PURCHASE AND SALE AGREEMENT (CNL Plaza Venture, Ltd. - CHO)
Exhibit
10.3
(CNL
Plaza Venture, Ltd. - CHO)
THIS
PURCHASE AND SALE AGREEMENT
(this
“Agreement”)
is
made and entered into on the 3rd
day of
October, 2006, by and between CNL
HOTELS & RESORTS, INC.,
a
Maryland corporation (the “Seller”)
and
CNL
CORPORATE INVESTORS, LTD.,
a
Florida limited partnership (the “Buyer”).
WITNESSETH:
WHEREAS,
CNL
Plaza Venture, Inc., a Florida corporation (“CNLPV”),
National Retail Properties, Inc. (f/k/a Commercial Net Lease Realty, Inc.),
a
Maryland corporation (“NNN”),
CNL
Retirement Properties, Inc., a Maryland corporation (“CRP”),
the
Seller and the Buyer are parties to that certain Agreement of Limited
Partnership dated as of May 13, 2002, as previously amended (the “Limited
Partnership Agreement”),
establishing CNL
PLAZA VENTURE, LTD.,
a
Florida limited partnership (the “Partnership”);
WHEREAS,
the
Seller owns, beneficially and of record, a limited partner partnership interest
in the Partnership representing 9.9% of the partnership interests in the
Partnership (the “CHO
Partnership Interest”),
and
the Seller desires to sell to Buyer, and the Buyer desires to purchase from
Seller, the CHO Partnership Interest pursuant to the terms of this
Agreement;
WHEREAS,
NNN
owns, beneficially and of record, a limited partnership interest in the
Partnership representing 24.75% of the partnership interests in the Partnership
(the “NNN
Partnership Interest”),
and
the Buyer is entering into a Purchase and Sale Agreement with NNN (the
“NNN
Agreement”)
pursuant to which at the closing of the transactions contemplated by the NNN
Agreement, the Buyer shall purchase the NNN Partnership Interest (the
“NNN
Partnership Interest Acquisition”);
WHEREAS,
CRP
owns, beneficially and of record, a limited partnership interest in the
Partnership representing 9.9% of the partnership interests in the Partnership
(the “CRP
Partnership Interest”),
and
the Buyer is entering into a Purchase and Sale Agreement with CRP (the
“CRP
Agreement”)
pursuant to which at the closing of the transactions contemplated by the CRP
Agreement, the Buyer shall purchase the CRP Partnership Interest (the
“CRP
Partnership Interest Acquisition”);
WHEREAS,
the
Buyer anticipates that an affiliate of the Buyer will enter into a definitive
agreement pursuant to which at the closing of the transactions contemplated
thereby the real property owned by CNL Plaza, Ltd., a Florida limited
partnership (“CNL
Plaza”),
will
be refinanced (the “Refinancing”);
and
WHEREAS,
(a) the
Partnership is the general partner of CNL Plaza, (b) each of the Seller, NNN
and
CRP owns, beneficially and of record, a limited partnership interest in CNL
Plaza (each a “Plaza
Partnership Interest”),
and
(c) concurrently with the execution and delivery of this Agreement, the Buyer
is
entering into Purchase and Sale Agreements with each of the Seller, NNN and
CRP
(collectively, the “Plaza
Agreements”)
pursuant to which at the closing of the transactions contemplated by the Plaza
Agreements, the Buyer shall purchase the Plaza Partnership Interests
(collectively, the “Plaza
Partnership Interest Acquisitions”);
NOW,
THEREFORE,
for and
in consideration of the foregoing premises, the mutual covenants and agreements
set forth below, and for other good and valuable consideration, the receipt
and
sufficiency of which is hereby acknowledged by each of the parties, the parties
agree as follows:
1. Purchase
and Sale of the CHO Partnership Interest.
On and
subject to the terms and conditions of this Agreement and on the basis of the
representations, warranties, covenants, agreements, undertakings and obligations
contained herein, the Seller hereby agrees to sell the CHO Partnership Interest
to the Buyer at the Closing, and the Buyer hereby agrees to purchase the CHO
Partnership Interest from the Seller at the Closing.
