EXHIBIT 10.12
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REINSTATEMENT AND SECOND AMENDMENT TO AGREEMENT
FOR SALE AND PURCHASE OF REAL PROPERTY
THIS REINSTATEMENT AND SECOND AMENDMENT TO AGREEMENT FOR SALE
AND PURCHASE OF REAL PROPERTY (this "Second Amendment") is made and entered
into as of _____ day of _______, 1997, by and between CENTER RETAIL
PARTNERS, a Florida general partnership (the "Center Retail"), CENTER
OFFICE PARTNERS, a Florida general partnership ("Center Office"), CENTER
HOTEL LIMITED PARTNERSHIP, a Delaware limited partnership ("Center Hotel"),
and ARVIDA/JMB PARTNERS, L.P., a Delaware limited partnership ("Arvida,"
and collectively with Center Retail, Center Office and Center Hotel, the
"Seller") and STANFORD HOTELS CORPORATION, a California corporation
("Buyer").
RECITALS:
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WHEREAS, Seller and Buyer entered into that certain Agreement
for Sale and Purchase of Real Property dated July 25, 1997, as amended by
that certain Amendment to Agreement for Sale and Purchase dated August 22,
1997 between Buyer and Seller (collectively, the "Agreement") (unless
otherwise defined herein, all capitalized terms used but not defined herein
shall have the meanings assigned to the same in the Agreement), pursuant to
which Buyer has agreed to purchase and Seller has agreed to sell the
Property;
WHEREAS, Buyer terminated the Agreement on August 29, 1997 and
Seller and Buyer now desire to reinstate the Agreement, as amended hereby;
WHEREAS, Buyer now desires to partially assign this Agreement
to: (i) Stanford Lake Hotel, Inc., a Florida corporation (the "Hotel
Buyer"), with respect to the purchase of the Hotel Site (as defined in the
Declaration), together with the parcel of land upon which the restaurant
and conference center known as Pete's Cafe & Catering is presently located
(collectively, the "Hotel Property"); (ii) Boca Lake Office, Inc., a
Florida corporation (the "Office Buyer"), with respect to the purchase of
the Office Site (as defined in the Declaration) (the "Office Property");
and (iii) Boca Lake Retail, Inc., a Florida corporation (the "Retail
Buyer"), with respect to the purchase of the remainder of the Property
(i.e., the Property less the Hotel Property and Office Property) (the
"Retail Property") (the Hotel Buyer, the Office Buyer and the Retail Buyer
are collectively referred to herein as the "Affiliated Buyers"); and
WHEREAS, Seller and Buyer have agreed to enter into this Second
Amendment to reinstate the Agreement, to provide for the foregoing
assignment and to otherwise modify certain terms and conditions of the
Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants contained herein and the sum of TEN AND NO/100 DOLLARS
($10.00) and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Buyer agree as
follows:
1. RECITALS. The above recitals are true and correct and
hereby incorporated herein by reference. In the event of any conflict
between the terms of the Agreement and the terms of this Second Amendment,
the terms of this Second Amendment shall control.
2. REINSTATEMENT. The Agreement is hereby reinstated and
shall be in full force and effect, as amended hereby.
3. ASSIGNMENT.
3.1 Buyer hereby assigns all of its right, title and
interest in and to the agreement to: (i) the Hotel Buyer with respect to
the purchase of the Hotel Property; (ii) the Office Buyer with respect to
the purchase of the Office Property; and (iii) the Retail Buyer with
respect to the purchase of the Retail Property; provided, however, that
Buyer shall in no event be released from liability for any of its
obligations under the Agreement, including, without limitation, those that
specifically survive Closing. All references herein and in the Agreement
to "Buyer" shall be deemed to mean the Hotel Buyer, the Office Buyer and
the Retail Buyer, with respect to each applicable property.
3.2 On the Closing Date, Seller shall directly convey:
(i) the Hotel Property to the Hotel Buyer; (ii) the Office Property to the
Office Buyer; and (iii) the Retail Property to the Retail Buyer, pursuant
to separate closing documents therefor.
By execution of this Second Amendment, the Affiliated
Buyers hereby assume (but without releasing Buyer from) all of the
obligations of the Buyer under the Agreement with respect to each
applicable property.
