4 .
I -I
FIRST AMENDXENT TO CONTRIBUTION AGREEXENT
THIS FIRST AMENDMENT TO CONTRIBUTION AGREEMENT
(this "First Amendment") is made as of April , 1998, among
South Seas Properties Company Limited Partnership, an Ohio
limited partnership (IISSPCII), South Seas Resorts Company
Limited Partnership, a Florida limited partnership
(IISSRCII), South Seas Resort Limited Partnership, an Ohio
limited partnership (IISSRLP'l) , Marco SSP, Ltd.. a Florida
limited partnership ("Marco") , and South Seas' & Captiva
Properties, L.P., a Florida limited partnership (IISS&CPII;
SSPC, SSRC, SSRLP, Marco and SS&CP are referred to herein
individually as a "Seller", and collectively as "Sellers"), -
CapStar Hotel Company, a Delaware corporation ("CapStar"),
and CapStar Management Company, L.P., a Delaware limited
partnership ("CapStar Management"; CapStar and CapStar
Management are referred to herein individually as a
"Purchaser",, and collectively as the "Purchasers").
Capitalized terms used but not defined herein shall have the
meanings ascribed to those terms in the Contribution
Agreement (as defined herein).
RECITALS:
A. Sellers and Purchasers entered into a
Contribution Agreement dated as of April 8, 1998 (the
"Contribution Agreement") , whereby each Seller has agreed to
contribute to CapStar Management all of the right, title and
interest in and to the assets,, properties and rights
(contractual or otherwise) and business of such Seller with
respect to the Business, pursuant to the terms of the
Contribution Agreement.
- -o amend the
Contribution
B. Purchasers desire 4L.
Agreement for the purpose'of allowing Purchasers the right to
extend the Closing to a date no later than September 30,
1998.
C. Sellers are willing to amend the Contribution
Agreement f or the purpose of allowing Purchasers the right
to extend the Closing to a date no later than September 30,
1998, only upon the terms and conditions set forth in this
First Amendment.
NOW, THEREFORE, based upon the foregoing premises
and for other good and valuable consideration, the receipt
and sufficiency of which is acknowledged by Sellers and
Purchasersr the parties hereby agree as follows:
1. Section 9.1 of the Contribution Agreement is deleted
in its entirety and the following is substituted in lieu
thereof:
"Section 9.1 Closinci. Unless otherwise mutually agreed to
by SSPC and CapStar and subject to Section 8.4, the Closing
shall occur on July 15, 1998 (provided that all conditions
precedent to the parties
obligations hereunder have been satisf ied or waived (other
than conditions with respect to actions the respective
parties will take at the Closing) and if not so satisfied or
waived, the Closing shall be automatically extended from time
to time until the first subsequent business day on which all
such conditions are so satisfied or waived, subject, however,
to Section 11.9 hereof) (the "Closing Date"); provided,
however, that CapStar shall have the right to extend the
Closing Date until a date no later than September 30, 1998,
by providing written notice thereof to SSPC no later than May
1, 1998 (the "Extension Notice") . If CapStar delivers the
Extension Notice, CapStar shall thereafter provide SSPC with
at least twenty (20) business days prior written notice of
the date upon which CapStar desires the Closing to occur. As
more particularly described below, at the Closing the parties
will meet: (i) to execute all of the documents required to be
delivered in connection with the transaction contemplated
hereby (the "Closing Documents") ; (ii) issue the Partnership
Units; and (iii) take all other action required by this
Agreement to be taken in order to consummate the transaction
contemplated hereby (the "Closing"). The Closing shall take
place at the Corporate Offices, or at any other place to
which SSPC and CapStar may mutually agree prior to the
Closing Date. The point in time
at which the Closing shall have been
consummated is referred to herein as the "Time
of Closing.""
2 . Upon delivery by CapStar of an Extension
Notice, then effective May 1, 1998, Section 3.2(a) of the
Contribution Agreement shall be and hereby is amended by
deleting the dollar figure 11 27.1711 in each place in which
it appears in Section 3.2(a) and substituting the dollar
figure 11$28.8711 in lieu thereof.
