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EXHIBIT 2.7
AGREEMENT FOR ASSIGNMENT
OF RIGHTS
UNDER
PURCHASE AGREEMENT
(ATLANTA C.I. ASSOCIATES II, L.P.)
AGREEMENT, made as of the 21st day of July, 1997 (the "Agreement"), by
and between ClubHouse Hotels, Inc., a Kansas corporation (the "Target Company")
and Wyndham Hotel Corporation, a Delaware corporation ("New Purchaser").
RECITALS
A. As of July 1, 1997, the Target Company and each of Xxxxxxx X.
Xxxxxx, an individual residing Leawood, Kansas, and CPI Realty Partners, a
Kansas general partnership (each a "Seller", and together, the "Sellers"), both
of whom are limited partners of Atlanta C.I. Associates II, L.P., a Kansas
limited partnership (the "Limited Partnership"), entered into a separate
Purchase Agreement (each a "Purchase Agreement" and together, the "Purchase
Agreements") for the purchase by the Target Company of the 49% partnership
interest owned by Sellers in the aggregate (the "Interest") in the Limited
Partnership for a total consideration of $1,430,000 (the "Gross Purchase
Price").
B. As of the date hereof, the Target Company, New Purchaser and
WHC Acquisition Corporation, a Delaware corporation ("MergerSub"), entered into
an Agreement and Plan of Merger (the "Merger Agreement") pursuant to which
MergerSub will merge with and into the Target Company, with the Target Company
being the surviving corporation in the merger and pursuant to which New
Purchaser will become the sole shareholder of the Target Company (the
"Merger").
C. The Target Company desires to sell and assign to New
Purchaser, and New Purchaser desires to purchase, all of the Target Company's
right, title and interest in, to and under the Purchase Agreements.`
D. The Purchase Agreements permit the assignment by the Target
Company of its rights and obligations under the Purchase Agreements to New
Purchaser.
E. The Purchase Agreements, as assigned to New Purchaser pursuant
to this Agreement, constitute "Purchase and Sale Agreements" referred to in the
Merger Agreement.
NOW, THEREFORE, in consideration of the Recitals and of the mutual
covenants, conditions and agreements set forth herein and for other good and
valuable consideration, the receipt and efficiency of which are hereby
acknowledged, it is hereby agreed that:
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ARTICLE I
ASSIGNMENT AND ASSUMPTION
1.1 Assignment. Subject to the terms and conditions of this
Agreement, the Target Company hereby agrees to sell, assign, transfer and
convey to New Purchaser all of the Target Company's right, title and interest
in, to and under the Purchase Agreements and all of its rights thereunder.
1.2 Assumption. Subject to the terms and conditions of this
Agreement, New Purchaser hereby agrees to assume the Target Company's
obligations under the Purchase Agreements and to pay and perform such
obligations in accordance with the terms and conditions of the Purchase
Agreements.
ARTICLE II
CLOSING
2.1 Closing. Subject to the terms and conditions of this
Agreement, the closing of the transactions contemplated hereby (the "Closing")
shall take place at the offices of Xxxxx Xxxxxxx Rain Xxxxxxx (a Professional
Corporation), 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, on the Closing
Date (as defined in the Merger Agreement) and prior to the Effective Time (as
defined in the Merger Agreement).
ARTICLE III
CONDITIONS
3.1 Conditions Precedent to the Obligations of New Purchaser. The
obligation of New Purchaser to effect the purchase of the Target Company's
right, title and interest in, to and under the Purchase Agreements shall be
subject to the satisfaction before or at the Closing of each of the conditions
precedent set forth below:
(a) Each of the conditions precedent to the obligations
of New Purchaser and MergerSub to effect the Merger under Sections 6.1 and 6.2
(other than Section 6.2(r)) of the Merger Agreement shall have been satisfied
(or waived in writing by New Purchaser and MergerSub).
(b) The Purchase Agreements shall be in full force and
effect and shall not have been terminated, no notice of termination or intent
to terminate the Purchase Agreements shall have been given by the Target
Company or the Seller, and there shall not have been any breach or default (or
any event or occurrence which with the passage of the time or the giving of
notice or both would become a breach or default) by the Target Company or the
Seller under the Purchase Agreements.
