exv10w26w2



 





EXHIBIT
10.26.2



SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE




     THIS SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this “Amendment”) is made this 18TH
day of November 2005, by and between RUBY SACRAMENTO CAL EXPO LIMITED PARTNERSHIP, RUBY WILMINGTON
NEWARK LIMITED PARTNERSHIP, RUBY ORLANDO INTERNATIONAL LIMITED PARTNERSHIP, RUBY ANN ARBOR LIMITED
PARTNERSHIP, RUBY FISHKILL LIMITED PARTNERSHIP, RUBY FT. WORTH RIVER PLAZA LIMITED PARTNERSHIP,
RUBY PROVIDENCE WARWICK LIMITED PARTNERSHIP, and RUBY TYLER HOTEL LIMITED PARTNERSHIP
(collectively, the “Seller”) and SCHUYLKILL, LLC (the “Buyer”).



RECITALS:




     WHEREAS, Seller and Buyer are parties to that certain Agreement of Purchase and Sale dated
October 12, 2005, as the same was amended by that certain Amendment to Agreement of Sale dated
November 11, 2005 (collectively, the “Agreement of Sale”), whereby Seller agreed to sell to Buyer
and Buyer agreed to buy from Seller that certain “Property” as defined in the Agreement of Sale;
and



     WHEREAS, the Seller and Buyer desire to amend the Agreement of Sale on the terms and
conditions hereinafter provided.



     NOW, THEREFORE, in consideration of the covenants and mutual promises contained herein and
other good and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the Seller and the Buyer, intending to be legally bound, hereby agree as follows:



     1. Inventory.



          (a) Paragraph 22 of the “Definitions” section of the Agreement of Sale is hereby deleted and
replaced with the following: “Inventory: All unopened food, beverage and Operating
Supplies.”




          (b) Section 10.02 of the Agreement of Sale is hereby deleted and replaced with the following:
“Seller shall cause Managers to prepare lists of all Inventory at each Hotel as of the date of
Closing, and Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller such
Inventory, at Seller’s actual cost..”




     2. Purchase Price. Section 2.01 of the Agreement of Sale is hereby deleted and
replaced with the following: “The Purchase Price for the Property shall be One Hundred Two Million
and No/100 Dollars ($102,000,000.00), subject to closing adjustments as provided in this
Agreement.”



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     3. Lender Consent. Section 9.02(e) of the Agreement of Sale is hereby deleted and
replaced with the following: “Lender shall have consented to Buyer’s (or Permitted Assignee’s)
assumption of the Existing Lien, and shall also have consented to the following revisions
concerning the loan documents that relate to the Existing Liens (the “Loan Documents”): (i) the
term “Qualified Successor Borrower” as defined in the two Loan Agreements dated as of June 17, 2005
that are part of the Loan Documents (the “Loan Agreements”), and as used in any other Loan
Documents, shall be revised to include a “Single-Purpose Entity” that is an “Affiliate” of Richard
L. Vilardo, Steven J. Fairbanks and Ronald Franklin (collectively, the “New PIP Guarantor”), who
will provide the “PIP Guaranty” that will be required to be arranged by Buyer or its Permitted
Assignee in connection with the assumption of the Existing Liens; (ii) the term “PIP Guaranty” as
defined in the Loan Agreements and as used in any other Loan Documents shall be revised to mean a
Capital Expenditure and PIP Guaranty in substantially the same form (and recognizing that schedules
setting forth the PIP requirements may have changed) as executed and delivered to the Lender by
Ashford Hospitality Limited Partnership at the time of the Existing Liens, with the “Tangible Net
Worth” and “Liquid Assets” requirements modified to reflect the “Tangible Net Worth” and “Liquid
Assets” of the New PIP Guarantor as of the date of the assumption of the Existing Liens, dated as
of the date of the assumption of the Existing Liens, from the New PIP Guarantor, rather than such
Capital Expenditure and PIP Guaranty from Ashford Hospitality Limited Partnership to the Lender;
(iii) references in the definition of “Permitted Transfers” set forth in the Loan Agreements, and
in the provisions of Section 2.15(b) of the Loan Agreements, to “Ashford Hospitality Trust,
Inc.”, Ashford OP General Partner LLC”, “Ashford OP Limited Partner LLC”, “Ashford Hospitality
Limited Partnership” and any other Affiliates of such entities shall be deleted and replaced with
such natural persons and entities (“New Parties”) which own, directly or indirectly, an interest in
Buyer or its Permitted Assignees and are approved by the Lender for inclusion within such
definition and provisions, but in any event such approved New Parties must include the three
individuals who constitute the New PIP Guarantor and those entities controlled, directly or
indirectly, by them collectively; (iv) the term “SPE Equity Owner” as defined in the Loan
Agreements and as used in any other Loan Documents shall mean each of eight Single-Purpose Entity
Delaware limited liability companies formed to act as general partner of each of eight Permitted
Assignees organized by Buyer to acquire the Property that is the subject of this Agreement; (v)
there shall be a modification of the provisions of Section 5.1(Q) of the Loan Agreements
and any applicable provisions of the Loan Documents to reflect that financial statements to be
provided thereunder shall not be those of Ashford Hospitality Trust, Inc. or its Affiliates, but
rather those of each Permitted Assignee (or a consolidated statement for all Permitted Assignees),
or of and the New PIP Guarantor (each individually); (vi) there shall be a modification of the
provisions of Section 8.6 of the Loan Agreements and such other provisions of the Loan
Documents as may be necessary to substitute the name and address of each Permitted Assignee and its
counsel for Ashford Hospitality Limited Partnership and its Affiliates, and their respective
counsel, respectively, as currently set forth in the Loan Documents; (vii) there shall be a
substitution of the organizational chart attached hereto as Exhibit “L” for the
organizational chart attached to the Loan Agreements as Exhibit “G” and any copies of such
organizational chart which are attached to any other Loan Documents, and (viii) Exhibit “A” to the
Cash Collateral Account Agreements each dated as of June 17, 2004 that are part of the Loan
Documents shall be amended to reflect the names and Federal Tax Identification Numbers of each
Permitted Assignee. Capitalized terms used in this



