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EXHIBIT 10.15
PRIVILEGED AND CONFIDENTIAL
AGREEMENT
by and among
RAINTREE CAPITAL COMPANY LLC.
CLUB XXXXXX RESORTS, INC.,
and
STARWOOD CAPITAL GROUP, L.L.C.
Dated as of May 20, 1997
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND CONSTRUCTION................................................ 2
Section 1.1 Captions.............................................. 2
Section 1.2 Number and Gender..................................... 2
Section 1.3 Terms................................................. 2
Section 1.4 Other Definitional Provisions......................... 2
Section 1.5 Definitions........................................... 3
ARTICLE II
PURCHASE OF STOCK AND LLC INTERESTS......................................... 6
Section 2.1 Purchase and Sale of the Purchased Company Stock...... 6
Section 2.2 Closing, Delivery and Payment......................... 6
Section 2.3 Agreements Concerning Ancillary Matters............... 6
Section 2.4 Termination........................................... 7
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF RAINTREE AND THE COMPANY.................. 7
Section 3.1 Organization and Good Standing........................ 7
Section 3.2 Authorization and Validity............................ 8
Section 3.3 Organization and Good Standing of the
Relevant Company Subsidiaries......................... 8
Section 3.4 Capitalization of the Company......................... 8
Section 3.5 Capitalization of the Relevant Company Subsidiaries... 8
Section 3.6 Consents and Approvals................................ 8
Section 3.7 Non-Contravention..................................... 9
Section 3.8 Absence of Undisclosed Liabilities of the Company
and the Relevant Company Subsidiaries................. 9
Section 3.9 Litigation and Claims................................. 9
Section 3.10 Compliance with Laws.................................. 9
Section 3.11 Contracts............................................. 10
Section 3.12 Finder's Fees and Advisors' Fees...................... 10
Section 3.13 Bancomer Agreement.................................... 10
Section 3.14 Confirmation.......................................... 10
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER..................................... 10
Section 4.1 Organization and Good Standing of Buyer............... 10
Section 4.2 Buyer's Authorization and Validity.................... 10
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Section 4.3 Consents and Approvals................................ 11
Section 4.4 Non-Contravention of Buyer............................ 11
Section 4.5 Finder's Fees......................................... 11
ARTICLE V
COVENANTS................................................................... 11
Section 5.1 Access................................................ 11
Section 5.2 Taking of Necessary Action............................ 12
Section 5.3 Transactional Services................................ 12
Section 5.4 Notice of Certain Changes............................. 13
Section 5.5 Press Releases........................................ 13
Section 5.6 Bancomer Agreement.................................... 13
Section 5.7 Co-Buyer.............................................. 14
Section 5.8 Restructuring......................................... 14
Section 6.1 Conditions to the Obligations of Buyer
and the Company....................................... 14
Section 6.2 Conditions to the Obligations of Buyer................ 15
Section 6.3 Conditions to the Obligations of the Company.......... 15
ARTICLE VII
SURVIVAL; INDEMNIFICATION................................................... 16
Section 7.1 Survival.............................................. 16
Section 7.2 Indemnification by Raintree and the Company........... 16
Section 7.3 Indemnification by Buyer.............................. 16
Section 7.4 Notice, Participation and Duration.................... 16
ARTICLE VIII
TERMINATION................................................................. 17
Section 8.1 Termination........................................... 17
Section 8.2 Buyer Termination Option.............................. 18
Section 8.3 Effect of Termination................................. 18
ARTICLE IX
REMEDIES.................................................................... 18
Section 9.1 Equitable Remedy...................................... 18
Section 9.2 Damages............................................... 18
ARTICLE X
MISCELLANEOUS............................................................... 19
Section 10.1 Due Diligence......................................... 19
Section 10.2 Notices .............................................. 19
Section 10.3 Amendment; Waiver..................................... 20
Section 10.4 Assignment............................................ 20
Section 10.5 Binding Effect........................................ 20
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Section 10.6 Entire Agreement...................................... 20
Section 10.7 Parties in Interest................................... 20
Section 10.8 Public Disclosure..................................... 20
Section 10.9 Counterparts.......................................... 20
Section 10.10 Submission to Jurisdiction; Selection of Forum........ 21
Section 10.11 Headings.............................................. 21
Section 10.12 Severability.......................................... 21
Section 10.13 Third Parties......................................... 21
Section 10.14 Incorporation of Exhibits, Schedules and Annexes...... 21
Section 10.15 Waivers............................................... 22
Exhibit A Form of Bancomer Agreement
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AGREEMENT, (this "Agreement") dated as of May 12, 1997, among RAINTREE
CAPITAL COMPANY, LLC, a Texas limited company ("Raintree"), CLUB XXXXXX RESORTS,
INC., a Nevada corporation (the "Company"), and STARWOOD CAPITAL GROUP, L.L.C.,
a Connecticut limited liability Company ("Buyer").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Amended and Restated Stock Purchase
Agreement (the "Bancomer Agreement"), to be dated on or about the date hereof,
among Bancomer S.A, Institucion de Banca Multiple, Grupo Financiero, a Mexican
corporation ("Bancomer"), Desarollos Turisticos Bancomer, S.A. de C.V., a
Mexican corporation ("DTB"), the Company and CR Hotel Acquisition Company, LLC,
a Delaware limited liability company ("CR Hotel"), the Company will agree to
purchase all of the issued and outstanding Capital Stock of DTB;
WHEREAS, DTB owns all of the issued and outstanding common stock of
each of Desarollos Turisticos Integrales Cabo San Xxxxx, X.X. de C.V., Promotora
Turistica Nizuc, S.A. de C.V. and Promotora y Desarrolladora Xxxxxxxx, X.X. de
C.V., each, a Mexican corporation.
WHEREAS, the parties hereto intend that the (i) Timeshare Business and
the Other Business (collectively the "Timeshare/Other Business"); and (ii) the
Hotel Business are intended to be owned by separate entities;
WHEREAS, Buyer and Raintree (including affiliates of Raintree) are
willing to loan $750,000 and $3,000,000 respectively, to a newly formed Mexican
finance subsidiary ("MFS") for the purpose of loaning such proceeds to the newly
formed indirect Mexican subsidiary of the Company to be used to facilitate the
acquisition of the Timeshare/Other Business.
WHEREAS, Buyer will receive warrants to acquire 20% of the equity of
the Company as of the Closing Date for $150,000 (representing Buyer's share of
expenses as provided herein) and the other considerations described herein.