2. Purchase
Price.
The
purchase price for the purchase and sale of the CHO Partnership Interest
hereunder will be $40,955 (the “Purchase
Price”)
and
will be delivered by the Buyer at the Closing in cash payable by wire transfer
or delivery of other immediately available funds to the account of
Seller.
3. Closing.
(a)
The
closing of the sale and purchase of the CHO Partnership Interest and the other
transactions contemplated by this Agreement (the “Closing”)
shall
take place at the offices of Lowndes, Drosdick, Doster, Xxxxxx & Xxxx, X.X.,
Xxxxx 000, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 commencing at 10:00
a.m. (Florida time) on the first (1st) business day following satisfaction
or,
if permissible, waiver of the conditions set forth in Sections 8 and 9 of this
Agreement (other than conditions which by their nature are to be satisfied
as a
part of the Closing) or at such other place, time or date as the Buyer and
the
Seller may mutually agree.
(b) At
the
Closing, (a) the Seller and the Buyer shall execute and deliver an Assignment
of
Limited Partner Partnership Interest transferring the CHO Partnership Interest
to the Buyer substantially in the form attached hereto as Exhibit A (the
“Assignment”),
(b)
the Seller will deliver to the Buyer the various certificates, instruments,
and
documents referred to in Section 9 below, (c) the Buyer will deliver to the
Seller the various certificates, instruments, and documents referred to in
Section 8 below, and (d) the Buyer will deliver to the Seller the Purchase
Price
as specified in Section 2 above.
4. (a)Post-Closing
Distributions.
With
respect to applicable distributions from Net Cash Flow (as defined in the
Limited Partnership Agreement) made by the Partnership to its partners, any
amounts from Net Cash Flow otherwise distributable by the Partnership to Seller
with respect to the fiscal quarter (or other applicable period prior to Closing
for which a distribution to the partners is made) in which the Closing occurs
shall be pro-rated between Seller and Buyer based upon the period during such
quarter (or other applicable period prior to Closing for which a distribution
to
the partners is made) that each of Buyer and Seller is treated as the owner
of
the CHO Partnership Interest, and Seller’s pro-rated amount shall be paid to
Seller at the same time as distributions from Net Cash Flow in respect of such
quarter (or other applicable period prior to Closing for which a distribution
to
the partners is made) are made to the partners of the Partnership.
(b) Refinancing.
Buyer
agrees to use its commercially reasonable efforts in good faith to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or desirable, or advisable under applicable laws, so as to
permit and consummate the Refinancing as promptly as practicable, subject to
the
satisfaction of the contingencies contained in Section 9(f) of this Agreement.
5. Remittance
Obligation.
(a) Definitions.
For
purposes of this Section 5, the following terms are defined as
follows:
(i) “Asset
Sale”
means
a
sale, exchange, transfer or other disposition of all or substantially all of
the
Partnership’s assets.
(ii) “Sale
Transaction”
means
any purchase by any person or entity of the limited partnership interests in
the
Partnership (or any portion thereof).
(iii) “Ultimate
Purchase Price”
means
the total consideration received by the Buyer in connection with an Asset Sale
or a Sale Transaction, divided by the number of Units transferred in the Asset
Sale or the Sale Transaction.
(iv) “Pro-Rated
Purchase Price”
means
$4,137.
(v) “Unit”
means
an interest as a limited partner in the capital and profits or losses of the
Partnership. Each whole Unit represents a one percent (1%) partnership interest
in the Partnership.
(b) Remittance
Amount.
Notwithstanding anything to the contrary contained herein, if an Asset Sale
or a
Sale Transaction is closed within thirty-six (36) months of the Closing
and
the
Ultimate Purchase Price is greater than the Pro-Rated Purchase Price, then
the
Buyer shall promptly remit to the Seller the difference between the Ultimate
Purchase Price and the Pro-Rated Purchase Price, multiplied by (i) 9.9% in
the
case of an Asset Sale or (ii) the number of Units sold in the case of a Sale
Transaction (the “Remittance
Amount”).
