1
Exhibit 2.1
CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT, dated as of June 1, 1998, among
XXXXX X. XXXXX and XXXXXX X. XXXXXX (collectively, the "Contributors") and
RRF LIMITED PARTNERSHIP, a Delaware limited partnership (the "Operating
Partnership").
W I T N E S S E T H
WHEREAS, the Contributors each own a fifty percent (50%)
membership interest (collectively, the "Interests") in Buena Park Suite
Hospitality L.L.C., an Arizona limited liability company (the "Company") that
owns the real property identified on the Property Schedule attached hereto as
Schedule I (the "Hotel"); and
WHEREAS, on the terms and subject to the conditions set
forth herein, the Contributors desire to contribute the Interests as a
contribution to the capital of the Operating Partnership, and the Operating
Partnership desires to accept such contributions in exchange for admitting the
Contributors as a limited partner in the Operating Partnership in accordance
with the terms and subject to the conditions set forth in the First Amended and
Restated Limited Partnership Agreement of the Operating Partnership (as the same
may be amended, modified or supplemented from time to time in accordance with
its terms, the "OP Agreement").
NOW, THEREFORE, in consideration of the premises, mutual
agreements, provisions and covenants contained herein, and for other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby expressly acknowledged, the Contributors and the Operating Partnership do
hereby covenant and agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1. Certain Definitions. Capitalized terms used
but not otherwise defined herein shall have the meanings specified in the OP
Agreement.
ARTICLE II
CONTRIBUTION AND ADMISSION; APPORTIONMENTS
Section 2.1. Contribution and Assignment. Subject to the
satisfaction of the conditions specified in Sections 5.2 and 5.4, the
Contributors shall contribute the Interests ("Contributed Interests") to the
Operating Partnership by assigning all of the Contributors's right, title and
interest in and to (i) the Company, together with any and all rights,
privileges, benefits, obligations and liabilities (other than those liabilities,
if any, listed on Schedule II attached hereto, which liabilities shall be
retained by the Contributors) appertaining thereto, including but not limited to
all of the Contributors' right, title and interest as a member of the
Page 1 of 12
2
Company in and to, subject to Section 2.3 hereof, the profits, surplus, losses,
capital, cash flow, rentals, contract rights, cash, accounts, receivables,
escrows, claims, chooses in action and other assets of such Partnership, and
(ii) all partner loans made by the Contributors to such Partnership. The
assignment and transfer of Contributed Interests shall be accomplished by the
execution and delivery of an Assignment of Membership Interest, substantially in
the form attached hereto as Exhibit A, with respect to the Contributed Interests
(the "Assignment").
Section 2.2. Admission as a Limited Partner; Limited
Partnership Interest. Subject to the satisfaction of the conditions specified in
Sections 5.2 and 5.3 and in consideration of the contribution of the Interests
to the Operating Partnership pursuant to the terms of the OP Agreement, the
Operating Partnership shall admit each of the Contributors as a limited partner
in the Operating Partnership in accordance with the terms and subject to the
conditions set forth in the OP Agreement. The Percentage Interest of the
aggregate Partnership Interest in the Operating Partnership to be received by
the Contributors in the Operating Partnership in respect of the Contributed
Interests shall be calculated and determined as specified on Schedule III
attached hereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of the
Contributors. The Contributors hereby represent and warrant, jointly and
severally, to the Operating Partnership that:
(a) the Company is a limited liability company validly
existing and in good standing under the laws of the State of Arizona;
(b) they have all necessary right, power and authority to
enter into this Agreement and to perform their obligations hereunder;
(c) they have duly executed and delivered this Agreement
and this Agreement constitutes a legal, valid and binding obligation of the
Contributors, enforceable against the Contributors in accordance with the terms
hereof, except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium and other laws affecting enforceability of creditors'
rights generally and general principles of equity;
(d) the Contributors will acquire the limited partnership
interests in the Operating Partnership on the Closing Date for investment and
not with a view to the distribution (within the meaning of section 2(11) of the
Securities Act of 1933, as amended (the "Securities Act")) thereof;
(e) as of the date hereof, the Contributors are the sole
owners of the Interests in the Company and have good title to such Interests,
free and clear of all liens and encumbrances;
Page 2 of 12
3
(f) except as may be set forth in this Agreement, there
are no rights, subscriptions, options, warrants, conversion rights or agreements
of any kind outstanding (including rights of first offer and rights of first
refusal) to purchase or to otherwise acquire the Interests; and
(g) the execution, delivery and performance of this
Agreement by the Contributors will not, with or without the giving of notice,
lapse of time or both, (i) violate, conflict with or constitute a default under
any term or condition of any term or provision of any judgment, decree, order,
statute, injunction, rule or regulation of a governmental unit applicable to the
Contributors or the Company, or of any material contract, agreement or
instrument to which the Contributors or the Company are a party or by which any
of their properties or assets may be bound (the violation of which would have a
material adverse effect upon the Contributors or the Company or the Operating
Partnership) or (ii) result in the creation of any lien upon the Interests other
than in favor of the Operating Partnership.
