damage to the Property or any portion thereof by fire or other casualty that, in theSeller’s reasonable judgment, may be expected to cost in excess of $4,100,000 to repair. As usedin this subsection 9.2(b), a “Material Condemnation” shall mean a taking of the Property orany material portion thereof as a result of a condemnation or eminent domain proceeding or theinstitution of such proceeding pursuant to a written notice thereof to the Seller that, permanentlyimpairs the use and value of the Property, and which can not be restored to substantially the sameuse and value as before the taking.          (c) Subject to the provisions of this Section 9.2, the risk of loss or damage to the Propertyshall remain with the Seller until delivery of the Deed.ARTICLE X.ADJUSTMENTS     SECTION 10.1 Adjustments. Except as otherwise specifically provided in subsection 10.1(m), the Sellershall be responsible for and shall pay (or credit the Buyer for) all liabilities, including,without limitation, all real property, personal property and sales and use taxes, which accrue withrespect to the Asset with respect to all periods prior to the Closing and
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the Buyer shall be responsible for and shall pay all liabilities, including without limitation all realproperty, personal property and sales and use taxes, which accrue with respect to the Asset withrespect to all periods from and after the Closing. Unless otherwise provided below, the followingare to be adjusted and prorated between the Seller and the Buyer as of 11:59 P.M. on the daypreceding the Closing (the “Cut-Off Time”), based upon a 365 day year, and the net amountthereof under Section 10.1 shall be added to (if such net amount is in the Seller’s favor) ordeducted from (if such net amount is in the Buyer’s favor) the Purchase Price payable at Closing:          (a) Taxes and Assessments. All real estate and personal property taxes andassessments (including, without limitation, special assessments and improvement assessments) leviedagainst the Asset shall be prorated as of the Cut-Off Time between the Buyer and the Seller. Ifthe amount of any such taxes is not ascertainable on the Closing Date, the proration for such taxesshall be estimated based on the most recent available bill; provided, however, thatafter the Closing, the Seller and the Buyer shall reprorate the taxes and pay any deficiency in theoriginal proration to the other party promptly upon receipt of the actual bill for the relevanttaxable period. In the event that the Asset or any part thereof shall be or shall have beenaffected by an assessment or assessments which are payable in installments, the Seller shall, atthe Closing, be responsible for any installments due prior to the Closing and the Buyer shall beresponsible for any installments due on or after the Closing, provided that such assessments shallin any event be prorated between the Buyer and the Seller as of the Cut-Off Time. The reprorationobligation under this subsection 10.1(a) shall survive the Closing.          (b) Water and Sewer Charges, Utilities. All utility services shall be prorated as ofthe Cut-Off Time between the Buyer and the Seller. To the extent possible, readings shall beobtained for all utilities as of the Cut-Off Time. If not possible, the cost of such utilitiesshall be prorated between the Seller and the Buyer by estimating such cost on the basis of the mostrecent bill for such service; provided, however, that after the Closing, the Seller and the Buyershall reprorate the amount for such utilities and pay any deficiency in the original proration tothe other party promptly upon receipt of the actual bill for the relevant billing period. TheSeller shall receive a credit for all deposits transferred to the Buyer or which remain on depositfor the benefit of the Buyer with respect to such utility contracts, otherwise such deposits shallbe refunded to the Seller. The reproration obligation in this subsection 10.1(b) shall survive theClosing.          (c) Operating Agreements and Equipment Leases. Charges and payments (including thereimbursement of expenses) under all Operating Agreements and Equipment Leases.          (d) Miscellaneous Revenues. Revenues, if any, arising out of telephone booths,vending machines, parking, or other income producing agreements, on an if, as and when collectedbasis.          (e) Inventory. The Seller shall receive a credit for all Inventory and RetailMerchandise in unopened cases as of the Closing in an amount equal to the Seller’s actual cost(including sales and/or use tax) for such items.
