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EXHIBIT 2.8
AGREEMENT FOR ASSIGNMENT
OF RIGHTS
UNDER
PURCHASE AGREEMENT
(TOPEKA C.I. ASSOCIATES, 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 31, 1996, the Target Company and Gyosei Co., Ltd. (the
"Seller"), a Japanese corporation and a limited partner of Topeka C.I.
Associates, L.P., a Kansas limited partnership (the "Limited Partnership")
entered into a Purchase Agreement (the "Purchase Agreement") for the purchase
by the Target Company of Seller's 96.509% percent partnership interest (the
"Interest") in the Limited Partnership for a total consideration of $2,800,000
(the "Gross Purchase Price").
B. As of November 1, 1996, the Target Company and Seller entered
into an Amendment to Purchase Agreement, pursuant to which they agreed to
certain amendments to the Purchase Agreement (the "Amendment"). (The Purchase
Agreement and the Amendment are referred to collectively as the "Amended
Purchase Agreement.")
C. 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").
D. 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 Amended Purchase Agreement.
E. The Amended Purchase Agreement permits the assignment by the
Target Company of its rights and obligations under the Amended Purchase
Agreement to New Purchaser.
F. The Amended Purchase Agreement, as assigned to New Purchaser
pursuant to this Agreement, is one of the "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 Amended Purchase Agreement 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 Amended Purchase Agreement and to pay and perform such
obligations in accordance with the terms and conditions of the Amended Purchase
Agreement.
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 Locke Purnell Rain Harrell (a Professional
Corporation), 2200 Ross Avenue, Suite 2200, Dallas, Texas 75201, 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 Amended Purchase Agreement 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 Amended Purchase Agreement shall be in full force and
effect and shall not have been terminated, no notice of termination or intent
to terminate the Amended Purchase Agreement 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 Amended Purchase Agreement.
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 Amended Purchase Agreement 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 Amended Purchase Agreement 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 Amended Purchase Agreement 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 Amended Purchase
Agreement.
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
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contemplated hereby. Any waiver contemplated by this Section 4.2(b) shall be
without prejudice 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.
11230 College Boulevard, Suite 130
Overland Park, Kansas 66210-2700
Telecopy No. (913) 451-6072
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With a copy to: Allen Goolsby, Esq.
Hunton & Williams
Riverfront Plaza
951 East Byrd Street
Richmond, Virginia 23219-4074
Telecopy No. (804) 788-8218
If to the New Purchaser: Wyndham Hotel Corporation
2001 Bryan Street, Suite 2300
Dallas, Texas 75201
Attn: Legal Department
Telecopy No. (214) 863-1262
With a copy to: M. Charles Jennings, Esq.
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
Telecopy No. (214) 740-8800
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/ Roland W. Samples
---------------------------
Name: Roland W. Samples
Title: President
WYNDHAM HOTEL CORPORATION
By: /s/ Anne L. Raymond
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Name: Anne L. Raymond
Title: Executive Vice President
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PURCHASE AGREEMENT
TOPEKA C.I. ASSOCIATES, L.P.
(PARTNERSHIP INTEREST)
THIS AGREEMENT, made as of the 31st day of July, 1996 (the "Agreement"),
by and between ClubHouse Enterprises, Inc., a Kansas corporation (the
"Purchaser"), and Gyosei Co., Ltd., a Japanese corporation and a limited
partner of Topeka C.I. Associates, 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 Topeka, Kansas (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:
1.1 Purchase Price. For and in consideration of Purchaser's
agreement to pay to Seller $2,800,000 (the "Gross Purchase Price"),
less the amount withheld the Purchaser pursuant to Section 1.2 below
(the "Net Purchase Price"), Seller agrees to sell, assign, transfer and
convey to Purchaser all of Seller's right, title and interest in
Seller's 96.509 percent partnership interest (the "Interest") in the
Limited Partnership.
1.2 FIRPTA. The Purchaser shall withhold from the Gross
Purchase Price an amount equal to 10 percent of the sum of (i) the Gross
Purchase Price and (ii) the decrease in the Seller's share of the
liabilities of the Limited Partnership as a result of the transfer of
the Interest to the Purchaser. The Purchaser shall report and transmit
such amount withheld to the U.S. Internal Revenue Service by timely
filing I.R.S. Forms 8288 and 8288-A.
2. CLOSING: The closing ("Closing") shall occur, if at all, on the
closing date (the "Closing Date") of the underwritten initial public offering
of common stock of the Purchaser (the "IPO"), which shall be no later than
December 31, 1996, 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
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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 Second Amended and Restated
Agreement of Limited Partnership of the Limited Partnership dated March 30,
1990 (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 by
check, 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 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 corporation duly
organized and validly existing as a corporation under the laws of Japan,
and has full corporate power and authority to enter into and perform its
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 corporate 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
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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.