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paragraph and not defined in this Agreement
have the meanings attributable to such terms in the
Loan Agreements. Although not a condition to the obligation of Buyer to perform this
Agreement, Seller acknowledges that, in addition to the foregoing, Buyer has the right to request
that Lender consent to the following revisions to the Loan Documents: (I) a modification of the
Loan Agreements and such other provisions of the Loan Documents as may be necessary to provide for
the Lender’s advance consent to (A) the management of all or any portion of the Property by
Pinnacle Hotel Management LLC (“Pinnacle”), an Affiliate of the New PIP Guarantor (so that such
change in management does not constitute an Event of Default), so long as such management is
approved by Marriott and (B) such modifications of the Management Agreements as may be agreed to by
the current Managers and which are necessary to provide the Permitted Assignees with the right to
terminate the Management Agreements at any time, with or without a sale of the Property, provided
Pinnacle becomes the new Manager of any Property whose Management Agreement is terminated and the
conditions of Section 2.04(A) of the Management Agreements concerning operation of such Property as
a Marriott franchised hotel are satisfied, (II) a modification of the provisions of Section
5.1(Q) of the Loan Agreements and any applicable provisions of the Loan Documents to reflect
that financial statements to be provided thereunder will be prepared by an Independent certified
public accountant reasonably acceptable to Lender but will not be audited and will not be prepared
by a “Big Four” accounting firm; and (III) a modification to the Loan Agreements and other relevant
Loan Documents as may be necessary to permit Pinnacle to collect an asset management fee from each
of the Permitted Assignees in an amount equal to 0.75 % of the gross revenues from the Property
(without such payment constituting an Event of Default), such amount to be fully subordinated to
sums due under the Loan Documents pursuant to a subordination agreement acceptable to the Lender.”



     4. Reliance Letters: The following is added as a new Section 3.04 of the Agreement of
Sale:




     “3.04 Reliance Letters: Sellers shall use their best efforts to obtain a
reliance letter from each of the companies that issued environmental reports to Sellers
concerning the Properties, for the benefit of Buyer and the Permitted Assignees. Buyer
shall be responsible for any costs charged by such companies for issuing such reliance
letters.”



     5. Exhibit: The organizational chart attached hereto as “Exhibit L” is hereby added
to the Agreement of Sale as a new “Exhibit L”.



     6. Additional Deposit. Amending Section 2.02 of the Agreement of Sale, the parties
hereby agree that Buyer shall deposit the Additional Deposit with the Escrow Agent no later than
November 21, 2005.



     7. Miscellaneous.



          (a) For purposes of this Amendment, unless otherwise defined herein, all terms used herein
shall have the respective meanings assigned to such terms in the Agreement of Sale.




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          (b) In the event of any inconsistencies between the terms and conditions of this Amendment and
the terms and conditions of the Agreement of Sale, the terms and conditions of this Amendment shall
control.




          (c) Except as modified pursuant hereto, no other changes or modifications to the Agreement are
intended or implied and in all other respects the Agreement of Sale is hereby specifically ratified
and confirmed by all parties hereto effective as of the date hereof. The Agreement of Sale and
this Amendment shall be read and construed as one Agreement of Sale.




          (d) This Amendment shall be binding upon and inure to the benefit of each of the parties
hereto and their respective successors and assigns.




          (e) The Agreement of Sale as modified by this Amendment may be further modified only by an
agreement in writing signed between the parties hereto. The Agreement of Sale and this Amendment
and any exhibits attached thereto contain the entire Agreement of Sale between the Seller and Buyer
and there are no other terms, obligations, covenants, representations, statements or conditions or
otherwise of any kind or nature whatsoever between the parties.




          (f) This Amendment may be executed in two or more counterparts each of which shall deemed to
be an original, but all of which taken together shall constitute one and the same instrument. When
counterparts have been executed by all parties, they shall have the same effect as if the
signatures to each counterpart or copy were upon the same document and copies of such documents
shall be deemed valid as originals. The parties agree that all such signatures may be transferred
to a single document upon the request of any party.