3.2 Conditions Precedent to the Obligations of the Target Company.
The obligation of the Target Company to effect the sale and assignment of the
Target Company's right, title and
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interest in, to and under the Purchase Agreements shall be subject to the
satisfaction before or at the Closing of each of the conditions precedent set
forth below:
(a) Each of the conditions precedent to the obligations
of the Target Company to effect the Merger under Sections 6.1 and 6.3 of the
Merger Agreement shall have been satisfied (or waived in writing by the Target
Company and the Principal Stockholders (as defined in the Merger Agreement)).
(b) The Purchase Agreements shall be in full force and
effect and shall not have been terminated, (other than as a result of any
breach, default or other action of the Target Company) no notice of termination
or intent to terminate the Purchase Agreements shall have been given by the
Seller, and there shall not have been any breach or default (or any event or
occurrence which with the passage of the time or the giving of notice or both
would become a breach or default) by the Seller under the Purchase Agreements.
ARTICLE IV
TERMINATION
4.1 Termination. Time is of the essence of this Agreement. This
Agreement may be terminated and the transactions contemplated hereby may be
abandoned as follows: (a) at any time prior to the Closing Date by mutual
written agreement of the New Purchaser and the Target Company; (b) by the New
Purchaser on the Closing Date if any of the conditions set forth in Section 3.1
of this Agreement shall not have been fulfilled by the Closing Date; (c) by the
Target Company on the Closing Date if any of the conditions set forth in
Section 3.2 of this Agreement shall not have been fulfilled by the Closing
Date; or (d) by the Target Company on the one hand, or the New Purchaser on the
other hand, at any time on or after July 31, 1997, provided that the right to
terminate under this Section 4.1(d) shall not be available to any party whose
failure to fulfill any obligation under this Agreement has been the cause of,
or has resulted in, the failure of the Closing to occur on or before such date.
4.2 Rights on Termination; Waiver.
(a) Any termination of this Agreement pursuant to Section
4.1 shall be without prejudice to the terminating party's rights and remedies
under this Agreement by reason of any violation of this Agreement occurring
prior to such termination. In the event of a termination pursuant to Section
4.1, except as provided in Section 8.2(b) or Section 8.2(c) of the Merger
Agreement, each party shall bear its own costs and expenses incurred with
respect to the transactions contemplated hereby.
(b) If any of the conditions set forth in Section 3.1 of
this Agreement have not been satisfied, New Purchaser may nevertheless elect to
waive such conditions and proceed with the consummation of the transactions
contemplated hereby. If any of the conditions set forth in Section 3.2 of this
Agreement have not been satisfied, the Target Company may nevertheless elect to
waive such conditions and proceed with the consummation of the transactions
contemplated hereby. Any waiver contemplated by this Section 4.2(b) shall be
without prejudice
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to the waiving party's rights and remedies under this Agreement by reason of
any misrepresentation, breach or violation of this Agreement by any other
party.
ARTICLE V
MISCELLANEOUS
5.1 Entire Agreement; Amendment. Except as otherwise provided in
the Merger Agreement, this Agreement and the documents referred to herein and
to be delivered pursuant hereto constitute the entire agreement between the
parties pertaining to the subject matter hereof, and supersede all prior and
contemporaneous agreements, understandings, negotiations and discussions of the
parties, whether oral or written, and there are no warranties, representations
or other agreements between the parties in connection with the subject matter
hereof, except as specifically set forth herein or therein. No amendment,
supplement, modification, waiver or termination of this Agreement shall be
binding unless executed in writing by the party to be bound thereby. No waiver
of any of the provisions of this Agreement shall be deemed or shall constitute
a waiver of any other provision of this Agreement, whether or not similar, nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
5.2 Expenses. Except as otherwise specifically provided herein,
each of the parties hereto shall pay the fees and expenses of their respective
counsel, accountants and other experts incident to the negotiation and
preparation of this Agreement and consummation of the transactions contemplated
hereby.