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          (f) Tenant Leases. Any rents and other amounts prepaid, accrued or due and payableunder the Tenant Leases shall be prorated as of the Cut-Off Time between the Buyer and the Seller.The Buyer shall receive a credit for all cash security deposits held by the Seller under the TenantLeases and the Buyer thereafter shall be obligated to refund or apply such deposits in accordancewith the terms of such Tenant Leases.          (g) Licenses and Permits. All amounts prepaid, accrued or due and payable under anyPermits (other than utilities which are separately prorated under subsection 10.1(b)) transferredto the Buyer shall be prorated as of the Cut-Off Time between the Seller and the Buyer. The Sellershall receive a credit for all deposits made by the Seller under the Licenses and Permits which aretransferred to the Buyer or which remain on deposit for the benefit of the Buyer.          (h) Deposits for Bookings. The Buyer shall receive a credit for all prepaid depositsfor Bookings scheduled for accommodations or events on or after the Closing Date, except to theextent such deposits are transferred to the Buyer and for all other amounts prepaid by guests orother customers for accommodations or events on or after the Closing Date.          (i) Restaurants and Bars, Etc. The Seller shall close out the transactions in therestaurants and bars in the Hotel as of the Cut-Off Time and all revenues with respect thereto andwith respect to other services to guests of the Hotel, including without limitation, health clubrevenues, room service revenues and banquet revenues, if any, shall be prorated between the Sellerand the Buyer as of the Cut-Off Time.          (j) Vending Machines. The Seller shall remove all monies from all vending machines,laundry machines, pay telephones and other coin-operated equipment as of the Cut-Off Time and shallretain all monies collected therefrom as of the Cut-Off Time, and the Buyer shall be entitled toany monies collected therefrom after the Cut-Off Time.          (k) Trade Payables. Except to the extent an adjustment or proration is made underanother subsection of this Section 10.1, (i) the Seller shall pay in full prior to the Closing allamounts payable to vendors or other suppliers of goods or services to the Hotel (the “TradePayables”) which are due and payable as of the Closing Date for which goods or services have beendelivered to the Hotel prior to Closing, and (ii) the Buyer shall receive a credit for the amountof such Trade Payables which have accrued, but are not yet due and payable as of the Closing Date,and the Buyer shall pay all such Trade Payables accrued as of the Closing Date when such TradePayables become due and payable up to the amount of such credit; provided, however, the Seller andthe Buyer shall reprorate the amount of credit for any Trade Payables and pay any deficiency in theoriginal proration to the other party promptly upon receipt of the actual bill for such goods orservices. The Seller shall receive a credit for all advance payments or deposits made with respectto FF&E, Retail Merchandise, Property and Equipment and Inventories ordered, but not delivered tothe Hotel prior to the Closing Date, and the Buyer shall pay the amounts which become due andpayable for such FF&E, Retail Merchandise, Property and Equipment and Inventories which wereordered but not delivered prior to Closing. The reproration obligation in this subsection 10.1(k)shall survive the Closing.
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          (l) Cash. The Seller shall receive a credit for all cash on hand at the Hotel and allcash on deposit in any house bank at the Hotel as of the Closing and all such cash on hand and cashon deposit in any house bank at the Hotel shall be transferred to and belong to the Buyer from andafter the Closing. The Seller shall retain all amounts in any operating accounts of the Hotel inany bank, and there shall be no credit or adjustment hereunder with respect to such cash;provided, however, the Seller shall receive a credit for any reserve fund oraccount established pursuant to the terms of the Management Agreement which the Seller transfers tothe Buyer at Closing, if any.          (m) Employee Compensation. The Seller shall pay all wages, payroll taxes and fringebenefits (including accrued vacation pay to the extent actually earned) as well as social security,unemployment compensation, health, life and disability insurance and pension fund contributions, ifany, of the Employees through the Closing Date, provided, that, the Seller shall have no liabilityor obligation to pay for any sick pay or accrued but unearned vacation pay. Notwithstanding theforegoing, with respect to accrued bonuses for 2007, the Seller’s pro-rated share shall be basedupon the bonus program in place as of the beginning of 2006 in the 2006 approved budget for theHotel prepared by Manager. The Buyer shall be responsible for all other liabilities relating to orin connection with Employees for the period on or after the Cut-Off Time and any liabilitiesrelating to or in connection with sick pay and accrued but unearned vacation pay whether havingaccrued prior to, on or after the Cut-Off Time. The Buyer shall be responsible for all severancepayments for Transferred Employees arising on or after the Closing and for all Employees notoffered employment by the Buyer (or its manager) as of the Closing, or who do not accept employmentby the Buyer (or its manager) on the same terms as those provided to such employees by Manager onthe day immediately preceding the Closing Date.          (n) The Buyer and the Seller each acknowledge that certain taxes and assessments accrue andare payable to the various local governments by any business entity operating a hotel and itsrelated facilities. Included in those taxes and assessments may be business and occupation taxes,retail sales taxes, gross receipts taxes, and other special lodging or hotel taxes and assessments.For purposes of this Agreement, all of such taxes and assessments (expressly excluding (x) taxesand assessments covered in Section 10.1(a) of this Agreement, which shall be governed by theprovisions of Section 10.1(a), and (y) corporate franchise taxes, and federal, state and localincome taxes) shall be allocated between the Seller and the Buyer such that those attributable tothe period prior to the Cut-Off Time shall be allocable to the Seller and those attributable to theperiod after the Cut-Off Time shall be allocable to the Buyer (with the attribution of such taxesand assessments hereunder to be done in a manner consistent with the attribution under thisAgreement of the applicable revenues on which such taxes and assessments may be based). The Sellershall be obligated to pay all such taxes and assessments which accrue with respect to the periodprior to the Cut-Off Time, and the Buyer shall be obligated to pay all such taxes and assessmentswhich accrue with respect to the period after the Cut-Off Time.          (o) Other. If applicable, the Purchase Price shall be adjusted at Closing to reflectthe adjustment of any other item which, (i) under the explicit terms of this Agreement, is to beapportioned at Closing, or (ii) is customarily prorated at the closing of similar transactions.