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
corporation 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.
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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 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. Public Offering: The closing of the IPO shall have
occurred.
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.
6. ASSIGNMENT BY PURCHASER: The Purchaser may, without the consent
of the Seller, assign its rights and obligations hereunder to any person or
entity controlling, controlled by or under common control with the Purchaser.
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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.
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 within that state, and the parties hereby waive
any right to bring any 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.
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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:
GYOSEI CO., LTD.
c/o LCA Investment, Inc.
Attn.: Yoshiro Murai, Executive Vice President
13101 Washington Boulevard
Suite 242
Los Angeles, CA 90066-2175
If to the Purchaser:
CLUBHOUSE ENTERPRISES, INC.
11230 College Boulevard, Suite 130
Overland Park, KS 66210
Attn.: Roland W. Samples, President
With a copy to:
Hunton & Williams
2000 Riverview Tower
900 S. Gay Street
Knoxville, TN 37902
Attn.: David C. Wright, 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
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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 Yoshiro Murai, its true and lawful attorney-in-fact and agent
with full power of substitution and resubstitution, for it and in its
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.
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 ENTERPRISES, INC.
a Kansas corporation
By: /s/ DAVID H. AULL
------------------------------
Name: David H. Aull
Title: Chairman
7
15
SELLER:
GYOSEI CO., LTD.
a Japanese corporation
By: /s/ SACHIE KABAYASHI
------------------------------
Name: Sachie Kabayashi
------------------------------
Title: President
------------------------------
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
Topeka C.I. Associates, L.P.
By: /s/ ROLAND W. SAMPLES
------------------------------
Name: Roland W. Samples
Title: President
8
16
EXHIBIT "A"
ASSIGNMENT OF INTEREST
THIS ASSIGNMENT made as of the _____ day of ____________________, 1996,
by and between Gyosei Co., Ltd., a Japanese corporation ("Assignor"), and
ClubHouse Enterprises, Inc., a Kansas corporation ("Assignee") provides:
THAT Assignor, for and in consideration of the payment by Assignee of
$2,800,000 (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 96.509 percent limited partnership interest (the "Interest") in
Topeka C.I. Associates, 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 Second Amended and Restated Agreement of
Limited Partnership of the Limited Partnership dated March 30, 1990 (the
"Partnership Agreement").
Assignor hereby certifies that the representations and warranties made
by Assignor pursuant to the Purchase Agreement, dated _________________, 1996,
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:
GYOSEI CO., LTD.
a Japanese corporation
By:
------------------------------
Title:
------------------------------
ASSIGNEE:
CLUBHOUSE ENTERPRISES, INC.,
a Kansas corporation
By:
------------------------------
Roland W. Samples
President
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
TOPEKA C.I. ASSOCIATES, L.P.
By:
------------------------------
David H. Aull, Chairman
2
18
AMENDMENT TO PURCHASE AGREEMENT
THIS AMENDMENT ("Amendment") is made as of the 1st day of November 1996,
by and between ClubHouse Hotels, Inc. (formerly known as ClubHouse Enterprises,
Inc.), a Kansas corporation (the "Purchaser") and Gyosei Co., Ltd., a Japanese
corporation and limited partner of Topeka C.I. Associates, L.P., a Kansas
limited partnership (the "Seller") and amends in certain respects that certain
Purchase Agreement (the "Agreement") between Purchaser and Seller dated July
31, 1996.
RECITATIONS: The outside closing date in the Agreement of December 31,
1996, is not feasible and the parties desire that Purchaser continue efforts to
acquire the hotel property owned by said limited partnership in 1997. The
Agreement must be amended to accommodate an extended date possibility.
For consideration it is agreed as follows:
A. The following shall be substituted for the first sentence in
Section 2:
"CLOSING. The closing ("Closing") shall occur, if at all, on
the closing date (the "Closing Date") determined by Purchaser, which
shall be no later than July 31, 1997, unless such date has been extended
by written agreement executed by the Purchaser and Seller."
B. The following shall be substituted for Section 5.1.c.:
"Purchaser shall have obtained funds, on terms and from sources
satisfactory to Purchaser in its sole discretion, to enable Purchaser to
closing under this Agreement."
C. The following shall be substituted for Section 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."
D. The Agreement shall continue in full force and effective as
amended herein.
IN WITNESS WHEREOF, the Seller and the Purchaser have executed this
Amendment as of the date set forth above.
Purchaser: Seller:
ClubHouse Hotels, Inc. Gyosei Co., Ltd.