6. Representations
and Warranties of the Seller.
(a)
The
Seller represents and warrants to the Buyer as follows: (x) the Seller is and
shall be immediately prior to the Closing the sole record and beneficial owner
and holder of the CHO Partnership Interest, free and clear of all liens; and
(y)
the Seller has full legal right, requisite corporate power and authority to
execute this Agreement, and to perform its obligations hereunder.
(b) Other
than the representations and warranties expressly set forth in Section 6(a),
the
Seller has not made any representations or warranties relating to the
Partnership, the CHO Partnership Interest or otherwise in connection with the
transactions contemplated by this Agreement.
7. Representation
and Warranty of the Buyer.
The
Buyer represents and warrants to the Seller as follows:
(a) the
Buyer
has full legal right, requisite corporate power and authority to execute this
Agreement, and to perform its obligations hereunder;
(b) the
audited financial statements for CNL Plaza for the fiscal years ended December
31, 2004 and 2005 have been made available to Seller, and the unaudited
financial statements for CNL Plaza for the quarters ended subsequent to December
31, 2005 and prior to the date hereof have been made available to Seller (or,
in
the case of unaudited financial statements for quarters ending after the date
of
this Agreement and before the Closing, will be made available as soon as they
are completed by Buyer); and the monthly operating reports for CNL Plaza for
calendar months subsequent to December 31, 2005 have been made available to
Seller (or, in the case of monthly operating reports for calendar months ending
after the date of this Agreement and before the Closing, will be made available
as soon as they are completed by Buyer); each of the balance sheets contained
therein fairly presents, or will fairly present, as the case may be, in all
material respects, the financial position of CNL Plaza, as of its date, and
each
of the statements of income and changes in capital stock and cash flows or
equivalent statements contained therein (including any related notes and
schedules thereto) fairly presents, or will fairly present, as the case may
be,
in all material respects, the results of operations, changes in capital stock
and changes in cash flows of CNL Plaza, for the periods to which they relate,
in
each case in accordance with generally accepted accounting principles as used
in
the United States of America consistently applied during the periods involved;
and each monthly operating report has been prepared, or shall be prepared (as
the case may be), in good faith based on reasonable assumptions and in
accordance with the books and records of CNL Plaza (which are complete and
correct in all material respects and have been maintained in accordance with
customary business practices);
(c) with
respect to other information delivered by the Buyer to the Seller in connection
with this Agreement, including all information provided to Seller in a letter
from Buyer, dated July 12, 2006 (the “Option
Request Letter”),
the
Buyer prepared such information in good faith based on reasonable assumptions
and, to the extent such information was prepared based upon or derived from
information provided by third-party consultants and other industry sources,
the
Buyer has a reasonable basis to believe that the sources from which such
information has been obtained are reliable;
(d) the
material terms of the NNN Agreement are substantially the same as the terms
of
this Agreement (though the language in the NNN Agreement may vary and other
than
a provision in the NNN Agreement relating to the release of NNN by Buyer of
NNN’s lease obligations); provided, however, that (x) the price per Unit for the
NNN Partnership Interest shall be the same as the price per Unit for the CHO
Partnership Interest and (y) the calculation of the Remittance Amount under
the
terms of the NNN Agreement shall be the same as that provided for in this
Agreement but for an adjustment to the multiple that shall equal the percentage
size of the NNN Partnership Interest; and
(e) the
material terms of the CRP Agreement are substantially the same as the terms
of
this Agreement (though the language in the CRP Agreement may vary); provided,
however, that (x) the price per Unit for the CRP Partnership Interest shall
be
the same as the price per Unit for the CHO Partnership Interest and (y) the
calculation of the Remittance Amount under the terms of the CRP Agreement shall
be the same as that provided for in this Agreement but for an adjustment to
the
multiple that shall equal the percentage size of the CRP Partnership
Interest.
