except
as they may otherwise agree."
16.
RETAINED REAL PROPERTY.
THE FOLLOWING SHALL BE ADDED TO THE ASSET
PURCHASE AGREEMENT AS SECTION 14.21:
"14.21
Restrictive Covenants.
The Marcus Entitles shall promptly
execute and deliver to Buyer a recordable restrictive covenant with respect to
each parcel of Retained Real Property that is located within 1⁄4 (one-quarter)
mile of any Use-Restricted Property as of the date hereof as provided in Section
7.15 to the extent that such a recordable restrictive covenant was not executed
and delivered at Closing, and such obligation to execute and deliver a
recordable restrictive covenant shall survive the Closing until the fifteenth
(15th) anniversary of the Closing Date."
17.
ESTOPPEL CERTIFICATES.
THE FOLLOWING SHALL BE ADDED TO THE ASSET
PURCHASE AGREEMENT AS SECTION 14.22:
"14.22
Estoppel Certificates.
The Marcus Entities shall provide duly
executed estoppel certificates to Buyer with respect to their interests in all
reciprocal easements, shared use agreements and similar agreements affecting any
Property and under which a Marcus Entity and/or any Affiliate is both the
beneficiary and obligor, to the extent such duly executed estoppel certificates
were not provided to Buyer at Closing."
18.
FRANCHISE FEE REBATE.
THE FOLLOWING SHALL BE ADDED TO THE ASSET
PURCHASE AGREEMENT AS SECTION 14.23:
"14.23
Franchise Fee Rebate.
Promptly after they receive a detailed invoice
regarding the determination of the franchise fee rebate relating to the Baymont
Business franchising operations during 2004 (the "2004 Franchise Fee Rebate"),
the Marcus Entities shall pay to Buyer an amount equal to the Marcus Entities'
pro rata share of the 2004 Franchise Fee Rebate based on the number of days
7
during 2004 prior to the Closing Date; provided, however, that the Marcus
Entities shall not be obligated to make any portion of such payment attributable
to a franchisee that owes any amounts to any of the Marcus Entities or any of
their Affiliates."
19.
ESCROWED PROPERTIES.
(A)
BUYER AND THE MARCUS ENTITIES ACKNOWLEDGE THAT EACH OF THE
ESCROWED PROPERTIES CANNOT AS OF THE DATE HEREOF BE CONVEYED TO BUYER AS A
RESULT OF THE DEFICIENCIES (EACH A "CONVEYANCE DEFICIENCY") SUMMARIZED ON
APPENDIX D ATTACHED HERETO.
ACCORDINGLY, PENDING THE REASONABLE CURE OF THE
CONVEYANCE DEFICIENCY, CERTAIN OF THE MARCUS ENTITIES AND AFFILIATES OF BUYER
HAVE ENTERED INTO LEASES OR MANAGEMENT AGREEMENTS AS OF THE DATE HEREOF WITH
RESPECT TO EACH OF THE ESCROWED PROPERTIES AND THE AMOUNT SET FORTH IN EXHIBIT D
TO THE ASSET PURCHASE AGREEMENT WITH RESPECT TO EACH OF THE ESCROWED PROPERTIES
HAS BEEN PLACED IN ESCROW WITH THE ESCROW COMPANY.
BUYER AND THE MARCUS
ENTITIES FURTHER AGREE AS FOLLOWS WITH RESPECT TO EACH OF THE ESCROWED
PROPERTIES:
(1)
THE MARCUS ENTITIES SHALL PROMPTLY COMMENCE, AND SHALL USE
REASONABLE BEST EFFORTS TO PURSUE TO COMPLETION AT THEIR SOLE COST AND EXPENSE,
THE CURE OF THE APPLICABLE CONVEYANCE DEFICIENCY FOR EACH ESCROWED PROPERTY TO
THE REASONABLE SATISFACTION OF BUYER AND THE ESCROW COMPANY.
BUYER AGREES TO
REASONABLY COOPERATE, AT NO COST TO BUYER, WITH THE MARCUS ENTITIES IN CURING
SUCH