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          (p) The provisions of Section 10.1 and the obligations of the Seller and the Buyer hereundershall survive the Closing.     SECTION 10.2 Re-Adjustment.          (a) If any items to be adjusted pursuant to this Article X are not determinable at theClosing, the adjustment shall be made subsequent to the Closing when the charge is determined. TheBuyer shall deliver to the Seller no later than 120 days following the Closing Date a schedule ofprorations setting forth the Buyer’s determination of all adjustments to the prorations made atClosing that it believes are necessary to complete the prorations as set forth in this Article X.Any errors or omissions in computing adjustments or readjustments at the Closing or thereaftershall be promptly corrected or made, provided that the party seeking to correct such error oromission or to make such readjustment shall have notified the other party of such error or omissionor readjustment on or prior to the date that is 180 days following the Closing.          (b) The provisions of Section 10.2 and the obligations of the Seller and the Buyer hereundershall survive the Closing.     SECTION 10.3 Accounts Receivable.          (a) Guest Ledger. All revenues received or to be received from transient guests onaccount of room rents for the period prior to and including the Cut-Off Time shall belong to theSeller. At Closing, the Seller shall receive a credit in an amount equal to: (i) all amountsunpaid as of the Cut-Off Time charged to the Guest Ledger for all room nights up to (but notincluding) the night during which the Cut-Off Time occurs, and (ii) one-half of all amounts unpaidas of the Cut-Off Time charged to the Guest Ledger for the room night which includes the Cut-OffTime and the Guest Ledger and all amounts charged thereto and unpaid as of the Cut-Off Time shallbecome the property of the Buyer. For the period beginning on the day immediately following theCut-Off Time, such revenues collected from the Guest Ledger shall belong to the Buyer. In theevent that an amount less than the total amount due from a guest is collected and guest continuedin occupancy after the Cut-Off Time, such amount shall be applied first to any amount owing by suchperson to the Seller and thereafter to such person’s amounts accruing to the Buyer.          (b) Accounts Receivable (Other than Guest Ledger).     (i) On the Closing Date, the Seller shall assign to the Buyer all AccountsReceivable that are 90 days or less past due as of the Closing (the “AssignedAccounts Receivable”), the Buyer shall pay to the Seller an amount equal to 100%of all Accounts Receivable that are 90 days or less past due as of the Closing Dateand shall not credit to the Seller any amounts for Accounts Receivable more than 90days past due as of the Closing Date. The Buyer shall have the sole right tocollect and retain all such Assigned Accounts Receivable. If any Assigned AccountsReceivable are paid to the Seller after the Closing, the Seller shall pay to theBuyer the amounts received by the Seller within 10 days after receipt of suchamounts without any commission or deduction for the Seller.