(f) Other
than the representations and warranties expressly set forth in Section 7, the
Buyer has not made any representations or warranties relating to the
Partnership, the CHO Partnership Interest or otherwise in connection with the
transactions contemplated by this Agreement.
8. Conditions
to Seller’s Obligations at Closing.
The
obligation of the Seller to sell the CHO Partnership Interest is subject to
satisfaction of the following conditions:
(a) The
representations and warranties of the Buyer contained in Section 7 shall be
true
and correct in all respects as of the date of this Agreement and as of the
Closing as though made on and as of the Closing.
(b) The
Buyer
shall have performed and complied with all of its covenants and agreements
hereunder through the Closing.
(c) No
action, suit, or proceeding shall be issued, pending or threatened before any
court or quasi-judicial or administrative agency of any federal, state, local,
or foreign jurisdiction or before any arbitrator which seeks to (i) prevent,
restrain, restrict, delay, make illegal or otherwise interfere with the
consummation of any of the transactions contemplated by this Agreement or (ii)
cause any of the transactions contemplated by this Agreement to be rescinded
following consummation.
(d) From
the
date hereof until the Closing, Buyer shall not have sold any portion of its
limited partner partnership interest in the Partnership at a price per Unit
greater than the corresponding price per Unit of the CHO Partnership Interest.
(e) Buyer
and
NNN shall have executed and delivered at Closing the NNN Agreement.
(f) The
purchase price for the purchase and sale of the NNN Partnership Interest shall
be paid in full at the Closing.
(g) The
purchase price for the purchase and sale of the NNN Partnership Interest shall
be reflected exclusively in the NNN Agreement and there are no other agreements,
understandings, representations among the parties to the NNN Agreement regarding
the purchase price for the purchase and sale of the NNN Partnership
Interest.
(h) Buyer
and
CRP shall have executed and delivered at Closing the CRP Agreement.
(i) The
purchase price for the purchase and sale of the CRP Partnership Interest shall
be paid in full at the Closing.
(j) The
purchase price for the purchase and sale of the CRP Partnership Interest shall
be reflected exclusively in the CRP Agreement and there are no other agreements,
understandings, representations among the parties to the CRP Agreement regarding
the purchase price for the purchase and sale of the CRP Partnership
Interest.
(k) Each
of
the NNN Partnership Interest Acquisition, the CRP Partnership Interest
Acquisition and the acquisition of the CHO Partnership Interest will close
concurrently with the closing of the Plaza Partnership Interest Acquisitions
on
the Closing Date.
(l) The
Buyer
shall have delivered to the Seller a certificate, dated as of Closing and signed
by an authorized executive officer of Buyer, to the effect that each of the
conditions specified above in Section 8(a)-(k) is satisfied in all
respects.
(m) Seller
shall have received from Buyer the Purchase Price.
(n) The
Seller shall have been released from its obligations under the Guaranty
Agreement dated as of September 29, 2005 by the Seller to Fifth Third Bank
and
shall have received a certificate to that effect, dated as of Closing and signed
by an authorized officer of Fifth Third Bank.
(o) Seller
shall have received an opinion from Banc of America Securities, or such other
financial institution acceptable to Seller, to the effect that, as of the
Closing and based upon and subject to the factors and assumptions set forth
herein, the transactions contemplated by this Agreement are fair and reasonable,
from a financial point of view, to the Seller.
The
Seller may waive any condition specified in this Section 8 if it executes a
writing so stating at or prior to the Closing and delivers such waiver to
Buyer.
9. Conditions
to Buyer’s Obligations at Closing.
The
obligation of the Buyer to purchase the CHO Partnership Interest is subject
to
satisfaction of the following conditions:
(a) The
representations and warranties of the Seller contained in Section 6 shall be
true and correct in all respects as of the date of this Agreement and as of
the
Closing as though made on and as of the Closing.
(b) The
Seller shall have performed and complied with all of its covenants and
agreements hereunder through the Closing.
