Exhibit 2.3
October 14, 1999
Millennia Car Wash, LLC Millennia Car Wash, LLC
Attention: Xxxx Xxxxxxx 000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
c/o Excel Legacy Corporation Xxxxxxxxx, Xxxxxxxxxx 00000
00000 Xxx xxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Re: Real Estate and Asset Purchase Agreement dated March 23, 1999, by and
between Millennia Car Wash, LLC ("Millennia"), Excel Legacy
Corporation and G II Ventures, LLC ("Members"), and American Wash
Services, Inc. ("AWS"), as amended by Amendment No. 1 dated as of
March 30, 1999, by and between the same parties (as so amended, the
"Agreement")
Sirs:
Reference is made herein to the transactions set forth in the Agreement.
Terms in this Letter which are capitalized shall have the meanings given the
terms in the Agreement, unless the capitalized term is specifically defined in
this Letter. The parties hereto hereby agree as follows:
1. The parties acknowledge that AWS, on July 1, 1999, merged into a
wholly-owned subsidiary of the Successor Corporation, Xxxx Wash, Inc., which
thereby succeeded to all of AWS' rights and obligations under the Agreement.
The parties agree and acknowledge that Sellers shall perform their obligation
under the Agreement to convey and assign the Assets and Owned Real Estate by
conveyance and assignment of the Assets and Owned Real Property to a different
wholly-owned subsidiary of Successor Corporation, Xxxx Car Wash, Inc., which
shall be deemed to be the Purchaser under the Agreement.
2. The parties acknowledge and agree that the form of Registration Rights
Agreement attached hereto as Exhibit A shall be delivered and executed at
Closing in lieu of the form attached to the Agreement as Schedule 1.9(a)(vii).
3. Sellers acknowledge that certain claims, as set forth hereinafter,
have arisen for which Purchaser would be entitled to indemnification under the
Agreement. Purchaser agrees that it shall indemnify the Sellers against all
claims set forth in items (i) and (ii) following and shall not make any claim of
indemnity under the Agreement arising out of the claims set forth in items (i),
(ii) (iii), and (iv) following: (i) liabilities and obligations under that
certain Operating Agreement dated August 27, 1998, by and between Millennia and
Quality Car Wash No. 2, Inc., and Quality Quiq Lube, Inc., (ii) payments for the
purchase of the business book described in and arising out of Paragraph 2 of
that certain First Amendment to Car Wash Asset Purchase/sale Agreement dated
June 10, 1998, by and between Quality Car Wash No. 2, Inc., Quality Quiq Lube,
Inc., and Millennia, or
(iii) the representations and warranties set forth in
Section 3.8 of the Agreement being false, or (iv) that Seller did not perform
its obligations under Section 5.11(iii) of the Agreement. For purposes of this
Letter, the claims set forth in items (i) and (ii) above are referred to as the
"Quality Claims" and the claims set forth in items (iii) and (iv) above are
referred to as the "Financial Warranty Claims." In exchange for Purchaser
accepting all liability for the Quality Claims and releasing Sellers from the
Financial Warranty Claims, Sellers shall return a portion of the Consideration
Stock received under the Agreement equal to 587,678 shares. The 587,678 shares
of Consideration Stock being returned are a portion of the 1,486,428 shares
which were valued at $7.00 per share pursuant to the Agreement.
4. The parties acknowledge and agree that the amount of Consideration
Stock to be delivered to the Company under Section 1.3 of the Agreement is as
follows:
Original Amount 4,087,678
Returned Shares - 587,678
---------
NET SHARES 3,500,000
5. This Letter may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument. This Letter may be
executed by facsimile transmission and a signature transmitted by facsimile
transmission shall be binding on the party so executing this Letter.
IN WITNESS WHEREOF, the parties have executed this Letter on the date first
above written.
Xxxx Wash, Inc. Millennia Car Wash, LLC
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------- --------------------
Xxxxxx X. Xxxxxx, Vice President Xxxxxxx X. Xxxxxx, Chief Executive Officer
Xxxx Car Wash, Inc. Excel Legacy Corporation
By:/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
-------------------- --------------------
Xxxxxx X. Xxxxxx, Vice President Xxxxxxx X. Xxxx, Executive Vice President
Xxxx Security International, Inc. GII VENTURES, LLC
By its Managing Member,
Xxxxxxx X. Xxxxxx I, LLC
By:/s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx,
Executive Vice President By: /s/ Xxxxxx X. Xxxxxx
----------------------
Xxxxxxx X. Xxxxxx, Managing Member
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