FOURTH AMENDMENT TO PURCHASE AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE AGREEMENT (this "Fourth Amendment"),
is made and entered into as of the 26th day of April, 1996 by and between
GUARANTEED HOTEL INVESTORS 1985, L.P., a Delaware limited partnership
("Seller"), and SLT REALTY LIMITED PARTNERSHIP, a Delaware limited partnership
("Buyer").
W I T N E S E T H:
WHEREAS, Seller and Buyer are parties to that certain Purchase
Agreement dated October 27, 1995, as amended (the "Agreement"); and
WHEREAS, Seller and Buyer have agreed to further amend the Agreement as
provided herein.
NOW THEREFORE, for and in consideration of the foregoing and of the
mutual covenants and agreements herein contained and other good and valuable
consideration, the receipt of which is hereby acknowledged by the parties
hereto, Seller and Buyer hereby covenant and agree as follows:
1. In the event of any conflict between the terms and provisions of the
Agreement and this Fourth Amendment, then the terms and provisions of this
Fourth Amendment shall prevail. All capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in the
Agreement.
2. The definition of "Trust Funds" set forth in Section 1 of the
Agreement is amended by deleting the reference to $2,000,000 and inserting in
its place $2,500,000.
3. Section 16 of the Agreement is amended by deleting all references to
"ONE YEAR" and inserting in their place "EIGHTEEN MONTH" or "EIGHTEEN MONTHS",
as the context requires.
4. Subsection 5(b)(i) of the Agreement is hereby deleted and the
following sentence is added to Section 5(b) of the Agreement following the first
sentence: "The prorations for real estate and ad valorem taxes for 1996 with
respect to the Hotel Properties shall be determined using the 1995 tax amounts
multiplied by 105%, it being the intent of the parties hereto that the parties
shall not reprorate the Taxes subsequent to the Closing and the prorations of
Taxes reflected on the settlement statement(s) executed by Seller and Buyer at
Closing shall be final and conclusive".
5. Buyer acknowledges and agrees that, notwithstanding that the Special
Warranty Deeds to be delivered at Closing do not include exceptions to title for
survey matters, transient guest and
tenants pursuant to unrecorded leases, Seller's conveyance of title to the Hotel
Properties is subject to the survey matters exceptions, transient guests
exceptions and tenants pursuant to unrecorded leases exceptions described in the
Title Policies, and Buyer's fee simple title to the Hotel Properties shall be
subject to such matters.
6. Seller and Buyer agree that the portion of the Purchase Price
allocable to the motor vehicles included within the definition of Hotel
Properties is as set forth on the attached Schedule I. Buyer further
acknowledges that it shall be solely responsible for the payment of all sales
tax imposed on the sale of such motor vehicles from Seller to Buyer.
7. Buyer agrees to indemnify, protect, hold harmless and defend Seller
and its directors, officers, shareholders, affiliates, employees, successors and
assigns and agents, as applicable, from and against any and all losses, costs,
claims, liabilities, damages (exclusive of consequential and punitive damages)
and expenses, including, without limitation, Seller's reasonable attorneys'
fees, arising or accruing prior to the date hereof with respect to that certain
equipment lease dated April 14, 1985 with BellSouth Financial Services,
successor to Universal Communications Systems, Inc., with respect to the Fort
Lauderdale Hotel Property (the "BellSouth Lease"); provided, however, upon
delivery to Seller of an assumption and release agreement in the form attached
hereto as Exhibit A executed by BellSouth Financial Services, this indemnity,
protection and hold harmless provision shall terminate and be of no further
force and effect.
8. Buyer and Seller agree that in order to obtain a release of Seller's
liabilities and obligations under the Management Agreements as required pursuant
to Section 4(d)(5) of the Agreement, Buyer has been required by Doubletree to
assume certain obligations of Seller thereunder. In connection therewith, Buyer
and Seller agree and acknowledge that Buyer shall have the right to make a claim
against the Trust Funds pursuant to Section 16 of the Agreement and in
accordance with the claims procedures set forth in the Trust and Escrow
Agreement for any loss, cost or expense incurred by Buyer, including, without
limitation reasonable attorneys' fees and costs, whether or not litigation is
commenced and, if commenced, through all appellate and bankruptcy proceedings,
as a result of any breach or default by Seller with respect to the payment and
performance of obligations and liabilities of Seller for the period prior to the
Closing Date or as a result of Buyer satisfying obligations of Seller under the
Management Agreements which accrued or arose prior to the Closing Date.
