exv10w26



 






EXHIBIT
10.26




AGREEMENT OF PURCHASE AND SALE




THE SELLERS




Identified herein




“SELLER”




SCHUYLKILL, LLC




a Delaware limited liability company




“BUYER”




Residence Inn Portfolio





 









 








AGREEMENT OF PURCHASE AND SALE




INDEX




	 	 	 	 	 	 	 	 	 
	ARTICLE I. ASSETS PURCHASED AND SOLD	 	 	11	 
	Section 1.01	 	Purchase and Sale
	 	 	11	 
	Section 1.02	 	Personal Property
	 	 	11	 
	Section 1.03	 	Operating Agreements
	 	 	11	 
	Section 1.04	 	Intangible Property
	 	 	12	 
	Section 1.05	 	Management Agreements
	 	 	12	 
	Section 1.06	 	Land and Hotels
	 	 	12	 
	Section 1.07	 	No Liabilities
	 	 	12	 
	ARTICLE II. PURCHASE PRICE	 	 	13	 
	Section 2.01	 	Price
	 	 	13	 
	Section 2.02	 	Deposit
	 	 	13	 
	Section 2.03	 	Buyer shall receive a credit
against the Purchase Price in an
amount equal to the amount of the
Deposit and the outstanding principal
balance of
the Existing Lien as of the Closing Date
	 	 	13	 
	Section 2.04	 	Balance of Purchase Price
	 	 	14	 
	Section 2.05	 	Reserve Accounts
	 	 	14	 
	ARTICLE III. OPERATION OF THE PROPERTY	 	 	14	 
	Section 3.01	 	Operation in the Ordinary Course of Business
	 	 	14	 
	Section 3.02	 	Ground Lessor
	 	 	14	 
	Section 3.03	 	Bulk Sale
	 	 	14	 
	ARTICLE IV. PRORATIONS AND ADJUSTMENTS	 	 	15	 
	Section 4.01	 	Closing Statement/Operations Settlement
	 	 	15	 
	Section 4.02	 	Taxes and Rents
	 	 	16	 
	Section 4.03	 	Utilities
	 	 	16	 






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	Section 4.04	 	Assigned Operating Agreements
	 	 	17	 
	Section 4.05	 	Room Revenues; Reservations; Tray Ledger;
Accounts Receivable
and House Funds
	 	 	17	 
	Section 4.06	 	Accounts Payable and Expenses
	 	 	18	 
	Section 4.07	 	Survival
	 	 	18	 
	Section 4.08	 	The provisions of this Article IV shall
survive Closing
	 	 	18	 
	ARTICLE V. EMPLOYEES	 	 	19	 
	Section 5.01	 	Salaries, etc.
	 	 	19	 
	ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF SELLER	 	 	19	 
	Section 6.01	 	Existence and Good Standing
	 	 	19	 
	Section 6.02	 	Authority
	 	 	19	 
	Section 6.03	 	No Conflict
	 	 	19	 
	Section 6.04	 	Seller Is Not a “Foreign Person”
	 	 	19	 
	Section 6.05	 	Insurance
	 	 	19	 
	Section 6.06	 	No Special Taxes
	 	 	19	 
	Section 6.07	 	Litigation
	 	 	20	 
	Section 6.08	 	Condemnation
	 	 	20	 
	Section 6.09	 	Compliance with Applicable Law
	 	 	20	 
	Section 6.10	 	Existing Lien
	 	 	20	 
	Section 6.11	 	Management Agreements
	 	 	20	 
	Section 6.12	 	Financial Statements
	 	 	20	 
	Section 6.13	 	Pension Plans
	 	 	20	 
	Section 6.14	 	Operating Agreements
	 	 	21	 
	Section 6.15	 	Employees
	 	 	21	 
	Section 6.16	 	Ground Lease
	 	 	21	 






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	ARTICLE VII. REPRESENTATIONS AND WARRANTIES OF BUYER	 	 	21	 
	Section 7.01	 	Existence and Good Standing
	 	 	21	 
	Section 7.02	 	Authority
	 	 	21	 
	Section 7.03	 	No Conflict
	 	 	21	 
	Section 7.04	 	AS IS
	 	 	22	 
	ARTICLE VIII. REMEDIES	 	 	24	 
	Section 8.01	 	Seller’s Remedies
	 	 	24	 
	Section 8.02	 	Buyer’s Remedies
	 	 	24	 
	Section 8.03	 	Survival
	 	 	24	 
	Section 8.04	 	Costs and Attorneys’ Fees. In the event of any litigation
or dispute between the parties arising out of or in any way
connected with this Agreement, resulting in any
litigation, then the prevailing party in such
litigation shall be entitled to recover its
costs of prosecuting and/or defending
same, including, without limitation, reasonable
attorneys’ fees at trial and all
appellate levels. The provisions of this Section 8.04
shall survive the Closing or
any termination of this Agreement
	 	 	24	 
	Section 8.05	 	Limitation of Liability. Each party waives its rights
to recover from the other party consequential, punitive,
exemplary, and speculative damages. The provisions of this
Section 8.05 shall survive the termination of this
Agreement. The provisions of this Section 8.05 shall not
limit or affect the rights of Sellers to receive the
Deposit as liquidated damages as and when provided
in this Agreement
	 	 	24	 
	ARTICLE IX. CONDITIONS	 	 	25	 
	Section 9.01	 	Sellers’ Obligation
	 	 	25	 
	Section 9.02	 	Buyer’s Obligation
	 	 	25	 
	ARTICLE X. CONVEYANCE OF ASSETS	 	 	26	 
	Section 10.01	 	Instruments of Conveyance
	 	 	26	 
	Section 10.02	 	Personal Property
	 	 	27	 
	ARTICLE XI. TITLE TO REAL PROPERTY	 	 	27	 
	Section 11.01	 	Title Insurance Commitments
	 	 	27	 






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	Section 11.02	 	Survey
	 	 	27	 
	Section 11.03	 	Study Period
	 	 	27	 
	ARTICLE XII. THE CLOSING	 	 	27	 
	Section 12.01	 	Time and Place
	 	 	27	 
	Section 12.02	 	Payment of Purchase Price
	 	 	27	 
	Section 12.03	 	Closing Costs
	 	 	28	 
	Section 12.04	 	Revenue and Expense Prorations
	 	 	29	 
	Section 12.05	 	Closing Documents
	 	 	29	 
	ARTICLE XIII. INSURANCE, CONDEMNATION AND CASUALTY	 	 	29	 
	Section 13.01	 	Insurance
	 	 	29	 
	Section 13.02	 	Condemnation and Casualty
	 	 	30	 
	ARTICLE XIV. MISCELLANEOUS COVENANTS AND PROVISIONS	 	 	30	 
	Section 14.01	 	Assignment; Successors and Assigns
	 	 	30	 
	Section 14.02	 	Counterparts
	 	 	31	 
	Section 14.03	 	Waiver
	 	 	31	 
	Section 14.04	 	Amendments
	 	 	31	 
	Section 14.05	 	Further Agreements
	 	 	31	 
	Section 14.06	 	Entire Agreement
	 	 	31	 
	Section 14.07	 	Brokers and Finders
	 	 	31	 
	Section 14.08	 	Notices
	 	 	31	 
	Section 14.09	 	Section Headings; Interpretation
	 	 	32	 
	Section 14.10	 	Governing Law
	 	 	33	 
	Section 14.11	 	Disclosure of Confidential Information/ Public
Announcements/ Communication with Governmental
Authorities/ Communication with Employees
	 	 	33	 
	Section 14.12	 	Time of Essence
	 	 	34	 






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EXHIBIT “A” — Legal Description of Land

EXHIBIT “B” — Assignment and Assumption of Intangible Property

EXHIBIT “C” — Assignment and Assumption of Management Agreements

EXHIBIT “D” — Assignment and Assumption of Operating Agreements

EXHIBIT “E” — Bill of Sale (Personal Property)

EXHIBIT “F” — Schedule of Management Agreements

EXHIBIT “G” —  Schedule of Operating Agreements

EXHIBIT “H” —  Purchase Price Allocation Schedule

EXHIBIT “I” —  Schedule of Sellers

EXHIBIT “J” —  Litigation Schedule

EXHIBIT “K” — Assignment and Assumption of Ground Lease





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AGREEMENT OF PURCHASE AND SALE




     AGREEMENT OF PURCHASE AND SALE made and entered into as of October 12, 2005, by and between
Sellers and Buyer.



DEFINITIONS




     For the purposes of this Agreement, the parties agree that the following terms shall have the
following meanings:




	 	1.	 	Accounts Receivable: All accounts receivable relating to the Hotels,
other than the Tray Ledgers, accruing prior to the Transfer Time (including, without
limitation, receivables and revenues for food, beverage and telephone use).
	 
	 	2.	 	Agreement: This Agreement of Purchase and Sale by and between Buyer
and Sellers providing for the sale and purchase of the Property.
	 
	 	3.	 	Assignment and Assumption of Ground Lease: An assignment and
assumption of the Ground Lease, pursuant to which (i) the relevant Seller shall assign
and transfer to Buyer, and Buyer shall assume, all of the rights and obligations of the
“tenant” under the Ground Lease first accruing from and after Closing, and (ii) such
assignment shall be free and clear of all encumbrances save and except for the
Permitted Exceptions relating to the Property which is the subject of the Ground Lease.
The Assignment and Assumption of Ground Lease shall be in the form attached hereto as
Exhibit “K” and by this reference incorporated herein.
	 
	 	4.	 	Assignment and Assumption of Intangible Property: An assignment and
assumption of the Intangible Property in the form attached hereto as Exhibit
“B” and by this reference incorporated herein, pursuant to which each Seller shall
assign and transfer to Buyer all of such Seller’s right, title and interest in and to,
and Buyer shall assume all of Seller’s obligations and liabilities under, the
Intangible Property first accruing from and after Closing, to the extent that such
assignments are legally and contractually permitted.
	 
	 	5.	 	Assignment and Assumption of Management Agreements: An assignment and
assumption of the Management Agreements in the form attached hereto as Exhibit
“C” and by this reference incorporated herein, pursuant to which each Seller shall
assign and transfer to Buyer all right, title and interest in and to, and Buyer shall
assume all of such Seller’s obligations and liabilities under, the Management
Agreements first accruing from and after Closing.
	 
	 	6.	 	Assignment and Assumption of Operating Agreements: An assignment and
assumption of the Operating Agreements in the form attached hereto as Exhibit
“D” and by this reference incorporated herein, pursuant to which each Seller shall
assign and transfer to Buyer all of such Seller’s right, title and interest in and to,
and Buyer shall assume all of such Seller’s obligations and liabilities under, the
Operating Agreements first accruing from and after Closing.




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	 	7.	 	Bill of Sale (Personal Property): A bill of sale in the form attached
hereto as Exhibit “E” and by this reference incorporated herein, pursuant to
which each Seller shall transfer and convey to Buyer the Personal Property in an “AS
IS, WHERE IS” condition and without recourse or express or implied warranty except as
set forth in the bill of sale attached hereto as Exhibit “E”.
	 
	 	8.	 	Buyer: Schuylkill, LLC, a Delaware limited liability company.
	 
	 	9.	 	Closing: The consummation of the transactions contemplated by this
Agreement which shall occur on the Closing Date.
	 
	 	10.	 	Closing Date: Thirty (30) days following the expiration of the Study
Period; provided either party may extend the Closing Date up to sixty (60) days in
order to close the assumption of the Existing Liens.
	 
	 	11.	 	Closing Statement: As defined in Section 4.01.
	 
	 	12.	 	Deeds: The deeds pursuant to which each Seller shall convey to Buyer
all right, title and interest in and to the Land and Hotel which such Seller owns, free
and clear of all encumbrances save and except for the Permitted Exceptions relating to
such Land and Hotels. Such Deeds shall be by special warranty deeds in the form as is
customary for commercial transactions in the jurisdiction in which each Hotel is
located.
	 
	 	13.	 	Deposit: The amount specified in Section 2.02 as the Deposit, which
includes the Initial Deposit and the Additional Deposit.
	 
	 	14.	 	Effective Date: The date on which this Agreement is executed and
accepted by the last of Buyer and all Sellers and a fully executed copy of this
Agreement is delivered to Buyer, such date to be entered into the first paragraph of
this Agreement.
	 
	 	15.	 	Employees: Those individuals employed by Managers at the Hotels.
	 
	 	16.	 	Existing Liens: Those certain loans held by Lender secured by
mortgage/deed of trust liens on the Property. Seller shall deliver to Buyer copies of
the loan documents evidencing the Existing Liens within five (5) business days after
the Effective Date.
	 
	 	17.	 	Escrow Agent: The Talon Group, Orlando Commercial Services Division, a
division of First American Title Insurance Company, whose address is 111 North Orange
Avenue, Suite 1285, Orlando, Florida 32801, Attention: Michael Moore.
	 
	 	18.	 	Ground Lease: That certain lease agreement by and between Commonwealth
Trust Company, Trustee for Chopin Trust, as landlord, and RFP Group, Inc., dated
November 30, 1987, as amended and assigned, pursuant to which the Seller
of the Wilmington, Delaware Residence Inn holds a leasehold interest in and to the
Hotel and that portion of the Land located in Wilmington, Delaware.




7









 






	 	19.	 	Hotels: The hotel buildings and all accessory buildings and
structures, if any, and all fixtures placed on or attached thereto, located on the
parcels comprising the Land. Each of the Hotels is at times herein referred to
individually as a Hotel.
	 
	 	20.	 	House Funds: Cash on hand at or for the Hotels, including, without
limitation, petty cash funds and cashiers’ banks but exclusive of Reserve Funds.
	 
	 	21.	 	Intangible Property: All of Sellers’ right, title and interest in and
to all intangible property in the possession of Sellers and used in connection with the
Land, Hotels or Personal Property, including without limitation, all licenses and
permits (but specifically excluding any and all licenses and permits to sell alcohol),
approvals, authorizations and other entitlements, all guaranties and warranties related
to the Hotels and the Personal Property or the construction, fabrication or maintenance
thereof, all plans and specifications relating to the Improvements and any landscaping,
all tradenames, logos, telephone numbers, and signage rights used by Sellers in
connection with the operation of the Hotels, and all books, records, reports, test
results, environmental assessments, surveys and other documents and materials related
to Sellers’ operation of the Hotels and Sellers’ maintenance and repair of the
Property.
	 
	 	22.	 	Inventory: All inventory located at the Hotels, including without
limitation, all mattresses, pillows, bed linens, towels and Operating Supplies.
	 
	 	23.	 	Knowledge: The actual knowledge of (A) David Brooks and (B) David
Kimichik, without any duty of inquiry or investigation. For the purposes of this
definition, the term “actual knowledge” means, with respect to any person, the
conscious awareness of such person at the time in question, and expressly excludes any
constructive or implied knowledge of such person.
	 
	 	24.	 	Land: Those certain parcels of land more particularly described in
Exhibit “A-1” through A-8 annexed hereto and incorporated herein by reference,
and all rights and appurtenances thereto, including, without limitation, all easements,
rights-of-way, licenses, privileges, hereditaments and appurtenances, if any,
appurtenant to such parcels of land and the Hotels, and all right, title and interest,
if any, in and to any land lying in the bed of any highway, street, road or avenue,
opened or proposed, in front of, abutting or adjoining such parcels of land.
	 
	 	25.	 	Lender: Merrill Lynch Mortgage Lending, Inc., and/or its successors
and assigns.
	 
	 	26.	 	Management Agreements: Those certain Management Agreements between a
Seller and a Manager which are more particularly described on Exhibit “F”
attached hereto and by this reference incorporated herein, pursuant to which the
Manager manages and operates the applicable Hotel subject to the applicable
Management Agreement. Each of the Management Agreements is at times herein referred
to as a Management Agreement.
	 
	 	27.	 	Managers: Each “Manager” of a Hotel under and pursuant to the
Management Agreements.




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	 	28.	 	Operating Agreements: All contracts, agreements, leases (including,
but not limited to, commercial leases and equipment leases), maintenance agreements and
service contracts, to which Sellers or Manager are a party, which are in effect on the
Closing Date and which relate to the ownership and/or operation of the Hotels,
including, without limitation, any such agreements as are listed in Exhibit “G”
annexed to this Agreement and incorporated herein by this reference, but specifically
excluding the Ground Lease, Permitted Exceptions and the Management Agreements.
	 
	 	29.	 	Operations Settlement: A final accounting prepared by Sellers’ and
Buyer’s accountants in the period between eight o’clock p.m. (local time) on the day
prior to the Closing Date and eight o’clock a.m. (local time) on the Closing Date, the
results of which shall be incorporated into the closing statement.
	 
	 	30.	 	Operating Supplies: Any and all operating supplies, whether
consumables or non-consumables, used or consumed in the ordinary course of business at
the Hotels and owned by Sellers, including without limitation, paper products, soap,
cleaning supplies, food, and alcoholic and non-alcoholic beverages.
	 
	 	31.	 	Other Revenues: All revenues earned by Sellers from the operation of
the Hotels other than Room Revenues, including, without limitation, revenues from the
sale of food, the sale of alcoholic and nonalcoholic beverages, rental of meeting and
banquet rooms, telephone sales, pay television sales, valet and parking services, and
other similar revenues, together with any sales tax or other taxes thereon.
	 
