1
EXHIBIT 10.53
AMENDMENT TO
AGREEMENT TO PURCHASE AND SELL
WHEREAS, JCC Xxxxxx Development, L.L.C., a Louisiana limited liability
company ("Seller"), and WI Acquisition Corporation, a Delaware corporation
("Purchaser"), did enter into that certain Agreement to Purchase and Sell dated
February 14, 2000 (the "Agreement"), for the sale of Xxx 0XX, Xxxxxx Xxxxxxxxx
Xxxxxxxx of the City of New Orleans, Orleans Parish, Louisiana, on terms and
conditions more fully set forth therein;
WHEREAS, Purchaser did assign to 3CP Associates, L.L.C., a Louisiana
limited liability company (now substituted as "Purchaser") all of its right,
title and interest in and to the Agreement by that certain Assignment and
Assumption of Agreement to Purchase and Sell effective as of April 17, 2000;
WHEREAS, Seller and Purchaser have extended the expiration of the
Inspection Period (as defined in the Agreement) from time to time to July 20,
2000, and desire to further extend the Inspection Period as hereinafter set
forth; and
WHEREAS, Seller and Purchaser also desire to amend this Agreement in
certain particulars as hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and warranties
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Seller and Purchaser
hereby agree as follows:
1) Capitalized terms utilized herein and not otherwise defined herein shall
have the meaning ascribed to them in the Agreement.
2) Section 6.4 of the agreement, "Lender Consent," is hereby deleted in its
entirety as written, and amended to read as follows:
"6.4 Lender Consent. (A) Seller shall take all reasonable efforts to obtain
the Lender Consent on or before December 31, 2000 (the "Lender Consent
Deadline"). Seller and Purchaser shall each have the option of extending
the Lender Consent Deadline one or more times to a date not later than June
30, 2001. If either party elects to extend the Lender Consent Deadline as
described in the preceding sentence, such party shall give the other party
written notice of such extension in accordance with Section 14.3 of the
Agreement, prior to the expiration of the Lender Consent Deadline (as the
same may be extended from time to time). If the Lender Consent Deadline is
extended as provided in this Section 6.4, the definition of "Lender Consent
Deadline" shall be automatically revised to mean the date specified in any
such notice made in compliance with this Section 6.4(A).
(B) If Seller fails to obtain timely the Lender Consent, either Purchaser or
Seller may terminate this Agreement upon written notice to the other party, and
if either party so elects to terminate this Agreement, Purchaser shall be
entitled to a return of the Deposit and the Additional Deposit, if any, and, in
addition, Seller shall reimburse Purchaser for all of Purchaser's actual,
out-of-pocket expenses incurred in connection with the Transaction in the amount
set forth on Exhibit "A" attached hereto and made a part hereof. Seller's
obligation to reimburse Purchaser for such expenses shall be subject to
Sellers's audit and verification of
2
Amendment to Agreement to Purchase and Sell
Page 2
invoices for expenses incurred in connection with the Transaction as shown on
Exhibit "A" attached hereto.
3) Section 8.1 of the Agreement, "Purchaser's Inspections," is hereby
deleted in its entirety as written, and amended to read as follows:
"8.1 Purchaser's Inspections. Seller agrees that Purchaser shall have
forty-five (45) days after (i) receipt of notice from Seller that the
Lender Consent has been obtained or (ii) the Lender Consent Deadline,
whichever is earlier, to conduct inspections of the Property
("Inspection Period"), including, without limitation, environmental
audits, wetlands determinations, appraisals, zoning, economic and
engineering feasibility studies, soil tests, and such other inspections
as Purchaser deems necessary to satisfy itself with respect to Seller's
title and the condition of the Property. Seller understands and agrees
that Purchaser and its respective employees, agents, and
representatives may find it appropriate to contact Governmental
Authorities in connection with the result of Purchaser's Inspections to
the Property. Purchaser's sole remedy for any defects in the Property
discovered during the Inspection Period will be its termination rights
established in Section 8.5."