9. Buyer and Seller reconfirm, agree and acknowledge that Section 5(b)
of the Agreement provides that Seller is responsible for the payment of all
costs, expenses and obligations from the Hotel Properties accruing prior to the
Closing Date. In connection therewith, Buyer and Seller agree and acknowledge
the obligations and liabilities of Seller that Buyer is (i) assuming therefrom
or (ii) indemnifying Seller against claims made by third parties, for the period
prior to the Closing Date, including, without limitation, the obligations of
Seller described in Paragraphs 7 and 8 above, are included within the
obligations of Seller under the provisions of such Section 5(b) and,
accordingly, Buyer shall have the right to make a claim against the Trust Funds
pursuant to Section 16 of the Agreement and
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the Trust and Escrow Agreement for any loss, cost or expense incurred by Buyer ,
including, without limitation, reasonable attorneys' fees and costs, whether or
not litigation is commenced and, if commenced through all appellate and
bankruptcy proceedings, as a result of any breach or default by Seller with
respect to the payment and performance of obligations and liabilities of Seller
to which such assumption and indemnity relate or as a result of Buyer satisfying
obligations of Seller under the Management Agreements which accrued or arose
prior to the Closing Date.
10. Buyer and Seller agree that, in accordance with the provisions of
Paragraph 17(B) of the Agreement, Seller hereby assigns its right to receive the
stock of LSA Club One, Inc. to SLC Operating Limited Partnership, a Delaware
limited partnership.
11. Seller and Buyer agree that they will reconcile the credit card
receipts for the Hotel Properties that were credited to Buyer's account on
Monday, April 29, 1996, as soon thereafter as is practicable, based upon the
prorations for credit card receipts agreed upon by Buyer and Seller in
accordance with the terms and provisions of the Agreement.
12. Except as expressly amended and modified hereby, the Agreement is
and shall otherwise remain in full force and effect, and the parties hereto
hereby ratify and confirm the same.
13. This Fourth Amendment may be executed in one or more counterparts
and all such counterparts taken together shall constitute one agreement.
Executed copies of this Fourth Amendment received by telecopier shall be deemed
to be originals.
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IN WITNESS WHEREOF, Seller and Buyer have hereunder set their hands as
of the date first above written.
SELLER:
GUARANTEED HOTEL INVESTORS 1985, L.P.,
a Delaware limited partnership
By: FFCA Management Company, Limited, Partnership, a Delaware
limited partnership,
its general partner
By: Perimeter Center Management
Company, a Delaware corporation,
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and General Counsel
BUYER:
SLT REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Starwood Lodging Trust, a Maryland real estate investment
trust, its general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and Chief Financial Officer
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SCHEDULE I
MOTOR VEHICLE VALUE ALLOCATIONS
HOTEL LOCATION/VIN DESCRIPTION VALUE
------------------------------ -----
I. IRVING, TEXAS
(a) VIN 0XXXX00X0XXX00000 $26,000
(b) VIN 0XXXX00X0XXX00000 $13,500
(c) VIN 1FDHS24HOPH96762 $ 4,500
II. XXXX XXXXXXXXXX, XXXXXXX
XXX 0XXXX00X0XXX00000 $ 7,300
III. TAMPA, FLORIDA
VIN 0XXXX00XXXXX00000 $11,400
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EXHIBIT A
ASSUMPTION AND RELEASE AGREEMENT
This ASSUMPTION AND RELEASE AGREEMENT (this "Assumption and Release")
is made as of the ____ day of ______, 1996 by and between SLT REALTY LIMITED
PARTNERSHIP, a Delaware limited partnership ("SLT") and BELLSOUTH FINANCIAL
SERVICES ("BellSouth").