	 	32.	 	Permitted Assignee: For each Hotel, an entity which shall be formed by
Buyer following the Effective Date and prior to the Closing Date for purposes of
acquiring the respective Property, which entities and their general partners and/or
managing members shall be special purpose bankruptcy remote entities approved by
Lender.
	 
	 	33.	 	Permitted Exceptions: Any and all (i) restrictions, easements,
reservations, covenants and other matters of record on the date hereof (including,
without limitation, all instruments, matters and items set forth as exceptions to title
in the Title Insurance Commitments) and zoning and land use ordinances and laws of any
governmental authority (ii) general taxes and assessments for the year of the Closing
and thereafter, and special taxes and assessments first becoming due and payable after
the Closing Date; (iii) encroachments, overlaps, boundary line disputes, unrecorded
easements or other matters shown on the Surveys; (iv) those leases and tenancies in
writing for any areas of the Land or Hotels which are to be assumed by Buyer; and (v)
liens, mortgages and encumbrances created or assumed by Buyer, including, the Existing Liens. Notwithstanding the foregoing,
Permitted Exceptions shall not include any title encumbrances affecting a Property
which are comprised of delinquent taxes, or mortgages, deeds of trust, security
agreements (other than the Existing Liens), or other similar liens or charges in a
fixed sum (or capable of computation as a fixed sum) securing indebtedness or
obligations (the “Monetary Encumbrances”), all of which Sellers




9









 






	 	 	 	shall be obligated to either (i) pay and discharge, (ii) bond against in a manner legally
sufficient to cause to be released, or (iii) indemnify or escrow money with or
otherwise cause the Title Company to insure over, such Monetary Encumbrances.
	 
	 	34.	 	Personal Property: All furniture, furnishings, fixtures, equipment,
vehicles, machinery, appliances, dishes, utensils, cookware, materials, Operating
Supplies and Inventory, located at the Hotels, owned by any Seller, and used solely in
connection with the operation of the Hotels, but (subject to the provisions of Section
1.02) specifically excluding any Personal Property that is leased by any Seller from a
third-party.
	 
	 	35.	 	PIPs: The property improvement or other similar plans for the Hotels
contemplated by the Management Agreements, including the 2005 capital expenditure plans
for the Hotels.
	 
	 	36.	 	Property: A collective term which shall mean all of the Land, Hotels,
Intangible Property and Personal Property.
	 
	 	37.	 	Purchase Price: The amount specified in Section 2.01 as the purchase
price for the Property.
	 
	 	38.	 	Purchase Price Allocation Schedule: The schedule attached hereto as
Exhibit “H” pursuant to which the Purchase Price is allocated among each
Property for the purposes of calculating title insurance premiums and other closing
costs.
	 
	 	39.	 	Reserve Funds: All funds held in reserve accounts for taxes,
insurance, payments under the Ground Lease, furniture, fixtures and equipment, capital
expenditures, or for other matters relating to the operation of the Hotels, whether
such accounts are held in the name of the Sellers or Managers or Lender on behalf of
Sellers.
	 
	 	40.	 	Room Revenues: All revenues from the rental of guest rooms of the
Hotels (but excluding any items included in the definition of Other Revenues), together
with any and all sales or other taxes thereon.
	 
	 	41.	 	Sellers: Shall mean those entities more particularly described on
Exhibit “I” attached hereto. Each such entity is at times herein referred to
as a “Seller.”
	 
	 	42.	 	Study Period: The period commencing on the Effective Date and
continuing through the date that is thirty (30) days thereafter.
	 
	 	43.	 	Surveys: The surveys of each parcel comprising the Land and the Hotel
located on such parcel delivered to Buyer. Each of the Surveys is at times herein
referred to as a “Survey”.
	 
	 	44.	 	Title Company: First American Title Insurance Company through the
Talon Group, Orlando Commercial Services Division, a division of First American Title




10









 






	 	 	 	Insurance Company, whose address is 111 North Orange Avenue, Suite 1285, Orlando,
Florida 32801, Attention: Michael Moore.
	 
	 	45.	 	Title Insurance Commitments: The commitments of title insurance issued
by Title Company and delivered to Buyer with respect to each parcel comprising the
Land. Each of the Title Insurance Commitments is at times herein referred to as a
“Title Insurance Commitment”.
	 
	 	46.	 	Title Policies: The owner’s policies of title insurance to be issued
to Buyer pursuant to the terms of the Title Insurance Commitments and this Agreement.
Each of the Title Policies is at times herein referred to as a “Title Policy”.
	 
	 	47.	 	Transfer Time: 12:01 a.m. (local time) on the Closing Date.
	 
	 	48.	 	Tray Ledgers: Any accounts receivable of registered guests who have
not checked out and who are occupying rooms on the evening prior to, and the morning
of, the Closing Date.





AGREEMENT




ARTICLE I.

ASSETS PURCHASED AND SOLD




     Section 1.01 Purchase and Sale. Subject to the terms and conditions of this
Agreement and in consideration of the performance of the covenants contained herein, Buyer agrees
to purchase from Sellers and Sellers agree to sell to Buyer, the Property.



     Section 1.02 Personal Property. Subject to the terms and conditions of this
Agreement, at Closing Sellers agree to assign, transfer and convey to Buyer all of the Personal
Property pursuant to the Bill of Sale (Personal Property).



     Section 1.03 Operating Agreements. At Closing, each Seller shall assign and
transfer to Buyer all of such Seller’s right, title and interest in and to, and Buyer shall assume
all of such Seller’s obligations and liabilities first arising from and after Closing under, the
Operating Agreements pursuant to the Assignment and Assumption of Operating Agreements. Buyer
shall execute any financial statements, applications, assumption agreements and/or other documents
which may be required to effect the assignment and assumption of such Operating Agreements. Buyer
shall pay all out of pocket fees and expenses of third parties under the Operating Agreements in
regard to such assignments or transfers, including any transfer charges reasonably
necessary to obtain the consent of any such third party. Buyer understands and agrees that,
except for Sellers’ obligations under this Section 1.03, it is solely Buyer’s responsibility to
obtain any and all other operating agreements necessary to conduct business at the Hotels from and
after the Closing Date. Buyer’s failure to obtain any other operating agreements which are
necessary or convenient to the operation of the Hotels shall not affect or delay the performance of
Buyer’s obligations under this Agreement. Buyer shall indemnify, defend and hold Sellers harmless
from any claim, liability, cost or expense (including without limitation reasonable



11









 




attorneys’fees) arising out of any Operating Agreement from and after the Transfer Time. Sellers shall
indemnify, defend and hold Buyer harmless from any claim, liability, cost or expense (including
without limitation reasonable attorneys’ fees and costs) arising out of any Operating Agreement for
the period prior to the Transfer Time.




     Section 1.04 Intangible Property. At Closing, each Seller shall assign and
transfer to Buyer all of such Seller’s right, title and interest in and to, and Buyer shall assume
all of such Seller’s obligations and liabilities first arising from and after Closing under, all of
the Intangible Property, pursuant to the Assignment and Assumption of Intangible Property. Buyer
understands and agrees that it is solely Buyer’s responsibility to obtain any and all other
intangible property necessary to conduct business at the Hotels from and after the Closing Date.
Buyer’s failure to obtain any other intangible property which are necessary or convenient to the
operation of the Hotels shall not affect or delay the performance of Buyer’s obligations under this
Agreement.



     Section 1.05 Management Agreements. At Closing, Sellers shall assign and
transfer to Buyer all of Seller’s right, title and interest in and to, and Buyer shall assume all
of Sellers’ obligations and liabilities first arising from and after Closing under, the Management
Agreements pursuant to the Assignment and Assumption of Management Agreements. At Closing, Buyer
shall assume all payment and performance obligations under the PIPs. Buyer shall indemnify, defend
and hold Sellers harmless from any claim, liability, cost or expense (including without limitation
reasonable attorneys’ fees) arising out of the Management Agreements from and after the Transfer
Time or the PIPs. Sellers shall indemnify, defend and hold Buyer harmless from any claim,
liability, cost or expense (including without limitation reasonable attorneys’ fees and costs)
arising out of the Management Agreements for the period prior to the Transfer Time.



     Section 1.06 Land and Hotels. At Closing, Sellers shall convey title to the
Land and Hotels owned by Sellers to Buyer pursuant to the Deeds and shall convey its leasehold
interest in the Land and Hotel which the applicable Seller occupies pursuant to the Ground Lease by
the Assignment and Assumption of Ground Lease, all subject only to the Permitted Exceptions.



     Section 1.07 No Liabilities. Except as otherwise expressly provided in this
Agreement, including, without limitation, Section 7.04 of this Agreement, it is expressly
acknowledged and agreed by Sellers that Buyer has no intention of assuming, and does not and will
not, in any way, assume, undertake, agree to perform or accept responsibility for any debts,
liabilities or obligations of Sellers of any kind whatsoever, whether absolute, contingent or
otherwise, known or unknown, pending or threatened, concerning the Property or otherwise, other
than liabilities and obligations of Sellers arising or accruing from and after the date of Closing
or arising under the Operating Agreements, the Management Agreements and the Existing Lien after
the date of Closing. Except as otherwise expressly provided in this Agreement, including, without
limitation, Section 7.04 of this Agreement, Sellers shall remain fully and solely responsible for
the satisfaction of all of Sellers’ own liabilities and obligations, absolute, contingent or
otherwise, known or unknown, liquidated or unliquidated, pending or threatened which arise and
accrue prior to the date of Closing, except for such liabilities and obligations arising or
accruing from and after the date of Closing or arising under the Operating Agreements, the
Management Agreements and the Existing Lien after the date of Closing. Such liabilities and obligations which Sellers shall remain responsible for include, without limitation, any liabilities
or



12









 




obligations of Sellers arising and accruing prior to the date of Closing for trade payables or
employee compensation, sums due under Operating Agreements arising and accruing prior to the date
of Closing, sums due on account of taxes of any kind owed by Sellers or imposed with respect to the
Property or the operation of the Hotels prior to the date of Closing, and liabilities for personal
injury, property damage or other damages arising and accruing prior to the date of Closing.
Notwithstanding the foregoing, Buyer shall be responsible for, and hereby assumes, all obligations
(including remediation obligations), damages or liabilities relating or pertaining to the physical
and/or environmental condition of the Property and Hotels whether same arise or accrue prior to or
from and after the date of Closing, including, without limitation, any obligations or liabilities
pertaining to the compliance of the Property, Buyer or Manager with any statute, law or regulation
applicable to the Property, Buyer or Manager, and/or the operation or condition of the Property,
including, without limitation, any damages or obligations under the Americans with Disabilities
Act.




ARTICLE II.

PURCHASE PRICE




     Section 2.01 Price. The Purchase Price for the Property shall be One Hundred
Four Million Five Hundred Thousand and No/100 Dollars ($104,500,000.00), subject to closing
adjustments as provided in this Agreement.



     Section 2.02 Deposit. An amount equal to Five Hundred Thousand and No/100
Dollars ($500,000.00) (the “Initial Deposit”), in the form of a cashier’s or certified
check or wire transfer, shall be deposited with the Escrow Agent by Buyer within one (1) business
day of the Effective Date. Such amount to be deposited by the Escrow Agent into an
interest-bearing, fully-insured account. In the event that the Deposit has not been lodged with
Escrow Agent within one (1) business day following the Effective Date, this agreement shall
immediately terminate. The Deposit shall be applied to payment of the Purchase Price at Closing or
shall otherwise be paid as herein provided. On or before the expiration of the Study Period, Buyer
shall either deposit an additional Two Million and No/100 Dollars ($2,000,000.00) (the
“Additional Deposit”) with Escrow Agent (the Initial Deposit and the Additional Deposit
(i.e., an aggregate amount equal to $2,500,000.00) is referred to herein as the “Deposit”),
or terminate this Agreement as provided herein. In the event Buyer does not terminate this
Agreement within the allowed time period, Buyer acknowledges and agrees the Deposit shall be “At
Risk” and not refundable to Buyer except in the event of a default by Sellers under this Agreement
or as otherwise expressly provided in this Agreement. All interest earned in said account of the
Escrow Agent shall be reported by the Escrow Agent to the Internal Revenue Service as income
to Buyer (and Buyer agrees to execute a W-9 form and any other federal tax documents necessary in
connection therewith).



     Section 2.03 Buyer shall receive a credit against the Purchase Price in an amount
equal to the amount of the Deposit and the outstanding principal balance of the Existing Lien as of
the Closing Date.



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     Section 2.04 Balance of Purchase Price. (a) The balance of the Purchase Price
for the Property (subject to the adjustments, credits and/or prorations provided in this Agreement)
shall be paid by Buyer by wire transfer of good funds to Escrow Agent at Closing as set forth in
Section 12.02.



     Section 2.05 Reserve Accounts. (a) Sellers shall receive a credit to the
Purchase Price in an amount equal to the balance of all Reserve Funds as of Closing, and Seller
shall transfer all such Reserve Funds to Buyer at Closing. Seller shall execute and deliver all
documents necessary to effect such transfer.



ARTICLE III.

OPERATION OF THE PROPERTY




     Section 3.01 Operation in the Ordinary Course of Business. Except to the
extent a Manager is authorized under its Management Agreement to do any of the following without
having to first obtain the prior consent or authorization of Sellers, Sellers shall not, and shall
not permit Manager to, (i) enter into any leases or tenancies with respect to the Property, (ii)
enter into any service or maintenance agreements which are not terminable upon thirty (30) days
notice, (iii) modify or release any warranties or guaranties with respect to the Property, or (iv)
grant any encumbrances on the Property or contract for any construction or service for the Property
which may impose any mechanics or materialmen’s lien on the Property beyond Closing other than in
connection with the PIPs. Sellers shall, subject to the terms of the Management Agreements, use
reasonable efforts to cause the Managers to maintain inventory levels consistent with Managers’
prior practices and continue to operate the Property in the ordinary course of business.



     Section 3.02 Ground Lessor. Sellers agree to assist Buyer in obtaining at or
prior to Closing from the lessor under the Ground Lease, (i) a written consent to the transfer and
assignment of the Ground Lease to Buyer (the “Consent”), and (ii) an estoppel certificate
reasonably satisfactory to Buyer (the “Estoppel Certificate”). Buyer acknowledges that the
estoppel certificate delivered in connection with Sellers acquisition of the Ground Lease is a
reasonably satisfactory form of Estoppel Certificate. If the Estoppel Certificate actually
delivered by the lessor under the Ground Lease discloses a default, a potential default or a
previously undisclosed material obligation of Sellers, Sellers, at their option, may adjourn the
scheduled Closing Date for a period not to exceed thirty (30) days in order to have such Estoppel
Certificate reissued without such change or disclosure.



     Section 3.03 Bulk Sale. Sellers and Buyer acknowledge that they do not intend
to comply with and have agreed to waive the provisions of any statutory bulk sale or similar
requirements applicable to the transaction to be effected by this Agreement, nor shall any
sale and occupancy or similar tax clearance certificates shall be obtained in connection with the
Closing, and in both cases, Seller and Buyer agree to rely upon the adjustment and allocation
provisions of this Agreement to address any matters that would otherwise be subject to such bulk
sale or other requirements or provided for in such tax clearance certificates.



     Section 3.04 Due Diligence. Sellers and their agents shall give Buyer and Buyer’s
counsel, accountants, engineers, insurance carriers, lenders and other representatives
(“Buyer’s



14









 





Representatives”) access to all of Sellers’ properties, books, accounts,
contracts, commitments, licenses, site plans, surveys, records and receipts used or useful in
connection with the Property or the operation thereof that are in Seller’s possession, and Sellers
shall furnish Buyer with all such information concerning Sellers’ affairs with respect to the
Property or the operation thereof as Buyer may reasonably request. Buyer shall indemnify, hold
harmless and defend Sellers and Manager from and against any loss, damage, liability or claim for
personal injury or property damage and any other loss, damage, liability, claim or lien to the
extent arising from the acts at or upon the Property by Buyer or Buyer’s Representatives, INCLUDING
ANY SUCH LOSS, DAMAGE OR CLAIM TO WHICH THE NEGLIGENCE OF SELLERS AND/OR MANAGER MAY HAVE
CONTRIBUTED, but excluding any such loss, damage or claim if and to the extent caused by the gross
negligence or reckless or willful misconduct of Sellers and/or Manager. Buyer understands and
agrees that any on-site inspections of the Property shall occur at reasonable times agreed upon by
Sellers and Buyer after not less than two (2) business days prior written notice to Sellers and
shall be conducted so as not to interfere unreasonably with the operation of the Property and the
use of the Property by the tenants and the guests of the Hotel. Sellers and/or Manager shall have
the right to have a representative present during any such inspections. If Buyer desires to do any
invasive testing at the Property, Buyer shall do so only after notifying Sellers and obtaining
Seller’s prior written consent thereto, which consent shall not be unreasonably withheld or delayed
and may be subject to reasonable terms and conditions as may be proposed by Sellers. Buyer shall
not permit any liens to attach to the Property by reason of such inspections. Buyer shall (i)
restore the Property, at its own expense, to substantially the same condition which existed prior
to any inspections or other activities of Buyer thereon; and (ii) be responsible for and pay any
and all liens by contractors, subcontractors, materialmen, or laborers performing the inspections
or any other work for Buyer or Buyer’s Representatives on or related to the Property. The
provisions of this Section 3.04 shall survive any termination of this Agreement and the
Closing.




