Exhibit 10.14(b)
FIRST AMENDMENT TO
AGREEMENT OF LIMITED LIABILITY LIMITED PARTNERSHIP
OF
SBR-FORTUNE ASSOCIATES, LLLP
This First Amendment ("FIRST AMENDMENT") to the Agreement of Limited
Liability Limited Partnership of SBR-FORTUNE ASSOCIATES, LLLP, dated as of
January 17, 2005 (the "EXISTING AGREEMENT") is made effective as of February 25,
2005 by and among the General Partner (as such term is defined in the Existing
Agreement) and Limited Partners (as such term is defined in the Existing
Agreement).
WITNESSETH:
WHEREAS, the General Partner and Limited Partners are all of the parties to
the Existing Agreement; and
WHEREAS, the General Partner and Limited Partners desire to amend the
Existing Agreement as provided below and, except as otherwise provided below,
intend that the Existing Agreement shall remain in full force and effect.
NOW THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the General Partner and Limited
Partners hereby agree as follows:
1. The foregoing recitals are hereby acknowledged to be true and accurate
and are incorporated herein by this reference. Unless otherwise provided herein
all terms appearing in initial capitalized letters shall have the meanings
ascribed to them in the Existing Agreement.
2. Notwithstanding anything to the contrary contained in the Existing
Agreement, including but not limited to the definition of "Project" in Section
1.1, Subsection 4.4(e)(1) and Subsection 4.4(g), by their execution below, the
Partners have agreed that, subject in all events to the approval of the Village
of Key Biscayne (the "VILLAGE"), the New Development shall include a condominium
hotel component consisting of a maximum of three hundred eighteen (318) "hotel
condominium units" (as that term is defined in the Village of Key Biscayne
Master Plan ("MASTER PLAN") and the Zoning and Land Development Regulations) and
shall contain not less than three hundred fifty (350) bedrooms (each hotel
bedroom being not less than approximately five hundred (500) square feet)."
3. The Existing Agreement shall be amended by adding thereto the
following Section 16.6:
"Section 16.6 AS IS CONDITION. The Partnership expressly acknowledges that
there are no implied warranties or representations beyond those expressly
set forth in Sections 16.1 or 16.3 of this Agreement or under the Realty
Purchase Agreement, and, except as may be otherwise set forth in this
Agreement or under the Realty Purchase Agreement and as may
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be required to comply with the express terms thereof, Sonesta has no
obligation to make any other representations or disclosures to the
Partnership. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN CONTAINED, THE
PARTNERSHIP EXPRESSLY UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE
CONVEYANCE OF THE PROPERTY SHALL BE MADE BY SONESTA TO THE PARTNERSHIP ON
AN "AS IS, WHERE IS" BASIS, AND "WITH ALL FAULTS," AND THE PARTNERSHIP
ACKNOWLEDGES THAT THE PARTNERSHIP HAS AGREED TO ACCEPT THE CONTRIBUTION BY
SONESTA OF THE CONTRIBUTED PROPERTY IN ITS PRESENT CONDITION (SUBJECT TO
THE PARTNERSHIP'S RIGHT OF INSPECTION AND REVIEW AS PROVIDED HEREIN AND IN
THE REALTY PURCHASE AGREEMENT) AND THAT THE PARTNERSHIP IS RELYING SOLELY
ON ITS OWN EXAMINATION AND INSPECTIONS OF THE PROPERTY AND NOT ON ANY
STATEMENTS OR REPRESENTATIONS MADE BY SONESTA OR ANY AGENTS OR
REPRESENTATIVES OF SONESTA, EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH
HEREIN OR IN THE REALTY PURCHASE AGREEMENT. ADDITIONALLY, THE PARTNERSHIP
HEREBY ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE SPECIFIED HEREIN OR IN THE
REALTY PURCHASE AGREEMENT, SONESTA MAKES NO WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING BUT IN NO WAY
LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY OR ANY PORTION THEREOF, OR
WITH RESPECT TO THE ECONOMICAL, FUNCTIONAL, ENVIRONMENTAL OR PHYSICAL
CONDITION, OR ANY OTHER ASPECT, OF THE PROPERTY. EXCEPT AS OTHERWISE SET
FORTH IN THIS AGREEMENT OR THE REALTY PURCHASE AGREEMENT, SONESTA HEREBY
SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING: (i) THE NATURE
AND CONDITION OF THE PROPERTY OR ANY PART THEREOF, INCLUDING BUT NOT
LIMITED TO ITS WATER, SOIL, OR GEOLOGY, OR THE SUITABILITY THEREOF FOR ANY
AND ALL ACTIVITIES AND USES WHICH THE PARTNERSHIP MAY ELECT TO CONDUCT
THEREON, OR ANY IMPROVEMENTS THE PARTNERSHIP MAY ELECT TO CONSTRUCT
THEREON, OR POSSIBILITIES FOR FUTURE DEVELOPMENT OF THE PROPERTY, OR ANY
INCOME TO BE DERIVED THEREFROM, OR ANY EXPENSES TO BE INCURRED WITH RESPECT
THERETO, OR ANY OBLIGATIONS OR ANY OTHER MATTER OR THING RELATING TO OR
AFFECTING THE SAME; (ii) THE ABSENCE OF MOLD, ASBESTOS OR ANY
ENVIRONMENTALLY HAZARDOUS SUBSTANCES ON, IN OR UNDER THE PROPERTY OR ON, IN
OR UNDER ANY PROPERTY ADJACENT TO OR ABUTTING THE PROPERTY; (iii) THE
MANNER OF CONSTRUCTION OR CONDITION OR STATE OF REPAIR OR LACK OF REPAIR OF
ANY IMPROVEMENTS; (iv) THE NATURE OR EXTENT OF ANY EASEMENT, RESTRICTIVE
COVENANT, RIGHT-OF-WAY, LEASE, POSSESSION, LIEN, ENCUMBRANCE, LICENSE,
RESERVATION, CONDITION OR OTHER SIMILAR MATTER PERTAINING TO THE PROPERTY,
OR PORTION THEREOF; AND (v) THE COMPLIANCE OF THE PROPERTY OR THE OPERATION
OF THE PROPERTY OR PORTION THEREOF WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY GOVERNMENT OR OTHER BODY. THE PROVISIONS OF THIS SECTION
16.6
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SHALL SURVIVE THE EXECUTION AND DELIVERY OF THE DEED BY SONESTA AND THE
CONVEYANCE OF THE CONTRIBUTED PROPERTY CONTEMPLATED BY THIS AGREEMENT. In
no event shall the terms of this Agreement, including, without limitation,
this Section 16.6, impair, modify or limit the obligations of the tenant
under the Interim Lease.
4. Except as and to the extent modified herein, the Existing Agreement
shall remain in full force and effect according to its terms and is hereby
ratified.
5. All of the terms and conditions herein contained shall be binding upon
and inure to the benefit of the parties and their respective successors and
assigns.
6. This First Amendment shall be governed by Florida law.
7. The First Amendment may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will constitute one
and the same instrument. Counterparts received by facsimile shall be treated the
same as originals.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties have executed the First Amendment as of the
day and year provided above.
GENERAL PARTNER:
FORTUNE KB GP, LLC, a Florida limited liability
company
By: Fortune International Management, Inc., Manager
By: /S/
----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
LIMITED PARTNERS:
FORTUNE KB, LLC, a Florida limited liability
company
By: Fortune International Management, Inc., Manager
By: /S/
----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
SONESTA BEACH RESORT LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Florida Sonesta Corporation, a Florida
corporation
By: /S/
----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chairman
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