WHEREAS, as of the date hereof, SLT Realty Limited Partnership
("Lodging"), has entered into an agreement with Raintree and the Company to
purchase a limited liability company interest in CR Hotel in accordance with the
terms thereof (the "Lodging Agreement");
WHEREAS, Buyer initially agreed to acquire a controlling interest in
the Hotel Business and a minority interest in the Timeshare/Other Business in
accordance with that certain Agreement among Raintree, the Company and Buyer
dated May 9, 1997 (the "Prior Agreement");
WHEREAS, Buyer and the Company agreed that it is in the best interests
of Buyer and the Company for an affiliate of Buyer, Lodging, to acquire a
controlling interest in the Hotel Business and for Buyer to acquire an interest
in the Company as provided herein.
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WHEREAS, to effectuate the foregoing, the parties have agreed to
terminate the Prior Agreement.
WHEREAS, the parties believe that the business of Buyer will facilitate
the Company's acquisition of the Capital Stock of DTB and the creation of
long-term value for the Company in the ownership and growth of the
Timeshare/Other Business;
WHEREAS, the parties expect that there will be significant
opportunities to do business together in the future;
WHEREAS, the Company intends to adopt appropriate, public company, long
term incentive programs providing for stock options, stock grants or similar
stock incentive plans (the "Stock Option Plan") for key management employees
(not investors) consistent with acceptable business practices;
WHEREAS, the Company may raise future financing, privately or publicly,
to develop into a world-class vacation interval company;
NOW THEREFORE, in consideration of the above and the mutual covenants
and agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by the parties
hereto, Raintree, the Company and Buyer hereby agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.1 Captions. Titles and captions of articles and sections set
forth in this Agreement are inserted only as a matter of convenience and for
reference, and in no way define, limit, extend or describe the scope of this
Agreement or the meaning, of any provision set forth herein.
Section 1.2 Number and Gender. Whenever required by the context, the
singular number shall include the plural and vice versa and the gender of any
pronoun shall include the other gender.
Section 1.3 Terms. Terms may be defined in the text of this Agreement
and, unless otherwise indicated, shall have such meaning throughout this
Agreement.
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Section 1.4 Other Definitional Provisions.
(a) The words "hereof," "herein", and "hereunder" and words of
similar import, when used in this Agreement, shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
(b) The terms "dollars" and "$" means United States dollars.
Section 1.5 Definitions.
"Ancillary Agreements" is defined in the Bancomer Agreement.
"Bancomer" is defined in the Recitals.
"Bancomer Agreement" is defined in the Recitals.
"Bancomer Escrow Agreement" means the "Escrow Agreement" as
defined in the Bancomer Agreement.
"Bancomer Transactions" means the transactions contemplated by
the Bancomer Agreement.
"Business Days" is defined in the Bancomer Agreement.
"Buyer" is defined in the Recitals.
"Buyer Indemnitees" is defined in Section 0.
"Capital Stock" means with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
voting, or non-voting) of such Persons capital stock or equity interests whether
now outstanding or issued after the date hereof, including but not limited to
all common stock and preferred stock.
"Claim" is defined in Section 0.
"Closing" is defined in Section 2.2.
"Closing Date" is defined in Section 2.2.
"Commitments" is defined in the Bancomer Agreement.
"Company" is defined in the Recitals.
"Company Common Stock" means the common stock of the Company.
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"Company Indemnities" is defined in Section 0.
"CR Hotel" is defined in the Recitals.
"Damages" is defined in the Bancomer Agreement.
"Default" by any party ("Defaulting Party") shall include the
failure to consummate the Closing on or before the Termination Date if the
failure to consummate the Closing on or before such date resulted from the
willful and knowing failure by the Defaulting Party to fulfill any undertaking
or commitment provided for herein that is required to be fulfilled by such
Defaulting Party at or prior to Closing.
"DTB" is defined in the Recitals.
"Enforceable" means an agreement or contract is "Enforceable",
if it constitutes the legal, valid and binding obligation of the applicable
Person enforceable against such Person in accordance with its terms, subject to
bankruptcy, reorganization, insolvency and similar Laws of general application
relating to or affecting the rights of creditors, and subject to general
principles of equity.
"Governmental Body" is defined in the Bancomer Agreement.
"Hotel Business" means (i) the "Hotel Business" as defined in
the Bancomer Agreement and (ii) one-half of the Capital Stock of Corporacion
Habitacional Mexicana, S.A.
"Indemnitee" is defined in Section 0.
"Indemnitor" is defined in Section 0.
"IPO" means an initial public offering of a company's common
stock pursuant to the rules and regulations of the Securities Act of 1933, as
amended.
"Laws", mean, all laws (common or statutory), statutes,
ordinances, rules, regulations and decrees applicable to the referenced matter.
"Liabilities" is defined in the Bancomer Agreement.
"Lien" is defined in the Bancomer Agreement.
"Material Adverse Effect" means, with respect to any Person, a
material adverse effect on or with respect to the business, assets, financial
condition or results of operations of such Person and its Subsidiaries taken as
a whole.
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"Mezzanine Note" has the meaning assigned to "US $50 million
Mezzanine Note" in the Bancomer Agreement.
"MFS" is defined in the Recitals.
"Person" is defined in the Bancomer Agreement.
"Prior Agreement" is defined in the Recitals.
"Proceedings" is defined in the Bancomer Agreement.
"Purchased Company Stock" is defined in the Recitals.
"Raintree" is defined in the Recitals.
"Relevant Company Subsidiaries" means the Timeshare Holding
Company and the Timeshare Subsidiaries.
"Requisite Regulatory Approvals" means all permits, approvals,
filings, consent and waivers required to be obtained or made, and all waiting
periods required to expire, before the consummation of the Transactions, as
applicable, under all Laws of any jurisdiction, domestic or foreign, having
jurisdiction over the Transactions.
"Starwood" means collectively Buyer and Lodging.
"Stock Option Plan" is defined in the Recitals.
"Subsidiary" is defined in the Bancomer Agreement.
"Termination Date" is defined in Section 1.1 of the Bancomer
Agreement.
"Timeshare Assets" is defined in Section 1.1 of the Bancomer
Agreement.
"Timeshare Business" is defined in the Bancomer Agreement.
"Timeshare Holding Company" means the Mexican corporation to
be organized to hold the Capital Stock of DTB.
"Timeshare Loan" is defined in Section 2.1.
"Timeshare Note" has the meaning assigned to "US $45 million
Timeshare Senior Mortgage Note" in the Bancomer Agreement.
"Timeshare/Other Business" means all of the assets, business
and operations of DTB other than the Hotel Business.
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"Timeshare Subsidiaries" means the indirect subsidiaries of
the Company to be formed in accordance with Article XV of the Bancomer Agreement
in connection with the Timeshare Business.
"Transactions" means the transactions contemplated by this
Agreement.
"Transfer Taxes" is defined in the Bancomer Agreement.