ARTICLE IV.

PRORATIONS AND ADJUSTMENTS




     Section 4.01 Closing Statement/Operations Settlement.




          (a) Closing Statement. Taxes, rents, revenues and expenses pertaining to assigned
Operating Agreements, and prepaid utility charges, shall be allocated and prorated between Buyer
and Sellers pursuant to a written Closing Statement to be prepared by Sellers (subject to Buyer’s
review and approval) and executed by Buyer and Sellers at the Closing. Any
additional amounts owed by Buyer or credits due to Buyer shall be reflected in such statement
and the Purchase Price shall be adjusted accordingly.



          (b) Operations Settlement. Room Revenues for the night prior to the Closing Date,
prepaid deposits for confirmed reservations, hotel facilities and services for periods after the
Transfer Time, and the purchase price for the Tray Ledgers, House Funds and Accounts Receivable
shall be determined by the Operations Settlement. As the Closing Date’s financial results are
necessary for completion of the Operations Settlement, Buyer agrees to the Hotel’s employees’
completion of posting of financial activity, all schedules, credit card billings, and all



15









 




other activities normally associated with the daily activity of the Hotels. Any amounts determined to be
due and owing to Sellers by Buyer or to Buyer by Sellers pursuant to the Operations Settlement
shall be incorporated into the Closing Statements but to the extent that any of the foregoing
information is unavailable or is found to be inaccurate, the same shall be handled as a
post-closing adjustment, the obligations of which shall survive the Closing. Interest under the
Existing Lien for the interest period which includes the Closing Date shall be prorated as of the
Transfer Time.




     Section 4.02 Taxes and Rents. At Closing, all general real estate and
personal property taxes for the year of the Closing and special taxes and assessments shall be
prorated as of the Closing Date (with Buyer to pay taxes attributed to the Closing Date and all
periods thereafter) using the latest available tax rates and assessments and taking advantage of
any discounts or rebates available for early payment and/or payment before delinquency. Except as
set forth herein, the parties shall have no obligation to readjust such prorations after the
Closing; provided, however, if the proration is based upon the previous tax year’s bills, the
parties shall make an appropriate adjustment upon receipt of the current tax year’s bills. Sellers
shall pay general real estate and personal property taxes for all years prior to the year of the
Closing and all special taxes or assessments then due and payable as of the Closing Date, except
that, if any assessment against the Property, or any portion thereof, is payable in installments,
Buyer shall pay any and all of such installments which may be paid after the Closing Date, and any
installment relating to the year of Closing shall be prorated as of the Closing Date (with Buyer to
pay all portions of such installment attributed to the Closing Date and all periods thereafter).
Buyer acknowledges that Sellers (or its predecessors) may be currently pursuing tax appeals with
respect to certain of the Hotels. Buyer agrees to continue any such appeals that relate to current
tax years at Buyer’s expense; provided, however, that such expense shall be paid out of the
proceeds of the tax refund resulting from such appeal, if any, prior to the proration of such
refund as contemplated hereby. Seller shall be entitled to continue all such appeals that relate
to previous tax years. Except as set forth above, any tax refunds or rebates occurring or accruing
with respect to any and all time periods before the Closing Date shall remain the property of
Seller, and, if Buyer collects or receives same, Buyer shall promptly remit same to Seller. The
provisions of this Section 4.02 shall survive the Closing. All taxes or assessments which become
due and payable on or after the Closing Date shall be paid by Buyer.



     Section 4.03 Utilities. Prior to the Closing, Sellers shall notify all utility
companies servicing their respective portions of the Property of the anticipated change in
ownership of the Property and request that all billings after the Transfer Time be made to Buyer at
the addresses of the Hotel located on their portion of the Property. Utility meters will be read,
to the extent that the utility company will do so, during the daylight hours on the Closing Date, with
charges to that time paid by Seller and charges thereafter paid by Buyer. Prepaid utility charges
shall be adjusted on the Closing Statement and paid for at Closing. Charges for utilities which
are unmetered, or the meters for which have not been read on the Closing Date, will be prorated
between Buyer and Seller as of the Transfer Time on the basis of the charges for the prior period
for which bills were issued and shall be further adjusted when the bills for the current period are
issued. Seller or Buyer, as appropriate, shall, upon receipt, submit a copy of the utility
billings for any such charges to the other party and such party shall pay its pro rata share of
such charges to the party requesting payment within seven (7) days from the date of any such
request. This obligation shall survive Closing.



16









 





     Buyer shall be responsible for paying, before the Closing, all deposits required by utility
companies in order to continue service at the Hotels for periods after the Transfer Time and shall
take any other action and make any other payments required to assure uninterrupted availability of
utilities at the Hotels and the Land for all periods after Closing. Following Closing, all utility
deposits made by any Seller shall be refunded directly to Seller by the utility company holding
same. This obligation shall survive Closing.



     Section 4.04 Assigned Operating Agreements.




     (a) All income and expenses with respect to the assigned Operating Agreements will be prorated
as of the Closing Date (with income and expenses for the Closing Date and thereafter to be
allocated to Buyer). There shall be added to the amount due to Sellers at Closing, on the Closing
Statement, the amount of any amounts paid by Sellers under any Operating Agreements attributable to
periods including and after the Closing Date, and there shall be deducted from the amount due
Sellers at Closing, on the Closing Statement, any such amounts paid to and collected by Sellers
under any Operating Agreements attributable to periods including and after the Closing Date.



     (b) Sellers shall be responsible for all management fees and other amounts payable or
reimbursable under the Management Agreements that accrue for the period prior to the Closing Date.
Buyer shall be responsible for all management fees and other amounts payable or reimbursable under
the Management Agreements that accrue for the period from and after the Closing Date.



     (c) Rent under the Ground Lease shall be prorated at Closing. Sellers shall be responsible
for all rent under the Ground Lease for the period prior to the Closing Date, and Buyer shall be
responsible for all rent under the Ground Lease for the period from and after the Closing Date.



     Section 4.05 Room Revenues; Reservations; Tray Ledger; Accounts Receivable and
House Funds.




          (a) Room Revenues for the night prior to the Closing Date shall be divided equally between
Buyer and Sellers pursuant to the Operations Settlement. Other Revenues for the night prior to the
Closing Date shall belong solely to Seller.



          (b) Sellers will request that Manager make available to Buyer a schedule of post-Closing
confirmed reservations that includes for whose benefit the reservation was made, the amount of
prepaid rent thereunder, the amount of any room rental deposits, and the amount of any other
deposits made for advance reservations, banquets and /or future services, if any, to be provided
after Closing. Buyer will honor, for its account, the terms and rates of all pre-closing
reservations confirmed by Sellers or Managers for dates after the Closing Date. Buyer authorizes
Sellers and Managers to continue to accept reservations for periods after the Closing in the
ordinary course of Sellers’ or Managers’ business. Buyer recognizes that such reservations may
include discounts or other benefits provided in the ordinary course of business, including, without
limitation, benefits under any awards programs, sports team, corporate, government or group
discounts, weekend discounts or requirements that ancillary food, beverage or other



17









 




benefits be delivered by Buyer to the guest(s) holding such reservations. Buyer agrees to honor all such
reservations in accordance with their terms. Any pre-closing deposits made to Sellers with respect
to confirmed reservations for dates after the Closing Date will be credited to Buyer at the
Operations Settlement. Any post-closing deposits received by Sellers with respect to confirmed
reservations for dates after the Closing Date will be forwarded to Buyer upon receipt. The
provisions of the immediately preceding sentence shall survive Closing.




     Buyer will honor, for its account, all of Sellers room allocation agreements and banquet
facility and service agreements entered into in the ordinary course of business which have been
granted to groups, persons or other customers for periods after the Closing Date at the rates and
terms provided in such agreements.



     Buyer agrees that Sellers cannot make and have made no representation or warranty that any
party holding a room reservation or agreement for Hotel facilities or services will utilize such
reservation or honor such agreement. Buyer, by the execution hereof, assumes the risk of
non-utilization of reservations and nonperformance of such agreements.



     The provisions of this Section 4.05(b), including, without limitation, the assumptions of risk
set forth above, shall survive the Closing.



          (c) Buyer shall purchase the Tray Ledgers from Sellers pursuant to the Operations Settlement,
with deduction for the portion of the Tray Ledger consisting of one-half of the Room Revenues for
the night prior to the Closing Date.



          (d) Buyer shall purchase the House Funds, exclusive of any non-cash items, from Sellers
pursuant to the Operations Settlement.



          (e) At Closing, Sellers shall receive a credit for all Accounts Receivable in an amount equal
to: (i) one hundred percent (100%) of all such Accounts Receivable which are unpaid for not more
than ninety (90) days; plus (ii) ninety percent (90%) of all such Accounts Receivable which
are unpaid for more than ninety (90) days, but not more than one hundred twenty (120) days;
plus (iii) eighty-five percent (85%) of all such Accounts Receivable which are unpaid for
more than one hundred twenty (120) days, but not more than one hundred fifty (150) days;
plus (iv) eighty percent (80%) of all such Accounts Receivable which are unpaid for more
than one hundred fifty (150) days.



     Section 4.06 Accounts Payable and Expenses. All accounts payable and expenses
related to operations of the Property which have accrued before the Transfer Time shall be paid by
Sellers. Buyer understands and agrees that Sellers may postpone and/or contest payment of any
account payable or expense which is the subject of a bona fide dispute, or for which a bill is not
rendered until after Closing. All accounts payable and expenses accruing after the Transfer Time
will be Buyer’s responsibility.



     Section 4.07 Survival. The provisions of this Article IV shall
survive Closing.




18










 






ARTICLE V.

EMPLOYEES




     Section 5.01 Salaries, etc. Sellers shall not be responsible for the payment
of the salaries, vacation pay, wages or benefits of any employees of the Hotels accruing after the
Transfer Time. Sellers shall be responsible for all salaries, vacation pay, wages or benefits of
any employees of the Hotels accruing prior to the Transfer Time.



ARTICLE VI.

REPRESENTATIONS AND WARRANTIES OF SELLER




     Subject to the information contained in any reports, documents or materials delivered to Buyer
during the Study Period, Seller represents and warrants to Buyer as follows:



     Section 6.01 Existence and Good Standing. Sellers are duly organized, validly
existing and in good standing under the laws of the state of their respective organization.



     Section 6.02 Authority. Sellers have, and on the Closing Date will have, all
requisite power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated herein pursuant to the terms and conditions of this Agreement.



     Section 6.03 No Conflict. Subject to the satisfaction of all conditions to
Closing, the execution and delivery of this Agreement and the consummation of the transactions
contemplated herein will not conflict with, breach, result in a default under, or violate any
commitment, document or instrument to which any Seller is a party or by which it is bound.



     Section 6.04 Seller Is Not a “Foreign Person”. None of the Sellers is a
“foreign person” within the meaning of Section 1445 of the Internal Revenue Code, as amended (i.e.,
none of Sellers is a foreign corporation, foreign partnership, foreign trust, foreign estate or
foreign person as those terms are defined in the Internal Revenue Code and regulations promulgated
thereunder).



     Section 6.05 Insurance. To Sellers’ Knowledge, all insurance policies held
with respect to the Property by Seller or Manager are valid and in full force and effect and
Sellers have and, to Sellers’ Knowledge, Manager has complied with all requirements or
recommendations of the insurance carriers of the insurance policies.



     Section 6.06 No Special Taxes. Except as disclosed by the Permitted
Exceptions or due diligence materials delivered or otherwise made available by Seller, Seller has
no Knowledge of, nor has it received any notice of, any special taxes or assessments relating to
the Property or any part thereof or any planned public improvements that may result in a special
tax or assessment against the Property. Sellers have paid any and all taxes assessed or imposed
upon the Property other than those which are not yet due and payable. To Sellers’ Knowledge, no
lien exists or can be asserted against the Property (other than inchoate liens for real estate
taxes and assessments not yet delinquent) because of the failure of Sellers to file any tax return
or report or to pay any federal, state or local taxes of any kind, including, but not limited to,
income, sales, property,



19









 







social security, employment or withholding taxes, or any assessments,
interest, penalties or deficiencies, fees or other governmental charges or impositions.



     Section 6.07 Litigation. Except as set forth on the schedule attached as
Exhibit “J” hereto, Sellers have no Knowledge of any pending or threatened litigation or
other legal or administrative proceeding, with respect to the Property in which any Seller is named
a party which has not been resolved, settled or dismissed.



     Section 6.08 Condemnation. Sellers have not received any written notice of
any pending condemnation proceeding or other proceeding in eminent domain, and to the Sellers’
Knowledge, no such condemnation proceeding or eminent domain proceeding is threatened affecting the
Property or any portion thereof.



     Section 6.09 Compliance with Applicable Law. Sellers have not received any
written notice of a material violation of any applicable law with respect to the Property which
have not been cured or dismissed.



     Section 6.10 Existing Lien. The Existing Lien is in full force and effect and
Sellers have received no written notice of any defaults which have not been cured thereunder.
Sellers have paid all amounts owed by Sellers under the Existing Liens.



     Section 6.11 Management Agreements. Sellers have received no written notice
of an Event of Default (either by Manager or by Sellers) under any Management Agreement (as defined
therein). Sellers have heretofore delivered or simultaneously herewith delivered to Buyer a
current, complete and correct copy of each Management Agreement.



     Section 6.12 Financial Statements. To Seller’s Knowledge, the financial
statements and records with respect to the Property which Buyer has been and will be given to
review in connection with a due-diligence inspection thereof are and will be true, correct and
complete in all material respects and accurately present the financial position and results of
operations of Sellers and the Property in all material respects as of the date of such financial
statements for the periods covered thereby. The foregoing representation and warranty is not
intended as a statement by Seller concerning the Property’s fair market value or profitability. To
Seller’s Knowledge, since the date of the most recent financial statements that have been given or
will be given to Buyer to review: (i) Sellers’ business with respect to the Property has been
operated in the ordinary course and there has been no material adverse change in its financial
condition, assets, liabilities and results of operations as such relate to the Property, and (ii)
the Property has had no strikes or labor disputes.



     Section 6.13 Pension Plans. Seller is not a party to, bound by, or required by law or
contract to contribute to any pension, profit-sharing or retirement plan, including, without
limitation, any, “employee benefit plan” as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974 (“ERISA”) and the regulations thereunder. Seller does not contribute
to, has not contributed to, and is not required by law or contract to contribute to, any
Multiemployer Plan within the meaning of ERISA.



20









 





     Section 6.14 Operating Agreements. To Seller’s Knowledge after inquiry with Manager,
the Operating Agreements set forth on Exhibit G attached hereto is a true, correct and
complete list of Operating Agreements affecting the Hotels.



     Section 6.15 Employees. There is no union or collective bargaining agreement in
effect relating to any employee whose job relates to the Property or its operation.



     Section 6.16 Ground Lease. The Seller listed on Exhibit I as the owner of the
Wilmington, Delaware Residence Inn owns a leasehold interest in the Hotel and that portion of the
Land located in Wilmington, Delaware pursuant to the Ground Lease. The Ground Lease is in full
force and effect, Seller has not received any written notice of default from the lessor under the
Ground Lease that remains uncured, Seller has not sent any written notice of default to the lessor
under the Ground Lease that remains uncured. Except as otherwise provided in the Estoppel
Certificate, Buyer has provided, or will provide, a true, correct and complete copy of the Ground
lease within five (5) business days after the Effective Date.



     The representations and warranties in this Article 6 shall survive the Closing for a period of
six (6) months following the Closing Date. Notwithstanding anything to the contrary contained in
this Agreement, any claim that Buyer may have at any time against Sellers for any breach of the
representations and warranties contained in this Article 6 will not be valid or effective, and
Sellers shall have no liability with respect thereto, unless the aggregate of all valid claims
exceed one percent (1%) of the Purchase Price. Sellers’ liability for damages resulting from valid
claims shall in no event exceed five percent (5%) of the Purchase Price in the aggregate. In the
event Buyer obtains knowledge on or before Closing of any inaccuracy in any of the representations
and warranties contained in this Article 6, and Buyer nevertheless elects to proceed with the
Closing, Buyer shall be deemed to have waived any and all claims against Seller on account of such
inaccuracy.



ARTICLE VII.

REPRESENTATIONS AND WARRANTIES OF BUYER




     Buyer represents and warrants to Sellers as follows:



     Section 7.01 Existence and Good Standing. Buyer is a corporation, and is duly
organized, validly existing and in good standing under the laws of the state of its organization.



     Section 7.02 Authority. Buyer has, and on the Closing Date will have, all
requisite power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated herein pursuant to the terms and conditions of this Agreement.



     Section 7.03 No Conflict. To Buyer’s knowledge, the execution and delivery of
this Agreement and the consummation of the transactions contemplated herein will not conflict with,
breach, result in a default under, or violate any commitment, document or instrument to which Buyer
is a party or by which it is bound.



