Execution Copy
FIRST AMENDMENT TO ASSET PURCHASE
AGREEMENT
FIRST
AMENDMENT TO ASSET PURCHASE AGREEMENT (this “
Amendment ”), dated as of September 3, 2004, by and
between La Quinta Corporation, a Delaware corporation (“
Buyer ”), and each of the other signatories to this
Amendment, each of which is a wholly-owned direct or indirect
subsidiary of The Marcus Corporation. Capitalized terms used herein
without definition shall have the meanings ascribed to such terms
in the Original Asset Purchase Agreement (as defined
below).
WHEREAS,
Buyer, the Marcus Entities and, for limited specified purposes, The
Marcus Corporation, have entered into that certain Asset Purchase
Agreement, dated as of July 14, 2004 (the “ Original Asset
Purchase Agreement ” and, as amended by this Amendment,
the “ Asset Purchase Agreement ”);
and
WHEREAS,
the parties hereto desire to amend certain provisions of the
Original Asset Purchase Agreement, pursuant to Section 17.5
thereof, for certain purposes as fully set forth herein.
NOW
THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Amendment and the
Original Asset Purchase Agreement, the parties hereby agree as
follows:
1.
Amendments of Schedules . The Schedules to the Asset
Purchase Agreement are hereby amended and restated in the manner
indicated by the Schedules attached hereto, which Schedules have
been marked to show the modifications to the Schedules attached to
the Original Asset Purchase Agreement.
2.
Real Property Fee Owners . Since the date of the Original
Asset Purchase Agreement, the Marcus Entities have determined that
some of the real estate underlying several of the Baymont Hotels
was owned by Affiliates of the Marcus Entities and other such real
estate was titled in the name of partnerships that have been
dissolved prior to the date hereof, including Marcus-Anderson
Partnership. For all purposes of the Asset Purchase Agreement,
including, without limitation, the definitions of “Purchased
Assets,” and “Owned Real Property” and the
representations, warranties, covenants and agreements of the Marcus
Entities contained in the Asset Purchase Agreement, the entities
listed as owning the Properties as set forth on Schedule
1.1(a)(i) attached to this Amendment shall be treated as having
owned the Properties on July 14, 2004 and Schedule 1.1(a)(i)
attached to this Amendment shall be treated as having been in full
force and effect on July 14, 2004.
3.
Marcus Entities . The parties hereto acknowledge that (a)
Marcus-Anderson Partnership erroneously executed the Original Asset
Purchase Agreement and (b) each of Woodfield Refreshments of
Colorado, Inc., Woodfield Refreshments of Ohio, Inc. and Woodfield
Refreshments, Inc., each of which owns the alcoholic beverage
inventory relating to liquor operations and is the licensee with
respect to liquor operations at certain Woodfield Hotels,
inadvertently failed to execute the Original Asset Purchase
Agreement. By executing this Amendment, each of Woodfield
Refreshments of Colorado, Inc., Woodfield Refreshments of Ohio,
Inc. and Woodfield Refreshments, Inc. hereby agrees to be treated
as a party to the Asset Purchase Agreement and the parties hereto
agree that such entities shall be included in the definition of
“Marcus Entity” for all purposes in the Asset Purchase
Agreement, including, without limitation, the representations,
warranties, covenants and agreements of the Marcus Entities
contained in the Asset Purchase Agreement, as if each such entity
had executed the Original Asset Purchase Agreement. The definition
of the term “Marcus Entities” in the Asset Purchase
Agreement is hereby further amended and restated in its entirety
such that it excludes Marcus-Anderson Partnership and includes all
of and only the signatories to this Amendment.
4.
Alcoholic Beverage Inventory . Prior to the date hereof,
Baymont Inns Hospitality, LLC conveyed (a) the then-existing
alcoholic beverage inventory relating to liquor operations at the
Woodfield Hotel located in Greenwood Village, Colorado to Woodfield
Refreshments of Colorado, Inc., (b) the then-existing alcoholic
beverage inventory relating to liquor operations at the Woodfield
Hotel located in Sharonville, Ohio to Woodfield Refreshments of
Ohio, Inc. and (c) the then-existing alcoholic beverage inventory
relating to liquor operations at the Woodfield Hotels located in
Appleton, Wisconsin, Glendale, Wisconsin and Madison, Wisconsin to
Woodfield Refreshments, Inc. The parties hereby agree that,
notwithstanding any provisions of the Asset Purchase Agreement to
the contrary, the then-existing alcoholic beverage inventory
relating to liquor operations at the Woodfield Hotels, other than
the Woodfield Hotels located in Greenwood Village, Colorado and San
Antonio, Texas, will be transferred by the applicable Marcus Entity
to Buyer, or its designee pursuant to Section 17.2(a) of the
Asset Purchase Agreement, after the Closing Date pursuant to
separate Bills of Sale to be executed by such entities at such time
that Buyer, or its designee, obtains the appropriate license with
respect to the sale of such then-existing alcoholic beverage
inventory. Subject only to the timing of the transfers contemplated
by the preceding sentence, the then-existing alcoholic beverage
inventory relating to liquor operations at all of the Woodfield
Hotels shall be included within the definitions of Purchased Assets
and Inventory for all purposes of the Asset Purchase
Agreement.
