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EXHIBIT 10.2
AMENDMENT TO AGREEMENT FOR
PURCHASE AND SALE OF PROPERTY
THIS AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE OF PROPERTY
(hereinafter referred to as the "Amendment"), dated as of October 27, 2003
(hereinafter referred to as the "Effective Date"), is by and between President
Xxxxxxxxxx Hotel, L.L.C., a Mississippi limited liability company, successor
to BH Acquisition Corporation (hereinafter referred to as "Seller"), and SITE
REALTY, INC., a California corporation (hereinafter referred to as "Buyer").
WHEREAS, Seller and Buyer desire to amend that certain Agreement for
Sale and Purchase of Real Estate and Personal Property, dated June 24, 2003
(hereinafter referred to as the "Agreement").
NOW, THEREFORE, in consideration of the foregoing premises, and other
valuable consideration, the receipt and sufficiency of which is acknowledged,
Seller and Buyer agree as follows:
1. Section 1.1 and 1.2 of the Agreement shall be deleted in their
entirety and replaced with the following:
An xxxxxxx money deposit of One Hundred Thousand Dollars
($100,000.00) to be deposited in escrow on or before November 7,
2003, as provided for herein;
2. Section 2 of the Agreement shall be deleted in its entirety and
replaced with the following:
Seller agrees to convey, and Buyer agrees to accept, on the Date of
Closing: (a) title to the Property, subject to the Permitted
Exceptions (as hereinafter defined) by Special Warranty Deed,
(b) title to the Personal Property by Xxxx of Sale, and (c) an
exclusive perpetual easement over a 25-foot strip of land located
at the south end of the Property and abutting the north
right-of-way line of Highway 90, as more particularly described in
Exhibit A-1, attached hereto and by reference incorporated herein.
Such Special Warranty Deed shall expressly state that no interest
is conveyed in the U.S. Highway 90 right-of-way nor in the area
south of such right-of-way nor in a 25-foot strip of land north of
said right-of-way extending from the west side of the Property to a
point 10 feet west of the east side of the Property, other than the
aforementioned exclusive perpetual easement, and that Seller and
its successors and assigns retain such rights and the exclusive
right to lease all uplands, tidelands and fastlands south of the
Property, that Buyer acquires no littoral or riparian rights, nor
other property rights of any kind in such area, all of which are
retained by Seller.
3. Section 3 of the Agreement shall be deleted in its entirety and
replaced with the following:
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Buyer shall have until November 21, 2003 (the "Contingency Period")
and a right of entry to the Property that shall continue through
close or termination of escrow.
4. The first sentence of the second paragraph of Section 4 shall be
deleted in its entirety and replaced with the following:
Buyer hereby approves each and every contingency and agrees that
Buyer's xxxxxxx deposit is nonrefundable, unless (1) Buyer obtains
by November 21, 2003, an appraisal at Buyer's expense valuing the
Property at an amount less than the Purchase Price, or (2) Seller
fails to receive evidence that the holder of the first deed of
trust encumbering the Property has agreed to release such deed of
trust at Closing upon receipt of the greater of $6,175,000 or 100
percent of the net sale proceeds. If Buyer gives notice in writing
to Seller and to Escrowee (as hereafter defined) by November 21,
2003, of its receipt of such an appraisal, attaching a copy of such
appraisal to such notice, this Agreement shall terminate, Buyer's
xxxxxxx deposit shall be released pursuant to the Agreements in the
forms of Exhibits I and II hereto, and neither party shall have any
further obligation to the other. If Seller does not receive such
evidence by November 21, 2003, Seller will continue to use
commercially reasonable efforts to obtain such evidence and the
delivery of a recordable release into escrow by December 12, 2003.
If such evidence and release are not delivered by December 12,
2003, Seller shall continue such efforts to the extent feasible and
the Closing and the date for delivery of such evidence and release
shall be extended until January 15, 2004. If such evidence and
release are not obtained by January 15, 2004, or if at any prior
date such holder advises Seller that it refuses to provide such
evidence and/or release, Seller shall give notice to Buyer and
Escrowee and the Xxxxxxx Deposit shall be promptly released
pursuant to the Agreements in the forms of Exhibits I and II
hereto, and neither party shall have any further obligation to the
other.