21









 





     Section 7.04 AS IS. BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE PROPERTY
IS BEING SOLD TO BUYER AND THAT BUYER AGREES TO PURCHASE AND ACCEPT THE PROPERTY, AND EACH AND
EVERY PART AND COMPONENT THEREOF, IN AN “AS IS, WHERE IS” CONDITION AS OF THE CLOSING WITH NO
REPRESENTATIONS OR WARRANTIES FROM SELLERS, EITHER EXPRESS OR IMPLIED EXCEPT AS EXPRESSLY SET FORTH
IN THIS AGREEMENT. BUYER AGREES THAT BUYER IS NOT RELYING UPON, AND HAS NOT RECEIVED OR BEEN
GIVEN, ANY REPRESENTATIONS (EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT), STATEMENTS OR
WARRANTIES (ORAL OR WRITTEN, IMPLIED OR EXPRESS) OF OR BY ANY OFFICER, EMPLOYEE, AGENT OR
REPRESENTATIVE OF SELLER, OR ANY SALESPERSON OR BROKER (IF ANY) INVOLVED IN THIS TRANSACTION, AS TO
THE PROPERTY OR ANY PART OR COMPONENT THEREOF IN ANY RESPECT, INCLUDING, BUT NOT LIMITED TO, ANY
REPRESENTATIONS, STATEMENTS OR WARRANTIES AS TO THE PHYSICAL OR ENVIRONMENTAL CONDITION OF THE
PROPERTY, THE FITNESS OF THE PROPERTY FOR USE AS A HOTEL, THE FINANCIAL PERFORMANCE OR POTENTIAL OF
THE PROPERTY, THE COMPLIANCE OF THE PROPERTY WITH APPLICABLE BUILDING, ZONING, SUBDIVISION,
ENVIRONMENTAL, LIFE SAFETY OR LAND USE LAWS, CODES, ORDINANCES, RULES, ORDERS, OR REGULATIONS, OR
THE STATE OF REPAIR OF THE PROPERTY, AND BUYER, FOR ITSELF AND ITS HEIRS, LEGAL REPRESENTATIVES,
SUCCESSORS AND ASSIGNS, WAIVES ANY RIGHT TO ASSERT ANY CLAIM OR DEMAND AGAINST SELLERS AT LAW OR IN
EQUITY RELATING TO ANY SUCH MATTER, WHETHER LATENT OR PATENT, DISCLOSED OR UNDISCLOSED, KNOWN OR
UNKNOWN, NOW EXISTING OR HEREAFTER ARISING. EXCEPT FOR ANY TITLE OR SURVEY MATTERS CREATED SOLELY
BY SELLER IN VIOLATION OF THIS AGREEMENT OR ACTS OF FRAUD BY SELLER, BUYER AGREES THAT IT SHALL
HAVE NO RECOURSE WHATSOEVER AGAINST SELLER, AT LAW OR IN EQUITY, SHOULD THE SURVEY OR THE TITLE
INSURANCE COMMITMENTS OR THE TITLE POLICIES FAIL TO DISCLOSE ANY MATTER AFFECTING THE PROPERTY OR
REVEAL ANY SUCH MATTER IN AN INACCURATE, MISLEADING OR INCOMPLETE FASHION OR OTHERWISE BE IN ERROR.
BUYER ACKNOWLEDGES THAT IT SHALL REVIEW THE SURVEY AND THE TITLE INSURANCE COMMITMENTS (AS SAME
MAY BE MARKED AT CLOSING) AND TO DISCUSS THEIR CONTENTS WITH THE INDEPENDENT CONTRACTORS WHO
PREPARED OR ISSUED EACH OF THEM. EXCEPT AS AFORESAID, BUYER ACCORDINGLY AGREES TO LOOK SOLELY TO
THE PREPARER OF THE SURVEY AND THE ISSUER OF THE TITLE INSURANCE COMMITMENTS AND TITLE POLICIES FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH SUCH INSTRUMENTS AND HEREBY RELEASES
SELLERS FROM ANY SUCH CLAIM (EXCEPT FOR ANY CLAIM THAT SELLERS AGREE TO CURE AS SET FORTH IN THIS
AGREEMENT).



     Buyer recognizes that the Hotels and Personal Property are not new and that there exists a
possibility that the Property is not in compliance with the requirements which would be imposed on
a newly constructed hotel by presently effective federal, state and local building, plumbing,
electrical, fire, health, handicap, environmental and life safety laws, codes, ordinances, rules,
orders and/or regulations (collectively, the “building codes”). The Hotels and other improvements
on the Land may contain substances or materials no longer permitted to be used in



22









 







newly constructed buildings including, without limitation, asbestos or other insulation materials, lead or other
paints, wiring, electrical, or plumbing materials and may not contain other materials or equipment
required to be installed in a newly constructed building. Buyer will be given the opportunity, as
set forth in Section 11.03, to review the results of such investigations and inspections of the
Property as Buyer deemed necessary with respect to all such matters. Buyer agrees to accept and
shall the Property in an “AS-IS, WHERE IS” condition and at Closing to accept and assume the risk
of noncompliance of the Property with all such building codes. Except with respect to those
representations set forth in Section 6 hereof, Buyer waives any right to excuse (except as set
forth in Section 11.03 below) or delay performance of its obligations under this Agreement or to
assert any claim against Sellers (before or after Closing) arising out of any failure of the
Property to comply with any such building codes. Buyer acknowledges and agrees that Seller has
endeavored to list on Exhibit “G” hereto, and to provide copies to Buyer of, the Operating
Agreements. Buyer further acknowledges that Seller is relying on Manager to provide such list and
copies of the Operating Agreements. Buyer acknowledges that Buyer is assuming all Operating
Agreements whether or not same are set forth on Exhibit “G” or whether or not copies of which have
been provided to Buyer, and Buyer hereby waives any claims Buyer may have for any inaccuracy in the
list of Operating Agreements set forth on Exhibit “G” or the fact that a particular Operating
Agreement may not have been provided to Buyer for its review.



     Except with respect to those representations set forth in Section 6 hereof, it is specifically
understood and agreed by Sellers and Buyer that Sellers do not make, and shall not be deemed to
have made, any representation, warranty or covenant with respect to (i) any Environmental Laws that
may affect any of the Property or (ii) the presence or absence of any Hazardous or Toxic Substances
in, on, above, under or about any of the Property. As used in this Section 7.04, (A) the term
“Environmental Laws” means all federal, State and local laws, codes, ordinances, rules, orders and
regulations now or hereafter in effect relating to pollution or the protection of the environment,
including without limitation, all laws, codes, ordinances, rules, orders and regulations governing
the generation, use, collection, treatment, storage, transportation, recovery, removal, discharge,
spill or disposal of any or all Hazardous or Toxic Substances, and (B) the term “Hazardous
Substances” or “Toxic Substances” means materials and substances defined as “hazardous substances”,
“hazardous wastes”, “toxic substances” or “toxic wastes” in (I) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601-9675, as amended by the
Superfund Amendments and Reauthorization Act of 1988, and any further amendments thereto and rules,
orders and regulations thereunder; (II) the Resource Conservation and Recovery Act of 1976, 42
U.S.C. Sections 6901-6992, as amended by the Hazardous and Solid Waste Amendments of 1984, and any further amendments thereto and
rules, orders and regulations thereunder; or (III) any other Environmental Laws.



     It is understood and agreed by Sellers and Buyer that in the event of any conflict between the
terms and provisions of this Section 7.04 and any other term or provision to this Agreement, the
relevant term or provision of this Section 7.04 shall control and govern. The provisions of this
Section 7.04 shall survive Closing.



23









 





ARTICLE VIII.

REMEDIES




     Section 8.01 Seller’s Remedies. If Buyer defaults under any provision of this
Agreement before the Closing, Buyer and Sellers agree that the damages that Sellers will sustain as
a result thereof will be substantial, but the actual damages will be difficult or impossible to
ascertain. Accordingly, Buyer and Sellers agree that, in the event of Buyer’s default, Sellers
may, as their sole and exclusive remedies, terminate this Agreement by written notice to Buyer in
which event Sellers shall retain the Deposit as liquidated damages for such default, the amount of
which Deposit Buyer and Sellers agree is not punitive or a penalty but is just, fair and
reasonable.



     Section 8.02 Buyer’s Remedies. In the event of a default hereunder on the
part of any Seller in any material respect, Buyer’s sole and exclusive remedies hereunder shall be
either: (1) the right to terminate this Agreement and receive a return of the full amount of the
Deposit and Buyer shall be entitled to receive from Sellers a reimbursement amount equal to Buyer’s
actual out-of-pocket costs incurred incurred by Buyer in connection with its inspections and due
diligence preformed on the Property upon providing Sellers receipts or other similar evidence of
such costs, such reimbursement amount not to exceed $100,000.00 in the aggregate; or (2) the right
to seek specific performance hereof, provided that Buyer must file a suit for specific performance
in the appropriate jurisdiction within sixty (60) days from the date of such default by such
Seller.



     The parties waive all damages and remedies for defaults prior to Closing except as provided in
this Agreement.



     Section 8.03 Survival. Except for obligations which by their express terms
are to survive Closing or which by their express terms are to be performed following Closing, the
terms and provisions of this Agreement shall not survive the Closing and shall merge into the Deeds
from Sellers to Buyer. The provisions of this Section 8.03 shall survive Closing.



     Section 8.04 Costs and Attorneys’ Fees. In the event of any litigation or
dispute between the parties arising out of or in any way connected with this Agreement, resulting
in any litigation, then the prevailing party in such litigation shall be entitled to recover its
costs of prosecuting and/or defending same, including, without limitation, reasonable attorneys’
fees at trial and all appellate levels. The provisions of this Section 8.04 shall survive
the Closing or any termination of this Agreement.



     Section 8.05 Limitation of Liability. Each party waives its rights to recover
from the other party consequential, punitive, exemplary, and speculative damages. The provisions
of this Section 8.05 shall survive the termination of this Agreement. The provisions of
this Section 8.05 shall not limit or affect the rights of Sellers to receive the Deposit as
liquidated damages as and when provided in this Agreement.



24









 





ARTICLE IX.

CONDITIONS




     Section 9.01 Sellers’ Obligation. In addition to any other conditions
precedent for the benefit of Sellers expressly set forth in this Agreement, the obligation of
Sellers to perform this Agreement is subject to the following conditions unless waived in writing
by Sellers:



          (a) The representations and warranties of Buyer in this Agreement shall be true and correct in
all material respects as of the Closing Date as if made on and as of the Closing Date.



          (b) Buyer shall have performed all obligations required to be performed by it under this
Agreement on or prior to the Closing Date.



          (c) Buyer shall have assumed all obligations and liabilities under the Existing Lien and
Lender shall have released Sellers and their Affiliates from all obligations and liabilities
arising or accruing from and after the Closing Date under the Existing Lien.



          (d) Buyer shall have assumed all obligations and liabilities under the Management Agreements
and Managers shall have released Sellers and their Affiliates from all obligations and liabilities
arising or accruing from and after the Closing Date under the Management Agreements and any
guarantees thereof.



          (e) Managers shall have irrevocably waived in writing any right to purchase the Hotels under
the Management Agreements.



          (f) The lessor under the Ground Lease shall have consented to the assignment of the Ground
Lease to Buyer pursuant to this Agreement.



     Section 9.02 Buyer’s Obligation. In addition to any other conditions
precedent for the benefit of Buyer expressly set forth in this Agreement, the obligation of Buyer
to perform this Agreement is subject to the following conditions unless waived in writing by Buyer:



          (a) The representations and warranties of Sellers in this Agreement shall have been true and
correct in all material respects when made and shall be true and correct in all material respects
as of the Closing Date as if made on and as of the Closing Date.



          (b) Sellers shall have performed in all material respects all obligations required to be
performed by them under this Agreement on or prior to the Closing Date.



          (c) Managers shall have irrevocably waived in writing any right to purchase the Hotels under
the Management Agreements.



          (d) The lessor under the Ground Lease shall have consented to the assignment of the Ground
Lease to Buyer pursuant to this Agreement and Buyer shall have received the Estoppel Certificate in
a form and content reasonably satisfactory to Buyer. Buyer shall use commercially reasonable
efforts to obtain such consent on or before Closing.



25









 





          (e) Lender shall have consented to Buyer’s (or Permitted Assignee’s) assumption of the
Existing Lien.



ARTICLE X.

CONVEYANCE OF ASSETS




     Section 10.01 Instruments of Conveyance. At Closing, Sellers and Buyer shall
execute and deliver to each other the following documents:



          (a) Sellers, unless such Seller holds title to its portion of the Land pursuant to a Ground
Lease, shall execute and deliver to Buyer the Deeds.



          (b) The Seller which holds title to its portion of the Land pursuant to a Ground Lease and
Buyer shall execute and deliver to each other counterparts of the Assignment and Assumption of
Ground Lease.



          (c) Each Seller and Buyer shall execute and deliver to each other a Bill of Sale (Personal
Property).



          (d) Each Seller and Buyer shall execute and deliver to each other counterparts of an
Assignment and Assumption of Intangible Property.



          (e) Each Seller and Buyer shall execute and deliver to each other counterparts of an
Assignment and Assumption of Operating Agreements.



          (f) Each Seller and Buyer shall execute and deliver to each other counterparts of an
Assignment and Assumption of Management Agreements.



          (g) Sellers and Buyer shall execute a closing statement.



          (h) Each Seller shall execute and deliver, at Closing, a so-called “Non-Foreign Affidavit”
(pursuant to Section 1445 of the Internal Revenue Code).



          (i) Buyer shall complete and deliver at Closing a Form 1099 as required by the Internal
Revenue Code.



          (j) Buyer and Sellers shall execute such other affidavits, authorizing resolutions, and
documents as may be reasonably required by the Title Company.



          (k) Each Seller and Buyer shall execute and deliver assignment and assumption documents and
such other documents and instruments required by Lender in connection with the assumption by Buyer
of the Existing Lien.



          (l) Buyer shall execute and deliver an assignment of this Agreement with respect to each
Property to a Permitted Assignee, each of which shall execute and deliver the



26









 







other closing documents referenced in this Section 10.01 to be executed and delivered by the “Buyer” for its
applicable Property.



     Section 10.02 Personal Property. Seller agrees to sell to Buyer and Buyer
agrees to purchase from Seller the Inventory. Buyer shall pay for same at cost on the Closing
Date.



ARTICLE XI.

TITLE TO REAL PROPERTY




     Section 11.01 Title Insurance Commitments. Promptly after Effective Date,
Seller shall order the Title Insurance Commitments from the Title Company. Buyer will review the
Title Insurance Commitments during the Study Period. In the event Buyer does not terminate this
Agreement on or before the expiration of the Study Period, all matters shown in the Title
Commitments shall be deemed Permitted Exceptions, other than Monetary Encumbrances (as described in
the definition of Permitted Exceptions) or other matters Seller expressly agrees to cure on or
before Closing.



     Section 11.02 Survey. Promptly after the Effective Date, Seller shall deliver
to Buyer a copy of the Surveys. Buyer, at Buyer’s sole cost and expense, may elect to order
updates of the Surveys. In the event Buyer does not terminate this Agreement on or before the
expiration of the Study Period, all matters shown on the Surveys shall be deemed Permitted
Exceptions, other than matters Seller expressly agrees to correct on or before Closing.



     Section 11.03 Study Period. If, prior to the expiration of the Study Period,
Buyer provides written notice to Seller and Escrow Agent that it has determined in its sole,
absolute and unreviewable discretion, to terminate this Agreement, this Agreement shall terminate,
the Deposit shall be promptly returned to Buyer and Buyer and Sellers shall be released from all
further liability or obligation hereunder except those which expressly survive a termination of
this Agreement. If Buyer does not provide such written notice of termination, the Deposit shall
become non-refundable except as otherwise expressly provided herein. Buyer shall have no
discussions, correspondence, or other contact with any Hotel employees.



ARTICLE XII.

THE CLOSING




     Section 12.01 Time and Place. Subject to the conditions in Article IX, the
casualty and condemnation provisions in Article XIII and an extension of the Closing Date as a
result of a delay in closing the assumption of the Existing Lien, the Closing shall take place on
the Closing Date at 10:00 a.m. (local time) at the office of counsel for Seller, or at such other
date, place and time as Buyer and Sellers may mutually agree upon in writing. At the request of
either party, Buyer and Sellers shall reasonably cooperate to accomplish this Closing “by mail.” Buyer
shall take possession of the Property effective as of the Closing Date.



     Section 12.02 Payment of Purchase Price. At the Closing, Buyer shall deliver
by wire transfer of good funds the balance of the Purchase Price (subject to adjustments and/or
prorations provided in this Agreement) to the Escrow Agent no later that 12:00 p.m. (Eastern Time)
on the Closing Date. The balance of the Purchase Price (as adjusted) shall be paid to each of the
Sellers, in such amounts as directed by the Sellers, by the Escrow Agent by wire transfer of good



27









 







funds to such bank accounts specified by Sellers after delivery of the closing documents by Sellers
to the Title Company but before recordation of the Deeds or any other instrument all as more
particularly set forth in the escrow closing instructions of Sellers and Buyer.