ARTICLE II
INVESTMENT
Section 2.1 Purchase and Sale of the Purchased Company Stock. On the
terms and subject to the conditions set forth herein, at the Closing, the Buyer
shall pay by wire transfer of immediately available funds to Bancomer the sum of
$750,000. Raintree and affiliates shall cause the $3,000,000 subject to the
Bancomer Escrow Agreement to be applied to the purchase price thereunder in
accordance with the terms thereof. In consideration of the foregoing and the
other obligations of the parties hereto, the $3,750,000 applied as set forth in
this Section 2.1 shall be recognized as a loan (the "Timeshare Loans") to a
newly formed Mexican corporation to be owned by Buyer and Raintree (and
affiliates) ("Raintree Sub"), which, in turn, will loan such monies to a direct
or indirect Mexican subsidiary of the Company to be applied to the purchase of
the Timeshare/Other Business under the Bancomer Agreement. The Timeshare Loan
shall bear interest at 16.5% per annum. In the event that interest is not paid
in cash on a quarterly basis, then any unpaid and accrued interest shall bear
interest at 12% per annum. Any interest not paid at the time the Company may
conduct its IPO shall be paid in shares of the Company's Common Stock priced at
85% of the IPO price per share. It is contemplated that interest on the
Timeshare Loans will not be paid in cash so long as the acquisition loans of the
Timeshare/Other Business from Bancomer exceed $45 million. In addition to the
foregoing and in consideration of the expenses borne by Buyer pursuant to
Section 5.3 and other matters contained herein, Buyer shall receive warrants to
purchase Company Common Stock equal to 20% of the equity of the Company as of
the Closing Date for no additional consideration. The warrants shall be
exercised at the option of the holder on or before the date the Company may
conduct an IPO and shall contain appropriate antidilution provisions. In the
event of an IPO, each holder of the Timeshare Loans will have the right to
convert the principal balance of the applicable Timeshare Loan into the
Company's Common Stock priced at 85% of the IPO price per share. In the event of
an IPO, each holder of the Timeshare Loans will have the right to convert the
principal balance of the applicable Timeshare Loan into the Company's Common
Stock priced at 85% of the IPO price per share.
Section 2.2 Closing, Delivery and Payment.
(a) The Transactions shall be consummated (the "Closing") at
the offices of Bancomer S A., Institucion de Banca Multiple, Grupo Financiero,
Av. Universidad 1200, Col.
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Xoco, 00000 Xxxxxx, D.F., concurrently with the closing of the Bancomer
Transactions, or at such other place and time as the parties may mutually agree.
The date on which such Closing occurs is referred to as the "Closing Date". The
parties shall conduct a pre-closing at the offices of Akin, Gump, Strauss, Xxxxx
& Xxxx, L.L.P., 1900 Pennzoil Place - South Tower, 711 Louisiana, Xxxxxxx, Xxxxx
00000 on the date that is five (5) Business Days prior to the Closing Date, or
at such other time and place as the parties may mutually agree.
(b) The transactions contemplated by Article XV of the
Bancomer Agreement will be undertaken at Closing or promptly thereafter as
provided in the Bancomer Agreement.
Section 2.3 Agreements Concerning Ancillary Matters. In connection
with the Transactions, the parties hereto agree to the following.
(i) If Raintree or Buyer desires to sell (the "Selling
Party") its interest in the Capital Stock of the Company (or any
portion thereof), then such party shall first give notice to the other
party (a "Sale Notice") which shall constitute a request for an offer
to purchase the interest of the Selling Party by the other party. The
other party shall have a period of thirty (30) days thereafter to make
a written offer (the "First Offer") to the Selling Party to purchase
such interest at the all-cash price set forth in the First Offer to the
Selling Party. Such First Offer shall be accepted or refused by the
Selling Party within ten (10) days after its receipt thereof. If the
Selling Party does not accept the First Offer from the other party
within such ten (10) day period, then the Selling Party may, within the
ensuing 180 day period, sell its interest to a third party but only at
a price which is higher than the First Offer. Failure by the other
party to respond to a Sale Notice within the period provided herein
shall constitute a waiver of all rights of the other party under this
Section 2.3(i) but only with respect to the particular Sale Notice to
which such failure relates. If the Selling Party does not accept the
First Offer, does not consummate a sale at a higher price within the
180 day period after the date of delivery of the Sale Notice and wishes
to sell in more than 180 days after the date of delivery of the Sale
Notice, then the Selling Party shall be required to comply with the
foregoing procedures set forth in this Section 2.3(i). The provisions
of this Section 2.3(i) shall not be applicable to transfers to
affiliates or changes in control of such affiliates.
(ii) the Company shall be managed by a Board of Directors
consisting of three Raintree representatives, a representative of
Starwood, Xxxx XxXxxxxx and two other persons to be selected by
Raintree. Starwood shall have the continuing right to collectively
nominate one member of the Board of Directors.
(iii) Xxxx XxXxxxxx shall be the Chief Executive Officer
of the Company and shall have primary responsibility for operations in
Mexico and such other areas approved by the Board of Directors of the
Company and (ii) Xxxx XxXxxxxx shall be the President and Chief
Operating Officer of the Company.
(iv) the Company agrees to consult with Buyer as to the
appointment of
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such other executive officers for the Company consistent with its
growth and business strategy as an upscale timeshare developer and
public company and in issues of compensation and other material
decisions.
(v) Buyer will have the right to approve prior to the
IPO any financing of the Company (debt or equity) with any person which
is not a bona-fide unaffiliated third party as to Raintree and its
principals.
Section 2.4 Termination. The Prior Agreement is hereby terminated and
is null and void and of no further force or effect and no party hereto shall
have any obligation thereunder whatsoever.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF RAINTREE AND THE COMPANY
Raintree and the Company hereby represent and warrant to Buyer as of
the date hereof and as of the Closing Date (except that representations and
warranties that are made as of a specific date need be true only as of such
date) as follows:
Section 3.1 Organization and Good Standing. The Company is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has engaged in no business other than the
entering into of the Bancomer Agreement, this Agreement and performance
thereunder. Raintree is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization.
Section 3.2 Authorization and Validity. Raintree and the Company have
all requisite power and authority to enter into this Agreement and, subject to
obtaining all Requisite Regulatory Approvals referenced in Section 0, to carry
out its obligations hereunder. Each of the execution, delivery and performance
by the Company and Raintree of this Agreement has been duly authorized by all
requisite action. This Agreement is Enforceable against the Company and
Raintree.
Section 3.3 Organization and Good Standing of the Relevant Company
Subsidiaries. Each Relevant Company Subsidiary will be duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and by the Closing Date will have all requisite corporate power and
authority to own, lease and operate all properties and assets then owned, leased
or operated by it and to carry on its business as then conducted. As of the
Closing Date, each Relevant Company Subsidiary will be duly qualified to conduct
business in all jurisdictions in which the nature of the business transacted by
it requires qualification.
