Purchase and Sale Agreement and Escrow Instructions for Hyatt Regency Orange County [Amendment No. 2] - Atrium Plaza LLC, Ashford Hospitality LP, Ashford Anaheim LP and Orange County California Hotel LLC
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
(Hyatt Regency Orange County)
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW
INSTRUCTIONS (the "Amendment") is dated the 28th day of September, 2004, and is
made by and among ATRIUM PLAZA, LLC, a California limited liability company
(sometimes "Atrium Plaza"), ASHFORD HOSPITALITY LIMITED PARTNERSHIP, a Delaware
limited partnership ("Ashford"), ASHFORD ANAHEIM LP, a Delaware limited
partnership ("Assignee"), and ORANGE COUNTY CALIFORNIA HOTEL, L.L.C., a Delaware
limited liability company (sometimes "OCC").
RECITALS
A. Atrium Plaza and Ashford have previously executed and entered into that
certain Purchase and Sale Agreement and Escrow Instructions dated as of July 28,
2004, as amended (collectively the "Agreement"), for the sale by Atrium Plaza,
and the purchase by Ashford, 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. OCC, formerly a member of Atrium Plaza, has liquidated its interest in
the Atrium Plaza and, as a result thereof, has acquired an undivided fifty
percent (50%) interest in the Property and the Contracts, as tenants-in-common
with Atrium Plaza.
C. Ashford desires to assign its interest under the Agreement to Assignee.
D. In addition, the "Land" shall be revised to delete Lot 4 therefrom, and
to provide that Seller or its assignee shall grant an easement over and on
thereto to Purchaser (as its assignee), all as more fully set forth herein.
E. Atrium Plaza, Purchaser and OCC also desire to amend and modify the
Agreement to reflect the inclusion of OCC as a "Seller" under the Agreement, and
to reflect and confirm the obligations of OCC to sell its undivided fifty
percent (50%) tenant-in-common interest in the Property to Purchaser pursuant to
the terms and conditions of the Agreement.
F. 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, Atrium Plaza, OCC and Purchaser hereby agree as follows:
1
<PAGE>
I.
AMENDMENT
1.1 The Agreement is hereby modified and amended to reflect that "Seller"
shall mean each of Atrium Plaza and OCC, each holding an undivided fifty percent
(50%) interest as tenants-in-common, in and to the Property. OCC hereby
specifically assumes, on a joint and several basis with Atrium Plaza, the
obligations of the "Seller" under the Agreement, and covenants and agrees to
perform all of the obligations of the "Seller" as if it was an original party to
the Agreement. Reference to "Seller" in the Agreement shall refer to each of
Atrium Plaza and OCC, and a reference herein to "Sellers" shall refer to both of
Atrium Plaza and OCC.
1.2 Atrium and OCC shall perform all of the obligations of the "Seller"
under the Agreement, and shall convey to Purchaser the title to the Property as
required under the Agreement. Accordingly, Exhibits "H", "I", "J", "K", and "L"
to the Agreement are hereby revised as attached hereto as corresponding
exhibits. On the Closing Date, each of Atrium Plaza and OCC shall convey their
respective undivided fifty percent (50%) interests in the Property and the
Contracts to the grantees and assignees set forth in the aforementioned
conveyance documents, and the parties agree that a default by either Atrium
Plaza or OCC in so conveying its interest in the Property to Purchaser shall be
deemed a default by the other Seller.
1.3 All costs and prorations under Sections 5.5 and 5.7 of the Agreement,
and all other costs, liabilities, expenses and fees, otherwise allocable to the
"Seller" by the terms of the Agreement, shall be allocated between Sellers on an
equal basis. On the Closing Date, the Purchase Price (after adjustment for all
prorations, costs and other expenses as provided in the Agreement) shall be
disbursed one-half (1/2) to Atrium Plaza and one-half (1/2) to OCC in accordance
with each Seller's separate instructions delivered, in writing, to Escrow
Holder. In addition, to the extent of any post-closing credits back or refunds
to the "Owner" under the Management Agreement for periods prior to the Closing
Date, Purchaser shall promptly remit the same to Sellers in equal amounts.