     Section 12.03 Closing Costs. (a) Sellers shall pay the following costs and
expenses at Closing:




(1) Sellers’ prorated share of real estate and tangible personal property
taxes, rents or assessments as set forth in this Agreement and any general
real estate and personal property taxes for all years prior to the year of
the Closing;




(2) The cost of issuing the Title Insurance Commitments and the premium for
issuance of the Title Policies together with the cost of reasonable and
customary endorsements to the Title Policies not relating to Buyer’s
financing, if any;




(3) Sellers’ own legal expenses;




(4) One-half of the closing fee and/or settlement fee charged by the Escrow
Agent;




(5) All costs of satisfying in full any encumbrances in the form of monetary
liens from the Title Policies, other than the Existing Lien; and




(6) Any and all other costs and expenses expressly allocated to Sellers
under this Agreement.




(b) Buyer shall pay the following costs and expenses at Closing:




(1) Costs of transferring or canceling any Operating Agreements;




(2) Costs of recording the Deeds and any other transfer documents requiring
recordation;




(3) All premiums and costs for issuing any endorsements or additional
coverage to the Title Policy which are not to be paid by Sellers or
contemplated hereinabove, any title insurance premium or cost (including
endorsements and additional coverage with respect thereto) related to
Buyer’s financing;




(4) Costs of supplying tax certificates to the Title Company;




(5) Any sales taxes, transfer taxes or stamp taxes pertaining to the
transfer of the Property from Sellers to Buyer;




(6) All costs associated with the Existing Lien, including, without
limitation, all transfer fees, application fees, points and/or assumption
fees



28









 







required in connection with the assignment of the Existing Lien and all
expenses of Lender, including, without limitation, legal fees and expenses,
all mortgage and similar stamp taxes in connection with the assumption of
the Existing Lien.




(7) All costs associated with the Ground Lease, including, without
limitation, all expenses of the ground lessor and its legal fees and
expenses.




(8) Buyer’s prorated share of all real estate and tangible personal property
taxes, rents, or assessments as set forth in this Agreement;




(9) Buyer’s own legal expenses;




(10) One-half of the cost of closing or settlement fee charged by the Escrow
Agent.




(11) The cost of revising or updating any of the Surveys; and




(12) Any termination charges related termination of any Operating
Agreements.




(13) Any UCC searches.




(14) Any costs or expenses incurred by Buyer in connection with its
inspections and due diligence preformed on the Property.




(15) Any and all other costs and expenses expressly allocated to Buyer under
this Agreement.



     Section 12.04 Revenue and Expense Prorations. Pursuant to Article IV, Sellers
and Buyer will make appropriate apportionments and prorations of expenses, rents, taxes and
revenues and settle them by appropriate credits on the Closing Statement or pursuant to the
Operations Settlement, as the case may be.



     Section 12.05 Closing Documents. At the Closing, Buyer and Sellers shall also
execute and deliver such documents as are specified or contemplated by this Agreement, including,
but not limited to, those required by Sections 4.01 and 10.01.



ARTICLE XIII.

INSURANCE, CONDEMNATION AND CASUALTY




     Section 13.01 Insurance. All Sellers’ insurance policies, including, without
limitation, fire and any additional hazard insurance, shall be maintained in full force and effect
until the Transfer Time, and shall be cancelled by Sellers as of the Transfer Time, and any
refunded premiums shall be retained by Sellers. Buyer will be responsible for acquiring and
placing its own insurance in force from and after the Transfer Time.



29









 





     Section 13.02 Condemnation and Casualty. (a) If, before the Closing, any
Seller receives notice that any Hotel or Hotels and any parcel or parcels comprising the Land are
to be wholly condemned, or to be condemned in such substantial part that the value of the portion
of the Hotels and Land so condemned exceeds Fifty Million and No/100 Dollars ($50,000,000), or if
one or more of the Hotels is wholly or partially destroyed by fire or other casualty, or if so much
of the Hotels is damaged by fire or other casualty to the extent that the cost of repairing such
damage shall exceed Fifty Million and No/100 Dollars ($50,000,000.00) as determined by the casualty
insurer(s) insuring the Hotels, then, in any such event, Buyer and each of the Sellers shall each
have the right to terminate this Agreement by delivering notice of termination in writing to the
other party within thirty (30) days after the receipt of notice of such condemnation or casualty
(but not later than the Closing Date) (which notice will, to the extent then known, contain the
amount of compensation offered for such condemnation or the amount of insurance proceeds offered to
be paid on account of such casualty, as the case may be) and upon giving such notice of termination
the Deposit shall be returned by the Escrow Agent to Buyer, and Sellers and Buyer shall each be
released and discharged from any further obligation to each other hereunder except for those which
expressly survive the termination of this Agreement; provided, however, that if neither Buyer nor
Sellers elects to terminate this Agreement, the purchase contemplated herein shall be consummated
without reduction of the Purchase Price, within the later of (i) fifteen (15) days after the
expiration of such thirty (30) day period or (ii) the Closing Date, but Buyer shall be entitled to
all proceeds of fire or other casualty insurance or condemnation (other than proceeds relating to
business interruption or loss for periods prior to the Transfer Time), Buyer shall receive a credit
to the Purchase Price for any deductibles with respect to any insurance proceeds and Sellers shall
have no responsibility for the restoration and repair of the Property.



          (b) If, before the Closing, any one or more Hotel is damaged by fire or other casualty to the
extent that the cost of repairing or restoring the same shall be less than an amount equal to Fifty
Million and No/100 Dollars ($50,000,000.00), or if any Seller receives notice that any Hotel and/or
Land is to be partially condemned but that the value of the Land and Hotels to be condemned does
not exceed Fifty Million and No/100 Dollars ($50,000,000.00), then, and in any such event, the
Closing shall proceed as scheduled and Sellers shall assign to Buyer the proceeds (excluding
proceeds for business interruption or loss for periods prior to the Transfer Time) of any casualty
insurance or any condemnation award, as the case may be, Buyer shall receive a credit to the
Purchase Price for any deductibles with respect to any insurance proceeds and Sellers shall have no
responsibility for restoration or repair of the Property.



ARTICLE XIV.

MISCELLANEOUS COVENANTS AND PROVISIONS




     Section 14.01 Assignment; Successors and Assigns. Except as otherwise
provided in this Section 14.01, neither this Agreement nor any right or interest herein may be
assigned by Buyer without the prior written approval of Sellers. Notwithstanding anything to the
contrary, Buyer shall assign this Agreement to one or more Permitted Assignees to the extent
required by Lender without obtaining Sellers’ consent; and (1) such Permitted Assignee(s) will
assume in writing all of Buyer’s applicable obligations and liabilities hereunder, (2) a copy of
the assignment and assumption of this Agreement will be provided to Sellers promptly following
execution thereof and (3) Buyer shall not be released from any of its obligations to Sellers



30









 







hereunder. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, legal representatives, successors and assigns.



     Section 14.02 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall constitute one and
the same instrument.



     Section 14.03 Waiver. No failure or delay in acting by any party to this
Agreement shall be deemed a waiver of such party’s rights. Any waiver of rights or remedies shall
be required to be signed by the party charged with the waiver in order for such waiver to be
effective.



     Section 14.04 Amendments. This Agreement may be modified or amended only by
the written consent of Sellers and Buyer.



     Section 14.05 Further Agreements. Each party agrees that it will execute and
deliver to the other party any additional documents, agreements or instruments necessary or
reasonable to give effect to this Agreement or any provision hereof.



     Section 14.06 Entire Agreement. This Agreement sets forth all the promises,
representations, agreements, conditions and understandings relative to the transactions set forth
herein, and neither Sellers nor Buyer are relying upon any promises, representations, agreements,
conditions or understandings, either oral or written, (which are hereby superseded in their
entirety) other than those expressed in this Agreement.



     Section 14.07 Brokers and Finders. Sellers and Buyer each represent and
warrant to the other that it has not employed, retained or consulted any broker, agent or other
finder with respect to the Property or in carrying on negotiations relative to this Agreement,
except as provided for in this Section 14.07, and Sellers and Buyer shall indemnify and hold the
other harmless from and against any and all claims, demands, causes of action, debts, liabilities,
judgments and damages (including costs and reasonable attorneys’ fees incurred in connection with
the enforcement of this indemnity) which may be asserted or recovered against the other on account
of any brokerage fee, commission, or other compensation arising in breach of this representation
and warranty. Sellers and Buyer hereby acknowledge that Broker, a licensed real estate broker
involved in the negotiation of the transactions contemplated herein, shall be paid a sales
commission by Sellers pursuant to a separate agreement.



     Section 14.08 Notices. All notices, demands and requests required, permitted
or given pursuant to the provisions of this Agreement shall be in writing, and either hand
delivered in person or delivered by certified mail, postage prepaid, return receipt requested,
facsimile or by Federal Express or other similar overnight courier service, addressed as follows:



	 	 	 	 	 
	If to Sellers:

	 	 
	 	Ashford Hospitality Limited Partnership
	 

	 	 	 	14185 Dallas Parkway, Suite 1100
	 

	 	 	 	Dallas, Texas 75254
	 

	 	 	 	Attention: David A. Brooks
	 

	 	 	 	Fax No.: (972) 490-9605






31









 






	 	 	 	 	 
	 

	 	 	 	with a copy to:
	 
	 	 	 	 
	 

	 	 	 	Andrews Kurth LLP
	 

	 	 	 	1717 Main Street, Suite 3700
	 

	 	 	 	Dallas, Texas 75201
	 

	 	 	 	Attention: Brigitte Kimichik
	 

	 	 	 	Fax No.:
	 
	 	 	 	 
	If to Buyer

	 	 
	 	Schuylkill, LLC
	 

	 	 	 	c/o Fox Rothschild LLP
	 

	 	 	 	2000 Market Street
	 

	 	 	 	Philadelphia, Pennsylvania 19103
	 

	 	 	 	Attention: Michael J. Kornacki, Esq.
	 

	 	 	 	Fax No.: (215) 299-2150
	 
	 	 	 	 
	 

	 	 	 	with a copy to:
	 
	 	 	 	 
	 

	 	 	 	Fox Rothschild LLP
	 

	 	 	 	2000 Market Street
	 

	 	 	 	Philadelphia, Pennsylvania 19103
	 

	 	 	 	Attention: Mark L. Morris, Esq.
	 

	 	 	 	Fax No.: (215) 299-2150






     Any notice, demand or request which shall be served upon any of the parties in the manner
aforesaid shall be deemed sufficiently given (i) upon being hand delivered in person, (ii)
transmitted by facsimile transmission provided a copy is sent pursuant to (iii) on the following
business day, or (iii) upon being deposited with Federal Express or other similar overnight courier
service; provided, however, the time period in which any response to such notice, demand or request
must be given shall commence on the date of actual delivery of the notice, demand or request to the
address to which it is sent (rather than delivery to the specific addressee). Rejection or other
refusal to accept or the inability to deliver because of changed address of which no notice was
given as provided below shall be deemed delivery of the notice, demand or request sent. The
addresses given above may be changed by any party by ten (10) days’ prior notice to all other parties given in the manner provided herein. Notices may be
sent on behalf of the parties by their respective attorneys.



     Section 14.09 Section Headings; Interpretation. The section headings of this
Agreement are for reference only and shall not be used to construe or interpret this Agreement.
All terms and words used in this Agreement, regardless of the number or gender in which they are
used, shall be deemed to include any other number and any other gender as the context may require.
If any term or condition of this Agreement or the application thereof to any person or circumstance
shall, to any extent, be held legally invalid or unenforceable, the remainder of this Agreement,
and the application of such terms or conditions to persons or circumstances other than those as to
which it is held legally invalid or unenforceable, shall not be affected thereby and each term and
condition of this Agreement shall be valid to the fullest extent permitted by law.



32









 





     Section 14.10 Governing Law. This Agreement shall be governed by the laws of
the state of Texas; provided, however, that with respect to matters that relate to a specific
portion of the Property, then this Agreement shall be governed by the laws of the state where such
Property is located.



     Section 14.11  Disclosure of Confidential Information/ Public Announcements/
Communication with Governmental Authorities/ Communication with Employees. (a) The parties
hereto acknowledge and agree that the existence of this Agreement, the terms of this Agreement and
any other information disclosed in the due diligence materials delivered to or produced by Buyer or
any other documents, materials, data or other information with respect to the Property which is not
generally known to the public (the “Confidential Information”) shall in all respects remain
confidential and shall not be disclosed by the Buyer or Sellers except as provided herein. Buyer
and Sellers may disclose Confidential Information to their respective officers, directors,
employees, attorneys, accountants, consultants, lenders, financial advisors, partners and investors
(collectively, “Representatives”), who in the reasonable business judgment of such party, need to
know the Confidential Information for the purpose of evaluating the transactions contemplated by
this Agreement. The disclosure of any Confidential Information by any Representative of Buyer or
Sellers in breach of this Agreement will constitute a breach of this Agreement by Buyer or Sellers
(as the case may be), for which such party will be liable. If a party or any of its
Representatives is required by any subpoena, interrogatories, request for production, or other
legal process or by any applicable law or regulation to disclose any Confidential Information, such
party will give (to the extent not prohibited by law) the other party prompt written notice of the
requirement and will cooperate with the other party so that the other party, at their expense, may
seek an appropriate protective order. In the absence of a protective order, such party and its
Representatives may disclose only such Confidential Information as may in such party’s reasonable
opinion, be necessary to avoid any penalty, sanction, or other material adverse consequence, and
such party will use commercially reasonable efforts to secure confidential treatment of any
Confidential Information so disclosed.



     (b) Notwithstanding the foregoing, any party hereto shall have the right to make a public
announcement regarding the transaction described in this Agreement, provided, however, that, prior
to and as a condition precedent to such public announcement, all other parties hereto shall approve
the timing, form and substance of any such public announcement, except if a party hereto is required to make a public announcement under any securities law, the party making
such public announcement may do so only after having provided the other party with a copy of such
public announcement and only as long as such public announcement is made in strict accordance with
the applicable law requiring such public announcement be made.



     (c) Without limiting the generality of the provisions in subsection (a) above, Buyer shall
not, through its officers, employees, managers, contractors, consultants, agents, representatives
or any other person (including, without limitation, Buyer’s third party consultants), directly or
indirectly, communicate with any governmental authority or any official, employee or representative
thereof, involving any matter with respect to the Property without the Sellers’ prior written
consent, which consent shall not be unreasonably withheld, unless such communication is arranged by
the Sellers. Notwithstanding the foregoing, Buyer and its representatives and consultants shall
have the right to review building department, health department and other local governmental
authority records with respect to the Property and the



33









 







operation of the Hotels and request written or verbal confirmation of zoning and any other compliance by the Land or Hotels with any applicable
laws, without any requirement to obtain the consent of the Sellers. Notwithstanding the foregoing,
Buyer shall have the right to (a) file such notices and documents necessary to comply with laws
(including, without limitation, closing notices and bulk sales notifications), and (b) communicate
with the applicable governmental authority in connection with the issuance of any liquor licenses
required for the sale of liquor at the Hotels (including, without limitation, the filing of any
applications or other documents), and any and all other permits or licenses required to be
transferred or applied for in connection with the sale of the Hotels, all without the prior consent
of the Sellers; provided, however, that (i) Buyer shall provide Sellers with regular updates
regarding the progress of any and all such communications; and (ii) no inspections of the Hotels by
the applicable governmental authorities shall occur unless a representative of the Sellers is
present during such inspections.



     (d) Communication with Employees. Without limiting the generality of the provisions
in subsection (a) above, Buyer shall not, through its officers, employees, managers, contractors,
consultants, agents, representatives or any other person (including, without limitation, Buyer’s
third party consultants), directly or indirectly, communicate with any Employees or any person
representing any Employees involving any matter with respect to the Property, the Employees or this
Agreement, without the prior written consent of Sellers and Managers, which consent shall not be
unreasonably withheld, conditioned or delayed, unless such communication is arranged by the Sellers
and/or Managers.



     Section 14.12 Time of Essence. Time is of the essence of this Agreement and
each term and provision hereof; provided, however (unless specifically provided to the contrary
elsewhere in this Agreement), when the date by which any action, event or condition is to occur or
any notice or other communication is to be given falls on a Saturday, Sunday or legal holiday, the
date by which such action, event or condition is to occur or such notice or other communication is
to be given shall be automatically extended to the business day immediately succeeding such
Saturday, Sunday or legal holiday.



34









 





     IN WITNESS WHEREOF, this Agreement has been duly executed and delivered as of the date first
above written.



