Purchase and Sale Agreement and Escrow Instructions for Hyatt Regency Orange County [Amendment No. 1] - Atrium Plaza LLC and Ashford Hospitality LP
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
(Hyatt Regency Orange County)
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
(the "Amendment") is dated the 26th day of August, 2004, and is made by and
between ATRIUM PLAZA, LLC, a California limited liability company ("Seller"),
and ASHFORD HOSPITALITY LIMITED PARTNERSHIP, a Delaware limited partnership
("Purchaser").
RECITALS
A. Seller and Purchaser have previously executed and entered into that
certain Purchase and Sale Agreement and Escrow Instructions dated as of July 28,
2004 (the "Agreement"), for the sale by Seller, and the purchase by Purchaser,
of the property located at 100 Alicante Plaza, Garden Grove, California, in, on,
by and through which is operated a hotel and hospitality business under the name
"Hyatt Regency Orange County."
B. Pursuant to the terms of the Agreement, the Inspection Period expires on
August 27, 2004.
C. Purchaser has advised Seller that it has yet to complete its due
diligence and inspection of the Property, and has requested that Seller agree to
extend the Inspection Period.
D. Seller is amenable to extending the Inspection Period provided that the
entire amount of the Earnest Money Deposit is delivered by Purchaser to Escrow
Holder and deposited into the Escrow, and that the sum of Five Hundred Thousand
Dollars ($500,000) thereof is immediately released to Seller on a non-refundable
basis, all as more fully set forth hereinbelow.
E. Unless otherwise defined herein, capitalized terms have the meanings
ascribed to them in the Agreement.
AGREEMENT
NOW, THEREFORE, with reference to the foregoing Recitals, and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Seller and Purchaser hereby agree as follows:
I.
AMENDMENT
1.1 In consideration of Purchaser's performance of its obligations under
this Amendment, Seller and Purchaser agree to extend the Inspection Period to
3:00 p.m. California time on September 17, 2004.
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1.2 On or before 1:00 p.m. California time on August 27, 2004, Purchaser
shall deposit into the Escrow with Escrow Holder an additional Seven Hundred
Thousand Dollars ($700,000), for a total Earnest Money Deposit on deposit with
Escrow Holder of One Million Dollars ($1,000,000). Together with the deposit of
the additional Seven Hundred Thousand Dollars ($700,000), Purchaser shall
deliver to Escrow Holder irrevocable and unconditional instructions for the
immediate release of Five Hundred Thousand Dollars ($500,000) of the Earnest
Money Deposit (the "Released Deposit") to Seller (or Seller's Intermediary, as
directed by Seller). Purchaser and Seller agree that the Released Deposit shall
be non-refundable to Purchaser, whether or not Purchaser elects to proceed with
the transaction memorialized in the Agreement (including based upon the final
results of its due diligence review and inspection and election to terminate the
Agreement as permitted in Section 4.4 thereof).
1.3 Upon the expiration of the Inspection Period, that portion of the
Earnest Money Deposit then held by Escrow Holder (i.e., the sum of $500,000)
shall become non-refundable to Purchaser (unless prior thereto, Seller and
Escrow Holder receive from Purchaser a Notice in accordance with the
requirements of Section 4.4 of the Agreement that Purchaser elects to terminate
the Agreement and cancel the Escrow). The Earnest Money Deposit (including the
Released Deposit) shall be applied and credited to the Purchase Price at the
Close of Escrow.
1.4 The Closing Date shall be September 27, 2004.
1.5 Purchaser acknowledges that, as of the date of this Amendment, to the
best knowledge of Purchaser, Seller is not in default of any of its covenants
and obligations under the Agreement, and that Seller has complied with all of
its covenants and obligations to Purchaser or otherwise as required by the terms
of the Agreement and/or applicable law. Purchaser also acknowledges that it is
not aware of any breaches of any of the representations and warranties of Seller
included in the Agreement.
II.
RATIFICATION
Except as amended and/or modified by this Amendment, the Agreement is
hereby ratified and confirmed and all other terms of the Agreement shall remain
in full force and affect, unaltered and unchanged by this Amendment. In the
event of any conflict between the provisions of this Amendment and the
provisions of the Agreement, the provisions of this Amendment shall prevail.
Whether or not specifically amended by the provisions of this Amendment, all of
the terms and provisions of the Agreement are hereby amended to the extent
necessary to give effect to the purpose and intent of this Amendment.
III.
COUNTERPARTS
This Amendment may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which, when taken together, will
constitute one and the same instrument. The signature page of any counterpart
may be detached therefrom without impairing
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the legal effect of the (signature) thereon, provided such signature page is
attached to any other counterpart identical thereto except as having additional
signature pages executed by other parties to this Amendment attached hereto. The
execution of this Amendment may be effected by facsimile signatures, all of
which shall be treated as originals; provided, however, that a party receiving
this Amendment with a facsimile signature may, by Notice to the other, require
the prompt delivery of an original signature to evidence and confirm the
delivery of the facsimile signature. Purchaser and Seller each intend to be
bound by its respective facsimile transmitted signature, and is aware that the
other party will rely thereon, and each party waives any defenses to the
enforcement of this Amendment.
IV.
EXECUTION
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
SELLER:
ATRIUM PLAZA, LLC
a California limited liability company
BY: FLAMINGO STREET, LLC, a California
limited liability company, Its Manager
By: MSP ONE, LLC,
a California limited liability
company, Its Manager
BY: /s/ Sunil Patel
---------------------------------
NAME: Sunil Patel
TITLE: Manager
PURCHASER:
ASHFORD HOSPITALITY LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Ashford Properties General Partner LLC, a
Delaware limited liability company, its
general partner
BY: /s/ David A. Brooks
-------------------------------------
NAME: David A. Brooks
TITLE: Vice President
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