Section 3.4 Capitalization of the Company. As of the Closing Date, the
authorized Capital Stock of the Company will be duly authorized, and when
issued, validly issued, fully paid and non-assessable. Xxxxxxx X. Xxxx is the
record owner of all of the Capital Stock of the
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Company as of the date hereof. Buyer will be delivered shares of Company Common
Stock equal to 20% of the outstanding Capital Stock of the Company on a fully
diluted basis. There are no Commitments or preemptive rights with respect to the
Capital Stock of the Company which would effect the Company's ability to perform
in accordance with the provisions of this Agreement. Buyer acknowledges that the
Company may adopt a Stock Option Plan which will dilute Buyer and the other
Common Stock holders pro-rata.
Section 3.5 Capitalization of the Relevant Company Subsidiaries. All of
the Capital Stock of each Relevant Company Subsidiary will, on the Closing Date,
be duly authorized, validly issued, fully paid and non-assessable. As of the
Closing Date, the Company shall own all of the issued and outstanding Capital
Stock of each Relevant Company Subsidiary free and clear of all Liens and
encumbrances other than as contemplated by the Bancomer Agreement. There will be
no Commitments or preemptive rights with respect to the Capital Stock of the
Relevant Company Subsidiaries except as required generally with respect to such
Capital Stock under Mexican law.
Section 3.6 Consents and Approvals. Except as required by the Bancomer
Agreement, as of the Closing Date, no Requisite Regulatory Approval applicable
to the Transactions which has not been obtained is required to be obtained by
the Company, Raintree or any of the Relevant Company Subsidiaries from, and no
notice or filing will be required to be given by the Company, Raintree or the
Relevant Company Subsidiaries to or made by the Company, Raintree or the
Relevant Company Subsidiaries with, any Governmental Body or other Person in
connection with the execution, delivery and performance by the Company of this
Agreement.
Section 3.7 Non-Contravention. As of the Closing Date, the execution,
delivery and performance by the Company and by Raintree of this Agreement and
the consummation of the Transactions by the Company will not (i) violate any
provision of the Certificate of Incorporation, Bylaws (or other similar
documents) or other organizational documents of the Company, Raintree or any
Relevant Company Subsidiary, (ii) subject, as to performance, to obtaining the
consents referred to in Section 0, (A) result in the breach of, or constitute a
default under, or result in the termination, cancellation or acceleration
(whether after the giving of notice or the lapse of time or both) of any right
or obligation or the Company, Raintree or any Relevant Company Subsidiary under,
or to a loss of any benefit to which the Company, Raintree or any Relevant
Company Subsidiary is entitled under, any contract or other instrument to which
the Company, or any Relevant Company Subsidiary is a party or (B) except as
contemplated by the Bancomer Agreement, result in the creation of any Lien upon
any of the Capital Stock of the Company, Raintree or any Relevant Company
Subsidiary, or (iii) to the knowledge of the Company and/or Raintree, violate or
result in a breach of or constitute a default under any order or Law applicable
to the Company, Raintree or any Relevant Company Subsidiary, including any
Governmental Body approval.
Section 3.8 Absence of Undisclosed Liabilities of the Company and the
Relevant Company Subsidiaries. Except as contemplated by this Agreement or the
Bancomer Agreement,
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the Company and each Relevant Company Subsidiary is not subject to any
Liabilities.
Section 3.9 Litigation and Claims. There is no pending Proceeding that
has been commenced by or against the Company, Raintree or any Relevant Company
Subsidiary that would be expected to materially and adversely affect the
Company, Raintree, the Transactions or impair the ability of the Company to
perform under the Bancomer Agreement.
Section 3.10 Compliance with Laws. From their inception, the businesses
of the Company and each Relevant Company Subsidiary will have been conducted in
compliance with all applicable Laws (including, but not limited to, those
relating to licenses and permits for the ownership, occupancy and operation of
its properties). The Company has or will have by the Closing Date all
Governmental Body approvals necessary for the conducting of its businesses as
currently (and as planned to be) conducted and, by the Closing Date, each
Relevant Company Subsidiary will have all Governmental Body approvals necessary
for the conducting of its business as then conducted. There are no proceedings
pending or, to the knowledge of the Company and/or Raintree, threatened which
may result in the revocation, cancellation or suspension of any such
Governmental Body approval. As of the date hereof, no investigation or review by
any Governmental Body (including, but not limited to, any audit or similar
review by any Federal, state or local taxing authority) with respect to the
Company or any of its respective properties is, to the knowledge of the Company,
pending or threatened.
Section 3.11 Contracts. This Agreement, the Bancomer Agreement, and the
agreements contemplated thereby are the only contracts to which the Company and
each Relevant Company Subsidiary is or, to the Company's knowledge, will be a
party or to which any of their businesses, or properties is or, to the Company's
knowledge, will be subject.
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Section 3.12 Finder's Fees and Advisors' Fees. Neither Raintree nor the
Company has dealt with any broker or finder in connection with the Transactions,
and no broker or other person is entitled to any commission or finder's fee in
connection with any of these transactions contemplated hereby or by the Bancomer
Agreement other than Jefferies & Company, Inc. Raintree and the Company agree to
indemnify and hold harmless Buyer against any Liability incurred because of any
brokerage commission or finder's fee alleged to be payable because of any act,
omission or statement of the indemnifying party. The Company is solely
responsible for any obligations to Jefferies & Company, Inc.
Section 3.13 Bancomer Agreement. Nothing has come to the attention of
Raintree or the Company after due inquiry which would cause either Raintree or
the Company to believe that any of the representations and warranties of
Bancomer set forth in the Bancomer Agreement are not true and correct.
Section 3.14 Confirmation. Raintree and Buyer confirm that each of the
representations and warranties of the Company under the Bancomer Agreement are
true and correct.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Raintree and the Company as of the
date hereof and as of the Closing Date (except that the representations and
warranties that are made as of a specific date need be true only as of such
date) as follows:
Section 4.1 Organization and Good Standing of Buyer. Buyer is a limited
liability company duly organized, validly existing and in good standing under
the law of the jurisdiction of its incorporation.
Section 4.2 Buyer's Authorization and Validity. Buyer has all requisite
power and authority to enter into this Agreement and subject to obtaining all
Requisite Regulatory Approvals referenced in Section 0 to carry out its
obligations hereunder and thereunder. Each of the execution, delivery and
performance by Buyer of this Agreement has been duly authorized by all requisite
action. This Agreement is Enforceable against Buyer.
Section 4.3 Consents and Approvals. Except as may be required under the
laws of Mexico or any subdivision or agency thereof, no Requisite Regulatory
Approval applicable to the Transactions which has not been obtained is required
to be obtained by Buyer from, and no notice or filing is required to be given by
Buyer to or made by Buyer with, any Governmental Body or other Person in
connection with the execution, delivery and performance by Buyer of this
Agreement.