5.3 Governing Law. This Agreement shall be construed and
interpreted according to the laws of the State of Delaware, without regard to
the conflicts of law provisions of such state.
5.4 Assignment. This Agreement and any party's rights hereunder
may not be assigned, by operation of law or otherwise, without the prior
written consent of the other party; provided, however, that New Purchaser may
assign this Agreement, and any of its rights and obligations hereunder, to any
direct or indirect wholly owned subsidiary of New Purchaser without the consent
of the Target Company.
5.5 Notices. All communications, notices and disclosures required
or permitted by this Agreement shall be in writing and shall be deemed to have
been given at the earlier of the date when actually delivered to the person
indicated below or when sent by telecopier (if confirmed), by United States
mail, certified or registered mail, postage prepaid, return receipt requested,
or by a nationally recognized overnight mail service, addressed as follows,
unless and until either of such parties notifies the other in accordance with
this Section of a change of address:
If to the Target
Company: ClubHouse Hotels, Inc.
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000-0000
Telecopy No. (000) 000-0000
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With a copy to: Xxxxx Xxxxxxx, Esq.
Hunton & Xxxxxxxx
Riverfront Plaza
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Telecopy No. (000) 000-0000
If to the New Purchaser: Wyndham Hotel Corporation
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Legal Department
Telecopy No. (000) 000-0000
With a copy to: M. Xxxxxxx Xxxxxxxx, Esq.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy No. (000) 000-0000
5.6 Counterparts; Headings. This Agreement may be executed in
several counterparts, each of which shall be deemed an original, but such
counterparts shall together constitute but one and the same Agreement. The
Article and Section headings in this Agreement are inserted for convenience of
reference only and shall not constitute a part hereof.
5.7 Interpretation. Unless the context requires otherwise, all
words used in this Agreement in the singular number shall extend to and include
the plural, all words in the plural number shall extend to and include the
singular and all words in any gender shall extend to and include all genders.
5.8 Severability. If any provision, clause or part of this
Agreement, or the application thereof under certain circumstances, is held
invalid, the remainder of this Agreement, or the application of such provision,
clause or part under other circumstances, shall not be affected thereby.
5.9 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or equity.
5.10 Arbitration. If any disputes between the Target Company, on
the one hand, and the New Purchaser, on the other hand, are not resolved by the
parties within 60 days, either the New Purchaser or the Target Company may
submit the dispute to final and binding arbitration administered by the
American Arbitration Association (the "AAA"), with the site of such arbitration
being Dallas, Texas or such other site as the parties mutually agree upon.
The New Purchaser and the Target Company each shall select one
arbitrator from a list of arbitrators maintained by the AAA, and the two
arbitrators so selected shall select a third
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arbitrator. If possible, all such arbitrators shall be experienced in
arbitrating matters relating to, and shall be familiar with, the hotel
business. Should either the New Purchaser or the Target Company fail to select
an arbitrator within ten days after arbitration is sought by the other party,
or if the two arbitrators shall fail to select a third arbitrator within 15
days after arbitration is sought, the AAA shall select the arbitrator.
The arbitrators selected pursuant to this Section will establish the
rules for proceeding with the arbitration of the dispute and such rules will be
binding upon all parties to the arbitration proceeding. The arbitrators may
use the rules of the American Arbitration Association for commercial
arbitration but are encouraged to adopt such rules as the arbitrators deem
appropriate to accomplish the arbitration in the quickest and least expensive
manner possible. Accordingly, the arbitrators may (i) dispense with any formal
rules of evidence and allow hearsay testimony so as to limit the number of
witnesses required, (ii) minimize discovery procedures as the arbitrator deems
appropriate, (iii) act upon their understanding or interpretation of the law on
any issue without the obligation to research such issue or accept or act upon
briefs of the issue prepared by any party, (iv) limit the time for presentation
of any party's position as well as the amount of information or number of
witnesses to be presented in connection with any hearing, and (v) impose any
other rules which the arbitrators believe appropriate to effect a resolution of
the dispute as quickly and inexpensively as possible. The arbitrators shall
use their best efforts to render a decision within sixty (60) days following
their appointment. The majority decision of three arbitrators shall be final.
