Exhibit 2.1
RFS ACQUISITION AGREEMENT
CNL Hospitality Partners/CNL Hotel RI-Orlando/CNL Hotel CY-Edison
THIS RFS ACQUISITION AGREEMENT ("Agreement") made as of the 10th day of
July, 2003 by and among CNL HOSPITALITY PARTNERS, LP, a Delaware limited
partnership, CNL HOTEL RI-ORLANDO, LTD., a Florida limited partnership, CNL
HOTEL CY-EDISON, LP, a Delaware limited partnership (collectively, "CNL"), RFS
PARTNERSHIP, L.P., a Tennessee limited partnership (the "Company"), and CNL ROSE
ACQUISITION CORP., a Delaware corporation and owner of 99.9% of the partnership
interests of the Company ("Rose Acquisition").
RECITALS
WHEREAS, CNL owns the fee simple title to the existing hotel properties set
forth on Exhibit A attached hereto (collectively, the "Property") and desires
that the Property be transferred and conveyed to the Company in exchange for
limited partnership interests of the Company (or comparable shares of common
stock of Rose Acquisition, the Company's sole limited partner).
WHEREAS, in connection with and as consideration for the transfer and
conveyance to it of the Property, the Company shall issue limited partnership
interests or Rose Acquisition will issue shares of its common stock to CNL as
payment of the purchase price for the Property.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, do hereby agree as follows:
ARTICLE I
PROPERTY TRANSFER
Subject to and in accordance with the terms of this Agreement, upon
execution hereof, CNL shall transfer, convey and assign all of CNL's right,
title and interest in and to the Property to the Company in exchange for the
consideration set forth in Section 2.1 below.
ARTICLE II
CONSIDERATION
Section 2.1. In consideration for the transfer and assignment of Property
set forth in Section 1.1 above, which the parties stipulate and agree represents
a purchase price amount of $127,348,074 in the aggregate, the Company shall
issue to CNL limited partnership interests in an amount equal to Twenty-Four and
Four-Tenths Percent (24.4%) of the outstanding partnership interests of the
Company (the "Equity Interest"), all as more particularly described in Section
3.2 herein. Purchase price amounts and related Equity Interest allocations for
each of the subject hotel properties is set forth on Exhibit A attached hereto.
In lieu of issuing limited partnership interests of the Company as
consideration for the transfer of the Property to the Company as set forth in
the preceding paragraph of this Section
1
2.1, Rose Acquisition may issue to CNL approximately 244 shares of Rose
Acquisition's single class of common stock in an amount which will equal
approximately 24.4% of the outstanding capital stock of all classes of Rose
Acquisition as consideration for the transfer of the Property to the Company. In
such case, the term "Equity Interest" shall refer to such shares of common stock
of Rose Acquisition issued to CNL as consideration for the transfer of the
Property.
Section 2.2. CNL shall execute, or where applicable, cause the following to
be delivered to Company and/or Rose Acquisition, as the case may be, upon
execution hereof:
(a) executed conveyance and transfer documents as scheduled in Exhibit B
attached hereto, and such other instruments as are necessary to effect and
confirm the transfer and assignment of all of CNL's interests in the Property to
the Company, in form and substance mutually acceptable to CNL and the Company;
and
(b) such other documents, instruments, resolutions and other material
reasonably requested by the Company as may be necessary or desirable to effect
the transactions contemplated hereby.
Section 2.3. Upon execution hereof, the Company and/or Rose Acquisition, as
the case may be shall execute and/or deliver, or cause to be executed and/or
delivered to CNL the following:
(a) an executed assignment and assumption acknowledging the receipt by the
Company of the transfer and assignment of certain interests in the Property and
the assumption of obligations thereunder as may arise from or after the date of
the conveyance hereunder;
(b) a certificate or certificates representing the Equity Interest; and
(c) such other documents, instruments, resolutions and other material
necessary to effect the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Each of the Company and Rose Acquisition hereby represents and warrants to
and for the benefit of CNL as follows:
Section 3.1. Authority Relative to this Agreement. Each of the Company and
Rose Acquisition is a limited partnership or corporation duly formed or
incorporated, validly existing and in good standing under the laws of the
jurisdiction of formation and has the requisite power or corporate power and
authority to own, lease and operate its respective properties and carry on its
business as now being conducted. Each of the Company and Rose Acquisition has
all limited partnership power or corporate power, as the case may be, and
authority necessary to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. Each of the Company and Rose Acquisition is
duly qualified and is authorized to do business and is in good standing as a
foreign limited partnership or foreign corporation in all jurisdictions in which
the nature of its activities and of its properties (both owned and leased) makes
such qualification necessary, except for those jurisdictions in which failure to
do so would not have a material adverse effect on either of the Company or Rose
Acquisition, or their businesses.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
General Partner of the Company and the Board of Directors of Rose Acquisition
and no other proceedings on the part of the Company or Rose Acquisition are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by the Company and Rose Acquisition and, assuming that this Agreement
constitutes a valid and binding agreement of CNL, constitutes a valid and
binding agreement of the Company and Rose Acquisition enforceable against the
Company and Rose Acquisition in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium
or other similar laws affecting or relating to enforcement of creditors' rights
generally or general principles of equity.