Section 4.4 Non-Contravention of Buyer. The execution, delivery and
performance by Buyer of this Agreement, and the consummation of the
Transactions, do not and will not (i) violate any provision of the Certificate
of Formation, Operating Agreement (or other similar
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documents) or other organizational documents of Buyer, (ii) subject, as to
performance, to obtaining the consents referred to in Section 0, (A) result in
the breach of, or constitute a default under, or result in the termination,
cancellation or acceleration (whether after the giving of notice or the lapse of
time or both) of any right or obligation of Buyer under, or to a loss of any
benefit to which Buyer is entitled under, any contract or other instrument to
which Buyer is a party or (B) except as contemplated by this Agreement or the
Bancomer Agreement, result in the creation of any Lien upon the Purchased Common
Stock (iii) to the knowledge of Buyer, violate or result in a breach of or
constitute a default under any order or Law applicable to Buyer, including any
Governmental Approval.
Section 4.5 Finder's Fees. Buyer represents and warrants that it has
dealt with no broker or finder in connection with any of the Transactions, no
broker or other person is entitled to any commission or finder's fee in
connection with any of the Transactions except as set forth in Section 0. Buyer
agrees to indemnify and hold harmless Raintree, CR Hotel and the Company
against any Liability incurred because of any brokerage commission or finder's
fee alleged to he payable because of any act, omission or statement of Buyer.
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ARTICLE V
COVENANTS
Section 5.1 Access.
(a) Prior to the Closing, Raintree and the Company shall
permit Buyer and its representatives to have access, during regular business
hours and upon reasonable advance notice, to all information, wherever located,
obtained by Raintree or the Company from Bancomer under the Bancomer Agreement
or from any advisors or other source with respect to the Transactions under the
control or direction of Raintree and/or the Company.
(b) In the event of the termination of this Agreement, Buyer
shall promptly deliver to the Company, all original documents, work papers and
other material obtained by Buyer or on its behalf from Raintree and the Company,
or any of their respective agents, employees or representatives as a result
hereof or in connection herewith whether so obtained before or after the
execution hereof. Buyer shall at all times prior to the Closing Date, and in the
event of termination of this Agreement, cause any information so obtained to be
kept confidential and will not use, or permit the use of, such documents, work
papers and other materials in its business or any other manner or for any other
purpose except as contemplated hereby. The foregoing shall not preclude Buyer
from (i) disclosing any information obtained from Raintree or the Company to
Buyer's consultants, accountants, legal advisors or other similar
representatives, (ii) using or disclosing such information which currently is
known generally to the public or which subsequently has come into the public
domain, other than because of disclosure in violation of this Agreement, (iii)
using or disclosing of such information that becomes available to Buyer on a
non-confidential basis from a source other than Raintree, the Company or
Raintree's or the Company's agents provided that such source does not have an
obligation prohibiting the disclosure of such information, (iv) disclosure to
Buyer's officers, directors and/or affiliates or (v) disclosing such information
required by Law or court order, provided, that, as soon as Buyer has knowledge
of the requirement for such disclosure, Buyer will promptly give the Company
oral and then written notice of the nature of the Law or order requiring
disclosure and the disclosure to be made in accordance therewith.
Section 5.2 Taking of Necessary Action. Subject to this Agreement and
Law, Buyer, Raintree and the Company shall use their best efforts promptly to
take or cause to be taken all action and promptly to do or cause to be done all
things necessary, proper or advisable under applicable Laws and regulations to
consummate and make effective the Transactions. Without limiting the foregoing,
each of Buyer and the Company shall, and the Company shall cause each of its
Subsidiaries to, use their best efforts to obtain and make all consents,
approvals, assurances or filings of or with third parties and Governmental
Bodies necessary for the consummation of the Transactions. Each of the parties
shall cooperate with the others in good faith to help the other satisfy its
obligations under this Section 0. If at any time after the Closing Date any
further action is necessary or desirable to carry out the purpose of this
Agreement, the proper officers or directors of each party to this Agreement
shall take that necessary action.
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Section 5.3 Transactional Services.
(a) At the Closing, (i) Starwood and (ii) the Company shall
each pay by wire transfer 50% of all third party fees and expenses incurred by
Starwood and the Company in connection with the transactions contemplated hereby
and by the Bancomer Agreement and the Lodging Agreement other than the fees and
expenses of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P. and Greenberg, Traurig,
Hoffman, Lipoff, Xxxxx & Quentel; provided, Starwood's share of fees and
expenses incurred by the Company shall not exceed $500,000; and provided,
further, that 30% of the Starwood obligation pursuant to this Section 5.3 shall
be paid by Buyer pursuant hereto (not to exceed $150,000) and 70% of the
Starwood obligation shall be paid by Lodging pursuant to Section 5.3(a) of the
Lodging Agreement (not to exceed $350,000). Nothing in this Agreement,
including, without limitation, in this Section 0(a), shall limit the right of
Buyer, Lodging or the Company to engage any counsel, accountant or other advisor
at its own expense subject to the obligation to make payments for services
rendered in accordance with the provisions of this Section 0(a) in the case of
Buyer and Section 5.3(a) of the Lodging Agreement in the case of Lodging.
(b) The services and work product of Xxxxxxxxxxx y Steta,
counsel to the Company in Mexico for the Bancomer Transactions shall also be for
Starwood's benefit. Starwood (or Buyer and Lodging separately as they may
determine) may engage their own Mexican local counsel, the expense for which
shall be allocated as contemplated by Section 5.3(a) of this Agreement in the
case of Buyer and Section 5.3(a) of the Lodging Agreement in the case of
Lodging. It is understood that Ernst & Young has been engaged to conduct a
USGAAP audit of the historical financial statements of DTB as well as a review
of interim financial statements on a USGAAP basis, and to provide tax and
related advisory services. It is contemplated that Ernst & Young will provide
Buyer with a complete briefing of its tax and financing analysis of the Bancomer
Transactions. The Company and Buyer will consult as to the engagement of other
tax advisors, accountants, consultants or attorneys for the Bancomer
Transactions to supplement the work done to date. All other consultants
previously engaged by the Company and the work product thereof will be made
available to Buyer.
Section 5.4 Notice of Certain Changes. Each party hereto shall give
prompt written notice to the other parties hereto of the occurrence or
non-occurrence, of any event which would be likely to cause any representation
or warranty herein to be untrue or inaccurate, or any covenant, condition or
agreement herein not be complied with or satisfied.
Section 5.5 Press Releases. The Company and Buyer shall consult with
each other as to the timing, form and substance of any press release or public
disclosure of matters related to this Agreement or any of the transactions
contemplated by this Agreement; provided, however; that nothing in this Section
0 shall be deemed to prohibit any party to this Agreement from making any
disclosure that if required to fulfill that parry's disclosure obligations
imposed by Law or stock exchange requirements.