4. PURCHASE PRICE. SECTION 2.1 of the Agreement is hereby
amended and restated in its entirety to read as follows:
"The purchase price for the Property (the "Purchase Price")
will be the amount of Thirty-Eight Million Five Hundred Thousand and No/100
Dollars ($38,500,000.00). Buyer and Seller hereby acknowledge and agree
that the Purchase Price of the Property shall be allocated as follows:
4.1 The portion of the Purchase Price allocated to the
Hotel Property shall be Twenty-One Million and No/100 Dollars
($21,000,000.00), it being understood that, at Buyer's sole option, Buyer
may elect at the Closing to allocate $3,000,000.00 to the personalty
included in the Hotel Property, whereupon Buyer shall deliver an indemnity
in favor of Seller with respect to any sales tax liability that may be
incurred with respect to the sale of such personalty, which indemnity shall
be in form and substance reasonably acceptable to Seller; and otherwise the
parties shall not be deemed to have agreed upon an allocation of the value
of the personalty in the Hotel Property being conveyed by Seller to Buyer;
4.2 The portion of the Purchase Price allocated to the
Office Property shall be Fourteen Million and No/100 Dollars
($14,000,000.00); and
4.3 The portion of the Purchase Price allocated to the
Retail Property shall be Three Million Five Hundred Thousand and No/100
Dollars ($3,500,000.00).
5. SELLER'S REPRESENTATIONS AND WARRANTIES. SECTION 4 of
the Agreement is hereby amended to insert the following provisions:
4.11 RESTAURANT ASSOCIATES LEASE.
(a) All amounts currently due and payable to
Restaurant Associates, Ltd., a Florida limited partnership ("Restaurant
Associates"), under that certain Amended and Restated Lease (the
"Restaurant Associates Lease") dated November 21, 1996, between Center
Hotel, as lessor ("Lessor"), and Restaurant Associates, as lessee, and
Certain Office and Center Retail, as other obligated parties, have been
paid in full to Restaurant Associates by Lessor, including, without
limitation, the following amounts: (i) $555,000.00 for tenant improvements
pursuant to Section 60 of the Restaurant Associates Lease; (ii) $20,000.00
for the extension of a sewer pipe to the Leased Premises pursuant to
Section 45 of the Restaurant Associates Lease; and (iii) $1,000.00 for the
1997 lease year for the planting of annuals and flowers around the archway
sign at the southeast end of the leased premises pursuant to Section 7 of
the Restaurant Associates Lease, but not including: (x) amounts owed to
Restaurant Associates under that certain Promissory Note dated November 21,
1996 between Center Retail, Center Office and Center Hotel (collectively,
the "Borrowers") in favor of Restaurant Associates, in the original
principal amount of $141,666.70 (the "Restaurant Associates Note"); and (y)
the amount of $47,073.75 owed to Restaurant Associates in connection with
the landscape work referenced in Section 1 of the Restaurant Associates
Lease (the "Landscape Obligation").
(b) All obligations required to be performed by
Lessor prior to the Closing Date under the Restaurant Associates Lease have
been performed, including, without limitation: (i) the installation of a
sidewalk of consistent quality with other sidewalks located at the Property
pursuant to Section 7 of the Restaurant Associates Lease; and (ii) the
installation of a direct telephone connection from the Hotel for the
benefit of the leased premises pursuant to Section 52 of the Restaurant
Associates Lease, and none of such obligations have been waived or modified
by Restaurant Associates. In addition, Restaurant Associates has received
all rent credits and abatements provided for in the Restaurant Associates
Lease, including, without limitation, rent credits in the amount of: (i)
$83,333.30 pursuant to Section 4(A) of the Restaurant Associates Lease; and
(ii) $91,666.65 pursuant to Section 4(G) of the Restaurant Associates
Lease.
(c) As of the date hereof, Seller has not received
any written notice from Restaurant Associates under Section 58 of the
Restaurant Associates Lease.