(c) No
action, suit, or proceeding shall be issued, pending or threatened before any
court or quasi-judicial or administrative agency of any federal, state, local,
or foreign jurisdiction or before any arbitrator which seeks to (i) prevent,
restrain, restrict, delay, make illegal or otherwise interfere with the
consummation of any of the transactions contemplated by this Agreement or (ii)
cause any of the transactions contemplated by this Agreement to be rescinded
following consummation.
(d) The
Seller shall have delivered to the Buyer a certificate, dated as of the Closing
and signed by an authorized executive officer of Seller, to the effect that
each
of the conditions specified above in Section 9(a)-(c) is satisfied in all
respects.
(e) The
Buyer
has closed the Refinancing and the proceeds thereof have been made available
to
the borrower thereunder.
(f) Each
of
the NNN Partnership Interest Acquisition, the CRP Partnership Interest
Acquisition and the acquisition of the CHO Partnership Interest will close
concurrently with the closing of the Plaza Partnership Interest Acquisitions
on
the Closing Date.
The
Buyer
may waive any condition specified in this Section 9 if it executes a writing
so
stating at or prior to the Closing and delivers such waiver to
Seller.
10. Consents
and Waivers.
The
Seller and the Buyer hereby acknowledge and consent to the NNN Partnership
Interest Acquisition and the CRP Partnership Interest Acquisition and hereby
waive any approval periods or any other applicable provisions under the Limited
Partnership Agreement regarding the acquisition of limited partner partnership
interests in the Partnership. The Seller and the Buyer hereby acknowledge and
agree that the purchase and sale of the CHO Partnership Interest, the NNN
Partnership Interest and the CRP Partnership Interest shall be effective as
of
the Closing hereunder and the concurrent closings of the NNN Partnership
Interest Acquisition and the CRP Partnership Interest Acquisition, respectively,
and hereby waive any provision of the Limited Partnership Agreement to the
contrary. In connection with and pursuant to the Refinancing, the Seller and
the
Buyer hereby consent to the approval or incurrence by the Partnership, as the
general partner of CNL Plaza, of material indebtedness of CNL Plaza; provided,
that the proceeds from such indebtedness be used in part to pay the Purchase
Price.
11. Release.
Effective upon the Closing, each of the parties, on its behalf and on behalf
of
its directors, officers, agents, employees, stockholders, successors and
assigns, and any person acting by, through or on behalf of such party
(collectively, the “Releasing
Parties”)
hereby
irrevocably and unconditionally releases the other party and each of the current
and former partners of the Partnership and each of their past, present and
future directors, officers, agents, employees, members, and current and former
affiliated business entities (collectively, the “Released
Parties”),
and
each of them, of and from any and all commitments, charges, complaints, claims,
counter-claims, liabilities, obligations, promises, agreements, controversies,
damages, actions, causes of action, suits, rights, demands, compensation, costs,
losses, debts, and expenses (including attorneys’ fees and costs actually
incurred) of every kind and any nature whatsoever, known or unknown, contingent
or otherwise, that the Releasing Parties ever had, now have or may hereafter
have against the Released Parties, or any of them, and any liability resulting
therefrom, arising out of the operation of the Partnership (collectively,
“Claims”).
This
release does not release the parties hereto from their respective obligations
under this Agreement.
12. Indemnification
and Reimbursement by Buyer.
(a) Buyer
shall indemnify and hold harmless Seller and its respective successors, assigns,
stockholders and representatives (collectively, “Seller
Indemnified Persons”)
from
and against any third-party claim based on, arising out of, resulting from,
relating to, or in connection with the operation of the Partnership prior to
the
Closing, and shall reimburse the Seller Indemnified Persons for, any loss,
liability, expenses (including costs of investigation and defense and reasonable
attorneys’ and accountants’ fees), or damages of any kind or nature whatsoever
(collectively, “Damages”),
incurred thereby or caused thereto, based on, arising out of, resulting from,
or
in connection with such third-party claim. Notwithstanding the foregoing, the
Seller Indemnified Persons shall not be entitled to indemnification under this
subsection 12(a) for third-party claims based on, arising out of, resulting
from, relating to, or in connection with (i) any action of any Seller
Indemnified Person, or (ii) any Seller Indemnified Person’s failure to act
provided such Seller Indemnified Person was under an obligation to act under
the
Limited Partnership Agreement.
