SCHEDULE OF OMITTED
ASSIGNMENT AND ASSUMPTION AGREEMENTS
The Registrant has also entered into two additional Assignment and Assumption
Agreements which are substantially identical to the following Assignment and
Assumption Agreement in all material respects except as to the assignor,
assignee and partnership interest. Listed below are the material details in
which such documents differ from the document filed as part of this exhibit.
Assignor Assignee Partnership Interest
-------- -------- --------------------
Forest View, LLC Asset Investors Operating Fifty percent
Partnership, L.P. (50%)
Forest View Investors, LLC AIC Manufactured Housing Corp. One percent (1%)
ASSIGNMENT AND ASSUMPTION AGREEMENT
As used herein, the following capitalized terms have the
following meanings:
Assignor: Forest View Investors, LLC
c/o Xxxxx X. Xxxxx
Brandywine Financial Services Corporation
0 Xxxxx Xxxx Xxxxx
P.O. Box 500
Chadds Ford, PA 19317
Assignee: Asset Investors Operating Partnership, L.P.
c/o Xxxxxx X. Xxx
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Partnership: Prime-Forest Partners,
a general partnership organized under
the laws of the State of Florida
Partnership Interest: A forty-nine percent (49%) interest
in the Partnership as a General Partner,
as owned by Assignor.
State: Florida
Effective Date of Transfer: May 13, 1997
FOR VALUE RECEIVED, Assignor hereby assigns, transfers,
conveys and sets over the Partnership Interest to Assignee. This Assignment
includes all rights in and claims to any and all Partnership profits and losses,
undistributed cash flow, proceeds from refinancing of the Partnership's
property, proceeds from insured casualties and/or dividends or distributions of
any kind, and any other benefits of any nature allocable to the Partnership
Interest under and pursuant to the Agreement of General Partnership of
Prime-Forest Partners dated April 22, 1988, as subsequently amended and modified
by assignment and acceptance of Partnership Interest in Prime-Forest Partners
and Amendment of Agreement of General Partnership of Prime-Forest Partners dated
November 30, 1995 (collectively, the "Partnership Agreement") arising on, from
and after the date hereof.
Assignor covenants, agrees, represents and warrants to
Assignee that Assignor owns the Partnership Interest free and clear of any
liens, charges, security interests or encumbrances, and that Assignor will
execute and deliver all such further instruments and take all such further
action as may reasonably required to admit Assignee as a substitute General
Partner in the Partnership.
The parties agree that all costs and expenses, including
transfer fees and attorney's fees, required to admit Assignee as a substitute
General Partner in the Partnership will be paid by Assignor.
Assignee accepts all of the right, title and interest hereby
transferred from Assignor, and agrees to become a General Partner in the
Partnership. Assignee assumes and agrees to observe, perform and be bound by all
of the terms and provisions of the Partnership Agreement applicable to the
holder of the Partnership Interest in particular, and to Partners of the
Partnership generally, including, without limitation, the obligation to make
capital contributions as provided for therein. If all or any part of the
Partnership's real property is subject to a regulatory agreement, Assignee
agrees to be bound by the terms of such regulatory agreement and the note,
mortgage and other security agreement(s), if any, delivered in connection
therewith, to the same extent as the present Partners of the Partnership.
Assignor warrants, represents, covenants and agrees to the
following at or as of the date hereof:
(a) Organization and Standing of Partnership. The Partnership
is a general partnership, duly organized, validly existing and in good standing
under the laws of the State of Florida and under the laws of each other
jurisdiction in which the nature of its business or the ownership or leasing of
its properties requires such qualification. The Partnership has the power and
authority necessary to carry on its business as it is now being conducted, and
to own or lease the properties and assets currently owned or leased by it.
(b) Organization and Standing of Assignor. Assignor is a
limited liability company, duly organized, validly existing and in good standing
under the laws of the State of Georgia and under the laws of each other
jurisdiction in which the nature of its business or the ownership or leasing of
its properties requires such qualification. Assignor has the power and authority
necessary to carry on its business as now being conducted, and to own or lease
its properties and assets currently owned or leased by it.
(c) Ownership of Partnership Interests. Assignor owns one
hundred percent (100%) of the Partnership Interests of the Partnership subject
to this Agreement, free and clear of any and all liens and encumbrances.
(d) Due Authorization. Assignor has all power and authority
necessary to execute and deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this Agreement by Assignor
have been duly authorized by all necessary action on the part of the Assignor.
