Attached files
Exhibit 10.73
SEVENTH AMENDMENT TO AGREEMENT FOR SALE AND PURCHASE
This Seventh Amendment to the Agreement for Sale and Purchase (this “Amendment”) by and between WS CINCINNATI, LLC, a Delaware limited liability company, WS COLLEGE STATION JV, LLC, a Delaware limited liability company, WS-CNO JV, LLC, a Delaware limited liability company, WS-FNO, LLC, a Delaware limited liability company, and WS SPHERICAL STONE, LLC, a Delaware limited liability company (collectively, “Seller”), and AMERICAN REALTY CAPITAL HOSPITALITY PORTFOLIO WSC, LLC, a Delaware limited liability company (“Purchaser”) is made as of December 8, 2015 (the “Amendment Effective Date”). Seller and Purchaser are sometimes referred to collectively in this Amendment as the “Parties.”
RECITALS
A. Seller and Purchaser entered into that certain Agreement for Sale and Purchase dated as of June 2, 2015, as amended pursuant to that certain First Amendment to Agreement for Sale and Purchase dated as of July 13, 2015, that certain Second Amendment to Agreement for Sale and Purchase dated as of July 13, 2015, that certain Third Amendment to Agreement for Sale and Purchase dated as of August 3, 2015, that certain Fourth Amendment to Agreement for Sale and Purchase dated as of October 8, 2015, that certain Fifth Amendment to Agreement for Sale and Purchase dated as of October 27, 2015, and that certain Sixth Amendment to Agreement for Sale and Purchase dated as of December 2, 2015 (collectively, the “Purchase Agreement”).
B. Seller and Purchaser desire to change the definitions of Closing Date and Purchase Price, and have agreed to further amend the Purchase Agreement to reflect such modifications on the terms and conditions set forth in this Amendment.
C. All capitalized terms used without definition in this Amendment shall have the meanings assigned to such terms in the Purchase Agreement.
AGREEMENT
Now, therefore, for and in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser hereby agree that the Purchase Agreement shall be amended and modified in accordance with Section 14.01(t) thereof as follows:
1.Closing Date. The definition of Closing Date in Section 1.01 of the Purchase Agreement is hereby amended by deleting the words “December 8, 2015” and replacing them with the words “December 15, 2015”.
2. Second Delayed Closing Earnest Money. For and in consideration of this Amendment and the extension of the Closing Date, Purchaser shall, no later than 12:00 noon Eastern Time on December 9, 2015, deposit with the Escrow Company, as escrow agent, the additional amount of ONE MILLION, FIVE HUNDRED THOUSAND DOLLARS ($1,500,000) (the “Second Delayed
Closing Earnest Money”). The Second Delayed Closing Earnest Money shall form part of the Earnest Money for all purposes of the Purchase Agreement. The Escrow Company shall disburse the Second Delayed Closing Earnest Money to Seller as directed by Seller in writing and without further instruction, approval or consent of Purchaser, no later than 5:00 p.m. Eastern Time on December 9, 2015. Notwithstanding Section 2 and Schedule 1 of that certain Sixth Amendment to Agreement for Sale and Purchase, executed by the Parties on December 2, 2015 (the “Sixth Amendment”), the Second Delayed Closing Earnest Money and the Delayed Closing Earnest Money shall be allocated pro rata among the Hotels in accordance with the allocation schedule attached hereto as Schedule 1. The Delayed Closing Earnest Money and the Second Delayed Closing Earnest Money disbursed to Seller by Escrow Company shall nonetheless remain a part of the Earnest Money, and in the case where the Purchase Agreement is terminated in accordance with its terms and Purchaser is entitled to a refund of the Earnest Money under the Purchase Agreement, Seller shall be required to promptly deliver to Purchaser after such termination the Delayed Closing Earnest Money and the Second Delayed Closing Earnest Money previously disbursed to Seller.
3. Increase in Purchase Price. Notwithstanding anything to the contrary in the Sixth Amendment, for and in further consideration of this Amendment and the extension of the Closing Date, the Parties hereby agree to increase the Purchase Price by FIVE HUNDRED THOUSAND DOLLARS ($500,000) (the “Purchase Price Increase”). Accordingly, the first sentence of Section 3.01 of the Purchase Agreement shall be removed and replaced with “The total purchase price (“Purchase Price”) to be paid by Purchaser to Seller at the Closing shall be NINETY-TWO MILLION, NINE HUNDRED THREE THOUSAND DOLLARS ($92,903,000), plus or minus prorations and adjustments as provided in this Agreement (and subject to increase as provided in Section 6.01).” The Purchase Price shall be allocated among the Hotels in accordance with the allocation schedule attached hereto as Schedule 2, except as may otherwise be provided pursuant to Section 4 below.