(b) Buyer
shall indemnify and hold harmless the Seller Indemnified Persons from and
against, and shall reimburse the Seller Indemnified Persons for, any and all
Damages incurred thereby or caused thereto, based on, arising out of, resulting
from, relating to, or in connection with (1) any breach of or inaccuracy in
the
representations and warranties made by Buyer in Section 7 of this Agreement,
other than those, if any, that have been waived in writing by Seller, and (2)
any breach or violation of or failure to fully perform any covenant, agreement
or undertaking of Buyer set forth in this Agreement.
13. Survival.
(a) Notwithstanding
any (1) investigation or examination conducted with respect to, or any knowledge
acquired (or capable of being acquired) about the accuracy or inaccuracy of,
or
compliance with, any representation, warranty, covenant, agreement, undertaking
or obligation made by or on behalf of the Seller, and (2) the waiver of any
condition based on the accuracy of any representation or warranty, or on the
performance of or compliance with any covenant, agreement, undertaking or
obligation hereunder, the representations and warranties of the Buyer contained
in Section 7 of this Agreement shall survive the Closing until the first
anniversary of the Closing.
(b) Notwithstanding
any other provision of this Agreement to the contrary, the obligations of the
Buyer to remit to the Seller the amounts set forth in Section 5(b) hereof shall
survive the Closing.
14. Pre-Closing
Covenants.
Each of
the parties will use its commercially reasonable efforts in good faith to take
all action and to do all things necessary, proper or desirable, or advisable
under best applicable laws, in order to consummate and make effective the
transactions contemplated by this Agreement as promptly as practicable; and
shall cooperate fully with the other party hereto to that end.
15. Termination.
Certain
of the parties may terminate this Agreement as provided below:
(a) the
Buyer
and the Seller may terminate this Agreement by mutual written consent at any
time prior to the Closing;
(b) the
Seller may terminate this Agreement by giving written notice to the Buyer at
any
time prior to the Closing if the Closing shall not have occurred on or before
December 31, 2006, by reason of the failure of any condition precedent under
Section 8 hereof (unless the failure primarily arises out of or results from
the
Seller itself breaching any representation, warranty, covenant or agreement
contained in this Agreement); and
(c) the
Buyer
may terminate this Agreement by giving written notice to the Seller at any
time
prior to the Closing if the Closing shall not have occurred on or before
December 31, 2006, by reason of the failure of any condition precedent under
Section 9 hereof (unless the failure primarily arises out of or results from
the
Buyer itself breaching any representation, warranty, covenant or agreement
contained in this Agreement).
16. Effect
of Termination and Abandonment.
In the
event of termination of this Agreement pursuant to Section 15, no party to
this
Agreement shall have any liability or further obligation to any other party
hereunder except (x) as set forth in Section 18 and (y) that termination will
not relieve a breaching party from liability for any breach of this Agreement
giving rise to such termination.
17. Notice.
All
notices, demands, consents, approvals and requests given by either party
hereunder shall be deemed to have been duly given under this Agreement, only
if
given in writing, and either (a) upon receipt if hand delivered by a party
or
delivery service or (b) if mailed, on the third (3rd)
business day after being sent by United States registered or certified mail,
postage prepaid, to the parties at the following addresses:
If
to
Buyer: CNL
Corporate Investors, Inc.
000
Xxxxx
Xxxxxx Xxxxxx
00xx
Xxxxx
Xxxxxxx,
Xxxxxxx 00000
Attn:
General Counsel
If
to
Seller: CNL
Hotels & Resorts, Inc.
000
Xxxxx
Xxxxxx Xxxxxx
Xxxxx
000
Xxxxxxx,
Xxxxxxx 00000-0000
Attn:
Chief General Counsel
Facsimile:
(000) 000-0000
Copy
to: Xxxxxxxxx
Xxxxxxx, LLP
Met
Life
Building
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx X. Raglan, Esq.