Section 3.2. Equity Interests. Upon transfer and assignment of the Property
pursuant to this Agreement, CNL will receive good and marketable title to the
Equity Interest, constituting approximately 24.4% of the outstanding partnership
interests and economic interests of the Company (or equivalent percentage
interest in the outstanding shares of common stock of Rose Acquisition, if
applicable), free and clear of all liens, options, encumbrances and restrictions
of any kind or nature whatsoever other than restrictions imposed by federal and
state securities laws with respect to the transfer of the Equity Interest.
There are no outstanding options, warrants, rights (including conversion or
preemptive rights and rights of first refusal), proxy or agreements among
partners or potential partners, or agreements of any kind for the purchase or
acquisition from the Company or Rose Acquisition of any of its partnership
interests, common stock, equity interests or securities.
The Equity Interest (i) has been duly authorized and validly issued and is
fully paid, (ii) to the extent applicable, non-assessable, and (iii) was issued
in compliance with all applicable state and federal laws concerning the issuance
of securities.
Section 3.3. Legal Proceedings and Judgments. There are no claims, actions,
proceedings or investigations pending or, to the Company's knowledge or Rose
Acquisition's knowledge, threatened against or relating to the Company or Rose
Acquisition before any court or other governmental authority acting in an
adjudicative capacity that could have an adverse effect on the Company's ability
to consummate the transactions contemplated hereby.
Section 3.4. No Conflict. Each of the Company and Rose Acquisition has,
as applicable, delivered to CNL true and complete copies of the Certificate of
Limited Partnership and Limited Partnership Agreement of the Company, and the
Articles of Incorporation and By-laws of Rose Acquisition, as amended to date.
The execution, delivery, and performance of and compliance with this Agreement
and the issuance of the Equity Interest pursuant hereto will not, with or
without the passage of time or giving of notice, result in any such violation,
or be in conflict with or constitute a default under the Certificate of Limited
Partnership or the Limited Partnership Agreement of the Company, or the Articles
of Incorporation or By-laws of Rose Acquisition, or result in the creation of
any mortgage, pledge, lien, encumbrance or charge upon any of the properties or
assets of the Company or Rose Acquisition or the suspension, revocation,
impairment, forfeiture or nonrenewal of any permit, license, authorization or
approval applicable to the Company, its business or operations or any of its
assets or properties.
Section 3.5. Brokers. No person is entitled to any brokerage, financial
advisory, finder's or similar fee or commission payable by the Company or Rose
Acquisition or any of
their affiliates in connection with the transactions contemplated by this
Agreement or associated with the based-upon arrangements made by or on behalf of
the Company or Rose Acquisition.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
CNL hereby represents and warrants to the Company and Rose Acquisition as
follows:
Section 4.1. Authority Relative to this Agreement. CNL is a limited
partnership, duly organized, validly existing and in good standing under the
laws of the jurisdiction of incorporation and has the requisite power and
authority to own, lease and operate its respective properties and carry on its
business as now being conducted. CNL has all limited partnership power and
authority necessary to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by all of the partners of CNL and no other corporate
proceedings on the part of CNL are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by CNL, and, assuming that this Agreement
constitutes a valid and binding agreement of the Company and Rose Acquisition,
constitutes a valid and binding agreement of CNL, enforceable against CNL in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium or other similar laws affecting or
relating to enforcement of creditors' rights generally or general principles of
equity.
Section 4.2. Legal Proceedings and Judgments. There are no material claims,
actions, proceedings or investigations pending or, to CNL's knowledge,
threatened against or relating to CNL before any court or other governmental
authority acting in an adjudicative capacity that could have a material adverse
effect on CNL's ability to consummate the transactions contemplated hereby.
Section 4.3. Property. CNL owns good and marketable fee simple title to the
Property free and clear of all liens and encumbrances, other than standard deed
restrictions (which would not materially impair the use and occupancy of the
Property). On the date hereof, CNL will convey good and marketable fee simple
title to the Property to the Company free and clear of all such liens and
encumbrances, other than as described above.