(d) Notwithstanding anything contained in the
Restaurant Associates Lease to the contrary, Exhibit "A" to the Restaurant
Associates Lease is that certain Site Plan Prepared for Settlement
Agreement for Arvida Parkway Center ("Settlement Agreement Site Plan")
prepared by Xxxxx, Xxxxx & Associates dated October 22, 1996, last revised
on February 14, 1997 and initialed by Xxxx Xxxxxx and Xxxx Xxxxx, a copy of
which is attached hereto as EXHIBIT 4.11(d).
(e) Restaurant Associates has not submitted an
offer to Center Hotel for the space in the Retail Property occupied as an
Indian restaurant as of the date of the Restaurant Associates Lease
pursuant to Section 56 of the Restaurant Associates Lease and therefore
Restaurant Associates' right of first offer has been waived with respect
thereto.
4.12 PETE'S CAFE LEASE.
(a) All amounts currently due and payable to
Pete's Cafe' and Catering, Inc., a Florida corporation ("PETE'S CAFE"),
under that certain Lease dated July 17, 1985 between Seller, as successor
in interest from Arvida Corporation, as lessor, and Pete's Cafe, as
successor by assignment from TGI Friday's, Inc. ("TGIF"), as lessee, as
amended (the "Pete's Cafe Lease") (the Restaurant Associates Lease and
Pete's Cafe Lease are collectively referred to herein as "Pete's Leases"),
have been paid in full to or for the benefit of Pete's Cafe, including,
without limitation: (i) $25,000.00 for the replacement of the roof of the
leased premises pursuant to Section 9 of the Fourth Amendment to the Pete's
Cafe Lease; and (ii) $2,930.00 for landscaping of the leased premises
pursuant to Section 6 of the Fourth Amendment to the Pete's Cafe Lease, but
not including amounts owed to Pete's Cafe under that certain Promissory
Note dated November 21, 1996 between Borrowers and Pete's Cafe, in the
original principal amount of $130,000.00 (the "Pete's Cafe Note") (the
Restaurant Associates Note and the Pete's Cafe Note are collectively
referred to herein as the "Notes").
(b) All obligations required to be performed by
Lessor prior to the Closing Date under the Pete's Cafe Lease have been
performed, and none of such obligations have been waived or modified by
Pete's Cafe. In addition, Pete's Cafe has received all rent credits and
abatements provided for in the Pete's Cafe Lease, including, without
limitation, rent credits in the amounts of $40,000.00 and $8,333.33,
pursuant to Section 1 of the Fourth Amendment to the Pete's Cafe Lease.
4.13 ASSESSMENTS. As of the date hereof, all
assessments under the Declaration have been paid and shall be paid in full
through the Closing Date.
4.14 DECLARATION. To the best of Seller's knowledge,
none of the Occupants (as defined in the Declaration) are in default under
the Declaration and Seller has not received any written notice that any of
the Occupants has claimed that the Seller, the Developer (as defined in the
Declaration), and/or another Occupant is in default thereunder.
4.15 COUNTY SETTLEMENT AGREEMENT. The litigation
referenced in that certain Settlement Agreement dated January 28, 1997,
between Palm Beach County ("County"), Seller and Restaurant Associates (the
"County Settlement Agreement") has been voluntarily dismissed with
prejudice. A true and correct copy of the: (i) Stipulation of Settlement
and for Dismissal of Claims with Prejudice; and (ii) Order of Dismissal
with Prejudice, which were entered into by the parties to the County
Settlement Agreement and filed with respect thereto has been delivered to
Buyer by Seller.
4.16 PETE'S SETTLEMENT AGREEMENT. There are no defaults
or claims of default under that certain Settlement Agreement dated November
21, 1996, between Seller, Restaurant Associates and Pete's Cafe (the
"Pete's Settlement Agreement"), no event has occurred which, with notice,
lapse of time, or both, would constitute a default under the Settlement
Agreement, all documents and amounts due under the Settlement Agreement
have been paid and delivered to Restaurant Associates and Pete's Cafe, as
applicable, and the litigation referenced in the Settlement Agreement has
been voluntarily dismissed with prejudice. A true and correct copy of the
Order of Dismissal with Prejudice, which was entered into by the parties to
the Pete's Settlement Agreement and filed with respect thereto has been
delivered to Buyer by Seller.