Section 3.2. Representations and Warranties of the
Operating Partnership. The Operating Partnership hereby represents and warrants
to the Contributors that:
(a) it is duly organized as a limited partnership and
validly existing under the laws of the State of Delaware and is, or at the
Closing will be, duly qualified in each state in which it conducts business;
(b) it has all necessary legal and contractual right,
power and authority to enter into this Agreement and to perform its obligations
hereunder, including the execution, delivery and performance of all other
Documents;
(c) it has duly authorized, executed and delivered this
Agreement and will have at the Closing duly authorized, executed and delivered
the other Documents and this Agreement constitutes, and at the Closing, each of
the other Documents will constitute, a legal, valid and binding obligation of
the Operating Partnership, enforceable against the Operating Partnership in
accordance with the terms hereof and thereof, except as such enforceability may
be limited by applicable bankruptcy, insolvency, moratorium and other laws
affecting enforceability of creditors' rights generally and general principles
of equity;
(d) none of the execution, delivery or performance of this
Agreement or the other Documents by the Operating Partnership will, with or
without the giving of notice, lapse of time or both, violate, conflict with or
constitute a default under any term or condition of (A) the OP Agreement or (B)
any term or provision of any judgment, decree, order, statute, injunction, rule
or regulation of a governmental unit applicable to the Operating Partnership or
any material contract, agreement or instrument to which the Operating
Partnership is a party or by which its properties or assets may be bound (the
violation of which, in the case of either (A) or (B), would have a material
adverse effect upon the Operating Partnership);
Page 3 of 12
4
(e) upon execution of the OP Agreement by the
Contributors, the Contributors will be duly admitted as a limited partner of the
Operating Partnership; and
(f) the Operating Partnership will acquire the Contributed
Interests in the Company for investment and not with a view to the distribution
(within the meaning of section 2(11) of the Securities Act) thereof.
ARTICLE IV
COVENANTS
Section 4.1. Restrictions on Transfer. The Contributors
shall not pledge, encumber, hypothecate, transfer, assign or convey any Interest
in any way prior to the Closing Date (or the termination of this Agreement
pursuant to Section 5.1 in the absence of a Closing).
Section 4.2. Transfer Taxes. The Operating Partnership
and, upon the specific request of the Operating Partnership, the Contributors
shall take any and all actions necessary in order to comply with the provisions
of any transfer tax laws and regulations applicable to this Agreement or the
conveyance of any Contributed Interest, including, without limitation, the
payment of any transfer tax which may be determined to be due in respect of such
Contributed Interest under any such law or regulation and the preparation,
execution and filing of any and all affidavits and questionnaires required by
any such law or regulation. The Contributors shall cooperate with the Operating
Partnership in the preparation of any such affidavits or questionnaires and
shall make available to the Operating Partnership any books and records of the
Contributors used in the preparation of any such affidavits or questionnaires.
The Contributors shall pay any such tax which may be determined to be due under
any such law or regulation and, in the event any such tax is paid by the
Contributors, the Contributors shall be reimbursed at the Closing by the
Operating Partnership.
Section 4.3. Further Assurances. The Contributors and the
Operating Partnership agree, at any time and from time to time after the
Closing, to execute, acknowledge where appropriate and deliver such further
instruments and documents and to take such other action as any other party to
this Agreement may reasonably request in order to carry out the intents and
purposes of this Agreement.