Section 4.4. Acquisition of the Equity Interest for Investment. CNL has
been informed that the Equity Interest has not been registered under the
Securities Act of 1933, as amended or under any applicable state securities
laws. CNL acknowledges that it will acquire ownership of the Equity Interest for
its own account, for investment purposes only, and not with a view to the resale
or distribution thereof in violation of any applicable securities laws.
Section 4.5. No Conflict. CNL has delivered to the Company true and
complete copies of the Certificate of Incorporation, as amended to date. The
execution, delivery, and performance of and compliance with this Agreement will
not, with or without the passage of time or giving of notice, result in any such
violation, or be in conflict with or constitute a default under the Certificate
of Incorporation of CNL, or result in the creation of any mortgage, pledge,
lien, encumbrance or charge upon any of the properties or assets of CNL or the
suspension, revocation, impairment, forfeiture or nonrenewal of any permit,
license, authorization or approval applicable to CNL, its business or operations
or any of its assets or properties.
Section 4.6. Brokers. No person is entitled to any brokerage, financial
advisory, finder's or similar fee or commission payable by CNL or any of its
affiliates in connection with the transactions contemplated by this Agreement or
associated with the based upon arrangements made by or on behalf of CNL.
ARTICLE V
ASSIGNMENT
Section 5.1. This Agreement and the Company's, Rose Acquisition's and CNL's
rights hereunder may not be assigned by Company, Rose Acquisition or CNL without
the prior written consent of the other.
ARTICLE VI
COUNTERPARTS
Section 6.1. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original and together constitute one original
agreement.
ARTICLE VII
FURTHER ASSURANCES
Section 7.1. The Company, Rose Acquisition and CNL agree to execute and
deliver to the other such further documents or instruments as may be reasonable
and necessary in furtherance of the performance of the terms, covenants and
conditions of this Agreement. This paragraph shall survive the closing
hereunder.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. This Agreement shall be binding upon and shall inure to the
benefit of CNL, the Company, and Rose Acquisition and their respective
successors and assigns.
Section 8.2. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware. This Agreement shall be
construed without regard to any presumption or other rule requiring construction
against the party causing this Agreement to be drafted. If any words or phrases
in this Agreement shall have been stricken or otherwise eliminated, whether or
not any other words or phrases have been added, this Agreement shall be
construed as if the words or phrases so stricken or otherwise eliminated were
never included in this Agreement and no implication or inference shall be drawn
from the fact that said words or phrases were so stricken or otherwise
eliminated. All terms and words used in this Agreement, regardless of the number
or gender in which they are used, shall be deemed to include any other number
and any other gender as the context may require.
Section 8.3. The captions, headings and titles of the several Sections
contained in this Agreement are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this Agreement or
the intent of any provision thereof.
Section 8.4. The invalidity or unenforceability of any provision of this
Agreement shall not affect or impair any other provision of this Agreement.
Section 8.5. This Agreement contains the entire agreement between CNL, Rose
Acquisition and the Company, and any and all prior understandings and dealings
heretofore had are merged herein and any agreement hereafter made shall be
ineffective to change, modify or discharge this Agreement in whole or in part
unless such agreement hereafter made is in writing and signed by CNL, Rose
Acquisition and Company.
Section 8.6. Any notice or other communication permitted or required to be
given hereunder by one party to the other shall be in writing and shall be hand
delivered, sent by overnight courier service requiring receipt or mailed by
registered or certified United States Mail, postage prepaid, return receipt
requested, to the party entitled or required to receive the same at the address
specified below or at such other address as may hereafter be designated in
writing by any such party:
To the Company: c/o CNL Hospitality Corp.
or Rose Acquisition CNL Center at City Commons
450 South Orange Avenue
Orlando, Florida 32801
Attention:
With a copy to:
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 North Eola Avenue
Orlando, Florida 32801
Attn.: Richard J. Fildes, Esq.
To CNL: c/o CNL Hospitality Corp..
CNL Center at City Commons
450 South Orange Avenue
Orlando, Florida 32801
Attention:
With a copy to:
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 North Eola Avenue
Orlando, Florida 32801
Attn.: Richard J. Fildes, Esq.
Section 8.7. None of the provisions of this Agreement shall be construed as
having been made for the benefit of any creditor of either CNL, Rose Acquisition
or the Company, nor shall any of such provisions be enforceable (except as
otherwise required by law) by any person not a party hereto.
Section 8.8. The Property being owned by the separate entities identified
as "CNL" herein, the terms and provisions of this Agreement shall be applied
separately to each of the CNL owner entities as to their respective ownership
interests to be conveyed and the equity interests to be received in
consideration thereof.