4.17 SCHEDULE 1 OF PETE'S SETTLEMENT AGREEMENT. Seller
hereby represents to Buyer that that certain "EXHIBIT "C" - CERTAIN
EXISTING CIRCUMSTANCES" attached to the Pete's Settlement Agreement and
attached hereto as EXHIBIT 4.17 is a true and correct copy of SCHEDULE 1 to
the Pete's Settlement Agreement.
4.18 PARKING PLAN. The parking areas designated as
"Areas A, B and H on EXHIBIT "A" in Section 7 of the Restaurant Associates
Lease are Areas A, B and H on Settlement Agreement Site Plan.
4.19 SHARED PARKING STUDY. Seller is currently in
compliance with the terms of that certain Shared Parking Study prepared by
Xxxxxx Consulting/Engineers dated April 23, 1996 and updated by Xxxxxx-Xxxx
and Associates, Inc. dated January 17, 1997, pursuant to the terms of that
certain Agreement for Shared Parking Plan dated January 17, 1997 between
Center Hotel, Center Office, Center Retail and the Association, and
recorded on January 30, 1997 in Official Records Book 9634, Page 1472 of
the Public Records of the County.
4.20 ASSOCIATION LIABILITIES. The Association has no
liabilities or obligations other than as set forth in the Declaration or
the Schedule of Contracts attached hereto as EXHIBIT 4.20. To the best of
Seller's knowledge, there are no defaults by either party under any of the
aforesaid Contracts.
4.21 TERMINATION OF TEXACO GROUND LEASE. That certain
Ground Lease between Arvida Corporation, as lessee, and Texaco, Inc., as
lessor, dated June 1, 1981 has been terminated and is of no further force
or effect.
4.22 SANITARY SEWER SYSTEM. The County owns and
maintains the sanitary sewer system installed within the Property and
servicing the improvements thereon.
4.23 YOSHINO LEASE. Seller shall continue to take the
steps contemplated by that certain letter from Xxxxxx Xxxxxxx to Xxxxxxx
Florida Management, Inc. dated October 2, 1997 and that certain Proposal
from Integrated Building Technologies, Inc., dated October 1, 1997 (copies
of which are attached hereto as EXHIBIT 4.23) in order to timely resolve
the claims of Yoshino Berenbaum Architects, AIA, P.A. ("Yoshino") with
respect to grease and odor allegedly emanating from adjacent tenant space.
6. BUYER'S CONDITIONS TO PRECEDENT TO CLOSING. SECTION 8.1
of the Agreement is hereby amended to insert the following provisions:
(e) SATISFACTION OF NOTES. Seller shall cause
any and all amounts due and payable under the Restaurant Associates Note
and the Pete's Cafe Note, including, without limitation, any and all
outstanding principal and accrued interest thereon, to be paid in full to
Restaurant Associates and Pete's Cafe, respectively, on or before Closing,
and Seller shall certify to Buyer at the Closing that the Notes have been
paid in full.
(f) SATISFACTION OF BROKER'S COMMISSIONS. Seller
shall cause the following to be paid in full on or before Closing: (i)
$1,239.62 with respect to the broker's commission owed in connection with
the renewal of that certain Lease dated May 20, 1994 between Center Office
and AGX of Florida, Inc.; and (ii) $8,962.51 with respect to the broker's
commission owed in connection with that certain Lease dated March 21, 1997
("Xxxxxx Lease") between Center Retail and Xxxxxx & Xxxx, DMD, P.A.
("Xxxxxx") (collectively, the "Broker's Commissions"), and Seller shall
certify to Buyer at the Closing that the Broker's Commissions have been
paid in full. In the event that the Broker's Commissions are not paid in
full on or before Closing, then Buyer shall receive a credit at Closing
against the Purchase Price for such amounts."
7. CLOSING.
7.1 Notwithstanding anything contained to the contrary
in SECTION 9.1 of the Agreement, the "Closing Date" shall be deemed to be
October 17, 1997, as to which time is of the essence.
7.2 Notwithstanding anything contained to the contrary
in SECTION 1(d) of the Agreement, the term "Adjustment Date" in SECTION
1(d) of the Agreement shall be deemed to mean 12:01 a.m. on October 17,
1997.