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Section 5.6 Bancomer Agreement. Buyer and the Company shall each have
the right to approve any modifications to the Bancomer Agreement and any
decisions or actions taken with respect thereto prior to the Closing Date which
approvals shall not be unreasonably withheld, delayed or conditioned, including,
without limitation, the approval of the Ancillary Agreements and the
continuation of beneficial interests of Bancomer pursuant to Section 2.4(d) of
the Bancomer Agreement. Buyer and the Company shall seek the agreement of
Bancomer to (i) pay for the title insurance contemplated by the Bancomer
Agreement and (ii) apply the "Defects" deduction contemplated by the Bancomer
Agreement as an offset against cash due Bancomer at the closing under the
Bancomer Agreement. In the event of a default by Bancomer under the Bancomer
Agreement, Buyer and the Company shall agree upon any and all actions to be
taken in connection therewith. In the event that damages are obtained against
Bancomer pursuant to Section 10.2(f) of the Bancomer Agreement, such damages
shall be shared equally between Starwood and the Company after payment of all
reasonable legal fees and expenses of Starwood and the Company in connection
therewith.
Section 5.7 Co-Buyer. Starwood and the Company shall consult with
Mexican counsel promptly following the date hereof to determine if any Requisite
Regulatory Approvals would be required to provide Starwood with the rights under
Section 6.6 of the Bancomer Agreement as a "Co-Buyer" as defined therein. In the
event that Mexican counsel advises that no Requisite Regulatory Approvals are
required in connection therewith, the Company shall notify Bancomer that
Starwood is a "Co-Buyer" under Section 6.6 of the Bancomer Agreement. In the
event that any Requisite Regulatory Approvals would be so required to provide
such rights to Starwood, Starwood agrees that it will not require that the
Company request that Starwood be made a "Co- Buyer" under the Bancomer Agreement
if allocation for such Requisite Regulatory Approvals would delay the closing
under the Bancomer Agreement.
Section 5.8 Restructuring. The parties agree to continue to analyze
the transaction structure and to restructure same as the parties may under such
circumstances agree, provided that none of the parties will suffer any economic
or other detriment in connection with such restructuring.
ARTICLE VI
CONDITIONS TO CLOSING
Section 6.1 Conditions to the Obligations of Buyer and the Company.
The obligations of the parties hereto to effect the Closing are subject to the
satisfaction (or waiver prior to the Closing) of the following conditions:
(a) (i) No order and no other legal restraint or prohibition
that would prevent, enjoin or have the effect of preventing the consummation of
the transactions contemplated by this Agreement or the Bancomer Agreement shall
be in effect; provided, however, that no party may invoke this condition unless
such party shall have complied fully with its obligations under Section 0 and,
in addition shall have used all commercially reasonable efforts to have any such
order vacated; and
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(ii) There shall not be commenced or threatened in writing,
or be continuing, any Proceeding which would prevent, enjoin or have the effect
of preventing the consummation of the transactions contemplated by this
Agreement and/or the Bancomer Agreement.
(iii) The Bancomer Agreement shall have been executed and
delivered by the parties thereto in substantially the form attached hereto as
Exhibit A hereto or, at Buyer's option, a closing shall have occurred under the
existing agreements of the Company and CR Hotel with respect to the acquisition
contemplated by the Bancomer Agreement.
(b) All Requisite Regulatory Approvals required under this
Agreement shall have been made or obtained and shall be in full force and affect
and shall not have expired or been rescinded.
(c) All conditions precedent to the obligations of the Company
to closing of the Bancomer Transactions shall have been satisfied or waived by
the Company and Buyer.
(d) Raintree and such other shareholders of the Company as may
be required to effectuate the provisions thereof shall ensure the issue and
delivery to Buyer of a loan agreement reflecting the provisions of Section 2.1
and Buyer shall have received warrants in a form contemplated by Section 2.1 and
Buyer and Raintree (and affiliates) shall have entered into a shareholders
agreement with respect to matters related to the ownership of the Company Common
Stock which shall contain such terms and conditions as Buyer and such
shareholders shall agree consistent with the terms hereof.
(e) The Company and the Buyer shall have approved the
Ancillary Agreements.
(f) The closing under the Lodging Agreement shall occur
concurrently herewith.
Section 6.2 Conditions to the Obligations of Buyer. The obligation of
Buyer to effect the Closing is subject to the satisfaction (or waiver by the
Buyer) prior to the Closing of the following conditions:
(a) The representations and warranties of the Company
contained herein shall have been true and correct in all material respects when
made and shall be true and correct in all material respects as of the Closing,
as if made as of the Closing (except that representations and warranties that
are made as of a specific date need be true in all material respects only as of
such date).
(b) The Company shall have delivered to Buyer the certificates
representing the warrants described in Section 2.1.
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(c) The covenants and agreements of the Company to be
performed on or prior to the Closing shall have been performed in all material
respects.
(d) Title insurance with respect to the real property and
improvements used in connection with the Timeshare Business shall have been
delivered in accordance with the provisions of the Bancomer Agreement.
Section 6.3 Conditions to the Obligations of the Company. The
obligation of the Company to effect the Closing is subject to the satisfaction
(or waiver prior to the Closing) of the following conditions:
(a) The representations and warranties of Buyer contained
herein shall have been true and correct in all material respects when made and
shall be true and correct in all material respects as of the Closing, as if made
as of the Closing (except that representations and warranties that are made as
of a specific date need be true in all material respects only as of such date).
(b) The covenants and agreements of Buyer to be performed on
or prior to the Closing shall have been duly performed in all material respects.
ARTICLE VII
SURVIVAL; INDEMNIFICATION
Section 7.1 Survival. The representations and warranties of the
Company and Buyer contained in this Agreement and any document, instrument or
certificate delivered in connection with the Transactions shall survive the
Closing.
Section 7.2 Indemnification by Raintree and the Company. Raintree and
the Company agree to indemnify and hold harmless Buyer and its officers,
directors, shareholders, Affiliates, employees and agents (the "Buyer
Indemnitees") from any and all Damages, directly or indirectly resulting from,
relating to, arising out of or attributable to: (a) any breach of or inaccuracy
in any representation or warranty of the Company and/or Raintree contained in
this Agreement, and (b) subject to Section 9.2, any breach or nonperformance,
partial or total, by the Company and/or Raintree of any covenant or agreement of
the Company and/or Raintree contained in this Agreement.
