EXHIBIT 10.83
First Amendment To
Agreement For Purchase and Sale of Real Property
And Joint Escrow Instructions,
as of October 15, 2003,
by and among
L-O Coronado Holding II, Inc. ("Holding"),
L-O Coronado Hotel, Inc., ("Operator"), and
L-O Coronado IP, Inc. ("IP")
(collectively, "Seller"), and
CNL Hospitality Corp., ("Buyer")
FIRST AMENDMENT TO
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
AND JOINT ESCROW INSTRUCTIONS
THIS FIRST AMENDMENT TO AGREEMENT OF PURCHASE AND SALE OF REAL PROPERTY
AND JOINT ESCROW INSTRUCTIONS (the "AMENDMENT') is made and entered into as of
October 15, 2003 by and among L-O CORONADO HOLDING II, INC. ("HOLDING"), L-O
CORONADO HOTEL, INC. ("OPERATOR"), and L-O CORONADO IP, INC. ("IP") (Holding,
Operator and IP being sometimes hereinafter collectively referred to as
"SELLER"), and CNL HOSPITALITY CORP. ("BUYER"), with reference to the following
facts:
R E C I T A L S:
A. Seller and Buyer have entered into that certain Agreement for
Purchase and Sale of Real Property and Joint Escrow Instructions dated as of
September 23, 2003 (the "PURCHASE AGREEMENT") relating to Buyer's proposed
acquisition of the Hotel (as defined in the Purchase Agreement).
B. Seller and Buyer now desire to amend the Purchase Agreement as
set forth below.
C. Unless otherwise defined herein, all capitalized terms used
in this Amendment shall have the same meanings ascribed to such terms in the
Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree as
follows:
1. Waiver of Right of Termination. Notwithstanding anything
contained in Section 4.9 of the Purchase Agreement to the contrary, the full
execution and delivery of this Amendment by Buyer and Seller shall be deemed to
constitute Buyer's written notice to Seller and Escrow Agent of the election to
proceed with the purchase of the Hotel under the Purchase Agreement, as
contemplated by Section 4.9 thereof.
2. Assumption/Defeasance of Existing Loan. The last full
paragraph of Section 7.4 of the Purchase Agreement is hereby deleted in its
entirety and the following language is hereby substituted in lieu thereof:
"Notwithstanding any other provision hereof, concurrently with
Buyer's efforts to assume the Existing Loan as aforesaid,
Buyer may, at its election, also pursue prepayment or
defeasance of the Existing Loan at Closing in accordance with
the terms of the Loan Agreement or as otherwise permitted by
Lender, and Seller shall reasonably cooperate with Buyer's
efforts in this regard (including, without limitation,
formation by Seller of a Successor Borrower, as defined in the
Loan Agreement); subject, however, to the following:
(i) Buyer shall pay all costs of any such prepayment or
defeasance (collectively, "DEFEASANCE COSTS") including,
without limitation, Seller's reasonable out-of-pocket expenses
incurred in connection therewith in excess of the positive
difference (if any) between Twenty Thousand Dollars ($20,000)
and the aggregate out-of-pocket expenses incurred by Seller in
connection with Buyer's efforts to assume the Existing Loan as
aforesaid. At Buyer's option, Buyer may cover all or any
portion of such Defeasance Costs by way of an increase in the
Purchase Price (which Defeasance Costs shall include any
increase in title premiums, or documentary transfer taxes and
any other incidental costs to Seller, resulting from any such
increase in Purchase Price);
(ii) Any notice to Lender of an election to prepay or
defease the Existing Loan shall be given sufficiently in
advance of the Last Closing Date to permit such defeasance or
prepayment to be effected by the Last Closing Date;
(iii) Buyer shall Indemnify Seller from and against any
Claim by Lender resulting from Buyer's election to defease or
prepay the Existing Loan and then failing to close the
purchase of the Hotel and such defeasance or prepayment,
unless such failure is due to Seller's breach or default;
(iv) Any election to so defease or prepay the Existing
Loan shall not relieve Buyer of its obligations under this
Section 7.4 with respect to assumption of the Existing Loan if
for any reason other than Seller's breach or default such
defeasance or prepayment cannot be accomplished by the Last
Closing Date; and
(v) Buyer shall have the right to extend the Closing Date
(and, if necessary, the Last Closing Date) if, in Buyer's good
faith judgment, such extension is required in order to permit
the defeasance or prepayment of the Existing Loan at Closing,
but such extension may not be to a date later than December
31, 2003."
3. Exclusion of Certain Assumed Contracts. The reference to
"Approval Date" appearing in clause (A) of the last sentence of Section 2 of the
Purchase Agreement is hereby changed to November 1, 2003.
4. Title Objections. The first reference to "Seller" in the third
to the last line of Section 4.4 of the Purchase Agreement is hereby changed to
"Buyer".
5. Assignment. The phrase "Buyer and KSL" appearing in the fifth
line of Section 14 of the Purchase Agreement is hereby changed to "Buyer and/or
KSL".
-2-
6. Substitution/Attachment of Exhibits. Xxxxxxxx X, X, X, X, X,
X, X and U attached to this Amendment are the "final" forms of such Exhibits for
all purposes under the Purchase Agreement and are hereby substituted for the
corresponding exhibits currently attached to the Purchase Agreement or which
have heretofore been provided by Seller pursuant to Section 17 of the Purchase
Agreement. With respect to Exhibit J, the parties shall attach the final form of
Exhibit J to the Agreement within five (5) business days after the date hereof.
For the avoidance of doubt, no further amendments, modifications or
substitutions of any of the Exhibits to the Purchase Agreement, other than
Exhibit J, shall be permitted pursuant to Section 17 thereof.
7. Effect of Amendment. Except as expressly modified hereby, the
Purchase Agreement shall remain in full force and effect.
8. Counterparts; Facsimile. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one instrument. This Amendment may be executed
and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
SELLER: L-O CORONADO HOLDING II, INC., a
Delaware corporation
DATED: October 15, 2003 By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: EVP
L-O CORONADO HOTEL, INC., a Delaware
corporation
DATED: October 15, 2003 By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: EVP
L-O CORONADO IP, INC., a Delaware
corporation
DATED: October 15, 2003 By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: EVP
BUYER: CNL HOSPITALITY CORP., a Florida
corporation
DATED: October 15, 2003 By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
-3-