8. SECTION 9.3 of the Agreement is hereby amended to insert
the following provisions:
(q) written certification to Buyer from Seller
that the Notes have been paid in full;
(r) an estoppel certificate from the Parkway
Center Maintenance Association, Inc., a Florida corporation not for profit
(the "Association") with respect to the Declaration, which shall be
mutually acceptable to the parties;
(s) a certified resignation from all of the
current members of the Board of Directors and officers of the Association;
(t) an amendment to that certain Lease dated
January 1, 1997 between Center Office and Arvida (the "Arvida Lease"), in
form attached hereto as EXHIBIT 9.3(t), which amendment shall: (i) cancel
and terminate the exclusive right of Arvida, pursuant to Article 36 of the
Arvida Lease, to place Arvida's company signage, identification and/or logo
on the facade of the Building (as such term is defined in the Arvida
Lease), provided, that the landlord will continue to maintain Arvida's name
on the tenant roster in the Building's lobby and on the monument signs
located outside the Building; and (ii) provide for an acknowledgment by
Arvida, as tenant, that Arvida has no right to name the Building under the
Arvida Lease;
(u) an estoppel certificate from TGIF certifying
that the Guaranty made by TGIF in accordance with the terms of the Pete's
Cafe Lease is in full force and effect and shall inure to the benefit of
the Buyer;
(v) an estoppel certificate from Seller with
respect to the "gap" period between the date of the tenant estoppel
statements being delivered in accordance with Section 9.3(i) of the
Agreement and the Closing Date;
(w) a temporary irrevocable license agreement
between Seller and Buyer, in form attached hereto as EXHIBIT 9.3(w), to use
the name "Arvida Parkway Center" with respect to the Property for ninety
(90) days after the Closing Date."
9. PRORATIONS. Notwithstanding anything contained in the
Agreement to the contrary, Buyer shall receive a credit against the
Purchase Price at Closing for the following amounts:
9.1 the total amount of all security deposits provided
for in the Leases, together with interest thereon in the amounts set forth
in or as required to be accrued, as applicable, under the Leases,
regardless of whether the tenants under such Leases actually paid such
security deposits or interest was actually earned thereon; provided,
however, that Buyer shall not be entitled to receive a credit against the
Purchase Price for any security deposits that are provided for in any Lease
which have not been collected by Seller but as to which Seller has provided
Buyer a release from such tenant thereunder, in form and substance
acceptable to Buyer, with respect to such security deposit;
9.2 any prepaid rents and/or free rental periods under
the Leases attributable to the period after the Closing, including, without
limitation: (i) rent prepaid by X. Xxxxxx & Associates, Inc. ("Xxxxxx")
under the certain Lease dated August 4, 1997 between Center Office and
Xxxxxx for the period from the Closing Date through February 15, 1997; and
(ii) rent prepaid by JPR Capital Corp. ("JPR") under that certain Lease
dated December 12, 1996 between Center Office and JPR for the months of
December, 1997 and December 1998;
9.3 $48,420.00 with respect to Center Retail's
obligation under the Xxxxxx Lease to reimburse Xxxxxx for tenant
improvements currently under construction, which reimbursement has not been
paid by Center Retail as of the Closing Date;
9.4 $27,702.00 with respect to Center Office's
obligation under EXHIBIT D of the Dialysis Centers Lease to reimburse
Dialysis Centers for tenant improvements, which reimbursement has not been
paid by Center Office as of the Closing Date;
9.5 $47,073.75 with respect to the Landscape
Obligation; and
9.6 $300,000.00 with respect to payment of the "Product
Improvement Plan" imposed by Radisson Hotels International Inc. in
connection with the Assignment and Assumption of License Agreement for
Radisson Suite Hotel Boca Raton.
The credits for which provision is made in the foregoing
SUBPARAGRAPHS 9.1 through 9.6 constitute full settlement of all obligations
of Seller to Buyer with respect to the matters set forth therein.
10. ASSUMPTION OF CONTRACTS. Attached hereto as EXHIBIT 10
is a list of those certain Contracts which Buyer has elected to assume at
Closing. Seller acknowledges that all other Contracts not listed on
EXHIBIT 10 attached hereto shall be terminated by Seller effective as of
the Closing Date and Buyer shall have no liability thereunder.