4. Purchaser Closing Election. Notwithstanding anything to the contrary in the Sixth Amendment, on or before 12:00 p.m. Eastern Time on December 14, 2015, Purchaser may, upon written notice to Seller, elect not to consummate the Closing of the WS-CNO JV Hotel and the WS-FNO Hotel (collectively, the "Nashville Hotels"), and only consummate the Closing of the WS College Station Hotel, the WS Spherical Hotel, and the WS Cincinnati Hotel (collectively, the “Non-Nashville Hotels”), in which case (i) the total Purchase Price Increase shall be applied only to the Purchase Price of the Non-Nashville Hotels, and shall be allocated among the Non-Nashville Hotels in accordance with the allocation schedule attached hereto as Schedule 3; (ii) Purchaser and Seller shall proceed with the Closing of the Non-Nashville Hotels as otherwise set forth in the Purchase Agreement; and (iii) Seller shall be entitled to keep and retain the Allocated Earnest Money for the Nashville Hotels as liquidated damages and not as a penalty, as a result of Purchaser's failure to consummate the Closing of the Nashville Hotels, it being acknowledged and agreed by Purchaser that Seller's damages resulting from Purchaser's failure to consummate the Closing of the Nashville Hotels are difficult to determine and the amount of the Allocated Earnest Money for the Nashville Hotels is a fair and reasonable estimate of those damages.
5. Ratification. Seller and Purchaser ratify and confirm the continued force and effect of the Purchase Agreement, as modified by this Amendment. Seller and Purchaser agree that all terms and provisions of the Purchase Agreement shall be and remain in full force and effect as therein written, except as otherwise expressly provided herein.
6. Binding Effect. This Amendment shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.
7. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same Amendment.
8. Effective Date. This Amendment shall be in full force and effect as a binding obligation of the Parties from and after the Amendment Effective Date.
[signature page follows]
IN WITNESS WHEREOF, the Parties have executed this Amendment as of the day and year first above written.
WS CINCINNATI, LLC, a Delaware limited liability company By: /s/ Jonathan H. Paul Name: Jonathan H. Paul Title: Authorized Signatory WS COLLEGE STATION JV, LLC, a Delaware limited liability company By: WS College Station, LLC, its Manager By: /s/ Jonathan H. Paul Name: Jonathan H. Paul Title: Authorized Signatory WS-CNO JV, LLC, a Delaware limited liability company By: WS-CNO, LLC, its Manager By: /s/ Jonathan H. Paul Name: Jonathan H. Paul Title: Authorized Signatory WS-FNO, LLC, a Delaware limited liability company By: /s/ Jonathan H. Paul Name: Jonathan H. Paul Title: Authorized Signatory WS SPHERICAL STONE, LLC, a Delaware limited liability company By: /s/ Jonathan H. Paul Name: Jonathan H. Paul Title: Authorized Signatory |
PURCHASER:
AMERICAN REALTY CAPITAL
HOSPITALITY PORTFOLIO WSC, LLC,
a Delaware limited liability company
Signature Page to the Seventh Amendment of the Agreement for Sale and Purchase
By: /s/ Paul C. Hughes _
Name: Paul C. Hughes ________________________
Title: Authorized Signatory____________________
Signature Page to the Seventh Amendment of the Agreement for Sale and Purchase
Acknowledged and agreed:
GUARANTOR:
WHEELOCK STREET REAL ESTATE FUND, L.P.
By: WHEELOCK STREET REAL ESTATE FUND G.P., L.L.C., its General Partner
By: /s/ Jonathan H. Paul
Name: Jonathan H. Paul
Title: Authorized Signatory
Signature Page to the Seventh Amendment of the Agreement for Sale and Purchase
The undersigned Escrow Company hereby agrees to (i) accept the foregoing Amendment, (ii) be Escrow Company under said Amendment, and (iii) be bound by said Amendment in the performance of its duties under said Amendment and Purchase Agreement.
ESCROW COMPANY:
CHICAGO TITLE INSURANCE COMPANY
By: /s/ Edwin G. Ditlow____________________________
Name: Edwin G. Ditlow ____________________________
Its: Vice President_________________________________
Signature Page to the Seventh Amendment of the Agreement for Sale and Purchase