5.
Mark Antell Partnership License Agreement .
The
parties hereby agree that notwithstanding any provisions of the
Asset Purchase Agreement to the contrary, including, without
limitation, Section 14.16 and Section 3.3(a)(ii) ,
the License Agreement relating to the Property held by the Mark
Antell Partnership shall be in the form dated as of September 2,
2004.
6.
Accounts Receivable .
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(a)
Section 1.1 of the Asset Purchase Agreement is hereby
amended by adding the following Section 1.1(r) :
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“1.1(r)
Hotel Accounts Receivable . The Marcus Entities’ and
the Selling Joint Ventures’ rights, title and interest in and
to all Accounts Receivable (the “ Purchased Accounts
Receivable ”) as of the Closing Date, which exclude any
Accounts Receivable relating solely to the franchising operations
of the Baymont Business.”
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(b)
Section 1.2(k) of the Asset Purchase Agreement is hereby
amended and restated by deleting it in its entirety and
substituting the following:
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“1.2(k)
Franchise Accounts Receivable . The Marcus Entities’
and Selling Joint Ventures’ rights, title and interest in and
to all Accounts Receivable other than the Purchased Accounts
Receivable.”
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(c)
Section 3.1 of the Asset Purchase Agreement is hereby
amended by adding the following immediately prior to the semicolon
in the first sentence of such Section: “, plus
eighty-five percent (85%) of the aggregate dollar amount of the
Purchased Accounts Receivable.”
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7.
Bills of Sale; Assignment and Assumption Agreements
.
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(a) The
following shall be added to the Asset Purchase Agreement as
Section 2.3 :
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“2.3
Effect of Other Documents on Allocation of Liabilities .
Since the date hereof, the parties hereto have sent certain
documents to third parties describing their relative
responsibilities for amounts owed to such third parties. The
parties acknowledge and agree that such descriptions were intended
to be informative and that such descriptions shall not have any
effect upon either the Assumed Liabilities or Excluded Liabilities
or any other provision of this Agreement.”
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(b) The
parties hereby agree that the bills of sale and assignment and
assumption agreements relating to the transfer of rights, title and
interest in and to the Owned Personal Property and Inventory,
Assigned Contracts, Assigned Licenses and Permits, general
intangibles described in Section 1.1(q) of the Purchase Agreement
and any other Purchased Assets (collectively, the “Escrow
Property Purchased Assets ”) located at or relating
solely to the operations of the Baymont Hotels located in Auburn,
Massachusetts, Cleveland, Ohio and Bloomington, Minnesota and the
Woodfield Hotel located in Sharonville, Ohio (the
“Escrowed Properties ”), shall exclude the
Escrow Property Purchased Assets unless and until such time that
title to such Escrowed Properties are conveyed to Buyer pursuant to
the terms of the Purchase Agreement.
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8.
Joint Ventures . The parties hereby agree that, effective as
of the Closing, the management agreement between each of Baymont
Inns, Inc. and each Selling Joint Venture shall be terminated
pursuant to separate Termination of Management Agreements related
to each such management agreement for the consideration provided
for in the Original Purchase Agreement rather than being
transferred to Buyer as provided for in the Original Purchase
Agreement.
9.
Employee Matters .
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(a) The
parties hereby agree that notwithstanding any provisions of the
Asset Purchase Agreement to the contrary, including, without
limitation, Section 6.1(a) , Buyer will assume the
obligations for paying all of the severance payments described on
Appendix A to the Marcus employees listed on Appendix
A (the “ Severance Payments ”), and Buyer
shall receive a credit from the Marcus Entities for sixty percent
(60%) of the amount of such Severance Payments against the Purchase
Price at the time of Closing in accordance with the second sentence
of Section 12.3(b) of the Asset Purchase Agreement, except
for the Severance Payment to the single employee so-designated on
Appendix A (for which Buyer shall receive a credit for fifty
percent (50%) of the amount of the applicable Severance Payment).
Buyer shall make the actual severance payments to such employees on
the dates or after the periods of temporary employment indicated on
Appendix A . In the event that any of the employees listed
on Appendix A do not qualify for their severance payment
pursuant to the terms of their respective employment letter
agreements as initially entered into, then Buyer shall reimburse
the Marcus Entities for the amount of the credit Buyer received at
Closing that was attributable to the Severance Payment to which
such employee would otherwise have been entitled. Buyer shall
obtain a release from each employee set forth on Appendix A
in accordance with the letter agreements entered into with each
such employee, respectively. Buyer shall promptly reimburse the
Marcus Entities for fifty percent (50%) of the out-of-pocket fees
and expenses associated with providing outplacement services to the
employees set forth on Appendix A .
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(b) The
parties hereby agree that notw
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