EXHIBIT 2.2
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT ("First Amendment") is
made and entered into as of May 30, 1997, by and between 0000/0000 Xxxx Xxxx X.
Limited Partnership, Zenith Properties (Atlanta), Inc., Zenith Properties
(Orlando), Limited Partnership (hereinafter collectively referred to as
"Seller"), and American General Hospitality Operating Partnership, L.P.
("Buyer").
Recitals
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A. Buyer and Seller previously entered into a Purchase and Sale Agreement
dated April 15, 1997 (the "Agreement") with respect to the purchase of the
Marriott Hotel West Loop and 0000 Xxxx Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxx,
Radisson Hotel Atlanta, Atlanta, Georgia, and Radisson Twin Towers Hotel and
Convention Center, Orlando, Florida, as well as certain other property related
thereto more particularly described in the Agreement.
B. Buyer and Seller have agreed to amend the Agreement, subject to and in
accordance with the terms of this First Amendment.
Terms
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Buyer and Seller agree as follows:
1. Recitals. The foregoing recitals are true and are incorporated into
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this First Amendment.
2. Definitions. Unless otherwise specifically defined in this First
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Amendment, all capitalized terms used in this First Amendment shall have the
respective meanings ascribed to them in the Agreement.
3. Amendments. The agreement is hereby amended as follows:
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3.1. Removal of Atlanta Real Property From Agreement.
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By execution of this First Amendment it is acknowledged and agreed by
both Buyer and Seller that the Atlanta Real Property and the Property
attributable thereto are hereby removed from the transaction contemplated by the
Agreement and the Agreement shall be of no further force and effect with respect
to the Atlanta Real Property and the Property attributable thereto and except as
provided in this First Amendment, Buyer shall have no liability or further
obligation with respect thereto. Further, by execution of this First Amendment
Buyer hereby acknowledges that it is relinquishing any claim or right under the
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Agreement to or arising from the, Atlanta Real Property and the Property related
thereto and that Seller is free to convey, transfer or dispose of in any manner
the Atlanta Real Property and the Property related thereto free of any claim by
Buyer.
3.2 Purchase Price.
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Section 1 (eee) of the Agreement is amended to read in its
entirety as follows:
(eee) "Purchase Price": The Purchase Price for the property shall be,
$113,600,000 plus Seller's actual cost for the Consumables. In the event Buyer
elects to take the Extended Due Diligence Period or elects to extend Closing
pursuant to Sections 3.2 hereof, the Purchase Price shall be increased by the
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amount of the Non-Refundable Deposit.
3.3 Waiver of Default. By the execution of this First Amendment
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Buyer acknowledges and agrees that it, hereby waives and releases any claims it
may have against Seller arising out of or related to that certain default
alleged by Buyer to have occurred as set forth in that certain letter from
Buyer's counsel Xxxxxx Xxxxx-Xxxxxx to Seller's counsel M. Xxxxxx Xxxxxx dated
May 14, 1997, which letter is hereby incorporated by reference. Buyer further
acknowledges that the acceptance by Seller of this waiver and release does not
constitute any admission of liability by Seller with respect to said default.
3.4 Due Diligence Documents. Buyer agrees to make available at no
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cost to Seller upon written request from Seller, copies of all due diligence
documents, studies, reports, surveys, and environmental reports or audits
undertaken by or on behalf of or received by Buyer with respect to the Atlanta
Real Property. Seller agrees that said documents will be furnished without
representation or warranty from Buyer as to their accuracy or completeness.
3.5 Costs and Expenses. Notwithstanding the provisions of the
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Section 9.2 of the Agreement, with respect to the Atlanta Real Property, Buyer
hereby agrees to pay 100% of the costs and expenses which relate to or are
attributable to the Title Commitment, the UCC Searches and the Survey of the
Atlanta Real Property.