3 . Upon delivery by CapStar of an Extension
Notice, then effective May 1, 1998, the following new Section
3.7 shall be and hereby is added to the Contribution
Agreement to follow immediately after Section 3.6:
"Section 3.7. Partial Release of Earnest Money Deposit. If
CapStar delivers an Extension Notice, then at SSPC's option
(to be exercised by written notice to CapStar at any time on
or after July 1, 1998), there shall be released
from escrow and delivered to SSPC the sum of Eight Million
Dollars ($8,000,000) (the "Partial Release") so long as the f
ollowing two conditions are satisfied as of the date of the
Partial Release: (i) SSPC posts security with CapStar for the
Partial Release,, which security shall be adequate in
CapStar's reasonable determination to ensure repayment of the
Partial Release if the transaction contemplated hereby is not
consummated; and (ii) at the time of the Partial Release all
of SSPC's representations and warranties shall be true and
correct in all material respects (without taking into account
any qualification as to Knowledge). The Partial Release
shall for all purposes hereof constitute Earnest Money
Deposit and shall be returned to CapStar under the
circumstances set forth in Se&tion 3.4 hereof."
4 . Upon delivery by CapStar of an Extension
Notice, then from and after May 1, 1998, the condition
precedent set forth in Section 7.2(f) of the Contribution
Agreement shall be deemed to have been waived by Purchasers
and shall no longer be a condition precedent to Purchasers'
obligation under the Contribution Agreement.
5 . Upon delivery by CapStar of an Extension
Notice., then Section 8.4(d) of the. Contribution Agreement
shall be and hereby is amended by deleting "July 1, 199811 in
the ninth line of Section 8.4(d) and inserting "August 1,
199811 in lieu thereof.
6. Upon delivery by CapStar of an Extension
Notice, then Section 8.4(e) of the Contribution Agreement
shall be and hereby is amended by (i) deleting "August 14,
199811 in the fourth line of Section 8.4(e) and inserting
"September 1, 199811 in lieu thereof, (ii) by deleting in its
entirety the penultimate sentence of Section 8.4(e), and
(iii) by deleting the third full sentence of Section 8.4(e)
in its entirety and inserting the following in lieu thereof:
"Subject to the terms and conditions of the Tender Offer and
the Consent Solicitation, all Notes previously tendered and
not accepted for payment may be accepted for payment by SSPC
(or its designee), in its sole and absolute discretion, at
any time during the First Extension Period (a "Bond
Purchase")."
7. Upon delivery by CapStar of an Extension
Notice, then notwithstanding anything to the contrary
contained in section 8.4 of the Contribution Agreement to the
contrary, SSPC may, in its
sole and absolute discretion, delay the commencement of the
Tender
offer and Consent Solicitation until June 15, 1998.
8 . Upon delivery by CapStar of an Extension
Notice,, then Section 8.4(f) of the Contribution Agreement
shall be and hereby is amended by deleting "September 28,
199811 in the fourth line of Section 8.4(f) and inserting
"October 1, 199811 in lieu thereof and by deleting "August
14, 199811 in the tenth line of Section 8.4(f) and inserting
"September 1, 199811 in lieu thereof.