5. Section 6 of the Agreement shall be deleted in its entirety and
replaced with the following:
Buyer shall make the initial xxxxxxx money deposit on or before
November 5, 2003, with Escrowee by wire transfer (the "Escrow") for
the purchase and sale of the Property, and shall execute and
deliver the Escrow and Indemnity Agreement in the form attached
hereto as Exhibit I and the Standard Management Company Deposit
Agreement in the form of Exhibit II. Page, Xxxxxxx, Xxxxxxxx &
XxXxxxxxx, P.L.L.C., 759 Vieux Xxxxxx Xxxx, X.X. Xxxxxx 000,
Xxxxxx, Xxxxxxxxxxx 00000 shall be escrow holder ("Escrowee") and
shall provide a title insurance commitment and issue a First
American Title Insurance Company title policy.
6. Section 7 of the Agreement shall be deleted in its entirety and
replaced with the following:
Subject to the provisions of this Letter, and provided that the
appraisal and the release set forth herein shall have been
approved, the Closing Documents (as hereinafter defined) shall be
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delivered by 12:00 noon, central time, on the date that is the
later of ten business days following the date Buyer receives
written evidence that the holder of the first deed of trust
encumbering the Property has agreed to release such deed of trust
at Closing, as provided herein or December 12, 2003 (herein the
"Document Delivery Date"), at the office of Escrowee, but no later
than January 15, 2004. Contact for all title insurance
requirements should be made through Xxxxx X. Xxxxx at the office of
Escrowee (228-374-2100, xxxxxx@xxx.xxx). Notwithstanding anything
to the contrary, provided that all contingencies set forth herein
shall have been approved, the Date of Closing shall be three
business days after the Document Delivery Date, unless extended
pursuant to Section 4.
7. Exhibit A is hereby deleted in its entirety and replaced with the
following:
EXHIBIT A
To that certain Offer to Purchase dated as of June 24, 2003, as
amended, by and between Site Realty, Inc. and Seller regarding the
purchase and sale of the property located at 0000 Xxxxx Xxxxxxxxx,
Xxxxxx, XX.
LEGAL DESCRIPTION OF ASSETS TO BE ACQUIRED
A parcel of land situated and being located in a part of the U.S.
Lots 2 and 3 and in part of Xxx 00, X. X. XXXXXXXXX XXXXXX,
Fractional Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 00 Xxxx, Xxxx of
Biloxi, Second Judicial District, Xxxxxxxx County, Mississippi and
being more particularly described as follows, to-wit:
Beginning at the Northwest corner of Xxx 00, X. X. XXXXXXXXX
XXXXXX; thence run from said Point of Beginning, North 89 degrees
33 minutes 32 seconds West 275.00 feet along the south line of
GREATER BILOXI SUBDIVISION to the Northeast corner of SOUTHERN
MEMORIAL PARK (Plat Book 9, Pages 21-28); thence run South 00
degrees 24 minutes West 1142.76 feet along the east line of
SOUTHERN MEMORIAL PARK to a point on a curve concave to the North
having a radius of 2062.76 feet; thence run Easterly 112.97 feet
along said curve and though an angle of 03 degrees 08 minutes 16
seconds to a point being North 85 degrees 28 minutes 26 seconds
East 112.95 feet from the aforementioned point and on a curve
concave to the North having a radius of 3685.36 feet; thence run
Easterly 284.26 feet along said curve and though an angle of 04
degrees 25 minutes 10 seconds to a point being North 81 degrees 41
minutes 43 seconds East 284.19 feet from the aforementioned point;
thence run South 00 degrees 24 minutes 00 seconds West 25.46 feet
to the northerly right-of-way of U.S. Highway 90 and a curve
concave to the North having a radius of 3710.36 feet; thence run
Easterly 10.18 feet along the northerly right-of-way of U.S.