4) The "Effective Date" of this Amendment shall be the date on which
this Amendment is last executed by either Seller or Purchaser.
5) Except as specifically amended hereby, all other terms and
provisions of the Agreement, as previously amended, remain in full force and
effect and are hereby ratified and confirmed in all respects.
This Amendment may be executed in multiple identical counterparts. If
so executed, each such counterpart is to be deemed an original for all
purposes, and all such counterparts shall collectively constitute one agreement.
(Signature Page Follows)
3
Amendment to Agreement to Purchase and Sell
Page 3
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement on
the dates set forth below.
Seller
JCC XXXXXX DEVELOPMENT, L.L.C.,
a Louisiana limited liability company
Date July 20, 2000 By: /s/ XXXXXX X. XXXXXX
-------- -------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: V.P.
Purchaser:
3CP ASSOCIATES, L.L.C., a Louisiana
limited company
By: WYNDHAM CANAL PLACE, INC., MEMBER
By: /s/ [ILLEGIBLE]
--------------------------------
By: 3CP INVESTORS, L.L.C., MEMBER
By: Xxxxxx Xxxxxx Companies, Inc.,
Member
By: /s/ XXXXXX X. XXXXXX
-----------------------------
Xxxxxx X. Xxxxxx, President
Date: July 18, 2000 By: /s/ XXXXX X. XXXXX
-------- --------------------------
Xxxxx X. Xxxxx, Member
4
EXHIBIT A
[WYNDHAM INTERNATIONAL LOGO]
WYNDHAM BUDGETING SYSTEM
LOCATION DETAIL REPORT
NEW ORLEANS CP3 SITE (NT05)
CP3 SITE DUE DILIGENCE
LAND/PURCHASE
?10 PURCHASE/ACQUISITION COST
?321 0901.49 Development Fees - External Legal Costs 1.00 ARS 1.00 ALL $18,335.00
?321 0901.49 Development Fees - External Architectural Costs 1.00 ARS 1.00 ALL $14,308.00
?323 0901.50 Dev. Reimbursable - Wyndham 1.00 ARS 1.00 ALL $2,550.00
?324 0901.47 Development Reimbursables - External 1.00 ARS 1.00 ALL $1,000.00
?230 410230.00 WHC Legal: Xxxxxxx-Xxxxxxx-Xxxxxxx... 1.00 ARS 1.00 ALL $10,875.00
?230 410230.00 WHC Legal: Akin Gump 1.00 ARS 1.00 ALL $6,000.00
C142 510280.00 Parking Survey 1.00 ARS 1.00 ALL $8,000.00
C142 510280.00 Architectural/MEP Schematic Design: Fees 1.00 ARS 1.00 ALL $71,695.00
C142 510280.00 Structural Schematic Design: Fees 1.00 ARS 1.00 ALL $28,996.00
C142 510280.01 Roofing/Moisture Protection Due Diligence: Fees 1.00 ARS 1.00 ALL $.00
C142 510280.02 ADA Due Diligence: Fees 1.00 ARS 1.00 ALL $.00
C142 510280.03 Environmental Due Diligence: Fees 1.00 ARS 1.00 ALL $.00
C142 510280.04 Construction Cost Estimating Due Diligence: Fees 1.00 ARS 1.00 ALL $8,500.00
C142 510280.05 Geotechnical Testing Due Diligence: Fees 1.00 ARS 0 ALL $6,580.00
C143 0901.56 Building Evaluation Survey: ASMEP Reimb. 1.00 ARS 1.00 ALL $12,728.51
C143 510280.10 Parking Survey Reimbursables 1.00 ARS 1.00 ALL $1,000.00
C1TX 710889.06 Consultant Sales Tax 1.00 1.00 $11,456.00
E385 710380.02 MIS Task Force: Reimbursables 1.00 ARS 1.00 ALL $.00
G111 0901.01 TS: Technical Advisory Fees 1.00 ARS 127.00 ALL $.00
