Asset Purchase Agreement
Dated as of
January 1, 2000
By and Between
AIC HOMESALES CORP.
and
COMMUNITY ACQUISITION AND DEVELOPMENT CORPORATION
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement is made effective as of the 1st day of
January, 2000 by and between AIC Homesales Corp., a Delaware corporation
("Buyer"), and Community Acquisition and Development Corporation, a Delaware
corporation ("Seller").
WHEREAS, Seller desires (i) to sell and Buyer desires to buy the assets
listed on Schedule A from Seller, and (ii) to assign and Buyer desires to assume
the contracts listed on Schedule B; and
NOW, THEREFORE, in consideration of the premises and the mutual
promises hereinafter set forth, the parties agree as follows:
ARTICLE 1. PURCHASE AND SALE
1.1. Purchase and Sale. Upon and subject to the terms and conditions
hereof, at the Closing (as hereinafter defined), Seller shall sell, transfer and
assign to Buyer, and Buyer shall purchase and acquire from Seller, all right,
title and interest in and to all of the assets of Seller listed on Schedule A
hereto (the "Assets") in each case free and clear of all liens, charges,
security interests and other encumbrances except for the Assumed Liabilities (as
hereinafter defined).
1.2. No Assumption of Liabilities. Except for the liabilities listed in
Schedule B (the "Assumed Liabilities"); which Buyer shall assume and agree to
perform as of the Closing Date, Buyer is assuming no liabilities of Seller in
connection with this transaction. Without limiting the generality of the
foregoing, Seller shall be solely responsible for payment of all amounts at any
time owing by Seller with respect to the Assets, both before and after the
Closing Date, whether accrued or contingent, known or unknown, other than the
Assumed Liabilities.
ARTICLE 2. THE CLOSING
2.1. Closing. The closing of the purchase and sale of the Assets (the
"Closing") shall be effective as of January 1, 2000 (the "Closing Date") or on
such later date as the parties hereto may mutually agree upon in writing. The
Closing shall be effective as of 10:00 a.m., Denver time, on the Closing Date
(the "Effective Time") or at such other date and time as the parties hereto
agree.
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2.2. ▇▇▇▇ of Sale, Assignment and Assumption Agreement. Each party shall
deliver executed counterparts to a ▇▇▇▇ of Sale, Assignment Assumption Agreement
in substantially the form attached hereto as Exhibit A (the "▇▇▇▇ of Sale"),
whereby Seller shall transfer the Assets to the Buyer, and the Buyer shall
assume the Assumed Liabilities.
2.3. Purchase Price. As full and complete payment of the purchase price of
the Assets, the Buyer shall assume the Assumed Liabilities.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth in the Disclosure Schedule prepared by Seller and
delivered to Buyer simultaneously with the execution hereof (the "Seller
Disclosure Schedule"), Seller represents and warrants to Buyer as follows:
3.1. Authorization. Seller has the full legal right, power and authority
to enter into and perform the transactions contemplated by this Agreement,
without need for any consent, approval, authorization, license or order of, or
notice to, any court, Governmental Entity, instrumentality or regulatory
authority (governmental agencies, instrumentalities and regulatory authorities
being hereinafter referred to as "Governmental Entities"), or any other person
or entity. The execution, delivery and performance of this Agreement and the
documents contemplated hereby by Seller and the consummation by Seller of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action. This Agreement and the documents contemplated hereby
evidence the legal, valid and binding obligations of Seller, enforceable in
accordance with their respective terms except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws of general application affecting enforcement of creditor=s
rights generally and (ii) for the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought.
3.2. Title to Properties; Absence of Liens and Encumbrances. Seller has
the right to sell, transfer, and assign all of the Assets to Buyer, and owns
such assets, free and clear of all liens, charges, security interests and other
encumbrances whatsoever except for the Assumed Liabilities. At the Closing,
Seller=s execution of the ▇▇▇▇ of Sale will transfer the Assets to Buyer, free
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and clear of all liens, charges, security interests and other encumbrances
whatsoever except for the Assumed Liabilities. Each of the Assets is in the
possession, custody or control of the Seller, and none of the Assets is in the
possession, custody or control of any person or entity other than Seller.
3.3. Assumed Liabilities. Seller has delivered to Buyer true and correct
copies of all instruments and other documents which constitute or evidence, in
whole or in part, any of the Assumed Liabilities. None of the Assumed
Liabilities and such instruments or documents has been modified or amended in
writing, and all of the Assumed Liabilities and such instruments and documents
are in full force and effect in accordance with their respective terms. Neither
Seller nor any other party to any of the Assumed Liabilities is in default
thereunder, or is otherwise in breach or has failed to comply with any of its
obligations thereunder. To Seller=s knowledge, there is no claim that any such
default, breach or failure to comply currently pending and there are no facts or
conditions known to Seller which, with or without the passage of time, notice or
both, would reasonably be expected to result in a material default under, breach
of, or failure to comply with any material term or provision of the Assumed
Liabilities.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Except as set forth in the Disclosure Schedule prepared by Buyer and
delivered to Seller simultaneously with the execution hereof (the ABuyer
Disclosure Schedule@), Buyer represents and warrants to Seller as follows:
4.1. Authorization. Buyer has the full legal right, power and authority
to enter into and perform the transactions contemplated by this Agreement,
without need for any consent, approval, authorization, license or order of, or
notice to, any court, Governmental Entity or other person or entity. The
execution, delivery and performance of this Agreement and the documents
contemplated hereby by Buyer and the consummation by Buyer of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action of Buyer. This Agreement evidences the legal, valid and binding
obligations of Buyer, enforceable against Buyer in accordance with its terms.