WITNESSETH
WHEREAS, SLT and Guaranteed Hotel Investors 1985, L.P., a Delaware
limited partnership, ("GHI") have entered into that certain Purchase Agreement
(the "Purchase Agreement"), dated October 27, 1996, for the purchase and sale of
the Doubletree Guest Suites Hotel located at 000 X.X. 00xx Xxxxxx, Xxxx
Xxxxxxxxxx, Xxxxxxx (the "Hotel"); and
WHEREAS, GHI, as successor to Xxxxxxx/Xxxxxxx Hotel Number 5, and
BellSouth, as successor to Universal Communication Systems, Inc., are parties to
those certain Master Lease Agreements (the "Agreements") for the lease of
equipment at the Hotel; and
WHEREAS, as a condition of the closing of the purchase and sale of the
Hotel by SLT under the Purchase Agreement (the "Closing"), GHI has requested a
release of liability from BellSouth under the Agreements for the period from and
after the Closing; and
WHEREAS, as a condition of the Closing, SLT has requested certain
estoppel information from BellSouth.
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and subject to the terms and conditions contained herein, SLT and
BellSouth agree as follows:
1. Xxxx South hereby consents to GHI's assignment of the
Agreements to SLT.
2. SLT hereby assumes and agrees to perform and abide by and be
bound by all of the duties, obligations and responsibilities imposed by the
terms of the Agreements upon GHI concerning the Hotel, from and after the date
of Closing, and hereafter all rights of GHI by and under the Agreements shall be
fully enforceable by SLT, its successors and assigns, against BellSouth, its
successors and assigns, as if SLT had been a party to the Agreements from its
commencement. BellSouth hereby ratifies and affirms the terms, conditions and
provisions of the Agreements.
3. BellSouth hereby forever releases, acquits, satisfies,
dismisses and discharges GHI and/or its employees, officers, directors,
attorneys, stockholders or agents and any of their respective successors and
assigns, of and from any and all obligations (including, without limitation, the
indemnity contained in Paragraph 9 of the Agreements) GHI may have under the
Agreements from and after the date of Closing.
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4. BellSouth hereby acknowledges and agrees that, as of the date
hereof, all of the terms, conditions and provisions of the Agreements on the
part of GHI and BellSouth to be performed thereunder have been duly and timely
performed, and all monies, outstanding liabilities or charges due or payable to
BellSouth by GHI under the Agreements have been paid through ___________ (if no
date is inserted, such date shall be deemed to be the date hereof). BellSouth
agrees to look solely to: (a) GHI for any amounts due it for the period prior to
the Closing and (b) SLT for the period after the Closing. BellSouth hereby
agrees that, as of the date hereof, there are no amounts due or payable to GHI
by BellSouth under the Agreements and there are no deposits or advance payments
under the Agreements except as noted: ______________________________________ (if
blank, then BellSouth agrees that there are no deposits or advance payments
under the Agreements).
5. BellSouth hereby acknowledges and agrees that, as of the date
hereof, there are no defaults or claims of defaults under the Agreements by
either GHI or BellSouth and no event has occurred which, with notice, lapse of
time, or both, would constitute a default under the Agreements by either GHI or
BellSouth, and neither GHI, nor BellSouth has any charge, lien, claim, defense,
set-off or counterclaim against the other, or under the Agreements.
6. This Assumption and Release represents the complete and
entire understanding and agreement among SLT and BellSouth with regard to the
assumption and release of GHI's rights and obligations under the Agreements. The
Agreements shall remain in full force and effect without modification, and
BellSouth shall remain fully obligated under the Agreements. If for any reason
GHI does not convey title to the Hotel to SLT, BellSouth shall remain solely
obligated under the terms and conditions of the Agreements, without regard to
the terms of this Assumption and Release.
IN WITNESS WHEREOF, the parties hereto have executed this Assumption
and Release under the hand of their officers duly authorized in that behalf as
of the day and year first above written.
WITNESSES: SLT REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
_____________________________ By: _______________________________________
Name: _____________________________________
Title: ____________________________________
BELLSOUTH FINANCIAL SERVICES
_____________________________ By: _______________________________________
Name: _____________________________________
Title: ____________________________________