Section 4.4. Closing Costs; Fees and Expenses. Except as
expressly provided herein, each party hereto shall bear all costs and expenses
incurred by such party in connection with the negotiation, preparation and/or
review of this Agreement and the OP Agreement and any other agreement or
instrument contemplated hereby and thereby, including the fees and expenses of
their respective auditors and attorneys. The Operating Partnership shall bear
all closing costs, including all filing and recordation fees, title insurance
premiums and charges, costs of legal opinions (other than those of the
Contributors' counsel), transfer taxes, all Xxxx-Xxxxx costs whether incurred by
the Contributors or the Operating Partnership, costs incurred in connection with
obtaining the consent of any third parties, document production, duplication
costs and other similar costs and expenses incurred by them in connection with
the Closing and shall
Page 4 of 12
5
pay and reimburse the Contributors for all reasonable closing costs, including
all filing and recordation fees, document production, duplication costs and
other similar costs directly incurred by them (other than attorneys' fees,
except for attorneys' fees in the event that it is determined that the
Contributors shall be required to make a filing under Xxxx-Xxxxx with respect to
the transactions contemplated by this Agreement) in connection with the Closing.
ARTICLE V
CLOSING
Section 5.1. Closing. The closing of the transactions
contemplated hereby (the "Closing") shall occur as of 12:01 a.m. (MST) on June
1, 1998, or such later date as the Operating Partnership shall specify (the
"Closing Date"), at the offices of Xxxxxxxx Xxxx & Xxxxx LLP, 0000 Xxx Xxxxxx,
000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, or at such other location as the
Operating Partnership shall specify. The Operating Partnership agrees that any
such notice of a change in the Closing Date or in the proposed location of the
Closing shall be effective only if given in writing and delivered to
Contributors not less that the second business day prior to (a) the date on
which the Closing was to have occurred, in the case of a change in the proposed
Closing Date, and (b) the Closing Date, in the case of a change in the proposed
location of the Closing.
Section 5.2. Conditions to all Obligations. The
obligations of the Contributors and the Operating Partnership to consummate the
transactions contemplated hereby are subject to fulfillment or waiver (by means
of a written instrument signed by each of the Operating Partnership and the
Contributors) of all of the following conditions on or prior to the Closing
Date:
(a) all consents and waivers of third parties requisite to
the consummation of the Closing and the effectiveness of the OP Agreement
(including waivers of requirements, puts, options, rights of first refusal and
other similar rights, if any), shall have been obtained by the Operating
Partnership.
Section 5.3. Conditions to Obligations of the Operating
Partnership. The obligations of the Operating Partnership to consummate the
transactions contemplated hereby is subject to fulfillment or waiver (by means
of a written instrument signed by the Operating Partnership) of all of the
following conditions on or prior to the Closing Date:
(a) the Contributors shall have executed and delivered to
the Operating Partnership one fully completed Assignment with respect to all of
the Contributed Interests;
(b) the REIT shall have received an original OP Agreement
executed and delivered by each other party thereto;
Page 5 of 12
6
(c) The Operating Partnership shall have received a
certificate, dated the Closing Date, to the effect that all of the
representations and warranties of the Contributors set forth in Section 3.1 are
true and correct as of the Closing Date as if made again on and (except to the
extent any such representation and warranty expressly specifies otherwise) as of
such date.
Section 5.4. Conditions to Obligations of the
Contributors. The obligations of Contributors to consummate the transactions
contemplated hereby are subject to fulfillment or waiver (by means of a written
instrument signed by the Contributors) of all of the following conditions on or
prior to the Closing Date:
(a) the Contributors shall have received an original,
fully completed Assignment with respect to each of the Contributed Interests
executed by each party thereto other than the Contributors;
(b) the Contributors shall have received an original OP
Agreement executed and delivered by each party thereto other than the
Contributors;
(c) the Contributors shall have received a certificate,
dated the Closing Date, of an authorized officer of the REIT to the effect that
(i) all of the conditions set forth in Sections 5.2 and 5.3 have been satisfied
or waived as provided therein, and (ii) all of the representations and
warranties of the Operating Partnership set forth in Section 3.2 are true and
correct as of the Closing Date as if made again on and (except to the extent any
such representation and warranty expressly specifies otherwise) as of such date.
Upon delivery thereof, such certificate shall constitute the representation and
warranty with respect to the matters stated therein of the Operating Partnership
to the Contributors for the purposes of this Agreement;
ARTICLE VI
MISCELLANEOUS
Section 6.1. Time of the Essence. Time of performance is
of the essence of this Agreement.
Section 6.2. Successors and Assigns. This Agreement shall
be binding on the parties hereto and their respective heirs, executors,
administrators, successors and assigns. The Operating Partnership may not assign
this Agreement without the prior written consent of the Contributors.