Section 7.3 Indemnification by Buyer. Buyer agrees to indemnify and
hold harmless the Company and Raintree and their officers, directors,
shareholders, Affiliates, employees and agents (the "Company Indemnities") from
any and all Damages, directly or indirectly resulting from, arising out of or
attributable to: (a) any breach of or inaccuracy in any representation or
warranty of Buyer contained in this Agreement, and (b) subject to Section 9.2,
any breach or non-performance, partial or total, by Buyer of any covenant or
agreement of Buyer contained in this Agreement.
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Section 7.4 Notice, Participation and Duration. If a claim by a third
party is made against a party indemnified pursuant to this Article VII
("Indemnitee"), and if such Indemnitee intends to seek indemnity with respect
thereto under this Article VII, the Indemnitee shall promptly, and in any event
within 10 days of the assertion of any claim or the discovery of any fact upon
which Indemnitee intends to base a claim for indemnification under this
Agreement (a "Claim"), notify the party or parties from whom indemnification is
sought (the "Indemnitor") of such Claim. Upon any Claim, Indemnitor, at its
option, may assume (with legal counsel reasonably acceptable to the Indemnitee)
the defense of any Proceeding in connection with the Indemnitee's Claim, and may
assert any defense of Indemnitee or Indemnitor, provided that Indemnitee shall
have the right at its own expense to participate jointly with Indemnitor in the
defense of any Proceeding in connection with the Indemnitee's Claim and
provided, further, if Indemnitee has interests in such matters which are or
which may be adverse to Indemnitor, then, in such event, Indemnitor shall pay
all reasonable costs of Indemnitee's counsel. If Indemnitor elects to undertake
the defense of any Claim hereunder, Indemnitee shall cooperate with Indemnitor
to the extent reasonably requested in regard to all matters relating to the
Claim (including, without limitation, corrective actions required by applicable
Law, assertion of defenses and the determination, negotiation and settlement of
all Damages) so as to permit Indemnitor's management of the same with regard to
the amount of Damages payable to indemnitor hereunder. Indemnitor shall not
settle any indemnifiable Claim without the prior written consent of Indemnitee
unless such settlement involves only the payment of money by indemnitor and the
claimant provides to Indemnitee a release, in form and substance reasonably
satisfactory to Indemnitee, from all Liability in respect of such Claim.
ARTICLE VIII
TERMINATION
Section 8.1 Termination. This Agreement may be terminated at any time
prior to the Closing.
(a) by written agreement of the Company and Buyer;
(b) by the Company after the occurrence and during the
continuation of a Default by Buyer under this Agreement and/or by Lodging under
the Lodging Agreement, provided that no Default or event which, with notice
and/or the lapse of time, would constitute a Default by the Company (other than
a Default caused by Buyer's Default) shall have occurred and be continuing;
(c) by Buyer after the occurrence and during the continuation
of a Default by the Company under this Agreement and/or by the Company under the
Lodging Agreement, provided that no Default, or event which, with notice and/or
the lapse of time, would constitute a Default, by Buyer (other than a Default
caused by the Company's Default) shall have occurred and be continuing.
(d) by Buyer, if the conditions precedent to Buyer's
obligation to close hereunder have not been satisfied prior to the Termination
Date.
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(e) by the Company, if the conditions precedent to the
Company's obligation to close hereunder have not been satisfied by the
Termination Date (other than conditions precedent related to default by Bancomer
under the Bancomer Agreement which shall be subject to the provisions of Section
8.2).
Termination of this Agreement pursuant to this Section 0 shall be effected by
written notice by the party terminating this Agreement to the other party of the
termination and the basis for such termination.
Section 8.2 Buyer Termination Option. Buyer shall have the right to
terminate this Agreement if Bancomer shall default under the Bancomer Agreement,
provided, however, that so long as Buyer has not exercised its right to
terminate this Agreement pursuant to this Section 0 in the event of a default by
Bancomer under the Bancomer Agreement, Buyer and the Company shall diligently
seek to enforce the rights of the Company and CR Hotel under the Bancomer
Agreement in a prudent manner.
Section 8.3 Effect of Termination. In the event of the termination of
this Agreement in accordance with Section 0 or Section 0, this Agreement shall
thereafter become void and have no effect, and no party hereto shall have any
Liability to the other party hereto or their respective Affiliates, directors,
officers or employees, except for the obligations of the parties hereto
contained in Sections 0(b) and 0 and Articles VII, IX and X, and except that
nothing herein will relieve any party from liability for any breach of this
Agreement prior to such termination.
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ARTICLE IX
REMEDIES
Section 9.1 Equitable Remedy. The Company acknowledges that Buyer will
be irreparably damaged (and Damages at law would be an inadequate remedy) if
this Agreement is not specifically enforced. Therefore, in the event of a breach
of threatened breach by the Company and/or Raintree of any provision of this
Agreement, then Buyer shall be entitled, in addition to all other rights or
remedies provided for hereunder, to an injunction restraining such breach
without being required to show any actual Damage or to post an injunction bond,
and/or to obtain a decree for specific performance of the provisions of this
Agreement.
Section 9.2 Damages.
(a) In no event shall any consequential, incidental,
expectation or punitive damages or action for specific performance be permitted
to the Company and/or Raintree hereunder; it being agreed that the Company's
remedy for default by Buyer shall be to bring an action for recovery of its
out-of-pocket costs.
(b) The Company hereby acknowledges that Buyer may suffer
Damages as a result of a Default hereunder. Accordingly if for any reason the
Company and/or Raintree defaults under this Agreement, Buyer, at its sole
election may pursue against the Company and Raintree an action for specific
performance of this Agreement. In no event shall any consequential, incidental,
expectation or punitive damages be permitted to Buyer hereunder, it being agreed
that Buyer's remedy for default by the Company and/or Raintree shall be to bring
an action for specific performance and recovery of its out-of-pocket costs.
ARTICLE X
MISCELLANEOUS
Section 10.1 Due Diligence. Buyer shall perform a due diligence review
of the Timeshare/Other Business and Raintree and the Company shall fully
cooperate with Buyer in connection therewith; provided, however, that such due
diligence review shall be only for Buyer's informational purposes except
notwithstanding any other provisions of this Agreement, Buyer may upon written
notice to the Company and Raintree on or prior to 5:00p.m. on May 20, 1997
terminate this Agreement based upon its due diligence review (the determination
of which shall be in the sole and absolute discretion of Buyer), in which event,
no parties hereto shall have any further obligation hereunder except as
expressly provided herein. No investigation by any party to this Agreement into
the business, operations and condition of any other party shall diminish in any
way the effect of any representations or warranties made by such other party in
this Agreement or shall relieve such other party of any of its obligations under
this Agreement. The parties agree that any item disclosed on any schedule to
this Agreement shall be deemed to be disclosed for all purposes of this
Agreement, notwithstanding the fact that such item was not disclosed on any
other schedule to this Agreement.