11. COMMISSIONS. Seller acknowledges and agrees that the
only real estate commissions, tenant improvement allowances or tenant
inducements that Buyer shall be responsible for pursuant to the provisions
of SECTION 9.5 and SECTION 9.5(a)(iii) of the Agreement is the commission
owed in the amount of $2,681.08 with respect to the renewal of the lease
for Xxxx & Company Jewelers. The provisions of this paragraph shall
survive Closing.
12. MUTUAL INDEMNITY. The first (1st) paragraph of SECTION
12.3 of the Agreement is hereby deleted in its entirety and replaced with
the following:
"Seller (in such capacity, an "Indemnitor") agrees to indemnify
and hold Buyer (in such capacity, an "Indemnitee") harmless from and
against any loss, cost, liability, damage or expense including, without
limitation, reasonable attorneys' fees and costs in all trial and appellate
proceedings ("Losses") incurred in connection with any legal claim by a
third party (a "Claim") originating prior to the Closing Date and arising
out of the ownership and/or operation of the Property, including, without
limitation: (a) any claims for unpaid sales tax or other use or occupancy
taxes; (b) any employment related claims; and (c) any tenant related
claims, including, without limitation; (i) any claims of Yoshino with
respect to grease and odor allegedly emanating from adjacent tenant space;
(ii) any claims of SunBank/South Florida, N.A. ("SunBank") with respect to
SunBank's alleged inability to maintain reserved parking and reserved
parking signs for its leased premises as provided under that certain Lease
dated January 11, 1998 between Center Retail and SunBank; and (iii) any
claims of Unique Mexican Restaurant of Boca, Inc. ("Cafe Ole") with respect
to Center Retail's alleged failure to provide adequate parking in
accordance with that certain Lease dated December 3, 1990 between Center
Retail and Cafe Ole, as amended, and in accordance with applicable
ordinances and regulations; and Buyer (in such capacity, an "Indemnitor")
agrees to indemnify and hold Seller (in such capacity, an "Indemnitee")
harmless from and against any Losses incurred in connection with a Claim
originating from and after the Closing Date and arising out of the
ownership and/or operation of the Property, including, without limitation,
any claims for unpaid sales tax or other use or occupancy taxes and any
employment related claims."
13. PETE'S RELEASE. Seller hereby acknowledges and agrees
that, to the extent possible without affecting Seller's rights therein, the
benefit of those certain releases given by Restaurant Associates and Pete's
Cafe to Seller under the Pete's Settlement Agreement shall inure to the
benefit of Buyer and Seller shall execute any documentation reasonably
requested by Buyer in order to effectuate the same. The provisions of this
paragraph shall survive Closing.
14. INDEMNIFICATION OF BUYER. To the fullest extent
permitted by law, Buyer and its directors, officers, partners, employees
and agents of Buyer or its affiliates (collectively, the "Indemnitees")
shall be indemnified and held harmless by Seller from and against any and
all losses, claims, damages, liabilities, expenses (including legal fees
and expenses, even if incident to appeals or bankruptcy proceedings),
judgments, fines, settlements and other amounts arising from any and all
claims, demands, actions, suits or proceedings, civil, criminal,
administrative or investigative, in which an Indemnitee may be involved, or
threatened to be involved, as a party or otherwise, with respect to or in
any way related to: (i) that certain pending litigation styled ROYAL BOMBAY
CLUB, INC. V. CENTER RETAIL PARTNERS, et al., 15th Judicial Circuit for
Palm Beach County, Florida, Case No. CL95-3863 AN; (ii) any claims with
respect to that certain writ of possession issued to Center Retail pursuant
to a Final Judgment for Removal of Tenant, in Xxxx Xxxxx Xxxxxx Xxxxx Xxxx
Xx. 00-0000, on June 16, 1997, with respect to the space leased to Cafe Ole
(the "Writ of Possession"), and that certain Suggestion of Bankruptcy filed
on June 20, 1997, IN RE UNIQUE MEXICAN RESTAURANT OF BOCA, INC., A FLORIDA
CORPORATION, D/B/A CAFE OLE, with the U.S. Bankruptcy Court Southern
District of Florida, Case No. 97-32998-B.C.-P.H.; (iii) the threatened
claim by Quaker Oats for the loss suffered by it when a number of its
laptop computers were stolen during a conference in one of the Hotel's
meeting rooms; (iv) the Pete's Settlement Agreement; and (v) any breaches
by Seller of the County Settlement Agreement prior to the Closing. The
provisions of this paragraph shall survive Closing.