9 . Upon delivery by CapStar of an Extension
Noticer Section 12.4 of the Contribution Agreement shall be
and hereby is amended as follows: (i) by deleting "and" from
subsection (b), (ii) by deleting the period in the last
sentence in subsection (c) and substituting I;" in lieu
thereof, and (iii) by adding the following subsections (d)
and (e):
11 (d) the amount determined by multiplying (X) the number of
days from (and including) July 15, 1998, to (but not
including) the closing Date (as so extended pursuant to the
Extension Notice) by (Y) Forty-One Thousand Seven Hundred
Seventy Dollars ($41,770) (tlae "Per Diem Amount") ;
provided, however, that the Per Diem Amount shall be not be
payable for the number of days in the period commencing on
the Closing Date and ending on the date the Minimum Consent
Requirement is satisfied; and
(e) the "Additional Interest"; provided, however, that in
no event shall the increase to the Contribution Consideration
based upon the Additional Interest exceed Four Hundred
Thousand Dollars ($400,000). For purposes of this clause
(e), "Additional Interest" means the difference between the
Premium with respect to the Tendered Notes calculated as of
the date the Minimum Consent Requirement is satisfied and the
Premium with respect to the Tendered No%'-es calculated as of
the Closing Date. In each case, the Premium shall be based
upon a spread to call on the date the Minimum Consent
Requirement is satisfied of fifty (50) basis points over the
yield to maturity of the 5.50% coupon U.S. Treasury notes due
April 15, 2000, and shall include the Redemption Price (as
defined in the Indenture) of Notes."
10. CapStar acknowledges that SSPC I s current
property insurance coverage (IISSPC's Property Insurance
Coverage") expires on or about June 25, 1998. Accordingly,
on or before May 1, 1998,
CapStar shall submit for SSPC's review a property insurance
program covering all of SSPC's and its affiliates'
properties, with such coverage commencing on June 25, 1998,
and ending on the f irst anniversary thereof (the "Proposed
Property Insurance Coverage"). SSPC shall have a period of f
if teen (15) days to review the Proposed Property Insurance
Coverage and determine, exercising reasonable business
judgment, whether to continue with SSPC's Property Insurance
Coverage or whether to accept the Proposed Property Insurance
Coverage. In either event, CapStar shall at ' the Ti-me of
Closing assume SSPC's obligations thereunder to the extent
such obligations arise or accrue on or after the Closing Date
(whether for payment of premiums or early termination fees).
11. All other terms and conditions of the
Contribution Agreement shall remain in full force and effect
and unmodified hereby.
12. This Amendment may be executed in any number
of counterparts, each of which shall be an original, and all
of which taken together shall constitute one instrument.
13. This Ainendment shall be governed by and
construed and interpreted in accordance with the laws of the
State of Florida.
5
IN WITNESS WHEREOF, Sellers and Purchasers have
caused this Amendment to be executed in their names by their
respective duly authorized representatives.
Sellers:
SOUTH SEAS PROPERTIES COMPANY LIMITED
PARTNERSHIP, an Ohio limited partnership
By: T&T Resorts, L.C., a Florida limited
By:
1 ia--b @
i.tv company, general partner
Robert M.
Manager
SOUTH SEAS
PARTNERSHIP,
partnership
By: S. S.
Flori
gen--
By:
Robert
Manager
ylor, Cha
RESORTS COMPANY
a
Florida
sort Management,
rlimited liability
artner
M.
LIMITED
limited
L. C. . a
company,
or, Chairm
and
SOUTH SEAS RESORT LIMITED PARTNERSHIP, an
Ohio limited partnership
By: SAN-CAP
limited
By:
L.C., a Florida
t
tAv company
Robert M. Tay
Manager
or, Chairman and
apm3613:23630:97003:mpm-16.amd
mpm 4/9/98
MARCO SSP,
partnership
By: Marco
corpo
LTD., a Florida limited
SSP, Inc. , a
. on
Florida
By:
Its: @, ;,VA @ @
SOUTH SEAS & CAPTIVA PROP
By: Resorts Re cor
By:
Its: - /
CAPSTAR HOTEL COMPANY
B /)I, @,, @
@ (to
Naine: @ gz,, t @, kA . @
I c,,_t 'cA , VI
C\ , T i9
Title:
CAPSTAR MANAGEMENT COMPANY, L.P.
By: CapStar Hotel Company, a Delaware
corporation, ra
B C--, -4 I @@
@o/@L@o
Name: - - - t
Title:. EL@@ ' \[ -,, t @,- c_ @. l@ v-4