Section 10.2 Notices. All notices, requests, consents and other
communications required or permitted under this Agreement shall be in writing
(including electronic transmission) and shall be (as elected by the person
giving such notice) hand delivered by messenger or courier
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service, electronically transmitted, or mailed (airmail if international) by
registered or certified mail (postage prepaid), return receipt requested,
addressed to:
To Buyer: With a copy (which shall not constitute notice) to:
Starwood Capital Group, L.L.C. Xxxxxxxxx Xxxxxxx
0 Xxxxxxxx Xxxxx 000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 Attn: Xxxxxx X. Ivanhoe, Esq.
Telefax: (000) 000-0000 (000) 000-0000
Telefax: (000) 000-0000
To Raintree or the Company: With a copy (which shall not constitute notice) to:
Raintree Capital Company LLC. Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
Pennzoil Place - South Tower Pennzoil Place - South Tower
Suite 2310, 000 Xxxxxxxxx Xxxxx 0000
Xxxxxxx, Xxxxx 00000 Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxx Attn: Xxxxx X. Xxxxxxxx, Esq.
(000) 000-0000 (000) 000-0000
Telefax: (000) 000-0000 Telefax: (000) 000-0000
or to such address as any party may designate by notice complying with the terms
of this Section. Each such notice shall be deemed delivered (a) on the date
delivered if by personal delivery; (b) on the date of transmission with
confirmed answer back if by electronic transmission; and (c) on the date upon
which the return receipt is signed or delivery is refused or the notice is
designated by the postal authorities as not deliverable, as the case may be, if
mailed.
Section 10.3 Amendment; Waiver. The provisions of this Agreement may
not be amended, supplemented, waived or changed orally, but only by a writing
signed by the party as to whom enforcement of any such amendment, supplement,
waiver or modification is sought and making specific reference to this
Agreement;
Section 10.4 Assignment. Except as provided in this Section 0, no party
shall assign his or its rights and/or obligations under this Agreement without
the prior written consent of each other party to this Agreement. Buyer shall
have the right to assign its rights hereunder to one or more affiliates thereof
provided that such affiliate or affiliates, as the case may be, has the ability
to perform all obligations hereunder, including, without limitation, to make the
cash payment to Bancomer required in accordance with the provisions hereof
(including, without limitation, SLT Realty Limited Partnership or SLC Operating
Limited Partnership or their respective affiliates).
Section 10.5 Binding Effect. All of the terms and provisions of this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by
the parties and their respective legal representatives, successors and permitted
assigns, whether so expressed or not.
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Section 10.6 Entire Agreement. This Agreement represents the entire
understanding and agreement between the parties with respect to the subject
matter hereof, and supersedes all other negotiations, understandings and
representations (if any) made by and between such parties.
Section 10.7 Parties in Interest. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, express or implied,
is intended to confer upon any Person other than Buyer, Raintree, the Company or
their successors or permitted assigns, any rights or remedies under or because
of this Agreement.
Section 10.8 Public Disclosure. Notwithstanding anything herein to the
contrary, each of the parties to this Agreement hereby agrees with the other
party hereto that, except as may be required to comply with the requirements of
any applicable Laws, and the rules and regulations of each stock exchange upon
which the securities of one of the parties is listed, no press release or
similar public announcement or communication shall, if prior to the Closing, be
made or caused to be made concerning the execution or performance of this
Agreement unless the parties shall have consulted in advance with respect
thereto.
Section 10.9 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument. Confirmation of
execution by electronic transmission of a facsimile signature page shall be
binding upon any party so confirming.
Section 10.10 Submission to Jurisdiction; Selection of Forum. This
Agreement and all transactions contemplated by this Agreement shall be governed
by, and construed and enforced in accordance with, the laws of Delaware. Each
party hereto agrees that it shall bring any action or proceeding in respect of
any claim arising out of or related to this Agreement or the transactions
contained in or contemplated by this Agreement, whether in tort or contract or
at law or in equity, exclusively in Delaware (the "Chosen Courts") and solely in
connection with claims arising under this Agreement or the transactions
contained in or contemplated by this agreement (i) irrevocably submits to the
exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying
venue in any such action or proceeding in the Chosen Courts, (iii) waives any
objection that the Chosen Courts are an inconvenient forum or do not have
jurisdiction over any party hereto and (iv) agrees that service or process upon
such party in any such action or proceeding shall be effective if notice is
given in accordance with Section 0 of this Agreement.
Section 10.11 Headings. The headings contained in this Agreement are
for convenience of reference only, are not to be considered a part of the
Agreement and shall not limit or otherwise affect in any way the meaning or
interpretation of this Agreement.
Section 10.12 Severability. If any provision of this Agreement or any
other agreement entered into pursuant hereto is contrary to, prohibited by or
deemed invalid under applicable law or regulation, such provision shall, be
inapplicable and deemed omitted to the extent so contrary, prohibited or
invalid, but the remainder hereof shall not be invalidated thereby and shall be
given full force and effect so far as possible. If any provision of this
Agreement may be construed in
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two or more ways, one of which would render the provision invalid or otherwise
voidable or unenforceable and another of which would render the provision valid
and enforceable, such provision shall have the meaning which renders it valid
and enforceable.
Section 10.13 Third Parties. Unless expressly stated herein to the
contrary (including, without limitation, Sections 0 and 0), nothing in this
Agreement, whereto express or implied, is intended to confer any rights or
remedies under or by reason of this Agreement on any persons other than the
parties hereto and their respective legal representatives, successors and
permitted assigns. Nothing in this Agreement is intended to relieve or discharge
the Liability of any third persons to any party to this Agreement, nor shall any
provision give any third persons any right of subrogation or action over or
against any party to this Agreement.
Section 10.14 Incorporation of Exhibits, Schedules and Annexes. All
exhibits, schedules and annexes referred to in this Agreement and attached
hereto are hereby made a part of this Agreement by this reference.
Section 10.15 Waivers. The failure or delay of any party at any time tn
require performance by another party of any provision of this Agreement, even if
known, shall not affect the right of such party to require performance of that
provision or to exercise any right, power or remedy hereunder. Any waiver by any
party of any breach of any provision of this Agreement should not be construed
as a waiver of any continuing or succeeding breach of such provision, a waiver
of the provision itself, or a waiver of any right, power or remedy under this
Agreement. No notice to or demand on any party in any circumstances shall, of
itself, entitle such party to any other or further notice or demand in similar
or other circumstances.
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IN WITNESS WHEREOF, the parties have executed or caused this Agreement
to be executed as of the date first written above.
RAINTREE CAPITAL COMPANY LLC,
a Texas limited liability company
By:
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Managing Director
CLUB XXXXXX RESORTS, INC.,
a Nevada corporation
By:
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
STARWOOD CAPITAL GROUP, L.L.C.,
a Connecticut limited liability company
By:
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
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