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     (ii) After the Closing, the Seller shall retain the right to collect allAccounts Receivable other than the Guest Ledger which is addressed in subsection10.3(a), and the Assigned Accounts Receivable, which is addressed in subsection10.3(b)(i) (such retained Accounts Receivable, the “Retained AccountsReceivable”). The Seller shall not receive a credit for the Retained AccountsReceivable. The Seller shall have the sole right to collect the Retained AccountsReceivable. If any Retained Accounts Receivable are paid to the Buyer after theClosing, the Buyer shall pay to the Seller the amounts received by the Buyer within10 days after receipt of such amounts without any commission or deduction for theBuyer.     (iii) The Accounts Receivable addressed in this subsection 10.3(b) shall notinclude the Guest Ledger, which is addressed in subsection 10.3(a).     (iv) The parties’ obligations under this subsection 10.3(b) shall survive theClosing.          (c) The provisions of Section 10.3 and the obligations of the Seller and the Buyer hereundershall survive the Closing.ARTICLE XI.INDEMNIFICATION     SECTION 11.1 Indemnification by the Seller. From and after the Closing and subject to Sections 11.3 and11.4, the Seller shall indemnify and hold the Buyer, its affiliates, members and partners, and thepartners, shareholders, officers, directors, employees, representatives and agents of each of theforegoing (collectively, “Buyer-Related Entities”) harmless from and against any and allcosts, fees, expenses, damages, deficiencies, interest and penalties (including, withoutlimitation, reasonable attorneys’ fees and disbursements) suffered or incurred by any suchindemnified party in connection with any and all losses, liabilities, claims, damages and expenses(“Losses”), arising out of, or in any way relating to (a) any breach of any representationor warranty of the Seller contained in this Agreement or in any Closing Document and (b) any breachof any covenant of the Seller which survives the Closing contained in this Agreement or in anyClosing Document, including, without limitation, any amounts due and owing to the Buyer followingthe Closing pursuant to Article X. Notwithstanding anything to the contrary contained herein, theSeller shall have no liability or obligation to indemnify and hold the Buyer Related Entitiesharmless from any Losses to the extent such Losses results from or is related to any acts oromissions of Manager which would otherwise result in an indemnification obligation of Manager infavor of the Seller pursuant to the terms of the Management Agreement or constitute a default byManager under the Management Agreement.     SECTION 11.2 Indemnification by the Buyer. From and after the Closing and subject to Sections 11.3 and11.4, the Buyer shall indemnify and hold the Seller, its affiliates, members and partners, and thepartners, shareholders, officers, directors, employees, representatives and agents of each of theforegoing (collectively, “Seller-Related Entities”) harmless from any and all
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Losses arising out of, or in any way relating to, (a) any breach of any representation or warrantyby the Buyer contained in this Agreement or in any Closing Document including, without limitation,any amounts due and owing to the Seller pursuant to Article X and (b) any breach of any covenant ofthe Buyer which survives the Closing contained in this Agreement or in any Closing Documentincluding, without limitation, any amounts due and owing to the Seller following the Closingpursuant to Article X.     SECTION 11.3 Limitations on Indemnification. Notwithstanding the foregoing provisions of Section 11.1,(a) the Seller shall not be required to indemnify the Buyer or any Buyer-Related Entities undersubsection 11.1(a) unless the aggregate of all amounts for which an indemnity would otherwise bepayable by the Seller under subsection 11.1(a) exceeds the Basket Limitation and, in such event,the Seller shall be responsible only for such amount in excess of the Basket Limitation, (b) in noevent shall the liability of the Seller with respect to the indemnification provided for insubsection 11.1(a) exceed in the aggregate the Cap Limitation, and (c) if prior to the Closing, theBuyer or Manager obtains or has actual knowledge of any inaccuracy or breach of any representation,warranty or pre-closing covenant of the Seller contained in this Agreement (a “Buyer WaivedBreach”) and nonetheless proceeds with and consummates the Closing, then the Buyer and anyBuyer-Related Entities shall be deemed to have waived and forever renounced any right to assert aclaim for indemnification under this Article XI for, or any other claim or cause of action underthis Agreement at law or in equity on account of any such Buyer Waived Breach.     