	 	 	 
	 	 	BUYER:
	 
	 	 
	 

	 	SCHUYLKILL, LLC, a Delaware limited liability company
	 
	 	 
	 

	 	By: /S/ STEVE FAIRBANKS
	 

	 	Name: Steve Fairbanks
	 

	 	Its: Authorized Member
	 
	 	 
	 

	 	Date Executed: October 12, 2005






35









 





SELLERS’ SIGNATURE PAGE TO AGREEMENT OF PURCHASE AND SALE BETWEEN UNDERSIGNED SELLERS AND
SCHUYLKILL, LLC DATED OCTOBER 12, 2005




	 	 	 
	 	 	SELLERS:
	 
	 	 
	 

	 	[Sellers]
	 
	 	 
	 

	 	By: /S/ DAVID A. BROOKS
	 
	 	 
	 

	 	By: /S/ DAVID A. BROOKS
	 

	 	Name: David A. Brooks
	 

	 	Its: Chief Legal Officer
	 
	 	 
	 

	 	Date Executed: October 12, 2005







36










 






EXHIBIT “A-1”




Sacramento/Cal Expo (Residence Inns)

1550 Howe Avenue

Sacramento, CA 95825

Sacramento County




     Real property in the unincorporated area of the County of Sacramento, State of California,
described as follows:



     THE NORTH ONE-HALF OF THE SOUTH ONE-HALF OF THE WEST ONE-HALF OF THE NORTHEAST ONE-QUARTER OF
THE NORTHWEST ONE-QUARTER OF SECTION 65 AS SHOWN ON THE ‘MAP OF SURVEY AND SUBDIVISION OF RANCHO
DEL PASO’, RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SACRAMENTO COUNTY, MARCH 4, 1911, IN
BOOK A OF MAPS, MAP NO. 94.



     EXCEPTING THEREFROM, THAT PORTION OF THE ABOVE DESCRIBED LAND CONVEYED BY WILSON H. TRUSSEL TO
AMERICAN RIVER FLOOD CONTROL DISTRICT BY DEED DATED MAY 29, 1933 AND RECORDED BOOK 540 OF OFFICIAL
RECORDS AT PAGE 449, SACRAMENTO COUNTY RECORDS, DESCRIBED AS FOLLOWS:



     BEGINNING AT THE NORTHWEST CORNER OF THE SOUTHWEST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER OF
THE NORTHWEST ONE-QUARTER OF SECTION 65 OF RANCHO DEL PASO, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SACRAMENTO COUNTY, MARCH 4, 1911 IN BOOK A OF SURVEYS, MAP NO. 94, THENCE, FROM SAID
POINT OF BEGINNING SOUTH 01 DEGREES 46 MINUTES 30 SECONDS EAST 150.00 FEET ALONG THE LINE DIVIDING
THE NORTHWEST ONE-QUARTER OF SECTION 65 INTO EAST AND WEST HALVES; THENCE NORTH 89 DEGREES 02
MINUTES 30 SECONDS EAST 70.00 FEET; THENCE NORTH O1 DEGREES 46 MINUTES 30 SECONDS WEST 150.00 FEET
TO A POINT ON THE NORTH LINE OF THE SOUTHWEST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER OF THE
NORTHWEST ONE-QUARTER OF SAID SECTION 65; THENCE SOUTH 89 DEGREES 02 MINUTES 30 SECONDS WEST 70.00
FEET ALONG SAID NORTH LINE TO THE POINT OF BEGINNING.



Sacramento




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EXHIBIT “A-2”




Wilmington / Newark

(Residence Inns)

240 Chapman Road

Wilmington/Newark, DE 19702

New Castle County




     ALL that certain tract, piece or parcel of land situate on Chapman Road (also known as Chopin
Road), White Clay Creek Hundred, New Castle County, State of Delaware and described as follows:



     BEGINNING at point on the southeasterly side of Interstate Route 95, said point being a corner
for lands now or formerly the State of Delaware and being distant North 45° 02’00” East,
150.65 feet measured along the said southeasterly side of Interstate Route 95 from its intersection
with the northwesterly side of Chapman Road; thence from the said point of Beginning, leaving the
northeasterly line of said lands now or formerly of the State of Delaware, the three (3) following
described courses and distances: (1) North 45° 02’ 00” East 157.00 feet to a point; (2) North
58° 49’ 47” East, 519.73 feet to a point, said point being distant southeasterly 210.00 feet
therefrom measured at right angles thereto the center line of the eastbound roadway for Interstate
Route 95 at Sta. 340+00; and (3) North 56° 23’ 57” East, 195.82 feet to a point on the
southwesterly side of a 50 foot wide common entrance/exit easement through lands now or formerly of
Commonwealth Trust Company (Deed Recorded B, Volume 90, Page 308, Tax Parcel No. 09-029.00-10);
thence leaving the said southeasterly right of way for Interstate Route 95 and along the said
southwesterly side of a 50 foot wide common entrance/exit easement, South 15° 51’ 29” East
412.99 feet to a point on the said northwesterly side of Chapman Road; thence thereby, the three
(3) following described courses and distances: (1) South 80° 23’ 18” West, 201.26 feet to a
point; (2) South 75° 47’ 16” West, 305.95 feet to a point; and (3) South 74° 58’ 28”
West, 318.98 feet to a point at a corner for said lands now or formerly of the State of Delaware;
thence leaving the said northwesterly side of Chapman Road and along the northeasterly line of said
lands now or formerly of the State of Delaware, North 15° 55’23” West, 104.37 feet to the
point and place of Beginning.



     TOGETHER with the use of, with others, the aforesaid 50 foot wide common entrance/exit
easement running from Chapman Road to Interstate Route 95, adjacent to and along the northeasterly
line of the herein described property.



Parcel No. 0902900031.




Wilmington




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EXHIBIT
“A-3”




LEGAL DESCRIPTION




Fishkill (Residence Inns)

14 Schuyler Boulevard

Fishkill, NY 12521

Duchess County




PARCEL I



ALL that certain plot, piece or parcel of land situate, lying and being in the Village of Fishkill,
County of Dutchess, State of New York, known as Lot 5B as shown on a map entitled, “Merritt Park
Subdivision”, filed February 14, 1985 in the Dutchess County Clerk’s Office as Map No. 7154, said
Lot 5B being bounded and described as follows:



BEGINNING at a point on the eastern side of N.Y.S. Route 9, north bound lane, said point being a
common property line point with lands now or formerly of Holiday Inn and Merritt Park Lands
Associates, Inc.; -



THENCE along the easterly bounds of N.Y.S. Route 9 North ten degrees, forty-eight minutes,
twenty-five seconds West, three hundred thirty-eight and twenty hundredths feet, North 10 Degrees
48’ 25” West 338.20 feet, to a set iron rod on the boundary of lands now or formerly of Denny’s,
Inc.;



THENCE leaving the easterly bounds of N.Y.S. Route 9 and continuing along the southerly bounds of
lands now or formerly of Denny’s, Inc., North seventy-eight degrees, fifteen minutes, no seconds
East, one hundred ninety-three and nine hundredths feet, North 78 Degrees 15’ 00” East 193.09 feet,
to a set iron rod on the westerly line of “Access Road A” as shown on Map 7154 as aforesaid, said
Access Road A being a 60 foot wide right of way from Schuyler Boulevard to the lands herein
described;



THENCE along said westerly line of said right of way, South two degrees, forty-one minutes, no
seconds East, sixty-eight and seventy-six hundredths feet, South 02 Degrees 41’ 00 East 68.76 feet
to a set iron rod;



THENCE along the southerly side of said right of way, North eighty-seven degrees, nineteen minutes,
no seconds East, sixty and fifty-five hundredths feet, North 87 Degrees 19’ 00” East 60.55 feet, to
a set iron rod, being the southwesterly corner of lands now or formerly under contract of sale to
Luxury Inns of Fishkill;



THENCE along said lands of Luxury Inns of Fishkill, north seventy-eight degrees, fifteen minutes,
no seconds East, two hundred ninety-two and fifty-one hundredths Feet, North 78 Degrees 15 00” East
292.51 feet, to a set iron rod;


39









 






THENCE along lands of Merritt Park Lands Associates, South fourteen degrees, twenty-two minutes,
fifty seconds East, South 14 Degrees 22’ 50” East 332.76 feet, to a set iron rod on lands now or
formerly of Landbrook, Inc.;



THENCE along lands now or formerly of Landbrook, Inc., and Holiday Inn, South eighty-five degrees,
thirty-six minutes and twenty seconds West, five hundred sixty feet, South 85 Degrees 36’ 20” West
560.00 feet, to the point and place of BEGINNING.



EXCEPTING AND RESERVING out of the above described parcel the following portion on which there is a
permanent drainage easement by the New York State Department of Transportation, said excepted and
reserved portion being more particularly described as follows:



BEGINNING at a point on the easterly side of N.Y.S. Route 9, northbound lane, said point being a
common property line point with lands now or formerly of Landbrook, Inc. and Merritt Park Lands
Associates, Inc.;



THENCE along the easterly bounds of N.Y.S. Route 9, North ten degrees, forty-eight minutes,
twenty-five seconds West, fifty feet, North 10 Degrees 48’ 25” West 50.00 feet to a set iron rod;



THENCE leaving the easterly bounds of N.Y.S. Route 9, North eighty-one degrees, twenty-three
minutes, ten seconds east, forty-one and thirty-five hundredths feet, North 81 Degrees 23’ 10” East
41.35 feet, to a set iron rod;



THENCE South ten degrees, eleven minutes, two seconds East, fifty-three feet, South 10 Degrees 11’
02” East 53.00 feet, to an iron rod set on the bounds of lands now or formerly of Landbrook, Inc.;



THENCE along said bounds of lands of Landbrook, Inc., South eighty-five degrees, thirty-six
minutes, twenty seconds West, forty-one feet, South 85 Degrees 36’ 20” West 41.00 feet, to the
point and place of BEGINNING.




PARCEL II



ALL that certain plot, piece or parcel of land situate, lying and being in the Village and Town of
Fishkill, County of Dutchess, State of New York, being a portion of Lot 10 shown on a map entitled,
“Merritt Park Subdivision” and filed in the Dutchess County Clerk’s Office as Map No. 7206 on April
11, 1985 and as more particularly bounded and described as follows:



BEGINNING at a point on the northerly bounds of lands now or formerly of Landbrook, Inc. and the
easterly bounds of lands now or formerly of MR Associates, also known as Lot 513 as shown on the
above captioned filed Subdivision Map No. 7206, said point being South eighty-five degrees,
forty-one minutes, twenty-nine seconds east, five hundred sixty feet, North 85 Degrees 41’ 29” East
560.00 feet, along the northerly bounds of lands now or formerly of Holiday Inn from the easterly
bounds of N.Y.S. Route 9, said the point also being North twenty-five degrees, forty-three minutes,
fifty-eight seconds West, twenty-six hundredths feet, North 25 ___ Degrees 43’ 58” West 0.26 feet,
from a found 1/2 “ iron rod, 1 “ reveal;


40









 






THENCE from said point of beginning and along the easterly bounds of lands now or formerly of MR
Associates, North fourteen degrees, twenty-one minutes, fifty-one seconds West, three hundred
thirty-three and fifty-four hundredths feet, North 14 Degrees 21’ 51” West 333.51 feet, to a point,
said point being on the division line between lands now or formerly of MR Associates to the south
and lands now or formerly of Luxury Inns of Fishkill to the north, said point being North
seventy-eight degrees, fifteen minutes, no seconds East, two hundred ninety-two and fifty-one
hundredths feet, North 78 Degrees 15’ 00” East 292.51 feet from a found 7/8” iron rod at the
southwest corner of lands now or formerly of Luxury Inns of Fishkill;



THENCE through the above captioned Lot 10 the following two courses and distances, North
eighty-five degrees, forty-one minutes, twenty-nine seconds East, one hundred thirty-two and
sixty-four hundredths feet, North 85 Degrees 41’ 29” East, 132.64 feet, to a set 1/2 inch iron rod;



THENCE South fourteen degrees, twenty-one minutes, fifty-one seconds East, three hundred
thirty-three and fifty-four hundredths feet, South 14 Degrees 21’ 51 Degrees East 333.54 feet to a
set iron rod, said set 1/2 inch iron rod being South eighty-five degrees, forty-one minutes,
twenty-nine seconds West, sixty-two and seventy-one hundredths feet, South 85 Degrees 41’ 29” West
62.71 feet, from a found 1/2 inch iron rod, 3” reveal marking the northeasterly corner of lands now
or formerly of Landbrook, Inc.;



THENCE along the northerly bounds of lands now or formerly of Landbrook, Inc., South eighty-five
degrees, forty-one minutes, twenty-nine seconds West, one hundred thirty-two and sixty-four
hundredth feet, South 85 Degrees 41’ 29” West 132.64 feet to the point or place of beginning.



The above described premises are presently known as Lots 5B and 10A on a certain map entitled,
“Merritt Park Subdivision” filed in the Dutchess County Clerk’s of the County Clerk’s on December
6, 1988 as Map No. 7206A.



EXCEPTING therefrom a parcel of land designated “Permanent N.Y.S. D.O.T. Drainage Easement”
adjoining Lot 5B on the southwest as shown on Filed Map No. 7206A.



TOGETHER with a non exclusive easement for ingress and egress as set forth in Liber 1665 page 830
as corrected by Liber 1819 page 834 and as shown in Filed Map No. 7206A.




Fishkill




41









 








EXHIBIT
“A-4”




PARCEL 1:




     Beginning at the Northwest corner of Lot 1, Atrium Office Center, City of Ann Arbor, Washtenaw
County, Michigan, as recorded in Liber 26 of Plats, Page 78, Washtenaw County Records; thence South
52°41’20” East 25.00 feet along the Southerly right-of-way line of Victors Way; thence continuing
along said right-of-way line Easterly 78.86 feet along the arc of a 536.03 foot radius circular
curve to the left, through a central angle of 08°25’45”, having a chord which bears South 56°54’15”
East 78.79 feet, thence South 37°18’30” West 412.59 feet to a point on the Southerly line of said
Lot 1; thence North 63°49’40” West 105.57 feet along said Southerly line to the Southwest corner of
said Lot 1; thence North 37°18’30” East 427.19 feet along the Westerly line of said Lot to the
point of beginning. Being a part of Lot 1 of said Atrium Office Center.



     Together with a Utility Easement recorded in Liber 2119, Page 741, Washtenaw County Records
described as: Commencing at the West 1/4 corner of Section 9, Town 3 South, Range 6 East, City of
Ann Arbor, Washtenaw County, Michigan; thence North 01°40’20” West 1078.28 feet along the West line
of said Section and the centerline of State Road; thence North 87°21’10” East 211.28 feet; thence
North 75°55’50” East 201.99 feet; thence Easterly 355.48 feet along the arc of a 510.02 feet radius
non-tangential curve to the right through a central angle of 39°56’10” having a chord which bears
South 72°40’50” East 348.33 feet; thence South 52°42’40” East 195.00 feet to the point of
beginning; thence South 52°42’40” East 215.00 feet; thence South 37°17’10” West 325.14 feet; thence
North 47°19’45” West 18.08 feet; thence North 37°17’10” East 51.70 feet; thence North 51°17’15”
West 19.28 feet; thence North 38°42’45” East 154.62 feet; thence South 43°48’20” East 14.95 feet;
thence North 30°25’05” East 75.03 feet; thence North 46°45’50” West 51.56 feet; thence North
59°58’30” West 92.12 feet; thence South 47°27’05” West 89.40 feet; thence North 47°10’30” West
18.19 feet; thence South 37°03’05” West 168.91 feet; thence South 47°19’45” East 204.37 feet;
thence South 37°17’10” West 60.62 feet; thence North 47°26’00” West 246.59 feet; thence North
42°05’40” East 60.80 feet; thence South 47°19’45” East 17.05 feet; thence North 37°03’05” East
168.97 feet; thence North 47°10’30” West 2.20 feet; thence North 42°05’40” East 135.38 feet to the
point of beginning.



     Together with a storm sewer easement that is created in Liber 2350, Page 851, Washtenaw County
Records that gives access to the private easement for storm detention as shown on Lot 3 of Atrium
Office Center.


Together with a non-exclusive private easement for storm detention over a portion of Lot 3 of
Atrium Office as shown on the plat.




PARCEL 2:




     Commencing at the West 1/4 corner of Section 9, Town 3 North, Range 6 East, City of Ann Arbor,
Washtenaw County, Michigan, thence North 01°40’20” West 1078.28 feet along the West line of said
section and the centerline of State Road, thence North 87°21’10” East 211.28 feet, thence North
75°55’50” East 201.99 feet, thence Easterly 355.48 feet along the arc of a 510.02 foot radius
non-tangential curve to the right through a central angle of 39°56’10” having



42









 







a chord which bears South 72°40’50” East 348.33 feet, thence South 52°42’40” East 195.00 feet
to the Point of beginning; thence continuing South 52°42’40” East 215.00 feet; thence South
37°17’10” West 427.19 feet; thence North 63°51’00” West 143.99 feet along the Northerly
right-of-way line of the I-94 Expressway; thence North 52°42’50” West 112.00 feet continuing along
said right-of-way line; thence North 42°05’40” East 456.62 feet to the point of beginning, being a
part of the Northwest 1/4 of Section 9, Town 3 South, Range 6 East, City of Ann Arbor, Washtenaw
County, Michigan;


Together with permanent, non-exclusive easements appurtenant to and benefiting the above-described
property and adjoining and adjacent land, created in Declaration of Easement recorded May 12, 1977
in Liber 1593, Page 388, and described as follows:

1. A permanent, non-exclusive easement for the installation and maintenance of sanitary sewers
described as follows:




     Commencing at the West 1/4 corner of Section 9, Town 3 South, Range 6 East, City of Ann Arbor,
Washtenaw County, Michigan, thence North 01°40’20” West 1198.30 feet along the West line of said
Section and the centerline of State Road, thence North 87°21’10” East 1187.01 feet to the point of
beginning; thence continuing North 87°21’10” East 868.57 feet, thence North 08°21’10” West 509.38
feet; thence North 81°38’50” East 20.00 feet; thence South 08°21’10” East 531.48 feet along the
Westerly right-of-way line of the Ann Arbor Railroad; thence South 87°21’10” West 871.01 feet;
thence South 01°40’20” East 1.38 feet; thence 388.43 feet along the arc of 571.22 foot radius
circular curve to the right through a central angle of 38°57’50” having a chord which bears South
17°48’25” West 380.99 feet; thence South 37°17’20” West 80.00 feet; thence North 52°42’40” West
20.00 feet; thence North 37°17’20” East 80.00 feet; thence 374.82 feet along the arc of a 551.22
foot radius circular curve to the left through a central angle of 38°57’40” having a chord which
bears North 17°48’25” East 367.64 feet; thence North 01°40’20” West 21.04 feet to the point of
beginning.