SIGNATURES ON FOLLOWING PAGE
IN WITNESS WHEREOF, the parties hereto have executed and acknowledged this
Agreement as of the date first above written.
CNL HOSPITALITY PARTNERS, LP, CNL HOTEL RI-ORLANDO, LTD.,
a Delaware limited partnership a Florida limited partnership
By: CNL Hospitality GP Corp., By: CNL RI-Orlando, LLC, a Florida
a Delaware corporation, its General Partner limited liability company, its
General partner
By: CNL Hospitality Properties, Inc.,
By: /s/ Marcel Verbaas a Maryland corporation, as sole
------------------ member
Name: Marcel Verbaas
Title: Senior Vice President
RFS PARTNERSHIP, L.P., By: /s/ C. Brian Strickland
a Tennessee limited partnership --------------------------
Name: C. Brian Strickland
Title: Executive Vice
By: CNL Rose GP Corp., President
a Delaware corporation, its General Partner
CNL HOTEL CY-EDISON, LP,
A Delaware limited partnership
By: /s/ Marcel Verbaas
---------------------------------
Name: Marcel Verbaas By: CNL CY-Edison, LLC, a Delaware
Title: Senior Vice President limited liability company, its
General partner
CNL ROSE ACQUISITION CORP. By: CNL Hospitality Properties, Inc.,
a Delaware corporation a Maryland corporation, as sole
member
By:/s/ Marcel Verbaas By: /s/ C. Brian Strickland
---------------------- ------------------------
Name: Marcel Verbaas Name: C. Brian Strickland
Title: Senior Vice President Title: Executive Vice President
EXHIBIT A
PROPERTIES
All land, buildings, improvements on the land and buildings, and all
hereditaments and appurtenances to the improvements, the land and the buildings,
including without limitation all easements, rights-of-way and other similar
interests appertaining to the land and/or the buildings, if any, relating to:
Hotel Address City State Zip Code Owner Purchase Price Percent RFS/Rose
- ----- ------- ---- ----- -------- ----- -------------- -------- --------
Interest Shares
Wyndham 270 Concord Road Billerica MA 01821 CNL $23,610,899
Hospitality
Partners, LP
Wyndham 7675 East Union Ave Denver CO 80237 CNL $17,187,108
Hospitality 15.01% 150.1428
Partners, LP
Hyatt 50 Alhambra Plaza Coral Gables FL 33134 CNL $37,550,869
Hospitality
Partners, LP
Residence Inn 11000 Westwood Blvd. Orlando FL 32821 CNL Hotel $33,010,349 6.33% 63.25893
RI-Orlando,
Ltd.
Courtyard 3105 Woodbridge Ave. Edison NJ 08837 CNL Hotel $15,988,849 3.06% 30.64001
CY-Edison
TOTALS $127,384,074 24.4% 244.04174
EXHIBIT B
SCHEDULE OF CONVEYANCE DOCUMENTS
1. Coral Gables Special Warranty Deed
2. Coral Gables Amendment to Memorandum of Lease
3. Coral Gables Assignment and Assumption of Lease Agreement (Operating Lease)
4. Coral Gables Special Warranty Bill of Sale
5. Coral Gables Assignment of Licenses, Permits, Plans, Contracts and
Warranties
6. Coral Gables Assignment and Assumption of Owner, Lessee and Manager Non-
Disturbance and Attornment Agreement
7. Coral Gables Assignment of Software
8. Sea World Special Warranty Deed
9. Sea World Amendment to Memorandum of Lease
10. Sea World Assignment and Assumption of Amended and Restated Lease Agreement
(Operating Lease)
11. Sea World Special Warranty Bill of Sale
12. Sea World Assignment of Licenses, Permits, Plans, Contracts and Warranties
13. Sea World Assignment and Assumption of Amended and Restated Owner Agreement
14. Edison Deed
15. Edison Assignment and Assumption of Lease Agreement (Operating Lease)
16. Edison Special Warranty Bill of Sale
17. Edison Assignment of Licenses, Permits, Plans, Contracts and Warranties
18. Billerica Quitclaim Deed
19. Billerica Amendment to Memorandum of Lease
20. Billerica Assignment and Assumption of Lease Agreement (Operating Lease)
21. Billerica Special Warranty Bill of Sale
22. Billerica Assignment of Licenses, Permits, Plans, Contracts and Warranties
23. Denver Tech Special Warranty Deed
24. Denver Tech Amendment to Memorandum of Lease
25. Denver Tech Assignment and Assumption of Lease Agreement (Operating Lease)
26. Denver Tech Special Warranty Bill of Sale
27. Denver Tech Assignment of Licenses, Permits, Plans, Contracts and
Warranties