The arbitrators will have the exclusive authority to determine and award costs
of arbitration and the costs incurred by any party for their attorneys,
advisors and consultants. Any award made by the arbitrator shall be binding on
all parties to the arbitration and shall be enforceable to the fullest extent
of the law.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
CLUBHOUSE HOTELS, INC.
By: /s/ XXXXXX X. SAMPLES
---------------------------------
Name: XXXXXX X. SAMPLES
---------------------------------
Title: President
---------------------------------
WYNDHAM HOTEL CORPORATION
By: /s/ XXXX X. XXXXXXX
---------------------------------
Name: XXXX X. XXXXXXX
---------------------------------
Title: Executive Vice President
---------------------------------
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PURCHASE AGREEMENT
ATLANTA C.I. ASSOCIATES II, L.P.
(PARTNERSHIP INTEREST)
THIS AGREEMENT, made as of the 1st day of July, 1997 (the
"Agreement"), by and between ClubHouse Hotels, Inc., a Kansas corporation (the
"Purchaser"), and CPI Realty Partners, a Kansas general partnership and a
limited partner of Atlanta C.I. Associates II, L.P., a Kansas limited
partnership (the "Limited Partnership") (the "Seller").
R E C I T A T I O N S:
A. The Limited Partnership is the owner of the ClubHouse Inn
hotel in Atlanta, Georgia (the "Hotel Property").
B. Seller desires to sell to the Purchaser, and the Purchaser
desires to purchase from Seller all of Seller's right, title and interest in
Seller's partnership interest in the Limited Partnership on the terms and
conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and in consideration
of the mutual covenants, promises and undertakings of the parties hereinafter
set forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, it is agreed as
follows:
1. PURCHASE OF THE INTEREST: For and in consideration of
Purchaser's agreement to pay to Seller $1,416,000 (the "Gross Purchase Price"),
Seller agrees to sell, assign, transfer and convey to Purchaser all of Seller's
right, title and interest in Seller's 48.5 percent partnership interest (the
"Interest") in the Limited Partnership.
2. CLOSING: The closing ("Closing") shall occur, if at all, on
the closing date (the "Closing Date"), which shall be no later than July 31,
1997, unless said date has been extended by written agreement executed by the
Purchaser and the Seller. If the Closing has not occurred by the date provided
in the foregoing sentence, this Agreement shall automatically terminate and be
of no further force or effect. At the Closing, the Seller shall deliver to
Purchaser an assignment of the Interest, substantially in the form attached
hereto as Exhibit "A", fully executed and acknowledged (the "Assignment") and
any certificate(s) or other documentation representing the Interest duly
endorsed for transfer to the Purchaser. Notwithstanding anything to the
contrary in the Agreement of the Limited Partnership dated August 21, 1995 (the
"Partnership Agreement"), the Assignment shall be effective on the Closing
Date. The Closing will occur at the offices of the Purchaser, or such other
place as the Purchaser and the Seller may mutually agree. At the Closing, (a)
the Purchaser will deliver the Net Purchase Price to the Seller in immediately
available funds, and (b) the Seller will deliver to the Purchaser the
Assignment and such other documentation as may be necessary to evidence its
ownership of the Interest to which the Purchaser is entitled hereunder, and the
Seller will comply with any reasonable requests by the Purchaser to further or
better evidence the Purchaser's acquisition and ownership of the
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Interest. Upon closing, the Purchaser shall become a substituted limited
partner of the Limited Partnership with respect to the Interest.
3. SELLER'S REPRESENTATIONS AND WARRANTIES: To induce the
Purchaser to enter into this Agreement and perform its obligations hereunder,
the Seller makes the following representations and warranties to the Purchaser;
and acknowledges and agrees that the Purchaser and its permitted assigns are
entitled to rely and have relied upon each:
3.1 Organization and Power: The Seller is a partnership
duly organized and validly existing as a partnership under the laws of
Kansas, and has full power and authority to enter into and perform the
obligations under this Agreement.