     2. A permanent, non-exclusive easement for the runoff and retention of surface water described
as follows:



     Commencing at the West 1/4 of Section 9, Town 3 South, Range 6 East, City of Ann Arbor,
Washtenaw County, Michigan; thence North 01°40’20” West 1078.28 feet along the West line of said
Section and the centerline of State Road; thence North 87°21’10” East 100.00 feet to a point on the
Easterly right-of-way line of State Road; thence South 01°40’20” East 137.43 feet along said
right-of-way line; thence South 52°42’50” East 721.15 feet along the Northerly right-of-way line of
the I-94 Expressway; thence South 63°51’00” East 143.99 feet continuing along said right of way to
the point of beginning; thence 37°17’10” East 50.96 feet; thence South 63°51’00” East 141.17 feet;
thence South 77°35’30” East 289.51 feet; thence North 89°51’50” East 235.90 feet; thence North
02°36’40” West 195.31 feet; thence North 87°27’20” East 700.00 feet; thence South 08°21’10” East
251.26 feet along the Westerly right-of-way line of Ann Arbor Railroad; thence along the Northerly
right-of-way line of the I-94 Expressway in the following courses: South 87°23’20” West 617.78
feet, South 89°51’50” West 351.01 feet, North 77°35’30” West 301.03 feet and North 63°51’00” West
157.04 feet to the point of beginning.



Tax parcel identification number: 09-12-09-201-017




Ann Arbor




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EXHIBIT “A-5”




Orlando International Drive (Residence Inns)

7975 Canada Avenue

Orlando, FL 32819

Orange County



Lots 8, 8A and 9 of INTERNATIONAL COVE, according to the Plat thereof as recorded in Plat Book 12,
Page(s) 18-19 of the Public Records of Orange County, Florida.



Together with all right, title and interest in and to any easements contained in that certain
Notice of Restrictions, Grant of Easement and Agreement of Maintenance recorded in Book 3383, Page
1125; re-recorded in Book 3395, Page 1623; and re-recorded in Book 3434, Page 404.




Orlando, I-Drive




44









 








EXHIBIT “A-6”




Warwick (Residence Inns)

500 Kilvert Street

Warwick, RI 02883

Kent County



That certain tract or parcel of land with all buildings and improvements thereon, situated
northerly of Metro Center Boulevard, in the City of Warwick, County of Kent, State of Rhode Island
is herein bounded and described:



Beginning at the point of tangency of a curve to Metro Center Boulevard, thence proceeding South 59
degrees 54 minutes 43 seconds west along the northerly line of Metro Center Boulevard, a distance
of three hundred eighty-five and 80/100 (385.80) feet to a point;



Thence turning an interior angle of 259 degrees 36 minutes 43 seconds and proceeding south 19
degrees 42 minutes 00 seconds east a distance of eleven and 01/100 (11.01) feet to a point, bounded
easterly by Metro Center Boulevard;



Thence turning an interior angle of 96 degrees 32 minutes 51 seconds and proceeding south 63
degrees 45 minutes 09 seconds west a distance of two hundred forty-four and 92/100 (244.92) feet to
a point, said point being located one hundred seventy-four and 68/100 (174.68) feet left of
Centerline Station 112+08.32, as shown on State Highway plat #1483;



Thence turning an interior angle of 180 degrees 41 minutes 20 seconds and proceeding south 63
degrees 03 minutes 49 seconds west a distance of fifty and 07/100 (50.07) feet to a point, said
point being located one hundred twenty-five and 00/100 (125.00) feet left of Centerline Station
112+15.72, as shown on said plat, the last two courses bounded southerly by Metro Center Boulevard;



Thence turning an interior angle of 82 degrees 42 minutes 06 seconds and proceeding north 19
degrees 38 minutes 17 seconds west a distance of two hundred sixty-three and 81/100 (263.81) feet
to a point, said point being located one hundred sixty-one and 43/100 (161.43) feet south 19
degrees 38 minutes 17 seconds east of a point located one hundred twenty-five and 00/100 (125.00)
feet left of Centerline Station 107+89.98 as shown on State Freeway Plat No. 1220, the last course
bounded westerly by Airport Connector;



Thence turning an interior angle of 99 degrees 45 minutes 03 seconds and proceeding north 60
degrees 36 minutes 40 seconds east a distance of five hundred thirty-seven and 52/100 (537.52) feet
to a point;



Thence turning an interior angle of 130 degrees 36 minutes 11 seconds and proceeding south 69
degrees 59 minutes 30 seconds east a distance of sixty-seven and 07/100 (67.07) feet to a point,
the last two courses bounded northwesterly and northerly by other land of this grantor;



Thence turning an interior chord angle of 160 degrees 06 minutes 06 seconds and proceeding along
the arc of a curve with a delta angle of 140 degrees 12 minutes 12 seconds and a radius of


45









 






sixty-two and 00/100 (62.00) feet a distance of one hundred fifty-one and 72/100 (151.72) feet to a
point;


Thence turning and proceeding along the arc of a curve with a delta angle of 74 degrees 39 minutes
35 seconds and a radius of twenty-five and 00/100 (25.00) feet a distance of thirty-two and 58/100
(32.58) feet to a point;



Thence turning an interior chord angle of 142 degrees 39 minutes 33 seconds and proceeding south 45
degrees 31 minutes 39 seconds east a distance of fifty-two and 07/100 (52.07) feet to a point;



Thence turning an interior chord angle of 127 degrees 16 minutes 54 seconds and proceeding along
the arc of a curve with a delta angle of 105 degrees 26 minutes 29 seconds and a radius of
twenty-five and 00/100 (25.00) feet a distance of forty-six and 01/100 (46.01) feet to the point
and place of beginning, the last four (4) courses bounded by Kilvert Street; the last herein
described course forms an interior chord angle of 127 degrees 16 minutes 54 seconds with the first
herein described course.



For a more particular description, reference is herein made to an ALTA/ACSM Land Title Survey
prepared by Lunar Mapping Unlimited, dated June 17, 2003, Project No. 1766.



Also, being the same premises as Plan of “Partial Replat of Parcel #4 of Metro Center Office
Industrial Park “North Parcel” dated May 2, 1988, prepared by Garafalo & Associates, Inc. (A.P. 276
portion of Lot 8).”



Together with the benefit of and subject to a Declaration of Restrictions by Metrocenter
Associates, dated June 20, 1988 and recorded on June 20, 1988 in Book 1145, Page 285.




Warwick




46









 





EXHIBIT “A-7”




Fort Worth River Plaza (Residence Inn)

1701 S. University Drive

Fort Worth, TX 76107

Tarrant County




     That certain tract of land situated in the A. Voght Survey, Abstract No. 1585, and the E. S.
Harris Survey, Abstract No. 688, City of Fort Worth, Tarrant County, Texas and being all of Lot
3-A-3, Block 1, River Plaza Complex, an addition to the City of Fort Worth, as recorded in Volume
388-131, Page 005, Plat Records, Tarrant County, Texas; said tract being more particularly
described as follows;




     BEGINNING at 5/8-inch iron rod with yellow plastic cap stamped “GSES, INC., RPLS 4804” set at
the southwest corner of said Lot 3-A-3, Block 1; said point also being on the east right-of-way
line of University Drive (variable width right-of-way); said point also being on the northwest line
of the Clear Fork of Trinity River;



     THENCE, with the said right-of-way line of University Drive and the west line of Lot 3-A-3,
Block 1, the following metes and bounds;



     North 00 degrees 13 minutes 00 seconds East, a distance of 262.92 feet (plat calls 263.00
feet) to a 5/8-inch iron rod with yellow plastic cap stamped “GSES, INC., RPLS 4804” set for
corner;



     North 70 degrees 43 minutes 00 seconds East, a distance of 2.15 feet to a 5/8-inch iron rod
with yellow plastic cap stamped “GSES, INC., RPLS 4804” set for corner;



     North 03 degrees 14 minutes 00 seconds West, a distance of 79.55 feet to a 5/8-inch iron rod
with yellow plastic cap stamped “GSES, INC., RPLS 4804” set for corner;



     North 00 degrees 43 minutes 00 seconds West, a distance of 228.25 feet to a railroad spike
found for corner;



     North 01 degrees 07 minutes 00 seconds East, a distance of 14.73 feet to a 5/8-inch iron rod
found at the western most northwest corner of said Lot 3-A-3, Block 1; said point also being the
southwest corner of Lot 3-A-4, Block 1 of said River Plaza Complex; said point also being the
beginning of a curve to the left having a radius of 120.12 feet;



     THENCE, northeasterly, with said curve to the left and leaving said east right-of-way line of
University Drive, through a central angle of 24 degrees 46 minutes 37 seconds, an arc distance of
51.94 feet (chord bears North 78 degrees 43 minutes 41 seconds East, 51.54 feet) to a 1/2-inch iron
rod found at the northern most northwest corner of said Lot 3-A-3, Block 1; said point also being
the southwest corner of Lot 3-A-2, Block 1 of said River Plaza Complex;



     THENCE, South 65 degrees 52 minutes 00 seconds East, leaving the south line of said Lot 3-A-4,
Block 1 and with the common line of said Lots 3-A-3 and 3-A-2, Block 1, a distance



47









 







of 411.77 feet (plat calls 411.86 feet) to a 1/2-inch iron rod found at the northeast corner
of said Lot 3-A-3, Block 1; said point also being the southeast corner of said Lot 3-A-2, Block 1;
said point also being on the said northwest line of the Clear Fork of Trinity River;


THENCE, with the common line of said Lot 3-A-3, Block 1 and Clear Fork of Trinity River, the
following metes and bounds; South 24 degrees 08 minutes 00 seconds West, a distance of 14.65 feet
to a 1/2-inch iron rod found at the beginning of a curve to the right having a radius of 812.93
feet; southwesterly, with said curve to the right through a central angle of 42 degrees 21 minutes
23 seconds, an arc distance of 600.97 feet (plat calls 590.00 feet) (chord bears South 45 degrees
08 minutes 01 seconds West, 587.37 feet) to the POINT OF BEGINNING.




Ft. Worth River Plaza




48









 





Tyler (Residence Inn)

3303 Troup Highway

Tyler, TX 75701

Smith County




     All that certain lot, tract or parcel of land located in the Wm. Keys Survey, Abstract No.
526, Smith County, Texas, being all of Lot 28-B, New City Block 976, City of Tyler, as shown on a
plat recorded in Cabinet B, Slide 282-B of the Plat Records of Smith County, Texas and being more
particularly described by metes and bounds as follows:



     BEGINNING at a found 1/2” rebar at the intersection of the south right of way line of Golden
Road and the west right of way line of Troup Highway (State Highway No. 110), said rebar being the
northeast corner of said Lot 28-B and the True Point of Beginning of the property being described;



     THENCE S 26° 45’ 57” E, 280.94 feet (280.79 feet record) along the west right of way line of
Troup Highway (State Highway No. 110) to a found “PK” nail in concrete;



     THENCE S 22° 19’ 45” E, 107.01 feet (S 22° 26’ 22” E, 107.09 feet record) continuing along the
west right of way line of Troup Highway (State Highway No. 110) to a found 1/2” rebar for the
southeast corner of Lot 28-B;



     THENCE S 64° 31’ 38” W, 459.88 feet (S 64° 31’ 16” W, 460.00 feet record) leaving the west
right of way line of Troup Highway (State Highway No. 110) and along the south line of Lot 28-B to
a found “PK” nail in concrete retaining wall for the southwest corner of Lot 28-B;



     THENCE N 25° 28’ 38” W, 397.74 feet (N 25° 28’ 44” W, 397.59 feet record) with the west line
of Lot 28-B to a found “PK” nail in sidewalk for the northwest corner of Lot 28-B in the south
right of way line of Golden Road;



     THENCE along the south right of way line of Golden Road a distance of 102.13 feet (102.05 feet
record) along the arc of a curve to the left whose radius is 529.84 feet, whose central angle is
11° 02’ 37” and whose long chord bears N 70° 07’ 56” E, 101.07 feet (N 70° 03’ 23” E, 101.89 feet
record) to a found 1/2” rebar;



     THENCE N 64° 32’ 19” E, 357.96 feet continuing along the south right of way line of Golden Road to
the True Point of Beginning.



Tyler




49










 






EXHIBIT “B”




ASSIGNMENT AND ASSUMPTION OF INTANGIBLE PROPERTY




     THIS ASSIGNMENT AND ASSUMPTION OF INTANGIBLE PROPERTY (this “Assignment”) is made and entered
into as of the       day of                     , 2005, by and between                                                             , a
                                         having a mailing address at                                                              (“Assignor”), and
                                        , a                                         , having a mailing address at                                         (“Assignee”);



W I T N E S S E T H:




     WHEREAS, Assignor and Assignee are parties to that certain Agreement of Purchase and Sale
dated ___, 2005 (the “Agreement”), pursuant to which Seller has agreed, among other
things, to sell, assign, transfer and convey to Assignee the Property (as defined in the
Agreement); and



     WHEREAS, in connection with the sale and purchase of the Property, Assignor has agreed to
assign to Assignee all of Assignor’s right, title and interest in and to, and Assignee has agreed
to assume from Assignor all of Assignor’s obligations and liabilities under, the Intangible
Property. Unless otherwise defined herein, all capitalized terms used in this Assignment shall
have the meaning given to such term in the Agreement.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties agree as follows:


1. Assignment. Assignor hereby assigns, transfers, and conveys to Assignee all of
Assignor’s right, title and interest in and to the Intangible Property, to the extent that such
assignments are legally and contractually permitted.



2. Assumption. Assignee hereby assumes all liabilities and obligations of Assignor under
the Intangible Property which arise on or after the Transfer Time and agrees to perform all
obligations of Assignor under the Intangible Property which are to be performed or which become due
on or after the Transfer Time.



3. Further Assurances. Assignor covenants with Assignee and Assignee covenants with
Assignor that each will execute or procure any additional documents necessary to establish the
rights of the other hereunder.



4. Counterparts. This Assignment may be executed by the parties in counterparts, in which
event the signature pages thereof shall be combined in order to constitute a single original
document.




50









 







5. Binding Effect. This Assignment shall be binding upon and inure to the benefit of
Assignor, Assignee and their respective successors and assigns.




     IN WITNESS WHEREOF, the parties have executed this Assignment as of the date set forth above.



Signed, sealed and delivered

in the presence of:




	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	a	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 	 	 	 	 
	Witness Name:

	 	 	 	Title:	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	(CORPORATE SEAL)
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Witness Name:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	a	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 	 	 	 	 
	Witness Name:

	 	 	 	Title:	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	(CORPORATE SEAL)
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Witness Name:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 






51









 








EXHIBIT “C”




ASSIGNMENT AND ASSUMPTION OF MANAGEMENT AGREEMENT




     THIS ASSIGNMENT AND ASSUMPTION OF MANAGEMENT AGREEMENT (this “Assignment”) is made and entered
into as of the       day of                     , 2005, by and among                                                             , a
                                                             having a mailing address at                                                              (“Assignor”), and
                                                            , a                                          having a mailing address at
                                                             (“Assignee”).



W I T N E S S E T H:




     WHEREAS, Assignor is the owner of that certain real property and improvements commonly known
as the                                                             , and as more particularly described on Exhibit A attached
hereto (the “Hotel”);



     WHEREAS, the Hotel is managed by                                          (“Manager”) pursuant to that certain
Management Agreement by and between Assignor and Manager dated as of                                          (the
“Management Agreement”);



     WHEREAS, concurrently with the execution of this Assignment, Assignor shall sell and convey to
Assignee all of Assignor’s right, title and interest in and to the Hotel (the “Sale Transaction”);



     WHEREAS, in connection with the Sale Transaction, Assignor has agreed to assign all of its
rights, privileges, duties and obligations under the Management Agreement (including under the
Property Improvement Plan addenda to the Management Agreement and under the approved Capital
Expenditure Plans for 2005 for the Hotel) to Assignee and Assignee has agreed to assume all of
Assignor’s rights, privileges, duties and obligations thereunder which arise on or after the
Effective Date pursuant to the terms and provisions of this Assignment.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties agree as follows:


1. Assignment. Assignor hereby assigns all of its rights, privileges, duties and
obligations under the Management Agreement (including under the Property Improvement Plan addenda
to the Management Agreement and under the approved Capital Expenditure Plans for 2005 for the
Hotel) that arise on or after the Effective Date to Assignee.