SECTION 11.4 Survival. The (a) representations and warranties contained in this Agreement and theClosing Documents (other than the Deed, FIRPTA or the Georgia Residency Affidavits) shall survivefor a period of six months after the Closing and (b) the covenants contained in this Agreement andthe Closing Documents (other than the Deed, FIRPTA or the Georgia Residency Affidavits) shallsurvive for a period of one year after the Closing (the period beginning on the date hereof andending on such applicable date in clause (a) or (b) being herein called the “SurvivalPeriod”) unless otherwise provided for in this Agreement. Each party shall have the right tobring an action against the other for the breach of the representations and warranties, covenants,obligations, provisions and liabilities hereunder or under the Closing Documents, but only on thefollowing conditions: the party bringing the action for breach (i) gives a reasonably detailedwritten notice of such breach to the other party within 91 days after the expiration of theapplicable Survival Period, and (ii) files an action for such breach on or before the first dayfollowing the second anniversary of the Closing Date, after which time all representations andwarranties, covenants, obligations and liabilities (and any cause of action resulting from a breachthereof not then in litigation) herein or the Closing Documents (other than the Deed, FIRPTA or theGeorgia Residency Affidavits) shall terminate. The provisions of this Section 11.4 shall not beapplicable to the Deed, FIRPTA or the Georgia Residency Affidavits, which shall survive the Closingwithout limitation.     SECTION 11.5 Indemnification as Sole Remedy. If the Closing has occurred, the sole and exclusive remedy(other than the right to seek specific performance of a covenant to be performed by the Seller orthe Buyer after the Closing) available to a party in the event of a breach by the other party tothis Agreement of any representation, warranty, covenant or other provision of this Agreement orany Closing Document which survives the Closing shall be the indemnifications provided for underthis Article XI or elsewhere in this Agreement, which
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indemnifications shall survive the Closing as provided in this Article XI. The provisions of thisSection 11.5 shall not be applicable to the Deed, FIRPTA or the Georgia Residency Affidavits.ARTICLE XII.DEFAULT AND TERMINATION     SECTION 12.1 The Seller’s Termination.          (a) This Agreement may be terminated by the Seller prior to the Closing if (i) any of theconditions precedent to the Seller’s obligations set forth in Section 5.1 or elsewhere in thisAgreement have not been satisfied or waived by the Seller on or prior to the Closing Date or (ii)there is a material breach or default by the Buyer in the performance of any of its obligationsunder this Agreement.          (b) In the event this Agreement is terminated by the Seller pursuant to subsection 12.1(a),this Agreement shall be null and void and of no further force or effect and neither party shallhave any rights or obligations against or to the other except (i) for those provisions hereof whichby their terms expressly survive the termination of this Agreement and (ii) as set forth insubsection 12.1(c). Notwithstanding the foregoing, if this Agreement is terminated by the Sellerprior to the Closing for a failure of (i) the condition precedent set forth in subsection 5.1(f)and provided the Buyer is not in default of its obligation as set forth in Section 4.5 or (ii) thecondition set forth in subsection 5.1(c) and provided any matters arising under such subsection5.1(c) is not based upon any act or omission by the Buyer or any of its affiliates, the EscrowAgent shall disburse the Earnest Money to the Buyer as the Buyer’s sole and exclusive remedy, andupon such disbursement the Seller and the Buyer shall have no further obligations under thisAgreement, except those which expressly survive such termination.          (c) In the event the Seller terminates this Agreement as a result of a breach or default bythe Buyer in any of its obligations under this Agreement, the Escrow Agent shall immediatelydisburse the Earnest Money to the Seller, and upon such disbursement the Seller and the Buyer shallhave no further obligations under this Agreement, except those which expressly survive suchtermination. The Buyer and the Seller hereby acknowledge and agree that it would be impracticaland/or extremely difficult to fix or establish the actual damage sustained by the Seller as aresult of such default by the Buyer, and agree that the Earnest Money is a reasonable approximationthereof. Accordingly, in the event that the Buyer breaches this Agreement by defaulting in thecompletion of the purchase of the Asset, the Earnest Money shall constitute and be deemed to be theagreed and liquidated damages of the Seller, and shall be paid by the Escrow Agent to the Seller asthe Seller’s sole and exclusive remedy hereunder; provided, however, the foregoingshall not limit the Buyer’s obligation to pay to the Seller all reasonable attorneys’ fees andcosts of the Seller to enforce the provisions of this Section 12.1 or limit the Buyer’sindemnification obligations owed to the Seller pursuant to this Agreement which survive atermination of this Agreement. The payment of the Earnest Money as liquidated damages is notintended to be a forfeiture or penalty, but is intended to constitute liquidated damages to theSeller.