3.2 Authority and Binding Effect: The execution and
delivery of this agreement and the performance by the Seller of its
obligations hereunder have been duly authorized by all necessary
partnership action. This Agreement constitutes the legal, valid and
binding agreement of the Seller, enforceable against the Seller in
accordance with its terms.
3.3 No Encumbrances; Right to Sell: (a) The Seller is
the sole owner of the Interest, (b) the Seller has good title to the
Interest, (c) the Seller owns the Interest free and clear of any
liens, claims, encumbrances, pledges and security interests whatsoever
other than as created pursuant to the Partnership Agreement, (d) the
Seller has not granted any other person or entity an option to
purchase or a right of first refusal upon the Interest, or any voting
rights with respect to the Interest, (e) except for any consents
required by the Partnership Agreement, no consent of any third party
is required in order for the Seller to perform its obligations
hereunder, and (f) the Seller has not entered into and will not enter
into any other agreement with respect to the sale, transfer,
assignment or conveyance of the Interest or grant any party, other
than the Purchaser, any interest in the Interest.
3.4 No Violation: The execution and delivery of the
Agreement by the Seller and the performance by the Seller of its
obligations hereunder do not and will not (a) contravene, or
constitute a default under, any (i) corporate organizational documents
of the Seller, (ii) applicable law or regulation, (iii) agreement,
note, mortgage, indenture, lease, franchise, license or other
instrument to which the Seller is a party or by which it or the
Interest is bound, or (iv) judgment, injunction, order, decree or
other instrument binding upon the Seller or its assets, including the
Interest, or (b) result in the creation of any lien or other
encumbrance on the Interest, or upon the Seller or its assets.
3.5 No Litigation: To the Seller's knowledge, there is
no action, suit or proceeding, pending or threatened in writing,
against or affecting the Seller or the Interest in any court or before
any arbitrator or before any governmental body or agency which
challenges the validity or enforceability of this Agreement.
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3.6 No Broker: The Seller warrants and represents to the
Purchaser that the Seller has not retained any real estate broker,
business broker, finder or other person entitled to a commission or
other compensation in connection with the purchase and sale of the
Interest hereunder.
4. PURCHASER'S REPRESENTATIONS AND WARRANTIES: To induce the
Seller to enter into this Agreement and to sell or transfer the Interest to the
Purchaser, the Purchaser hereby makes the following representations and
warranties and acknowledges and agrees that the Seller is entitled to rely and
has relied upon each:
4.1 Organization and Power: The Purchaser is a
partnership duly incorporated, validly existing and in good standing
under the laws of the State of Kansas, and has full corporate power
and authority to enter into and perform its obligations under this
Agreement.
4.2 Authority and Binding Effect: The execution and
delivery of this Agreement and the performance by the Purchaser of its
obligations hereunder have been duly authorized by all necessary
corporate action. This Agreement constitutes the legal, valid and
binding agreement of the Purchaser, enforceable against the Purchaser
in accordance with its terms.
4.3 No Violation: The execution and delivery of the
Agreement by the Purchaser and the performance by the Purchaser of its
obligations hereunder do not and will not (a) contravene, or
constitute a default under, any (i) provisions of the Purchaser's
Articles of Incorporation or Bylaws, (ii) applicable law or
regulation, (iii) agreement, note, mortgage, indenture, lease,
franchise, license or other instrument to which the Purchaser is a
party or by which it is bound, or (iv) judgment, injunction, order,
decree or other instrument binding upon the Purchaser or its assets.
4.4 No Litigation: To the Purchaser's knowledge, there
is no action, suit, or proceeding, pending or threatened in writing,
against or affecting the Purchaser in any court or before any
arbitrator or before any governmental body or agency which challenges
the validity or enforceability of this Agreement.
4.5 No Broker: The Purchaser warrants and represents to
the Seller that the Purchaser has not retained any real estate broker,
business broker, finder or other person entitled to a commission or
other compensation in connection with the purchase and sale of the
Interest hereunder.