4.2. No Default or Violation. The execution, delivery and performance
of this Agreement by Buyer and the consummation by Buyer of the transactions
contemplated hereby (a) do not, and will not, conflict with any provision of the
Certificate of Incorporation or By-Laws of Buyer, and (b) do not, and will not,
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violate any law, regulation, order, judgment or decree to which Buyer or any of
its properties is subject.
ARTICLE 5. MISCELLANEOUS
5.1. Brokerage. Seller represents to Buyer, and Buyer represents to
Seller, that there has been no intermediary or broker in negotiations or
discussions incident to the execution of this Agreement or any of the
transactions contemplated hereby and that no intermediary or broker is or shall
be entitled to any commission or other compensation with respect to any of such
transactions.
5.2 Condition of Assets. Buyer acknowledges that it is purchasing the
Assets "as is and with all faults." The Seller makes no representation or
warranty with respect to the condition of the Assets or their suitability for
any particular purpose.
5.3. Waivers and Amendments. This Agreement may be amended, modified or
supplemented only by a written instrument executed by the parties hereto. No
waiver of any provision of this Agreement, or consent to any departure from the
terms hereof, shall be effective unless the same shall be in writing and signed
by the party waiving or consenting thereto. No failure on the part of any party
to exercise, and no delay in exercising, any right or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or remedy by such party preclude any other or further exercise
thereof or the exercise of any other right or remedy. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate as a
waiver of any subsequent breach. All rights and remedies hereunder are
cumulative and are in addition to and not exclusive of any other rights and
remedies provided by law.
5.4. Performance. Seller acknowledges that money damages alone will not
adequately compensate Buyer for breach of its obligations under this Agreement
and, therefore, agrees that in the event of the breach or threatened breach of
any such obligation, in addition to all other remedies available to Buyer, at
law, in equity or otherwise, Buyer shall be entitled to injunctive relief
compelling specific performance of, or other compliance with, the terms of this
Agreement.
5.5. Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
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in writing and shall be deemed to have been duly given if delivered personally
or by overnight courier with delivery charges prepaid, or sent by telecopy, as
follows:
If to Seller:
Community and Acquisition Development Corporation
2 Ponds ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer:
AIC Homesales Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a required copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address of which written notice in accordance with this Section
5.5. shall have been provided by such party. Notices may only be given in the
manner hereinabove described in this Section 5.5 and shall be deemed received
when given in such manner.
5.6. Expenses. Each party hereto shall pay its own expenses in
connection with the transactions contemplated hereby, whether or not they are
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completed. In the event of any conflict between this provision and the
indemnification provisions of this Agreement, the indemnification provisions
shall control.
5.7. Miscellaneous.
(a) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, whether written or oral, among the parties,
or any of them, in connection with such subject matter.
(b) This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns. Without the consent of
Seller, Buyer shall be entitled to assign any or all of its rights hereunder,
whether as security or otherwise, to any entity.
(c) This Agreement shall be governed by, and construed and
enforced in accordance with, the substantive laws of Delaware applicable to
agreements made and to be performed entirely therein.
(d) All Schedules mentioned in this Agreement shall be
attached to this Agreement, and shall form an integral part hereof. All
capitalized terms defined in this Agreement which are used in any Schedule
shall, unless the context otherwise requires, have the same meaning therein as
given herein.
(e) This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
(f) This Agreement is personal to Seller, and Seller shall not
assign any of its rights or delegate any of its obligations hereunder without
the prior written consent of Buyer, which consent may be withheld for any
reason.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Agreement effective as of the date first above written.
Community Acquisition and Development
Corporation
a Delaware corporation
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
AIC Homesales Corp.,
a Delaware corporation
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
Date: 1/31/00
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SCHEDULE A TO
ASSET PURCHASE AGREEMENT
ASSIGNED ASSETS
Assigned
Value
----------------
Manufactured home inventories located at the following
manufactured home communities:
Forest View $ 656,497
Park Royale 329,600
Stonebrook 222,848
----------------
Subtotal $1,208,945
Other assets (including cash, receivables, refundable deposits,
equipment and other assets) 217,138
----------------
Total Assigned Assets $1,426,083
================
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SCHEDULE B TO
ASSET PURCHASE AGREEMENT
ASSUMED LIABILITIES
Loans from Conseco Finance Servicing Corp. (including accrued but
unpaid interest) $ 875,267
Trade payables and accrued expenses 58,776
Loans from Asset Investors Operating Partnership, L.P. (including
accrued but unpaid interest) involving the following manufactured
home communities:
Park Royale 236,206
Stonebrook 255,834
----------------
Total Assumed Liabilities $1,426,083
================
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