          (g) This Amendment may be signed by facsimile copy. The Seller and Buyer agree to exchange
manually signed copies promptly following the execution and exchange of the facsimile copies.




     IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have executed
this Amendment as of the date first above written.



	 	 	 	 	 
	 	BUYER:





SCHUYLKILL, LLC, a Delaware limited liability company

 	 



	 	 	 	 	 
	 	 	 
	 	By:  	/S/ STEVE FAIRBANKS
 	 
	 	 	Steve Fairbanks 	 
	 	 	Authorized Member 	 
	 



[ADDITIONAL SIGNATURES ON FOLLOWING PAGES]




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SELLER SIGNATURE PAGE TO SECOND AMENDMENT AGREEMENT OF PURCHASE

AND SALE BETWEEN UNDERSIGNED SELLERS AND SCHUYLKILL, LLC DATED

NOVEMBER 18, 2005




	 	 	 	 	 
	 	SELLER:



RUBY SACRAMENTO CAL EXPO LIMITED PARTNERSHIP

 	 
	 	By:  	Ruby Senior General Partner II LLC, its general partner
 	 



	 	 	 	 	 
	 	 	 
	 	By:  	/S/ DAVID A. BROOKS
 	 
	 	 	Name:  	DAVID A. BROOKS 	 
	 	 	Its: CHIEF LEGAL OFFICER 	 
	 



	 	 	 	 	 
	 	RUBY WILMINGTON NEWARK LIMITED PARTNERSHIP

 	 
	 	By:  	Ruby Senior General Partner II LLC, its general partner
 	 



	 	 	 	 	 
	 	 	 
	 	By:  	/S/ DAVID A. BROOKS
 	 
	 	 	Name:  	DAVID A. BROOKS 	 
	 	 	Its: CHIEF LEGAL OFFICER 	 
	 



	 	 	 	 	 
	 	RUBY ORLANDO INTERNATIONAL LIMITED PARTNERSHIP

 	 
	 	By:  	Ruby Senior General Partner I LLC, its general partner
 	 



	 	 	 	 	 
	 	 	 
	 	By:  	/S/ DAVID A. BROOKS
 	 
	 	 	Name:  	DAVID A. BROOKS 	 
	 	 	Its: CHIEF LEGAL OFFICER 	 
	 




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SELLER SIGNATURE PAGE TO SECOND AMENDMENT AGREEMENT OF PURCHASE

AND SALE BETWEEN UNDERSIGNED SELLERS AND SCHUYLKILL, LLC DATED

NOVEMBER 18, 2005




	 	 	 	 	 
	 	RUBY ANN ARBOR LIMITED PARTNERSHIP

 	 
	 	By:  	Ruby Senior General Partner II LLC, its general partner
 	 



	 	 	 	 	 
	 	 	 
	 	By:  	/S/ DAVID A. BROOKS
 	 
	 	 	Name:  	DAVID A. BROOKS 	 
	 	 	Its: CHIEF LEGAL OFFICER 	 
	 



	 	 	 	 	 
	 	RUBY FISHKILL LIMITED PARTNERSHIP

 	 
	 	By:  	Ruby Senior General Partner I LLC, its general partner
 	 



	 	 	 	 	 
	 	 	 
	 	By:  	/S/ DAVID A. BROOKS
 	 
	 	 	Name:  	DAVID A. BROOKS 	 
	 	 	Its: CHIEF LEGAL OFFICER 	 
	 



	 	 	 	 	 
	 	RUBY FT. WORTH RIVER PLAZA LIMITED PARTNERSHIP

 	 
	 	By:  	Ruby Senior General Partner I LLC, its general partner
 	 



	 	 	 	 	 
	 	 	 
	 	By:  	/S/ DAVID A. BROOKS
 	 
	 	 	Name:  	DAVID A. BROOKS 	 
	 	 	Its: CHIEF LEGAL OFFICER 	 
	 



	 	 	 	 	 
	 	RUBY PROVIDENCE WARWICK LIMITED PARTNERSHIP

 	 
	 	By:  	Ruby Senior General Partner II LLC, its general partner
 	 



	 	 	 	 	 
	 	 	 
	 	By:  	/S/ DAVID A. BROOKS
 	 
	 	 	Name:  	DAVID A. BROOKS 	 
	 	 	Its: CHIEF LEGAL OFFICER 	 
	 




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SELLER SIGNATURE PAGE TO SECOND AMENDMENT AGREEMENT OF PURCHASE

AND SALE BETWEEN UNDERSIGNED SELLERS AND SCHUYLKILL, LLC DATED

NOVEMBER 18, 2005




	 	 	 	 	 
	 	RUBY TYLER HOTEL LIMITED PARTNERSHIP

 	 
	 	By:  	Ruby Senior General Partner I LLC, its general partner
 	 



	 	 	 	 	 
	 	 	 
	 	By:  	/S/ DAVID A. BROOKS
 	 
	 	 	Name:  	DAVID A. BROOKS 	 
	 	 	Its: CHIEF LEGAL OFFICER 	 
	 




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EXHIBIT “L”




Organizational Chart





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