EXHIBIT 10.85
Assignment and Assumption
of Agreement of Purchase and Sale
and Joint Escrow Instructions
by and between
CNL Hospitality Corp.
and CNL Hotel del Partners, LP
dated December 18, 2003
ASSIGNMENT AND ASSUMPTION OF
AGREEMENT OF PURCHASE AND SALE AND
JOINT ESCROW INSTRUCTIONS
THIS ASSIGNMENT AND ASSUMPTION OF AGREEMENT PURCHASE AND SALE AND JOINT
ESCROW INSTRUCTIONS (this "ASSIGNMENT") is entered into as of the 18th day of
December, 2003, by and between CNL HOSPITALITY CORP., a Florida corporation
("ASSIGNOR"), and CNL HOTEL DEL PARTNERS, LP, a Delaware limited partnership
("ASSIGNEE").
R E C I T A L S :
A. Assignor, as "Buyer", and L-O CORONADO HOLDING II, INC., a
Delaware corporation, L-O CORONADO HOTEL, INC., a California corporation, and
L-O CORONADO IP, INC. a Delaware corporation (collectively referred to herein as
"SELLER") as "Seller", entered into that certain Agreement of Purchase and Sale
and Joint Escrow Instructions dated as of September 23, 2003, as amended by that
certain First Amendment to Agreement for Purchase and Sale of Real Property and
Joint Escrow Instructions dated as of October 15, 2003, and that certain Second
Amendment to Agreement for Purchase and Sale of Real Property and Joint Escrow
Instructions dated as of October 31, 2003 (collectively, the "PURCHASE
AGREEMENT"), relating to Buyer's proposed acquisition of the Hotel (as defined
in the Purchase Agreement).
B. Assignor desires to assign to Assignee and Assignee desires to
accept the assignment of Assignor's right, title and interest in and to the
Purchase Agreement.
A G R E E M E N T :
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Capitalized Terms. Unless otherwise defined herein, all
capitalized terms used in this Assignment shall have the same meanings ascribed
to such terms in the Purchase Agreement.
2. Assignment. Effective as of the date of this Assignment,
Assignor hereby assigns, transfers, conveys and sets over unto Assignee all of
Assignor's right, title and interest in, to and under the Hotel, the Purchase
Agreement, the Deposit and the Escrow and the right to acquire the Hotel
pursuant thereto.
3. Assumption. Assignee hereby accepts the foregoing assignment
and hereby assumes and agrees to be bound by the terms, duties, obligations and
liabilities of
Assignor under the Purchase Agreement and the Escrow accruing either before or
after the date hereof, as if Assignee were the original "Buyer" under the
Purchase Agreement.
4. Successors and Assigns; Governing Law. This Assignment shall
be (a) binding upon, and inure to the benefit of, the parties to this Assignment
and their respective heirs, legal representatives, successors and assigns, and
(b) construed in accordance with the laws of the State of California.
5. Counterparts; Facsimile. This Assignment may be executed in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one instrument. This Assignment may be
executed and delivered by facsimile transmission.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the
date first written above.
ASSIGNOR: CNL HOSPITALITY CORP.,
a Florida corporation
By: /s/ Xxxx X. Xxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
ASSIGNEE: CNL HOTEL DEL PARTNERS, LP,
a Delaware limited partnership
By: CNL Hotel Del Partners GP, LLC,
a Delaware limited liability company
Its General Partner
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
ACKNOWLEDGMENT BY SELLER
Seller hereby consents to the foregoing Assignment and the assignment
and assumption of the Assignor's rights and obligations under the Purchase
Agreement and agrees to release Assignor with respect to obligations which
accrue following the effective date of the Assignment, all in accordance with
Section 14 of the Purchase Agreement.
SELLER: L-O CORONADO HOLDING II, INC.,
a Delaware corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxx
Title: Vice President
L-O CORONADO HOTEL, INC.,
a California corporation
By: /s/ Xxxx Xxx
----------------------------------------
Name: Xxxx Xxx
Title: Vice President
L-O CORONADO IP, INC.,
a Delaware corporation
By: /s/ Xxxx Xxx
----------------------------------------
Name: Xxxx Xxx
Title: Vice President