3.6 Closing Date. Buyer and Seller agree that Section 1(m) is hereby
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amended to provide that the Closing Date shall be June 25, 1997. Buyer shall
use its commercially reasonable efforts with its lender to arrange for an
earlier Closing Date. Seller and Buyer acknowledge that the Closing Date shall
be extended to July 15, 1997 in the event that Buyer exercises its Section 3.2
extension rights with respect either to the extension of the Due Diligence
Period or, alternatively, to the extension of the Closing Date.
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3.7 Title Objections. Seller agrees that Seller shall use good faith
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efforts to resolve the title objections of Buyer set forth in Paragraph 2(c) of
that certain Title Objection Summary for the Houston Real Property dated May 7,
1997 and the title objections 3(b)(iii) and 3(c) set forth in that certain Title
Objection Summary to Orlando Real Property dated May 7, 1997, but in the event
Seller is unable, after the exercise of good faith efforts, to cure said
objections, Buyer agrees that Buyer will waive the same as title objections.
3.8 Orlando Limited Partnership. At Closing, Seller, or its designee
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will invest the sum of $3,000,000 for a 49% limited partnership interest as the
limited partner in the limited partnership which will lease the Radisson Twin
Towers and Convention Center, Orlando, Florida from Buyer (the "Limited
Partnership"). The general partner of the Limited Partnership will be AGH
Leasing, L.P. The Limited Partnership agreement shall be executed at closing and
shall be substantially in the form of Exhibit A attached hereto, subject to
reasonable changes approved by Seller and Buyer, and shall provide in general
terms: (i) that the limited partner shall not be required to make any
additional investments other than the initial $3,000,000 investment; (ii) the
49% interest shall stand the first risk of loss up to the amount of the initial
$3,000,000 investment and shall be specifically allocated any losses for income
tax purposes to the extent of losses, if any; (iii) the 49% interest shall be
allocated profits and cash flow in proportion to its partnership interest except
as otherwise set forth in the Limited Partnership agreement; (iv) the limited
partner shall be entitled on an annual basis to restore its capital account via
additional cash investment; and (v) in the instance that such restoration
contribution is not made on a timely basis, the general partner shall accede to
the interest by assuming all obligations of the limited partner and the limited
partner shall be fully and completely released from any and all obligations or
liability of, or to the Limited Partnership or the general partner. On or
before 5:00 p.m. eastern time June 6, 1997 Seller shall have received from Buyer
an opinion of counsel letter from counsel to the Limited Partnership which shall
be reasonably satisfactory to Seller and which shall provide Seller with
assurances that, provided that Seller has complied with the provisions of the
Limited Partnership Agreement (including any payment obligations in sections 9.4
and 2.1.4.3 thereof): (i) Seller's maximum liability as a result of its
interest in the Limited Partnership shall not exceed Seller's initial $3,000,000
investment plus amounts wrongfully distributed to Seller from the Partnership;
(ii) the Limited Partnership has been validly formed and will be taxed as a
Limited Partnership; (iii) as limited partner, Seller shall have no liability to
third parties for Limited Partnership obligations except to the extent Seller is
liable to the Limited Partnership; the tax allocation provisions in the Limited
Partnership Agreement (including the provision allocating the first $3,000,000
in losses of the Limited partnership to Seller) satisfy the requirements of
Section 704(b) of the Code and will be respected; and (v) under the Limited
Partnership agreement no income will be allocated to Seller without Seller's
having received an equivalent cash distribution or a credit to its capital
account for such income. Seller shall have until 5:00 p.m. eastern time June
11, 1997 to notify Buyer in
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writing of its reasonable approval or reasonable disapproval of said opinion of
counsel letter. Seller's reasonable approval of such opinion of counsel letter
in form reasonably satisfactory to Seller shall be a condition precedent to
Seller's obligation to Close the transaction contemplated herein. In the event
that Seller reasonably disapproves of said opinion of counsel letter, Seller at
its option may terminate the Agreement, in which case Buyer shall be entitled to
the return of the Deposit and thereafter Seller and Buyer shall have no further
obligations or liabilities one to the other hereunder except for any indemnity
or liability of Buyer pursuant to Section 5 hereof and other obligations which
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this Agreement shall state expressly survive termination hereof.