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     SECTION 12.2 The Buyer’s Termination.          (a) This Agreement may be terminated by the Buyer prior to the Closing if (i) any of theconditions precedent to the Buyer’s obligations set forth in Section 5.2 or specifically set forthelsewhere in this Agreement have not been satisfied or waived by the Buyer on or prior to theClosing Date or (ii) there is a material breach or default by the Seller in the performance of itsobligations under this Agreement.          (b) In the event this Agreement is terminated by the Buyer pursuant to subsection 12.2(a)(i),the Escrow Agent shall disburse the Earnest Money to the Buyer as the Buyer’s sole and exclusiveremedy, and upon such disbursement the Seller and the Buyer shall have no further obligations underthis Agreement, except those which expressly survive such termination.          (c) If there is a material breach or default by the Seller in the performance of itsobligations under this Agreement, the Buyer, at its option and as its sole and exclusive remedy,may either (i) terminate this Agreement, direct the Escrow Agent to deliver the Earnest Money tothe Buyer and retain the Earnest Money, at which time this Agreement shall be terminated and of nofurther force and effect except for the provisions which explicitly survive such termination, or(ii) specifically enforce the terms and conditions of this Agreement provided such action seekingspecific performance is initiated within 90 days of the scheduled Closing Date. The Buyer and theSeller hereby acknowledge and agree that it would be impractical and/or extremely difficult to fixor establish the actual damage sustained by the Buyer as a result of such default by the Seller,and agree that the remedy set forth in clause (i) above is a reasonable approximation thereof.Accordingly, in the event that the Seller breaches this Agreement by defaulting in the completionof the sale, and the Buyer elects not to exercise the remedy set forth in clause (ii) above butinstead elects the remedy set forth in clause (i) above, the delivery of the Earnest Money to theBuyer shall be the Buyer’s sole and exclusive remedy. The Buyer agrees to, and does hereby, waiveall other remedies against the Seller which the Buyer might otherwise have at law or in equity byreason of such default by the Seller.ARTICLE XIII.TAX CERTIORARI PROCEEDINGS     SECTION 13.1 Prosecution and Settlement of Proceedings. If any tax reduction proceedings in respect ofthe Property, relating to any fiscal years ending prior to the fiscal year in which the Closingoccurs are pending at the time of the Closing, the Seller reserves and shall have the right tocontinue to prosecute and/or settle the same. If any tax reduction proceedings in respect of theProperty, relating to the fiscal year in which the Closing occurs, are pending at the time ofClosing, then the Seller reserves and shall have the right to continue to prosecute and/or settlethe same; provided, however, that the Seller shall not settle any such proceeding without theBuyer’s prior written consent, which consent shall not be unreasonably withheld or delayed. TheBuyer shall reasonably cooperate with the Seller in connection with the prosecution of any such taxreduction proceedings.
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     SECTION 13.2 Application of Refunds or Savings. Any refunds or savings in the payment of taxesresulting from such tax reduction proceedings applicable to taxes payable during the period priorto the date of the Closing shall belong to and be the property of the Seller, and any refunds orsavings in the payment of taxes applicable to taxes payable from and after the date of the Closingshall belong to and be the property of the Buyer. All attorneys’ fees and other expenses incurredin obtaining such refunds or savings shall be apportioned between the Seller and the Buyer inproportion to the gross amount of such refunds or savings payable to the Seller and the Buyer,respectively (without regard to any amounts reimbursable to tenants); provided, however, thatneither the Seller nor the Buyer shall have any liability for any such fees or expenses in excessof the refund or savings paid to such party unless such party initiated such proceeding.     SECTION 13.3 Survival. The provisions of this Article XIII shall survive the Closing.ARTICLE XIV.MISCELLANEOUS     SECTION 14.1 Use of Blackstone Name and Address. The Buyer hereby acknowledges and agrees that neitherthe Buyer nor any affiliate, successor, assignee or designee of the Buyer shall be entitled to usethe name “Blackstone”, “MeriStar”, “CapStar”, “Lepercq” or “Equistar” in connection with theoperation, ownership and use of the Property. The provisions of this Section 14.1 shall survivethe Closing and any termination of this Agreement.     SECTION 14.2 Exculpation of the Seller. Notwithstanding anything to the contrary contained herein, theSeller’s shareholders, limited partners, members, the partners or members of such partners, theshareholders of such partners, members, and the trustees, officers, directors, employees, agentsand security holders of the Seller and the partners or members of the Seller assume no personalliability for any obligations entered into in connection with or relating to this Agreement onbehalf of the Seller and their respective individual assets shall not be subject to any claims ofany person relating to such obligations. The foregoing shall govern any direct and indirectobligations of the Seller under this Agreement. The provisions of this Section 14.2 shall survivethe Closing and any termination of this Agreement.SECTION 14.3 Brokers.          (a) The Seller represents and warrants to the Buyer, as of the date hereof and as of theClosing, that it has dealt with no broker, finder or similar person with respect to this Agreementor the transactions contemplated hereby other than Broker. The Seller agrees to indemnify,protect, defend and hold the Buyer harmless from and against all claims, losses, damages,liabilities, costs, expenses (including reasonable attorneys’ fees and disbursements) and chargesresulting from the Seller’s breach of the foregoing representation in this subsection (a). TheSeller shall be responsible for the payment of any amounts due Broker. The provisions of thissubsection 14.3(a) shall survive the Closing and any termination of this Agreement.
