CONVEYANCE DEFICIENCY.
(2)
THE PROVISIONS OF SECTION 7.14(D), (E) AND (F) OF THE ORIGINAL
ASSET PURCHASE AGREEMENT SHALL APPLY TO THE OTHER ESCROWED PROPERTIES, MUTATIS
MUTANDIS TO REQUIRE THE CURE TO THE REASONABLE SATISFACTION OF BUYER AND THE
ESCROW COMPANY OF THE APPLICABLE CONVEYANCE DEFICIENCY (I.E., IN LIEU OF
REQUIRING THE RECEIPT OF ALL APPROVALS FROM APPLICABLE GOVERNMENT ENTITIES OF
THE LAND DIVISION FOR THE SUBDIVISION PROPERTIES) AND THE REFERENCE TO EXHIBIT G
IN SECTION 7.14(E) SHALL IN THE CASE OF THE ESCROWED PROPERTIES BE DEEMED TO
REFER TO THE APPLICABLE LEASE OR MANAGEMENT AGREEMENT ENTERED INTO WITH RESPECT
TO AN ESCROWED PROPERTY.
(B)
THE PARTIES HERETO AGREE THAT TO THE EXTENT A PURCHASED ASSET IS
NOT ASSIGNED, TRANSFERRED OR OTHERWISE CONVEYED TO BUYER OR ITS DESIGNEE OR
NOMINEE IN THE FUTURE AND THE RESPECTIVE ESCROWED PORTION OF THE PURCHASE PRICE
ATTRIBUTABLE TO SUCH PURCHASED ASSET IS REMITTED TO BUYER OR SUCH DESIGNEE OR
NOMINEE, THE DIFFERENCE (IF ANY) BETWEEN THE EXHIBIT D AMOUNT WITH RESPECT TO
SUCH PURCHASED ASSET THAT WAS PREVIOUSLY ESCROWED AND THE PURCHASE PRICE
ALLOCATED TO SUCH PURCHASED ASSET PURSUANT TO SECTION 3.5 OF THE ASSET PURCHASE
AGREEMENT SHALL ADJUST THE PURCHASE PRICE ALLOCATED TO INTANGIBLE ASSETS UNDER
SECTION 3.5 OF THE ASSET PURCHASE AGREEMENT.
20.
POST-CLOSING ADJUSTMENTS.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THE ASSET PURCHASE AGREEMENT, THE ITEMS THAT ARE DESIGNATED AS BEING
SUBJECT TO POST-CLOSING ADJUSTMENTS ON THE CLOSING STATEMENT FOR THE
TRANSACTIONS CONTEMPLATED BY THE ASSET PURCHASE AGREEMENT
8
shall be adjusted in accordance with the procedures set forth in Section 12.3(c)
on a mutually agreed upon date or dates after Closing.
21.
OTHER TERMS AND CONDITIONS.
EXCEPT AS SPECIFICALLY MODIFIED
HEREIN, ALL OTHER TERMS AND CONDITIONS OF THE ASSET PURCHASE AGREEMENT SHALL
REMAIN IN FULL FORCE AND EFFECT.
22.
HEADINGS.
THE HEADINGS IN THIS AGREEMENT ARE INSERTED FOR
CONVENIENCE ONLY AND SHALL NOT CONSTITUTE A PART HEREOF.
23.
LAW GOVERNING AGREEMENT.
THIS AGREEMENT SHALL BE CONSTRUED AND
INTERPRETED ACCORDING TO THE INTERNAL LAWS OF THE STATE OF WISCONSIN, EXCLUDING
ANY CHOICE OF LAW RULES THAT MAY DIRECT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.
[Signature page to follow]
9
IN WITNESS WHEREOF, the parties have caused this Amendment to be signed by their
respective officers thereunto duly authorized, all as of the date and year first
written above.
THE MARCUS ENTITIES:
BAYMONT INNS, INC.
WOODFIELD SUITES, INC.
By:
/s/ Steven S. Bartelt
By:
/s/ Steven S. Bartelt
Name:
Steven S. Bartelt
Name:
Steven S. Bartelt
Title:
Vice President
Title:
Vice President
MARCUS CONSID, LLC
MARCUS NON, LLC
By:
/s/ Steven S. Bartelt
By:
/s/ Steven S. Bartelt
Name:
Steven S. Bartelt
Name:
Steven S. Bartelt
Title:
Vice President
Title:
Vice President
MARCUS FL, LLC
BAYMONT FRANCHISES
INTERNATIONAL, LLC
By:
/s/ Steven S. Bartelt
By:
/s/ Steven S. Bartelt
Name:
Steven S. Bartelt
Name:
Steven S. Bartelt
Title:
Vice President
Title:
Vice President
BAYMONT PARTNERS, LLC
WOODFIELD SUITES HOSPITALITY
CORPORATION
By:
/s/ Steven S. Bartelt
By:
/s/ Steven S.