5. CONDITIONS PRECEDENT:
5.1 Purchaser's Conditions: The Purchaser's obligations
hereunder, including the Purchaser's obligation to close the purchase
of the Interest and to pay to the Seller the
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Net Purchase Price, are subject to the satisfaction of the following
conditions precedent and the compliance by the Seller, with the
following covenants:
a. Assignment: Simultaneously with the
Purchaser's delivery to the Seller of the Net Purchase Price,
the Seller shall have delivered to the Purchaser or its
assignee, (i) the Assignment and such further documentation as
the Seller may reasonably request to further or better
evidence the Purchaser's acquisition and ownership of the
Interest; and (ii) an I.R.S. Form W-9 executed by the Seller.
b. Representations and Warranties True and
Correct: The Seller shall deliver to the Purchaser at Closing
a certificate signed by the Seller or on behalf of the Seller
pursuant to the power of attorney described below stating that
the Seller's representations and warranties made in this
Agreement are true and correct as of the date of the Closing
and that the Seller has performed all of its covenants and
other obligations under this Agreement.
c. Funding: Purchaser shall have obtained
funds, on terms and from sources satisfactory to Purchaser in
its sole discretion, to enable Purchaser to close under this
Agreement.
5.2 Seller's Conditions: The obligations of the Seller
hereunder, including the Seller's obligation to sell and assign the
Interest as contemplated hereby, are subject to the satisfaction of
the following conditions precedent and the compliance by the Purchaser
and its assigns, if any, with the following covenants:
a. Receipt of Purchase Consideration:
Simultaneously with the Seller's delivery to the Purchaser of
the Assignment, the Seller shall have received the Net
Purchase Price.
b. Representations and Warranties True and
Correct: Purchaser and its assigns, if any, shall deliver to
the Seller at Closing a certificate signed by an authorized
party stating that the representations and warranties made by
the Purchaser in this Agreement are true and correct as of the
date of the Closing and that the Purchaser or its assignees,
if any, has performed all of its covenants and other
obligations under this Agreement.
5.3 Waiver: The Purchaser may waive all or part of any
or all of the conditions set forth in Section 5.1, and the Seller may
waive all or part of any or all of the conditions set forth in Section
5.2, in each case in the sole discretion of the waiving party and only
by a writing signed by the waiving party and delivered by the waiving
party to the other party hereto.
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6. ASSIGNMENT BY PURCHASER: The Purchaser may, without the
consent of the Seller, assign its rights and obligations hereunder to any
person or entity, including without limitation, those controlling, controlled
by or under common control with the Purchaser.
7. DEFAULT:
7.1 Specific Performance: In the event that the Seller
shall default in its obligations hereunder, the Purchaser shall, in
addition to any other rights, have the right to bring an action for
specific performance, it being acknowledged that the Interest which is
the subject matter of this Agreement is unique in nature and that an
action for damages may not provide an adequate remedy to the Purchaser
in the event of such default.
7.2 Litigation: In the event of any litigation or
dispute between the parties arising out of or in any way connected
with this Agreement, resulting in any litigation, the prevailing party
in such litigation shall be entitled to recover its costs of
prosecuting and/or defending such action, including, without
limitation, reasonable attorneys' fees and costs at trial and all
appellate levels. The provisions of this paragraph shall survive the
Closing of the transaction contemplated hereby.
8. MISCELLANEOUS:
8.1 Completeness; Modification; Waiver: This Agreement
constitutes the entire agreement between the parties hereto with
respect to the transactions contemplated hereby and supersedes all
prior discussions, understandings, agreements and negotiations between
the parties hereto. This Agreement may be modified only by a written
instrument duly executed by the parties hereto. No term or condition
of this Agreement shall be deemed waived in whole or in part, except
by an instrument in writing signed by an authorized representative of
each party which references specifically the term or condition to be
waived and which states explicitly that the term or condition is
waived. No waiver of any term or condition hereof by any party hereto
shall be deemed or construed to be (a) a waiver by such party of any
other term or condition hereof or (b) a waiver of such term or
condition for any party, any period or any purpose other than as
expressly set forth in the written instrument.
8.2 No Assignments: Except as set forth in Section 6,
the Seller and the Purchaser may not assign this Agreement or their
rights hereunder without the prior written consent of the other party.