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          (b) The Buyer represents and warrants to the Seller, as of the date hereof and as of theClosing, that it has dealt with no broker, finder or similar person with respect to this Agreementor the transactions contemplated hereby other than Broker. The Buyer agrees to indemnify, protect,defend and hold the Seller harmless from and against all claims, losses, damages, liabilities,costs, expenses (including reasonable attorneys’ fees and disbursements) and charges resulting fromthe Buyer’s breach of the foregoing representations in this subsection (b). The provisions of thissubsection 14.3(b) shall survive the Closing and any termination of this Agreement.          (c) At Closing, Broker shall execute and deliver a final and unconditional waiver and releaseof any lien rights it may have against the Property pursuant to the Commercial Real Estate BrokerLien Act, O.C.G.A. §44-14-600, et. seq., in the form attached hereto as Exhibit I, and by itsexecution of this Agreement, Broker hereby agrees to do so.     SECTION 14.4 Confidentiality; Press Release; IRS Reporting Requirements.          (a) The Buyer and the Seller, and each of their respective affiliates shall hold asconfidential all information disclosed in connection with the transaction contemplated hereby andconcerning each other, the Asset, this Agreement and the transactions contemplated hereby and shallnot release any such information to third parties without the prior written consent of the otherparties hereto, except (i) any information which was previously or is hereafter publicly disclosedor was available on a non-confidential basis prior to its disclosure (other than in violation ofthis Agreement or other confidentiality agreements to which affiliates of the Buyer are parties),(ii) to their partners, advisers, underwriters, analysts, employees, affiliates, officers,directors, consultants, lenders, accountants, legal counsel, title companies or other advisors ofany of the foregoing, provided that they are advised as to the confidential nature of suchinformation and are instructed to maintain such confidentiality and (iii) to comply with any law,rule or regulation (including without limitation those of the United States Securities and ExchangeCommission) or the requirements of any securities exchange on which such party or its parentcompany is listed. The foregoing shall constitute a modification of any prior confidentialityagreement that may have been entered into by the parties. The provisions of this Section shallsurvive the termination of this Agreement for a period of one year.          (b) The Seller or the Buyer may issue a press release with respect to this Agreement and thetransactions contemplated hereby, provided that the content of any such press release shall besubject to the prior written consent of the other party hereto, not to be unreasonably withheld,conditioned or delayed.          (c) For the purpose of complying with any information reporting requirements or other rulesand regulations of the IRS that are or may become applicable as a result of or in connection withthe transaction contemplated by this Agreement, including, but not limited to, any requirements setforth in proposed Income Tax Regulation Section 1.6045-4 and any final or successor version thereof(collectively, the “IRS Reporting Requirements”), the Seller and the Buyer hereby designateand appoint the Escrow Agent to act as the “Reporting Person” (as that term is defined inthe IRS Reporting Requirements) to be responsible for complying with any IRS ReportingRequirements. The Escrow Agent hereby acknowledges and accepts such designation and appointmentand agrees to fully comply with any IRS Reporting Requirements
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that are or may become applicable as a result of or in connection with the transactioncontemplated by this Agreement. Without limiting the responsibility and obligations of the EscrowAgent as the Reporting Person, the Seller and the Buyer hereby agree to comply with any provisionsof the IRS Reporting Requirements that are not identified therein as the responsibility of theReporting Person, including, but not limited to, the requirement that the Seller and the Buyer eachretain an original counterpart of this Agreement for at least four years following the calendaryear of the Closing.     SECTION 14.5 Escrow Provisions.          (a) The Escrow Agent shall hold the Earnest Money in escrow in an interest-bearing bankaccount at a federally insured banking institution (the “Escrow Account”).          (b) The Escrow Agent shall hold the Earnest Money in escrow in the Escrow Account until theClosing or sooner termination of this Agreement and shall hold or apply such proceeds in accordancewith the terms of this subsection (b). The Seller and the Buyer understand that no interest isearned on the Earnest Money during the time it takes to transfer into and out of the EscrowAccount. At the Closing, the Earnest Money shall be paid by the Escrow Agent to, or at thedirection of, the Seller. If for any reason the Closing does not occur and either party makes awritten demand upon the Escrow Agent for payment of such amount, the Escrow Agent shall, within 24hours give written notice to the other party of such demand. If the Escrow Agent does not receivea written objection within five Business Days after the giving of such notice, the Escrow Agent ishereby authorized to make such payment. If the Escrow Agent does receive such written objectionwithin such five Business Day period or if for any other reason the Escrow Agent in good faithshall elect not to make such payment, the Escrow Agent shall continue to hold such amount untilotherwise directed by joint written instructions from the parties to this Agreement or a finaljudgment of a court of competent jurisdiction. However, the Escrow Agent shall have the right atany time to deposit the Earnest Money with the clerk of the court of New York County. The EscrowAgent shall give written notice of such deposit to the Seller and the Buyer. Upon such deposit theEscrow Agent shall be relieved and discharged of all further obligations and responsibilitieshereunder.          (c) The parties acknowledge that the Escrow Agent is acting solely as a stakeholder at theirrequest and for their convenience, that the Escrow Agent shall not be deemed to be the agent ofeither of the parties, and the Escrow Agent shall not be liable to either of the parties for anyact or omission on its part, other than for its gross negligence or willful misconduct. The Sellerand the Buyer shall jointly and severally indemnify and hold the Escrow Agent harmless from andagainst all costs, claims and expenses, including attorneys’ fees and disbursements, incurred inconnection with the performance of the Escrow Agent’s duties hereunder.          (d) The Escrow Agent has acknowledged its agreement to these provisions by signing thisAgreement in the place indicated following the signatures of the Seller and the Buyer.     SECTION 14.6 Successors and Assigns; No Third-Party Beneficiaries. The stipulations, terms, covenantsand agreements contained in this Agreement shall inure to the benefit of, and
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shall be binding upon, the parties hereto and their respective permitted successors and assigns(including any successor entity after a public offering of stock, merger, consolidation, purchaseor other similar transaction involving a party hereto) and nothing herein expressed or impliedshall give or be construed to give to any person or entity, other than the parties hereto and suchassigns, any legal or equitable rights hereunder.     SECTION 14.7 Assignment. This Agreement may not be assigned by the Buyer without the prior writtenconsent of the Seller. The Buyer may designate an affiliate to which the Asset will be assigned atthe Closing, provided that the Buyer provides the Seller written notice of such designation atleast five days prior to the Closing and the Buyer will continue to remain primarily liable underthis Agreement notwithstanding any such designation. Notwithstanding anything to the contrarycontained herein, the Buyer may assign its rights and obligations under this Agreement to anaffiliate of the Buyer provided that the Buyer provides the Seller with a fully executed assignmentof contract at least five days prior to the Closing and the Buyer will continue to remain primarilyliable under this Agreement notwithstanding any such assignment.     SECTION 14.8 Further Assurances.          (a) From time to time, as and when requested by any party hereto, the other party shallexecute and deliver, or cause to be executed and delivered, all such documents and instruments andshall take, or cause to be taken, all such further or other actions as such other party mayreasonably deem necessary or desirable to consummate the transactions contemplated by thisAgreement.          (b) The Seller shall after the Closing and if requested by the Buyer, based on the Buyer’sobligations under regulatory requirements, reasonably cooperate with the Buyer in the Buyer’spreparation of audited financial statements of the Property for the calendar year in which theClosing occurs and the three preceding calendar years, by providing such information as may be inthe possession of the Seller as shall be required to enable an accounting firm of the Buyer’schoosing to prepare such audited financial statements, the cost of which shall be borne by theBuyer. Any information provided by the Seller to the Buyer pursuant to this subsection 14.8(b)shall be without any representations or warranties. The Buyer agrees to reimburse the Seller forthe Seller’s actual and reasonable costs in connection with the Seller’s cooperation pursuant tothis subsection 14.8(b).          (c) The provisions of this Section 14.8 shall survive the Closing.     SECTION 14.9 Notices. All notices, demands or requests made pursuant to, under or by virtue of thisAgreement must be in writing and shall be (a) personally delivered, (b) delivered by express mail,Federal Express or other comparable overnight courier service, (c) telecopied, with telephone orwritten confirmation within one Business Day, or (d) mailed to the party to which the notice,demand or request is being made by certified or registered mail, postage prepaid, return receiptrequested, as follows:
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     To the Seller:c/o Blackstone Real Estate Advisors