1.4 All indemnification obligations of the "Seller" under the Agreement
shall be the joint and several obligations of Sellers.
1.5 The obligation of the "Purchaser" to close the Escrow and purchase the
Property shall be contingent upon the performance by both OCC and Atrium Plaza
of the obligations of the "Seller" under the Agreement.
1.6 As permitted by Section 12.5 of the Agreement, Ashford hereby assigns
to Assignee, and Assignee hereby assumes, all of Ashford's right, title and
interest in and to the Agreement to be effective on the date set forth above.
Assignee shall be the "Purchaser" under the Agreement, and shall perform all
other duties of the "Purchaser" pursuant to the terms thereof. Assignee agrees
to be bound by all of the terms and conditions of the Agreement. Notwithstanding
this assignment, Ashford shall not be released from any of its obligations under
the Agreement.
2
<PAGE>
1.7 On the Close of Escrow, Sellers shall assign and transfer to Purchaser
all of their right, title and interest in and to the Reserve Fund (as defined in
the Management Agreement) and the Renovation Account (the "Renovation Account"),
both of which are maintained by Hyatt Corporation . The transferred funds shall
be used to fund the Renovation. In addition, on the Closing Date and through the
Escrow, each of Atrium and OCC shall fund into the Renovation Account, an amount
equal to one-half (1/2) of the difference between (a) Six Million Dollars
($6,000,000), and (b) the sum of (i) the aggregate amounts then on deposit in
the Reserve Fund and the Renovation Account and (ii) the aggregate funds
disbursed for the Renovation.
1.8 The Closing Date shall be October 1, 2004.
1.9 The description of the Land on Exhibit "C" to the Agreement is hereby
revised as set forth on revised Exhibit "C" attached hereto, to reflect the
deletion of the parcel of land described on Exhibit "M" attached hereto ("Lot
4") from the Land.
1.10 Sellers hereby grant, or shall cause the owner of Lot 4 to grant, a
perpetual easement for use of Lot 4 to Purchaser or its designee, pursuant to
the terms of an easement in form and content acceptable to Sellers and Purchaser
in their sole discretions (the "Easement"). The Easement shall provide that
Purchaser shall obtain and maintain all insurance thereon (including
environmental coverage reasonably satisfactory to Sellers after the existing
policy expires, naming Sellers and the owner of Lot 4 as additional insureds,
pay all property taxes, and comply with all laws, regulations and ordinances
with respect thereto, including, but not limited to, all environmental laws and
requirements, except Purchaser shall not be obligated to remove any underground
storage tanks or remediate pre-existing contamination.
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 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
3
<PAGE>
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
Sellers 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.
FACSIMILE SIGNATURES
The execution of this Amendment may be effected by facsimile signatures,
all of which shall be treated as originals; provided, however, that the party
receiving a document 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. The parties hereto each intend to be bound
by its respective facsimile transmitted signature, and is aware that the other
parties will rely thereon, and each party waives any defenses to the enforcement
of the Amendment, and documents, and any Notices delivered by facsimile
transmission.
[The remainder of this page is intentionally left blank]
[Signatures on following page]
4
<PAGE>
V.
EXECUTION
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
SELLERS:
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
ORANGE COUNTY CALIFORNIA HOTEL, L.L.C.,
a Delaware limited liability company
BY: HYATT CORPORATION, a Delaware
corporation
By: /s/ Kirk A. Rose
--------------------------------
Name: Kirk A. Rose
Title: Senior VP - Finance &
Treasurer
ASHFORD:
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
[SIGNATURES CONTINUED ON NEXT PAGE]
5
<PAGE>
ASSIGNEE:
ASHFORD ANAHEIM LP,
a Delaware limited partnership
BY: ASHFORD PROPERTIES GENERAL PARTNER
LLC, a Delaware limited liability
company
By: /s/ David A. Brooks
--------------------------------
Name: David Brooks
Title: Vice President
6