Exhibit 10.2
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