Any assignment or attempted assignment that does not comply with all
of the terms and conditions hereof shall be null and void.
8.3 Successors and Assigns: This Agreement shall bind
and inure to the benefit of the parties hereto and their respective
permitted successors and assigns.
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8.4 Governing Law; Venue: This Agreement and all
documents referred to herein shall be governed by and construed and
interpreted in accordance with the laws of the State of Kansas. Any
and all disputes, unless all of the parties to the dispute otherwise
agree, shall be brought and maintained with that state, and the
parties hereby waive any right to bring an action in any other
jurisdiction. If any judicial authority holds or declares that the
law of another jurisdiction is applicable, this Agreement shall remain
enforceable under the laws of that jurisdiction.
8.5 Counterparts: To facilitate execution, this
Agreement may be executed in counterparts. It shall not be necessary
that the signature on behalf of all parties hereto appear on each
counterpart hereof. All counterparts hereof shall collectively
constitute a single agreement.
8.6 Severability: If any term, covenant or condition of
this Agreement, or the application thereof to any person or
circumstance, shall to any extent be invalid or unenforceable, the
remainder of this Agreement, or the application of such term, covenant
or condition to other persons or circumstances, shall not be affected
thereby, and each term, covenant or condition of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
8.7 Notices: All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered by
hand, or transmitted by facsimile transmission, sent prepaid by
international courier at the addresses and with such copies as
designated below. Any notice, request, demand or other communication
delivered or sent in the manner aforesaid shall be deemed given or
made (as the case may be) when delivered by hand or confirmed by
facsimile transmission or, in the case of delivery by courier, when
actually delivered to the intended recipient.
If to the Seller:
CPI REALTY PARTNERS
c/o ClubHouse Properties, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0000
Attn: Xxxxxx X. Samples
If to the Purchaser:
CLUBHOUSE HOTELS, INC.
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxx, Chairman
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With a copy to:
Hunton & Xxxxxxxx
2000 Riverview Tower
000 X. Xxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
or to such other address as the intended recipient may have specified
in a notice to the other party. Any party hereto may change its
address or designate different or other persons or entities to receive
copies by notifying the other party in a manner described in this
paragraph.
8.8 Survival: All of the representations, warranties,
covenants and agreements of the Seller and the Purchaser made in, or
pursuant to, this Agreement shall survive Closing and shall not merge
into the Assignment or any other document or instrument executed and
delivered in connection herewith.
8.9 Power of Attorney: The Seller hereby constitutes and
appoints Xxxxx X. Xxxx and Xxxxxx X. Samples and each or either of
them, Seller's true and lawful attorney-in-fact and agent with full
power of substitution and resubstitution, for Seller and in Seller's
name, place and stead, to sign, execute and deliver on behalf of the
Seller, or cause to be signed, executed and delivered on behalf of the
Seller, and to do or make, or cause to be done or made, any and all
customary agreements, certificates, including, but not limited to, the
Assignment, and such other instruments, papers, deeds, acts or things,
supplemental, confirmatory or otherwise, as may be customary in
transactions of the type contemplated by this Agreement and reasonably
required by either party hereto for the purpose of or in connection
with (i) consummating the purchase and sale of the Interest and (ii)
reflecting after the Closing that the Seller is no longer a partner of
the Limited Partnership.
8.10 No Partnership or Third Party Beneficiary. This
Agreement does not and shall not be construed to create a partnership,
joint venture or any other relationship between the parties hereto
except the relationship of the Seller and the Purchaser specifically
established hereby; provided, however, that nothing herein shall be
construed as changing the relationship of the Seller as a partner of
the Limited Partnership prior to Closing. Except for permitted
assigns, no person or party is intended to be or shall be construed to
be a third party beneficiary of this Agreement or any provision
hereof.
8.11 Time of Essence. Time is of the essence with respect
to every provision hereof.
-7-
15
8.12 Headings. Headings are included herein for
convenience of reference only, and shall in no way be construed to
define, alter, or modify any of the provisions hereof.
