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EXHIBIT 10.48
REINSTATEMENT OF
AGREEMENT OF PURCHASE AND SALE
AND AMENDMENT
THIS REINSTATEMENT OF AGREEMENT OF PURCHASE AND SALE AND AMENDMENT
("Reinstated Agreement") is made by and between XXXX Limited Partnership, a
North Carolina limited partnership doing business in the State of Florida as
XXXX Limited Partnership of North Carolina ("Purchaser") and Park Hotel,
Limited, a Florida limited partnership ("Seller");
WITNESSETH THAT:
WHEREAS, Purchaser and Seller entered into that certain Agreement dated
March 25, 1997 pertaining to the Premises relative to the Hotel which is defined
therein as the Holiday Inn Express located at 00000 Xxxx Xxxxxxxxx, Xxxxxxxxxx,
Xxxxxxx ("the Agreement"); and
WHEREAS, all of the capitalized terms defined in the Agreement shall
have the same meanings when used in this Reinstated Agreement as defined in the
Agreement; and
WHEREAS, on May 1, 1997 prior to the end of the Feasibility Period,
Purchaser gave timely notice of the termination of the Agreement; and
WHEREAS, Purchaser and Seller have agreed to reinstate the Agreement
and to make certain amendments to the Agreement as expressly set forth in this
Reinstated Agreement;
NOW, THEREFORE, for and in consideration of the Premises, the Deposit
and other good and valuable consideration, the receipt and sufficiency of which
are hereby mutually acknowledged by Purchaser and Seller, Purchaser and Seller
do hereby covenant and agree as follows:
1. Reinstatement of Agreement. Purchaser and Seller do hereby
reinstate, republish, ratify and affirm all of the terms and provisions of the
Agreement, a copy of which is attached hereto as Exhibit A, and in accordance
therewith, the Agreement and all of the terms and provisions contained therein
are hereby expressly incorporated herein in full by this reference, just as if
the Agreement had at all times remained in full force and effect and not been
terminated by Purchaser as set forth hereinbefore, subject to the amendments
thereto as are expressly set forth hereinafter.
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2. Reduction in Purchase Price. The Purchase Price set forth in Article
II of the Agreement is hereby reduced from Six Million Four Hundred Fifty
Thousand and NO/100 Dollars ($6,450,000.00) to Six Million Three Hundred Fifty
Thousand and NO/100 Dollars ($6,350,000.00), adjusted as provided in Article IX
of the Agreement. In consideration of and for the foregoing reduction in the
Purchase Price by Seller, Purchaser does hereby acknowledge, covenant and agree
that the definition of signs contained in Article I, paragraph (c), as well as
any other provision of the Agreement relative thereto, shall not and does not
include the obligation or responsibility of Seller to provide Purchaser with
off-site signage, specifically including, but not limited to, any rights to
signage addressed in paragraph 3 of that certain Addendum to Settlement
Agreement dated June 26, 1991 on or upon that certain property defined therein
as the "Xxxxx ICOT Retail Property". By virtue of the foregoing, Purchaser does
hereby waive, release, remise and quit claim any claim to entitlement to or
obligation on the part of Seller to provide any such off-site signage as a
portion of the Premises defined in the Agreement. Notwithstanding anything in
the foregoing which may be construed to the contrary, Seller does hereby
covenant and agree to assist Purchaser, at no cost or expense to Purchaser, in
obtaining the municipal approvals as may be necessary for Purchaser to obtain
additional signage at or for the Hotel, with no liability to Seller in the event
Purchaser is unsuccessful in obtaining any such municipal approvals.
3. Cure of Title Defects and Survey Defects. Seller acknowledges that
Purchaser has previously raised certain Title Defects and Survey Defects.
Purchaser does hereby acknowledge, covenant and agree that upon delivery by
Seller at Closing of the originals of the documents attached hereto as Exhibit
B-1 (certificate of compliance and waiver of right of first refusal), Exhibit
B-2 (parking easement agreement), Exhibit B-3 (compliance letter from Florida
Power Company relative to utility easement) and Exhibit B-4 (indemnity
pertaining to recorded development orders), which exhibits are hereby
incorporated herein by this reference, all Title Defects and Survey Defects
previously raised by Purchaser shall be satisfactorily resolved by Seller.
4. Amended Closing Date. The Closing Date is hereby amended such that
Closing shall occur on or before the 15th day following the date of this
Reinstated Agreement.
5. Joinder by ICOT Investments, Ltd. ICOT Investments, Ltd., a Florida
limited partnership, executed that certain Consent to Hotel Covenant Not to
Compete which is attached to the Agreement as Schedule 5, a copy of which is
attached hereto as Exhibit C and incorporated herein by this reference. ICOT
Investments, Ltd. joins in the execution of this Reinstated Agreement to
acknowledge that the Agreement has been reinstated and amended in accordance
with the express terms set forth in this Reinstated Agreement and does hereby
ratify, affirm and republish in full the terms and provisions of Exhibit C
hereto effective as of the date of this Reinstated Agreement and by virtue
thereof, does hereby acknowledge, consent and agree to the terms and provisions
of paragraph C of Article XV of the Agreement reinstated in full by this
Reinstated Agreement, effective as of the date hereof and which shall survive
Closing in accordance with the express terms thereof.
6. Status of Reinstated Agreement. Unless expressly amended by the
terms and provisions of this Reinstated Agreement, all of the other terms and
provisions set forth in the Agreement shall remain as expressly set forth
therein.
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7. Joinder by Escrow Agent. Escrow Agent joins in the execution of this
Reinstated Agreement to acknowledge the reinstatement of the Agreement in
accordance with the terms and provisions expressly set forth in this Reinstated
Agreement. In addition, Escrow Agent acknowledges that it continues to hold the
Deposit and will hold and disburse the Deposit in accordance with the express
terms set forth in the Agreement relative thereto.
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IN WITNESS WHEREOF, Purchaser and Seller have executed this Reinstated
Agreement under seal as of the 22 day of July, 1997.
Purchaser:
XXXX Limited Partnership, a
North Carolina limited
partnership doing business
in the State of Florida as
XXXX Limited Partnership of
North Carolina
By: Winston Hotels, Inc.,
a North Carolina corporation,
general partner
(Corporate Seal) By: /s/ Xxxxxx X. Xxxxxxx XX
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President
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Attest:
/s/ Xxxxxx X. Xxxxx
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Assistant Secretary
Seller:
Park Hotel, Limited,
a Florida limited partnership
By: KGFL Park Hotel Corp.,
(Corporate Seal) a Florida corporation,
general partner
By: /s/ Xxxxxx X. Xxxxxxxx, Xx. (SEAL)
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Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Vice President
Escrow Agent:
The Title Company of North Carolina, Inc.,
as agent for First American Title Insurance
Company
Name: /s/ Xxxxx X. Xxxxxxx
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Title: Vice President
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ICOT Investments, Ltd., a Florida limited partnership, joins in the
execution of this Reinstated Agreement for the sole and express purposes set
forth in paragraph 5 hereof.
ICOT Investments, Ltd.,
a Florida limited partnership
By: ICOT Investments, Inc.,
as General Partner
By: /s/ J. Xxx Xxxxxxxxx
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Name: J. Xxx Xxxxxxxxx
Title: Vice President