15. ASSIGNMENT OF WRIT OF POSSESSION. Seller hereby assigns
to Buyer all of its right, title and interest in and to the Writ of
Possession. Seller hereby agrees to execute such other documents that may
be necessary in order to effectuate the same. The provisions of this
paragraph shall survive Closing.
16. RECOURSE LIMITED; SURVIVAL. Notwithstanding anything
that may be contained in the Agreement, including Section 13.12(b), to the
contrary:
(a) The representations, warranties and covenants set forth in
this Second Amendment (excluding the representations, warranties and
covenants set forth in SECTIONS 4.11 through 4.19 of SECTION 5 and SECTION
14 hereof and the mutual indemnity for which provision is made in Section
12.3 of the Agreement as amended by Section 12 hereof) will remain in
effect for one (1) year after the Closing Date and all claims made by Buyer
against Seller after Closing related to or arising out of a breach of the
foregoing representations, warranties or covenants (excluding the
representations, warranties and covenants set forth in SECTIONS 4.11
through 4.19 and SECTION 14 hereof and the mutual indemnity for which
provision is made in SECTION 12.3 of the Agreement as amended by SECTION 12
hereof) must be delivered to Seller in writing not later than the first
(1st) anniversary of the Closing Date.
(b) The representations, warranties and covenants set forth in
SECTIONS 4.11 through 4.19 of Section 5 and Section 14 of this Second
Amendment and Section 12.3 of the Agreement as amended by Section 12 hereof
will remain in effect for three (3) years after the Closing Date and all
claims made by Buyer against Seller after Closing related to or arising out
of a breach of the foregoing representations, warranties or covenants must
be delivered to Seller in writing not later than the third (3rd)
anniversary of the Closing Date;
16.3 Buyer's total recovery(ies) with respect to any and all
breaches of Seller's representations, warranties and covenants in the
Agreement, as amended by this Second Amendment, shall in no event exceed
$3,000,000.00 in the aggregate.
17. EMPLOYEES. Seller hereby acknowledges that, in
accordance with SECTION 6.3 of the Agreement, Buyer hereby advises Seller
that Buyer does not intend to rehire the general manager of the Hotel
Property, Xxxxxx Xxxxx, after the Closing Date, and intends to rehire the
other employees of the Hotel Property.
18. ADDITIONAL ADJUSTMENT. In the event that Buyer does not
indemnify Seller as set forth in SECTION 4.1 hereof, then Buyer shall pay
to Seller at Closing, in addition to the Purchase Price, an additional
$21,000.00 in reimbursement of documentary tax stamps on the deed conveying
the Hotel Property.
19. MISCELLANEOUS. This Second Amendment may be executed in
one or more counterparts, each of which shall constitute an original but
all of which together shall constitute one and the same instrument. A
facsimile copy of this Second Amendment and any signatures hereon shall be
considered for all purposes as originals. Except as expressly modified by
this Second Amendment, the terms and provisions of the Agreement remain
unmodified and are in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by the duly authorized representatives the day and
year first above written.
SELLER:
CENTER RETAIL PARTNERS, a Florida general
partnership
By: Arvida/JMB Managers, Inc.,
a Florida corporation,
its General Partner
By:
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Name:
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Title:
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CENTER OFFICE PARTNERS,
a Florida general partnership
By: JMB/PCH Corporation,
an Illinois corporation,
its General Partner
By:
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Name:
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Title:
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CENTER HOTEL LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Arvida/JMB Managers, Inc.,
a Florida corporation,
its General Partner
By:
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Name:
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Title:
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ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership
By: Arvida/JMB Managers, Inc.,
a Florida corporation,
its General Partner
By:
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Name:
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Title:
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BUYER:
STANFORD HOTELS CORPORATION,
a California corporation
By:
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Name:
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Title
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