IN WITNESS WHEREOF, the Seller and the Purchaser have executed this
Agreement as of the date set forth above.
PURCHASER:
CLUBHOUSE HOTELS, INC.
a Kansas corporation
By: /s/ XXXXX X. XXXX
------------------------------------
Name: Xxxxx X. Xxxx
Title: Chairman
SELLER:
CPI REALTY PARTNERS
a Kansas general corporation
By: /s/ XXXXXX X. SAMPLES
------------------------------------
Name: Xxxxxx X. Samples
Title: Partner
The undersigned general partner of the Limited Partnership hereby
consents to the purchase and sale of the Interest as set forth above.
CLUBHOUSE PROPERTIES, INC.
general partner of
ATLANTA C.I. ASSOCIATES II, L.P.
By: /s/ XXXXXX X. SAMPLES
------------------------------------
Name: Xxxxxx X. Samples
Title: President
-8-
16
EXHIBIT "A"
ASSIGNMENT OF INTEREST
THIS ASSIGNMENT made as of the _____ day of ___________________, 1997,
by and between CPI Realty Partnership ("Assignor"), and ClubHouse Hotels, Inc.,
a Kansas corporation ("Assignee") provides:
THAT Assignor, for and in consideration of the payment by Assignee of
$1,416,000 (the "Purchase Price") to Assignor and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
does hereby sell, transfer, assign, convey and deliver to Assignee, and
Assignee hereby accepts and assumes all of Assignor's right, title and interest
in and to the 48.5 percent limited partnership interest (the "Interest") in
Atlanta C.I. Associates II, L.P., a Kansas limited partnership (the "Limited
Partnership"), which is presently owned by and registered in the name of
Assignor pursuant to that certain Agreement of Limited Partnership dated August
21, 1995 (the "Partnership Agreement").
Assignor hereby certifies that the representations and warranties made
by Assignor pursuant to the Purchase Agreement, dated July 1, 1997, between
Assignor and Assignee (the "Purchase Agreement"), are true and correct as of
the date hereof with the same force and effect as though such representations
and warranties had been made at and as of the date of this Assignment, and
shall survive the closing of the purchase and sale of the Interest (the
"Closing").
Assignee hereby certifies that the representations and warranties made
by Assignee pursuant to the Purchase Agreement are true and correct as of the
date hereof with the same force and effect as though such representations and
warranties had been made at and as of the date of this Assignment, and shall
survive the Closing.
Assignor hereby certifies that Assignor has complied with all
agreements, satisfied all conditions and performed all obligations which were
required on its part to be complied with, satisfied or performed at or prior to
the date hereof under the terms of the Purchase Agreement.
Effective upon the execution and delivery of this Assignment, Assignor
hereby ceases to be a partner of the Limited Partnership and Assignee hereby
accepts the assignment of the Interest.
17
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment
of Interest to be executed as of the day and year first above written.
ASSIGNOR:
CPI REALTY PARTNERS
a Kansas general partner
By:
------------------------------------
Xxxxxx X. Samples, Partner
ASSIGNEE:
CLUBHOUSE HOTELS, INC.
a Kansas corporation
By:
-------------------------------
Xxxxx X. Xxxx, Chairman
The undersigned hereby acknowledges on behalf of the Partnership that
Assignor has ceased to be a partner of the Partnership as of the effective date
of this Assignment and approves the admission of Assignee as a partner of the
Limited Partnership in place of Assignor.
CLUBHOUSE PROPERTIES, INC.
sole general partner of
ATLANTA C.I. ASSOCIATES II, L.P.
By:
------------------------------------
Xxxxxx X. Samples, President
-2-
18
SCHEDULE TO EXHIBIT 2.7
Set forth below are certain material differences between the foregoing
document included as an exhibit in this filing and another substantially
identical document.
ATLANTA C.I. ASSOCIATES II, L.P.
Partner's Name Date of Number Purchase L.P. Date of
Purchase of Price Ownership Limited
Agreement L.P. Units Percentage Partnership
Agreement
Xxxxxxx X. Xxxxxx 7/1/97 - - $14,600 .50% 8/21/95