3.9 Exclusion of Laundry Facility Property From Orlando Real
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Property.
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Section 1(aaa) of the Agreement is amended to read in its entirety as
follows:
(aaa) "Orlando Real Property": Shall mean that certain real
property located in the County of Orange, State of Florida, described in Exhibit
A-3 upon which the Radisson Twin Towers Hotel and Convention Center, having a
street address of 0000 Xxxxx Xxxx., Xxxxxxx, Xxxxxxx is located, (but expressly
excluding from that certain real property described in Exhibit A-3, that certain
real property upon which the laundry facility used in connection with the
Radisson Twin Towers Hotel and Convention Center, having a street address of
0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx is located which is not part of the
Property being conveyed to Buyer under the Agreement), together with all of
Seller's right, title and interest, if any, in an to all rights of way, streets,
alleys, easements and strips or gores of land appurtenant to the aforedescribed
real property.
3.10 Side Letter -- Laundry Facility.
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On or before 5:00 p.m. eastern time, June 2, 1997 Buyer and Seller
shall agree on the terms of a letter concerning the provision of laundry
services to the Orlando Real Property. In the event Buyer and Seller shall fail
to agree on the terms of such letter Buyer may, at its option, terminate the
Agreement in which case Buyer shall be entitled to the return of the Deposit and
thereafter Seller and Buyer shall have no further obligations or liabilities one
to the other hereunder except for any indemnity or liability of Buyer pursuant
to Section 5 hereof and other obligations which this Agreement shall state
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expressly survive termination hereof.
4. No Other Modifications. Except as specifically amended by this First
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Amendment, the Agreement shall remain in full force and effect without other
amendment or modification. Seller and Buyer specifically acknowledge that the
indemnity obligations of Buyer as set forth in Section 5 (g) of the Agreement
and the confidentiality provisions as
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set forth in Section 30.11(b) of the Agreement, as the same relate to the
Radisson Hotel Atlanta property shall survive the execution of this First
Amendment and shall remain in full force and effect thereto.
5. Counterparts. This Amendment may be executed in counterparts, each of
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which shall be considered an original, but all of which shall constitute one and
the same document. Delivery of an executed counterpart by any party to this
Agreement may be made to the other party by facsimile, and such facsimile shall
have the same force and effect as an original. Any party so delivering the
other party an original by facsimile transmission shall promptly deliver to the
other party an original executed counterpart of this Amendment, but failure to
do so shall not affect the validity of the execution and delivery of this
Amendment.
The parties hereto have executed this First Amendment to Purchase and Sale
Agreement as of the date and year hereinabove written.
THE NEXT PAGE IS THE SIGNATURE PAGE
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SIGNATURE PAGE TO FIRST AMENDMENT TO PURCHASE AND SALE
AGREEMENT BY AND BETWEEN 0000/0000 XXXX XXXX X. LIMITED
PARTNERSHIP AND ZENITH PROPERTIES (ATLANTA), INC. AND ZENITH
PROPERTIES (ORLANDO), LIMITED PARTNERSHIP, COLLECTIVELY AS
SELLER AND AMERICAN GENERAL HOSPITALITY OPERATING
PARTNERSHIP, L.P. AS BUYER
"SELLER" "BUYER"
0000/0000 Xxxx Xxxx X. Limited American General Hospitality
Partnership Operating Partnership, L.P.
By: Zenith Properties (Houston), Inc., By: AGH GP, Inc., General
General Partner Partner
By: /s/ Xxxxxx Xxxx By: /s/ Xxxxx X. Xxxxx
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Title: President Title: Executive Vice Presidnt
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"SELLER"
Zenith Properties (Atlanta), Inc.
By: /s/ Xxxxxx Xxxx
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Title: President
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"SELLER"
Zenith Properties (Orlando), Limited
Partnership
By: Regent Hospitality Corporation,
General Partner
By: /s/ Xxxxxx Xxxx
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Title: President
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