2. Assumption. Assignee hereby assumes all of Assignor’s rights, privileges, duties and
obligations under the Management Agreement (including under the Property Improvement Plan addenda
to the Management Agreement and under the approved Capital Expenditure Plans for 2005 for the
Hotel) that arise on or after the Effective Date.




 









 







3. Indemnity by Assignee. Assignee shall indemnify, defend and hold Assignor harmless from
any claim, liability, cost or expense (including without limitation reasonable attorneys’ fees)
arising out of the Management Agreement from and after the Transfer
Time.



4. Indemnity by Assignor. Assignor shall indemnify, defend and hold Assignee harmless from
any claim, liability, cost or expense (including without limitation reasonable attorneys’ fees and
costs) arising out of the Management Agreement for the period prior to the Transfer Time.



5. Further Assurances. Each of Assignor and Assignee agrees that each will execute or
procure any additional documents necessary to establish the rights of the others hereunder.



6. Counterparts. This Assignment may be executed by the parties in counterparts, in which
event the signature pages thereof shall be combined in order to constitute a single original
document.



7. Binding Effect. This Assignment shall be binding upon and inure to the benefit of
Assignor and Assignee and their respective successors and assigns.




 









 








     IN WITNESS WHEREOF, the parties have executed this Assignment as of the date set forth above.



Signed, sealed and delivered

in the presence of:




	 	 	 	 	 	 	 
	 	 	 	 	ASSIGNOR
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	a	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 	 	 	 	 
	Witness Name:

	 	 	 	Name:	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Witness Name:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	 	 	ASSIGNEE
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	a	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 	 	 	 	 
	Witness Name:

	 	 	 	Name:	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Witness Name:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 






 









 








EXHIBIT “D”




ASSIGNMENT AND ASSUMPTION OF OPERATING AGREEMENTS




     THIS ASSIGNMENT AND ASSUMPTION OF OPERATING AGREEMENTS (this “Assignment”) is made and entered
into as of the       day of                     , 2005, by and between                                                             , a
                                         having a mailing address at                                                              (“Assignor”), and
                                        , a                                         , having a mailing address at                      (“Assignee”);



W I T N E S S E T H:




     WHEREAS, Assignor and Assignee are parties to that certain Agreement of Purchase and Sale
dated                           , 2005 (the “Agreement”), pursuant to which Seller has agreed, among other
things, to sell, assign, transfer and convey to Assignee the Property (as defined in the
Agreement); and



     WHEREAS, in connection with the sale and purchase of the Property, Assignor has agreed to
assign to Assignee all of Assignor’s right, title and interest in and to, and Assignee has agreed
to assume from Assignor all of Assignor’s obligations and liabilities under, the Operating
Agreements. Unless otherwise defined herein, all capitalized terms used in this Assignment shall
have the meaning given to such term in the Agreement.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties agree as follows:


1. Assignment. Assignor hereby assigns, transfers, and conveys to Assignee all of
Assignor’s right, title and interest in and to the Operating Agreements.



2. Assumption. Assignee hereby assumes all liabilities and obligations of Assignor under
the Operating Agreements which arise on or after the Transfer Time and agrees to perform all
obligations of Assignor under the Operating Agreements which are to be performed or which become
due on or after the Transfer Time.



3. Indemnity by Assignee. Assignee shall indemnify, defend and hold Assignor harmless from
any claim, liability, cost or expense (including without limitation


 









 






reasonable attorneys’ fees) arising out of any Operating Agreement from and after the Transfer
Time



4. Indemnity by Assignor. Assignor shall indemnify, defend and hold Assignee harmless from
any claim, liability, cost or expense (including without limitation reasonable attorneys’ fees and
costs) arising out of any Operating Agreement for the period prior to the Transfer Time.



5. Further Assurances. Assignor covenants with Assignee and Assignee covenants with
Assignor that each will execute or procure any additional documents necessary to establish the
rights of the other hereunder.



6. Counterparts. This Assignment may be executed by the parties in counterparts, in which
event the signature pages thereof shall be combined in order to constitute a single original
document.



7. Binding Effect. This Assignment shall be binding upon and inure to the benefit of
Assignor, Assignee and their respective successors and assigns.




     IN WITNESS WHEREOF, the parties have executed this Assignment as of the date set forth above.



Signed, sealed and delivered

in the presence of:




	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	a	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 	 	 	 	 
	Witness Name:

	 	 	 	Title:	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	(CORPORATE SEAL)
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Witness Name:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	a	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 	 	 	 	 
	Witness Name:

	 	 	 	Title:	 	 
	 

	 	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	(CORPORATE SEAL)
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Witness Name:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 





 









 






EXHIBIT “E”




LIMITED WARRANTY BILL OF SALE




     THIS LIMITED WARRANTY BILL OF SALE (the “Bill of Sale”) is made and entered into as of the
      day of                     , 2005, by and between                                                             , a                                         
(“Seller”) and                                         , a                                          (“Buyer”);



W I T N E S S E T H:




     WHEREAS, Seller and Buyer are parties to that certain Agreement of Purchase and Sale dated
                          , 2005 (the “Agreement”), pursuant to which Seller has agreed, among other things, to
sell, assign, transfer and convey to Assignee the Property (as defined in the Agreement); and



     WHEREAS, in connection with the sale and purchase of the Property, Seller has agreed to sell,
transfer and convey to Buyer all of Seller’s right, title and interest in and to the Personal
Property. Unless otherwise defined herein, all capitalized terms used in this Assignment shall
have the meaning given to such term in the Agreement.



     NOW, THEREFORE, in consideration of the foregoing and Ten Dollars ($10.00) and other good and
valuable consideration in hand paid by Buyer to Seller, the receipt and sufficiency of which are
hereby acknowledged, Seller and Buyer do hereby agree as follows:



     1. Seller does hereby sell, transfer and convey to Assignee the Personal Property and Buyer
hereby purchases and accepts all of the Personal Property.



     2. EXCEPT AS OTHERWISE PROVIDED IN THIS PARAGRAPH 2 BELOW, ALL OF THE PERSONAL PROPERTY IS
HEREBY SOLD, TRANSFERRED AND CONVEYED TO BUYER ON AN “AS IS”, “WHERE IS”, “WITHOUT ALL FAULTS”
BASIS, WITHOUT RECOURSE, REPRESENTATION, IMPLIED OR EXPRESS WARRANTY, GUARANTY, PROMISE, PROJECTION
OR PREDICTION WHATSOEVER WITH RESPECT TO THE PERSONAL PROPERTY, WHETHER WRITTEN OR ORAL, EXPRESS OR
IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING WITHOUT LIMITATION ANY WARRANTY OR
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.



 









 




Notwithstanding the foregoing to the contrary, Seller does hereby warrant to Buyer that the
Personal Property is owned by Seller free and clear of all encumbrances of whatsoever nature;
EXCEPTING ONLY the liens or mortgages assumed or entered into by Buyer, if any, and any personal
property sales tax or other tax.




     3. This Bill of Sale may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instruments and any of the parties hereto may execute
this Bill of Sale by signing any such counterpart.



     IN WITNESS WHEREOF, the undersigned has executed this Bill of Sale as of the date first above
written.



Signed, sealed and delivered

In the presence of:




	 	 	 	 	 	 	 
	 	 	 	 	“SELLER”:
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	a	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 	 	 	 	 
	Printed Name:

	 	 	 	Name:	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Printed Name:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	“BUYER”:
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	a	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 	 	 	 	 
	Printed Name:

	 	 	 	Name:	 	 
	 

	 	 
	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Printed Name:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 





 








 






EXHIBIT “F”

Schedule of Management Agreements




	 	 	 	 	 	 	 	 	 	 	 
	#	 	Brand	 	Property Name/City/ST	 	Mgmt Agr Owner	 	Manager	 	Date
	 
	 	 	 	 	 	 	 	 	 	 
	1

	 	RI
	 	Sacramento CA
	 	 
	 	Residence Inn by Marriott, Inc.
	 	10/10/03
	2

	 	RI
	 	Wilmington, Newark DE
	 	 	 	Residence Inn by Marriott, Inc.
	 	10/10/03
	3

	 	RI
	 	Orlando-Internat’l Drive FL
	 	 	 	Residence Inn by Marriott, Inc.
	 	10/10/03
	4

	 	RI
	 	Ann Arbor MI
	 	 	 	Residence Inn by Marriott, Inc.
	 	10/10/03
	5

	 	RI
	 	Fishkill NY
	 	 	 	Residence Inn by Marriott, Inc.
	 	10/10/03
	6

	 	RI
	 	Ft. Worth-River Plaza, TX
	 	 	 	Residence Inn by Marriott, Inc.
	 	10/10/03
	7

	 	RI
	 	Warwick-Providence RI
	 	 	 	Residence Inn by Marriott, Inc.
	 	10/10/03
	8

	 	RI
	 	Tyler TX
	 	 	 	Residence Inn by Marriott, Inc.
	 	10/10/03






 









 






EXHIBIT “G”

Schedule of Operating Agreements





	 	(a)	 	RI Ann Arbor





      




     





	 	•	 	Mitel Network Services Solutions
	 
	 	•	 	Security Services, Inc — agreement
	 
	 	•	 	LodgeNet — Pay Per View service agreement
	 
	 	•	 	ADT Security Services, Inc — agreement
	 
	 	•	 	Pitney Bowes — lease agreement
	 
	 	•	 	ECOLAB — Pest elimination Services agreement
	 
	 	•	 	Republic Waste Services agreement
	 
	 	•	 	Wiesman Enterprise Inc — vending machine agreement
	 
	 	•	 	A&H Lawn care service agreement
	 
	 	•	 	Schindler — Elevator maintenance contract
	 
	 	•	 	Alamo leasing — motor vehicle lease agreement
	 
	 	•	 	StayOnline
	 
	 	 	 	







	 	(b)	 	RI Fishkill





      




     





	 	•	 	Meristar/Flagstone National Contract — copier/Fax Printer Lease
	 
	 	•	 	Business certificate — Centurion Protective Services Agreement
	 
	 	•	 	ECOLAB — Pest control elimitaion
	 
	 	•	 	LodgeNet — software services
	 
	 	•	 	Neave Landscaping, Inc — Service Agreement
	 
	 	•	 	Millingan’s Landscaping
	 
	 	•	 	StayOnline
	 
	 	•	 	Royal Carting Service
	 
	 	•	 	ADT Security





 









 





	 	(c)	 	RI Fort Worth





      




     





	 	•	 	Charter Communications — Cable TV Service Agreement
	 
	 	•	 	KC Landscape — Service Agreement
	 
	 	•	 	LodgeNet — Pay Per View Agreement
	 
	 	•	 	Muzak — music service agreement
	 
	 	•	 	Waste Management Service Agreement
	 
	 	•	 	XEROX — Lease Agreement
	 
	 	•	 	StayOnline
	 
	 	•	 	Construction Contract with Moline Construction Management
	 
	 	 	 	







	 	(d)	 	RI Orlando I-Drive





      




     





	 	•	 	Marketing Desk Agreement
	 
	 	•	 	Guest services Desk Agreement
	 
	 	•	 	ECOLAB — Pest control elimination
	 
	 	•	 	Shared Services Agreement
	 
	 	•	 	LodgeNet service agreement
	 
	 	•	 	Security Services of America service agreement
	 
	 	•	 	Imagistics Maintenance agreement
	 
	 	•	 	International Cove Owners Association, Inc
	 
	 	•	 	LCA, — Lease agreement — Motorola radios
	 
	 	•	 	StayOnline
	 
	 	•	 	TruGreen Landscaping
	 
	 	•	 	11th hour Business Centers





 









 






	 	(e)	 	RI Providence





      




     





	 	•	 	Waste Management Service agreement
	 
	 	•	 	Airport Advertising space contract — Interspace Advertising
	 
	 	•	 	StayOnline
	 
	 	•	 	Mitel Networks (phone switch)
	 
	 	•	 	Cox Cable
	 
	 	 	 	







	 	(f)	 	RI Sacramento





      




     





	 	•	 	Landscape Management Services contract
	 
	 	•	 	American Access Controls & Security Systems — agreement
	 
	 	•	 	SECURITAS — Security officer
	 
	 	•	 	Cable TV Service Agreement — ComCast Cablevision of Sacramento
	 
	 	•	 	XETA Corporation — PBS Service Contract
	 
	 	•	 	StayOnline
	 
	 	 	 	







	 	(g)	 	RI Tyler





      




     





	 	•	 	XEROX lease agreement
	 
	 	•	 	Service Agreement — Terminex Termite Protection
	 
	 	•	 	Cable Television Service agreement
	 
	 	•	 	Kwik Wash Laundries, Inc — Lease agreement
	 
	 	•	 	ECOLAB — Pest elimination agreement
	 
	 	•	 	StayOnline
	 
	 	•	 	Construction Contract Moline Construction





 









 






	 	(h)	 	RI Wilmington





      




     





	 	•	 	Service Agreement — Securitas
	 
	 	•	 	Service Agreement — Wayman’s Fire Protection
	 
	 	•	 	Service Agreement — Terminix Termite Protection
	 
	 	•	 	The Brickman Group, LTD — Snow removal services agreement
	 
	 	•	 	Landscape Management Contract
	 
	 	•	 	J&J Systems —  Irrigation Maintenance Service Agreement
	 
	 	•	 	Pitney Bowes
	 
	 	•	 	Xerox
	 
	 	•	 	StayOnline












 





EXHIBIT “H”




PURCHASE PRICE ALLOCATION




	 	 	 	 	 	 	 	 	 	 	 
	#	 	Brand	 	Property Name/City/ST	 	Purchase Price	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	1

	 	RI
	 	Sacramento CA
	 	$	 	 	 	 
	2

	 	RI
	 	Wilmington, Newark DE	 	 	 	 	 	 
	3

	 	RI
	 	Orlando-Internat’l Drive FL	 	 	 	 	 	 
	4

	 	RI
	 	Ann Arbor MI	 	 	 	 	 	 
	5

	 	RI
	 	Fishkill NY	 	 	 	 	 	 
	6

	 	RI
	 	Ft. Worth-River Plaza, TX	 	 	 	 	 	 
	7

	 	RI
	 	Warwick-Providence RI	 	 	 	 	 	 
	8

	 	RI
	 	Tyler TX

	 	 	 	 	 	 
	

	 	 	 	Total:	 	$





 









 






EXHIBIT “I”

SCHEDULE OF SELLERS




	 	 	 	 	 	 	 
	#	 	Brand	 	Property	 	Seller
	1

	 	RI
	 	Sacramento CA
	 	Ruby Sacramento Cal Expo Limited Partnership
	2

	 	RI
	 	Wilmington, Newark DE
	 	Ruby Wilmington Newark Limited Partnership
	3

	 	RI
	 	Orlando-Internat’l Drive FL
	 	Ruby Orlando International Limited Partnership
	4

	 	RI
	 	Ann Arbor MI
	 	Ruby Ann Arbor Limited Partnership
	5

	 	RI
	 	Fishkill NY
	 	Ruby Fishkill Limited Partnership
	6

	 	RI
	 	Ft. Worth-River Plaza, TX
	 	Ruby Ft. Worth River Plaza Limited Partnership
	7

	 	RI
	 	Warwick-Providence RI
	 	Ruby Providence Warwick Limited Partnership
	8

	 	RI
	 	Tyler TX
	 	Ruby Tyler Hotel Limited Partnership






 









 






EXHIBIT “J”

LITIGATION SCHEDULE




	 	 	 	 	 	 	 	 	 	 	 
	 	 	OWNER/	 	 	 	DESCRIPTION	 	 	 	 
	CLAIMANT	 	DEFENDANT	 	SITE	 	OF CLAIM	 	AMOUNT OF CLAIM	 	LITIGATION
	Erwin, Massangk

	 	Rose SPE 1 LP
	 	Residence Inn

Orlando, FL
	 	Robbed at gunpoint;
Jewelry and cash
totaling $54,950
stolen
	 	Unspecified
	 	No
	 
	 	 	 	 	 	 	 	 	 	 
	Mullins, Susan

	 	Rose SPE 1 LP
	 	Residence Inn by

Marriott Warwick,

RI
	 	Slip and Fall;
Injured her rotator
cuff
	 	Unspecified
	 	No
	 
	 	 	 	 	 	 	 	 	 	 
	Raudales, Jesse

	 	Rose SPE 1 LP
	 	Residence Inn

Sacramento, CA
	 	Alleges he was
denied service and
discriminated
against because of
his race
	 	Unspecified
	 	No
	 
	 	 	 	 	 	 	 	 	 	 
	Rice, Dennis

	 	Rose SPE 1 LP
	 	Residence Inn

Sacramento, CA
	 	Alleges he was
denied service and
discriminated
against because of
his race
	 	Unspecified
	 	No