By: By:
---------------------------- -----------------------
Roland W. Samples, President
19
SCHEDULE TO EXHIBIT 2.8
Set forth below are certain material differences between the foregoing
document included as an exhibit in this filing and other substantially
identical documents.
WICHITA C.I. ASSOCIATES III, 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
Roman Life Investments, Inc. 8/14/96 - - $3,500,000 86.64% 8/21/95
ALBUQUERQUE C.I. ASSOCIATES, 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
Judy P. Aull 8/14/96 1.0 $50,250.00 3.57% 9/2/86
William Francis Binter 8/14/96 1.0 50,250.00 3.57% 9/2/86
As Trustee
Robert P. Bosland 8/14/96 0.5 25,125.00 1.79% 9/2/86
Bradley Revocable Living Trust 8/14/96 1.0 50,250.00 3.57% 9/2/86
Phillip M. Brooks, M.D. 8/14/96 0.5 25,125.00 1.79% 9/2/86
Michael P. Brown, M.D. 8/14/96 1.0 50,250.00 3.57% 9/2/86
Richard Burkhart 8/14/96 0.5 25,125.00 1.79% 9/2/86
Josephine Fields 8/14/96 0.5 25,125.00 1.79% 9/2/86
G. Michael Caughlin, M.D. 8/14/96 1.0 50,250.00 3.57% 9/2/86
Gregory Francis Duick, 8/14/96 0.5 25,125.00 1.79% 9/2/86
Living Trust
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20
Robert H. Dyer 8/14/96 1.0 50,250.00 3.57% 9/2/86
Jack W. Gabbert and/or 8/14/96 0.5 25,125.00 1.79% 9/2/86
Wilma A. Gabbert
V. Madeline Graham 8/14/96 0.5 25,125.00 1.79% 9/2/86
as Trustee
Jon Roger Hall, M.D. 8/14/96 1.0 50,250.00 3.57% 9/2/86
Insurance Management 8/14/96 2.0 100,500.00 7.14% 9/2/86
Associates, Inc.
Joseph W. Kennedy and/or 8/14/96 0.5 25,125.00 1.79% 9/2/86
Paula Terry Kennedy
Sam H. Kouri, M.D. 8/14/96 0.5 25,125.00 1.79% 9/2/86
Bernice K. Link 8/14/96 0.5 25,125.00 1.79% 9/2/86
Living Trust
Midwest Mechanical 8/14/96 0.5 25,125.00 1.79% 9/2/86
Contractors, Inc.
Elaine D. Miller 8/14/96 0.5 25,125.00 1.79% 9/2/86
Helen Montagnola 8/14/96 1.0 50,250.00 3.57% 9/2/86
Robert L. Moore and/or 8/14/96 1.0 50,250.00 3.57% 9/2/86
Maxine S. Moore
Gerald D. Nelson, M.D. 8/14/96 0.5 25,125.00 1.79% 9/2/86
Marvin Nicholas, M.D. 8/14/96 0.5 25,125.00 1.79% 9/2/86
Terry G. Paup 8/14/96 0.5 25,125.00 1.79% 9/2/86
John S. Ranson 8/14/96 1.0 50,250.00 3.57% 9/2/86
Charles W. Reeves 8/14/96 1.5 75,375.00 5.36% 9/2/86
Michael A. Reisman, 8/14/96 0.5 25,125.00 1.79% 9/2/86
as Trustee
Megan A. Samples, Irrevocable 8/14/96 0.3 16,750.00 1.19% 9/2/86
Trust
Hilary C. Samples, Irrevocable 8/14/96 0.3 16,750.00 1.19% 9/2/86
Trust
- 2 -
21
Jordan R. Samples, 8/14/96 0.3 16,750.00 1.19% 9/2/86
Irrevocable Trust
Richard C. Shaw, M.D. 8/14/96 0.5 25,125.00 1.79% 9/2/86
Spangenberg, Phillips, 8/14/96 0.5 25,125.00 1.79% 9/2/86
Sherman, Harrison, Inc.
B&G Investments 8/14/96 1.0 50,250.00 3.57% 9/2/86
Universal Motor Fuels, Inc. 8/14/96 0.5 25,125.00 1.79% 9/2/86
Edward J. Wade, M.D. 8/14/96 1.0 50,250.00 3.57% 9/2/86
Melvin H. Waldorf, Jr., M.D. 8/14/96 1.0 50,250.00 3.57% 9/2/86
Craig B. Woodson 8/14/96 0.5 25,125.00 1.79% 9/2/86
Teresa L. Woodson 8/14/96 0.5 25,125.00 1.79% 9/2/86
- 3 -