Facsimile:
(000) 000-0000
Either
party may at any time change its respective address by sending written notice
to
the other party of the change in the manner hereinabove described.
18. Survival
After Termination.
If this
Agreement is terminated prior to the Closing, no representations, warranties,
agreements and covenants contained in this Agreement shall survive the
termination of this Agreement other than Sections 22 (Governing Law) and 27
(Expenses) which shall survive such termination.
19. Amendments
and Waivers.
This
Agreement may be amended or waived if, and only if, such amendment or waiver
is
in writing and signed, in the case of an amendment, by each of the parties
hereto or, in the case of a waiver, by the party waiving compliance. No delay
on
the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions
of this Agreement (whether or not similar), nor shall such waiver constitute
a
continuing waiver.
20. Entire
Agreement.
This
Agreement and the Assignment of Limited Partner Partnership Interest (as and
when executed) contain the entire agreement between the parties pertaining
to
the subject matter set forth herein and the parties have not made any
representations or warranties to each other, either oral or written, other
than
contained herein or in the documents contemplated hereunder.
21. Further
Assurances.
In case
at any time after the Closing any further action may be reasonably necessary
or
advisable to carry out and confirm the transactions contemplated by this
Agreement, each of the parties will take such further action (including the
execution and delivery of such further instruments and documents) as any other
party reasonably may request, all at the sole cost and expense of the requesting
party.
22. Governing
Law.
This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of Florida.
23. Attorney’s
Fees.
If the
Buyer fails to remit to the Seller all or any portion of the amount required
to
be remitted by the Buyer pursuant to Section 5(b) of this Agreement, and the
Seller brings an action at law or in equity seeking to obtain payment of such
amounts from the Buyer, then the prevailing party shall be entitled to all
reasonable attorney’s fees, costs and expenses incurred by such party in
connection with any such proceeding, whether at the trial or appellate
level.
24. Interpretation.
(a)
The
headings contained in this Agreement are for reference purposes only and do
not
limit or otherwise affect any of the provisions of this Agreement.
(b) Whenever
a dollar amount ($) is used in this Agreement, it will mean United States
dollars unless otherwise specified.
25. Severability.
In case
any one or more of the provisions contained herein shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect by a court of
competent jurisdiction, such provision or provisions shall be ineffective only
to the extent of such invalidity, illegality or unenforceability, without
invalidating the remainder of such provision or provisions or the remaining
provisions of this Agreement, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision or provisions had never been
contained herein, unless such a construction would be unreasonable.
26. Counterparts.
This
Agreement may be executed in one or more counterparts and transmitted by
facsimile transmission, and each of such counterparts, whether an original
or a
facsimile of an original, will be deemed to be an original and all of such
counterparts together will constitute a single agreement.
27. Expenses.
Each of
the parties will bear its own costs and expenses (including legal fees and
expenses) incurred in connection with this Agreement and the transactions
contemplated hereby.
28. Joinder
of CNLPV.
CNLPV
is the general partner of the Partnership. CNLPV hereby consents, in conformity
with Section 14.2 of the Limited Partnership Agreement, to the sale of the
CHO
Partnership Interest and the admission of the Buyer as a Substituted Limited
Partner in connection with its acquisition of the CHO Partnership Interest
pursuant to the terms and conditions of this Agreement. CNLPV hereby
acknowledges that effective upon the Closing, (a) the transfer of the CHO
Partnership Interest complies with the conditions under Section 14.2 of the
Limited Partnership Agreement, (b) the Partnership shall have received this
Agreement and the Assignment and (c) the Buyer and the Seller have executed
and
provided all certificates and other documents and have performed such acts
as
CNLPV deems necessary in order to comply with Section 14.3(a) of the Limited
Partnership Agreement. CNLPV hereby waives the requirement under Section 14.3(a)
of the Limited Partnership Agreement that CNLPV receive an opinion of counsel
that neither the offer to transfer nor the transfer of the CHO Partnership
Interest will violate any federal or state securities laws. CNLPV hereby
acknowledges and agrees that the purchase and sale of the CHO Partnership
Interest, the NNN Partnership Interest and the CRP Partnership Interest shall
be
deemed effective as of the Closing hereunder and the concurrent closings of
the
NNN Partnership Interest Acquisition and the CRP Partnership Interest
Acquisition, respectively, and hereby waives any provision of the Limited
Partnership Agreement to the contrary. CNLPV acknowledges and agrees with the
provisions of Section 4 of this Agreement. CNLPV further acknowledges that
it
has not received any written appraisal or valuation of CNL Plaza or the real
property owned by CNL Plaza within the twelve month period ending as of the
date
of this Agreement.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF,
the
undersigned have executed this Agreement as of the date and year first written
above.