Highway 90 and said curve though an angle of 00 degrees 09 minutes
26 seconds to a point being North 79 degrees 28 minutes 53 seconds
East 10.18 feet from the aforementioned point and on the east line
of the West 128.45 feet of said Lot 13; thence run North 00 degrees
24 minutes 00 seconds East 211.90 feet along the east line of the
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West 128.45 feet of said Lot 13; thence run North 89 degrees 36
minutes West 18.45 feet to the east line of the West 110.0 feet of
said Lot 13; thence run North 00 degrees 24 minutes East 901.4 feet
along the east line of the West 110.0 feet of said Lot 13 to the
north line of said Xxx 00 xxx xxx xxxxx xxxx xx XXXXXXX XXXXXX
SUBDIVISION; thence run North 89 degrees 33 minutes 32 seconds West
110.0 feet along the north line of said Xxx 00 xxx xxx xxxxx xxxx
xx XXXXXXX XXXXXX SUBDIVISION to the Point of Beginning. Parcel
contains 9.99 acres.
8. The following Exhibit A-1 is hereby added to the Agreement:
EXHIBIT A-1
To that certain Offer to Purchase dated as of June 24, 2003, as
amended, by and between Site Realty, Inc. and Seller regarding the
purchase and sale of the property located at 0000 Xxxxx Xxxxxxxxx,
Xxxxxx, XX.
EASEMENT AREA
A parcel of land situated and being located in a part of the U.S.
Lots 2 and 3 and in part of Xxx 00, X. X. XXXXXXXXX XXXXXX,
Fractional Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 00 Xxxx, Xxxx of
Biloxi, Second Judicial District, Xxxxxxxx County, Mississippi and
being more particularly described as follows, to-wit:
Commencing at the Northwest corner of Xxx 00, X. X. XXXXXXXXX
XXXXXX; thence run North 89 degrees 33 minutes 32 seconds West
275.00 feet along the south line of GREATER BILOXI SUBDIVISION to
the Northeast corner of SOUTHERN MEMORIAL PARK (Plat Book 9, Pages
21-28); thence run South 00 degrees 24 minutes West 1142.76 feet
along the east line of SOUTHERN MEMORIAL PARK to the Point of
Beginning of the parcel herein described, said point being on a
curve concave to the North having a radius 2062.76 feet; thence run
Easterly 112.97 feet along said curve and though an angle of 03
degrees 08 minutes 16 seconds to a point being North 85 degrees 28
minutes 26 seconds East 112.95 feet from the aforementioned point
on a curve concave to the North having a radius of 3685.36 feet;
thence run Easterly 284.26 feet along said curve and though an
angle of 04 degrees 25 minutes 10 seconds to a point being North 81
degrees 41 minutes 43 seconds East 284.19 feet from the
aforementioned point; thence run South 00 degrees 24 minutes 00
seconds West 25.46 feet to the northerly right-of-way of U.S.
Highway 90 and a curve concave to the North having a radius of
3710.36 feet; thence run Westerly 281.37 feet along the northerly
right-of-way of U.S. Highway 90 and said curve though an angle of
04 degrees 20 minutes 42 seconds to a point being South 81 degrees
43 minutes 57 seconds West 281.30 feet from the aforementioned
point and a curve concave to the North having a radius of 2087.76
feet; thence run Westerly 115.80 feet along the northerly
right-of-way of U.S. Highway 90 and said curve though an angle of
03 degrees 10 minutes 41 seconds to a point being South 85 degrees
29 minutes 38 seconds West 115.79 feet from the aforementioned
point, said point being the Southeast corner of SOUTHERN MEMORIAL
PARK; thence run North 00 degrees 24 minutes 00 seconds East 25.04
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feet along the east line of SOUTHERN MEMORIAL PARK to the Point of
Beginning. Parcel contains 0.23 acre.
9. Except as otherwise modified herein, the terms and conditions of the
Agreement shall remain in full force and effect and are hereby reaffirmed by
the parties.
10. This Amendment may be executed in counterparts.
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IN WITNESS WHEREOF, the Seller and Buyer have caused this Amendment to
the Agreement for Sale and Purchase of Real Estate and Personal Property to be
executed by its proper officers as of the day first above written.
SELLER:
President Xxxxxxxxxx Hotel, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Printed Name: Xxxxx X. Xxxxxxxx
Title: Sr. V.P. & C.F.O.
BUYER:
SITE REALTY, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Printed Name: Xxxxxxx X. Xxxxx
Title: Pres