Section 6.3. Governing Law. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
Arizona.
Section 6.4. Notices. All notices, demands or requests
made pursuant to, under or by virtue of this Agreement must be in writing and
mailed to the party to which the notice, demand or request is being made by
certified or registered mail, return receipt requested, postage prepaid, as
follows:
Page 6 of 12
7
To the Contributors:
Xxxxx X. Xxxxx
c/o InnSuites Hotels LLC
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Xxxxxx X. Xxxxxx
c/o Robson Communities
0000 Xxxx Xxxxx Xxxx
Xxx Xxxxx, XX 00000
To the Operating Partnership:
c/o Realty ReFund Trust
0000 Xxxxxxxxxx Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Executive Vice President
With a copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxxx Xxxx & Xxxxx LLP
0000 Xxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Any notice given in accordance with the provisions of this Section 6.4 shall be
deemed given when actually delivered or when proper delivery is refused by the
addressee.
Section 6.5. Exculpation. No partner (other than any party
hereto and the REIT in its capacity as general partner of the Operating
Partnership), shareholder, officer, director, agent or employee of a party
hereto, shall have any individual or personal liability hereunder.
Section 6.6. Entire Agreement; Modification or Amendment.
This Agreement together with the exhibits hereto and all agreements referred to
herein and therein, contains the entire understanding of the parties with
respect to its subject matter, and the parties hereto may amend this Agreement
only by a writing signed by each party against whom such amendment may be
enforced.
Section 6.7. Captions. The Article and Section captions
herein are for convenience of reference only, do not constitute part of this
Agreement and shall not be deemed to limit or otherwise affect any of the
provisions hereof.
Page 7 of 12
8
Section 6.8. Counterparts. This Agreement may be executed
in one or more counterparts, all of which shall be considered one and the same
Agreement, and shall become effective when one or more counterparts have been
signed by each of the parties hereto and delivered to each of the other parties.
Section 6.9. Survival. This Agreement will survive the
Closing.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered on the day and year first above written.
/s/ Xxxxx X. Xxxxx
----------------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx
RRF LIMITED PARTNERSHIP
By: Realty ReFund Trust, its general partner
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Xxxxxxx X. Xxxxx, Executive Vice President
Page 8 of 12
9
Schedule I
Legal Description of the Hotel
[Intentionally Omitted]
Page 9 of 12
10
Schedule II
-----------
Retained Liabilities
Page 10 of 12
11
Schedule III
Calculation of Units
1. The purchase price (the "Purchase Price") of the Hotel shall be Seven
Million One Hundred Thousand Dollars ($7,100,000), based upon the
Appraisal of the Hotel prepared by Xxxxxxx X. Xxxxxxxxx, dated May 1,
1998 (the "Appraisal").
2. The Purchase Price shall be payable as follows:
a. After assumption of the Cathay Bank mortgage and the
Hotel's payables (net of receivables), and closing costs by
the Operating Partnership, the balance of the Purchase Price
shall be paid by the issuance to Xxxxx of Class B
Partnership Units in the Operating Partnership (or at the
Trust's option, of up to $825,000 of shares of the Trust)
and Class A Partnership Units to Xxxxxx (or at Xxxxxx'x
option, shares of the Trust) computed (in the case of either
shares or Units) on the basis of such balance divided by the
greater of $4.75 or the then current trading price of a
share of beneficial interest of Realty ReFund Trust on NYSE
(the "Conversion Factor"). In addition, the Operating
Partnership shall issue to InnSuites Hotels LLC such number
of Class B Partnership Units (or, at the Trust's option
shares) as shall equate the total balance of advances made
to the Buena LLC by InnSuites Hotels LLC (collectively, the
"InnSuites Advance") multiplied by the Conversion Factor.
Xxxxx and Xxxxxx shall each cause 3,600 Partnership Units to
be received by each to be distributed 5,400 to Xxxx Xxxx as
Class A Partnership Xxxxx, 000 to Xxxxx Xxxx and 900 to J.R.
Chase, which , in the case of Messrs. Fell and Chase, at the
option of the Operating Partnership may be paid in cash, in
an amount equal to the value of such 900 Units based upon
the average high and low trading price of a share of the
Trust on NYSE on June 1, 1998.
Page 11 of 12
12
Exhibit A
Form of Assignment and Assumption of Membership Interest
[Intentionally Omitted]
Page 12 of 12