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Seller:
CNL
HOTELS & RESORTS, INC.
a
Maryland corporation
By:
/s/
C. Xxxxx
Xxxxxxxxxx
Name:
C.
Xxxxx Xxxxxxxxxx
Title:
Executive
Vice President
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Buyer:
CNL
CORPORATE INVESTORS, LTD.,
a
Florida limited partnership
By: CNL
Corporate Investors, Inc.,
a
Florida
corporation, its sole general
partner
By:
/s/
Xxxxxx X.
Xxxxxx
Name:
Xxxxxx
X. Xxxxxx
Title:
President
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Joinder
for purposes of Sections 4 and 28 only:
CNL
Plaza Venture, Inc.,
a
Florida corporation
By:
/s/
Xxxxx X. Xxxxxx,
Xx.
Name:
Xxxxx
X. Xxxxxx, Xx.
Title:
Chief
Executive Officer
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Exhibit
A
Assignment
of Limited Partner Partnership Interest
ASSIGNMENT
OF LIMITED PARTNER PARTNERSHIP INTEREST
THIS
ASSIGNMENT OF LIMITED PARTNER PARTNERSHIP INTEREST
is
effective as of ________, 2006 by CNL
HOTELS & RESORTS, INC.,
a
Maryland corporation (hereinafter referred to as “Assignor”)
to and
in favor of CNL
CORPORATE INVESTORS, LTD.,
a
Florida limited partnership (hereinafter referred to as “Assignee”).
W
I T N E S S E T H:
FOR
AND IN CONSIDERATION
of sums
paid by Assignee to Assignor (and additional sums to be paid by Assignee under
the circumstances set forth in that certain Purchase and Sale Agreement dated
as
of __, 2006 by and between Assignor and Assignee) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Assignor hereby grants, bargains, sells, transfers, assigns and conveys unto
Assignee, absolutely, and not as security or upon any condition, all of its
limited partner partnership interest in CNL
PLAZA VENTURE, LTD.,
a
Florida limited partnership (the “Partnership”),
which
interest is represented by a 9.9% limited partner interest in the Partnership
(hereinafter referred to as the “Partnership
Interest”);
TO
HAVE AND TO HOLD
unto
Assignee and its successors, assigns and legal representatives
forever.
AND
to the
knowledge of Assignor, the transfer of the Partnership Interest is being made
in
accordance with all applicable laws and regulations.
AND
Assignee
does hereby accept and agree to be bound by all of the terms and provisions
of
that certain Agreement of Limited Partnership dated as of May 12, 2002
establishing the Partnership.
This
Assignment shall be construed in accordance with the laws of the State of
Florida.
[SIGNATURES
APPEAR ON THE FOLLOWING PAGE]
IN
WITNESS WHEREOF,
Assignor and Assignee have executed this Assignment below effective as of the
day and year first written above.
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CNL
HOTELS & RESORTS, INC.,
a
Maryland corporation
By:
Name:
Title:
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CNL
CORPORATE INVESTORS, LTD.,
a
Florida
limited partnership
By: CNL
Corporate Investors, Inc.,
a
Florida
corporation, its sole general partner
By:
Name:
Xxxxxx
X. Xxxxxx
Title:
President
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