G113 510499.00 Technical Services Reimbursables 1.00 ARS 1.00 ALL $2,500.00
G1TX 710889.16 Project Management Sales Tax 1.00 1.00 $219.00
H110 910110.00 Contingency 1.00 ARS 1.00 ALL $10,000.00
?321 0901.49 Development Fees - External Legal Costs $18,335 Costs incurred by Xxxxxx & Xxxxx
?321 0901.49 Development Fees - External Architectural Costs $14,308 Costs incurred by Xxxxxx & Xxxxx
?323 0901.50 Dev. Reimbursable - Wyndham $2,600 Estimate to be confirmed
?324 0901.47 Development Reimbursables - External $1,000
?230 410230.00 WHC Legal: Xxxxxxx-Xxxxxxx-Xxxxxxx... $10,875
?230 410230.00 WHC Legal: Akin Gump $6,000
C142 510280.00 Parking Survey $8,000 Xxxx Xxxxxx proposal dated 01/26/00
C142 510280.00 Architectural/MEP Schematic Design: Fees $71,695 Broadmoor 05/15/00 invoice No. 272201
C142 510280.00 Structural Schematic Design: Fees $28,996 Xxxxxx Xxxxxxxx invoice dated 05/17/00
C142 510280.01 Roofing/Moisture Protection Due Diligence: Fees $0 None required at this time
C142 510280.02 ADA Due Diligence: Fees $0 None required at this time
C142 510280.03 Environmental Due Diligence: Fees $0 Project put on hold prior to this work
being released
C142 510280.04 Construction Cost Estimating Due Diligence: Fees $8,500 C23 Construction Cost Engineering
C142 510280.05 Geotechnical Testing Due Diligence: Fees $0 Eustis Engineering 03/20/00 proposal;
not initiated before project went on hold
C143 0901.56 Building Evaluation Survey: ASMEP Reimb. $12,727 Broadmoor 05/15/00 invoice No. 272201
C143 510280.10 Parking Survey Reimbursables $1,000 Xxxx Xxxxxx - estimate to be confirmed
C1TX 710889.06 Consultant Sales Tax $11,458
E385 710380.02 MIS Task Force: Reimbursables $0 No work was required at this time
G111 0901.01 TS: Technical Advisory Fees $0 60 hrs. Xxxxxxxx, 67 hrs. Xxxxx, Cannot
capture per X. Xxxxxx
G113 510499.00 Technical Services Reimbursables $2,500 Estimate to be confirmed
G1TX 710889.16 Project Management Sales Tax $219
H110 910110.00 Contingency $10,000 Allowance to establish Not-To-Exceed
---------
Total A10 PURCHASE/ACQUISITION COST $210,111
---------
Total - Land/Purchase $210,111
---------
Soft Costs
S13 WHC/NON-GC EXPENSES
D235 610222.00 OCIP 1.00 1.00 $.00 $0
E3TX 710699.12 Special Systems Sales Tax 1.00 1.00 $.00 $0
E810 710710.00 Freight 1.00 1.00 $.00 $0
E6TX 710899.17 Installation, Warehousing, Freight Sales Tax 1.00 1.00 $.00 $0
--------
Total G13 WHC/NON-GC EXPENSES $0
--------
Total - Soft Costs $0
--------
Page 1 of 2
5
[WYNDHAM INTERNATIONAL LOGO]
WYNDHAM BUDGETING SYSTEM
LOCATION DETAIL REPORT
NEW ORLEANS CP3 SITE (NT05)
CP3 SITE DUE DILIGENCE
EMERGENCY FUNDS
? CONTINGENCY
??10 910110.00 Escalation Cost 1.00 1.00 $.00 $0
??10 910110.00 Contingency 1.00 1.00 $.00 $0
--------
Total T10 CONTINGENCY $0
--------
? MANAGEMENT RESERVE
??10 910110.01 Management Reserve 1.00 1.00 $.00 $0
--------
Total T20 MANAGEMENT RESERVE $0
--------
Total - Emergency Funds $0
--------
Project Total $210,111
--------
Page 2 of 2