This Agreement is a legal, valid and binding obligation of Assignor enforceable
against it in accordance with its terms except as such enforceability may be
limited by general equitable principles and by applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws of general application
affecting the rights and remedies of creditors.
2
(e) No Conflict or Default. The execution, delivery and
performance of this Agreement by the Partnership and Assignor will not (i)
violate any statute, regulation or ordinance of any governmental authority or
require any filing with or authorization, consent or approval of any government
or governmental agency which has not been obtained, (ii) conflict with any term,
condition or provision of the operating agreement of Assignor or the Partnership
Agreement of the Partnership (iii) conflict with or result in a breach of any
agreement, deed, contract, mortgage, indenture, writ, order, decree, contractual
obligation or instrument to which the Partnership or Assignor is a party or by
which any of them or any of their property or assets are or may be bound, or
constitute a material default (or an event which, with the lapse of time or the
giving of notice, or both, would constitute a material default) thereunder, or
(iv) result in the creation or imposition of any lien, charge or encumbrance, or
restriction of any nature whatsoever on or with respect to any of the property
or assets of the Partnership (hereinafter, collectively, the "Assets").
(f) Financial Statements. Assignor has delivered to Assignee
and its representatives the various financial statements described on Exhibit
"A" attached hereto and incorporated herein by reference (collectively, the
"Financial Statements"). The Financial Statements (i) have been prepared from
and are in accordance with the Partnership's books and records, (ii) fairly
present the financial condition of the Partnership and the results of its
operation as of the relevant dates thereof and for the periods covered thereby,
and (iii) were prepared in accordance with generally accepted accounting
principles, applied on a consistent basis, except for the lack of certain
footnote and other presentation items required by generally accepted accounting
principles with respect to year-end and interim adjustments.
(g) Certain Events. Except as set forth on Exhibit "B"
attached hereto since April 30, 1997, the Partnership has not taken or agreed to
take or permitted or suffered to occur any of the following actions:
(i) selling, leasing, transferring or assigning
of any of its Assets in an aggregate amount
in excess of $1000, tangible or intangible;
(ii) permitting or suffering the filing of any
security interest upon any of the Assets,
except for those as have previously been
released and those contemplated to be
released as of the date hereof;
(iii) permitting or suffering the occurrence of
any damage, destruction or loss (whether or
not covered by insurance proceeds) to any of
the Assets;
(iv) canceling, compromising, waiving or
releasing any right or claim arising out of
the operation of its business (or series of
related rights or claims) either involving
more than $10,000 in the aggregate or
outside the ordinary course of business; or
(v) granting any bonus or any wage or salary
increase to any employee or group of
employees employed in its business or any
increase in any employee benefit plan or
arrangement affecting employees employed in
its business, or amending or terminating any
existing employee benefit plan or
arrangement or adopting any new employee
benefit plan or arrangement affecting
employees employed in its business.
3
(h) Assets. The Partnership owns, leases or has rights to use
all properties and assets necessary for the conduct of its business as presently
conducted which properties and assets, constitute the Assets of the Partnership
and the Assets are sufficient to carry on its business as it has been conducted
up to the date hereof. Upon the consummation of the transactions contemplated
hereby, the Assignee will acquire good title to, or all rights to use, the
Assets, free and clear of any Security Interest. The Partnership has not
interfered with, infringed upon, misappropriated, or otherwise come into
conflict with any rights of any other Person with respect to any intellectual
property, and the Partnership has not received any charge, complaint, claim or
notice alleging such interference, infringement, misappropriation or violation.
The Partnership has no knowledge of any other Person interfering with,
infringing upon, misappropriating or otherwise coming into conflict with any
rights of the Partnership with respect to any intellectual property.
(i) Contracts. Assignor has delivered to Assignee correct and
complete copies of all written contracts as to which the Partnership is
presently a party, as more particularly described on Exhibit "C" attached hereto
and incorporated herein by reference (collectively, The "Contracts"). With
respect to each Contract (i) such Contract is legal valid, binding, and
enforceable by the Partnership and in full force and effect in accordance with
its respective terms, (ii) such Contract will continue to be legal, valid,
binding, and enforceable by the Partnership in accordance with its respective
terms and in full force and effect on identical terms following the Closing,
(iii) the Partnership is not, and to the best knowledge of the Partnership and
Assignor no other party thereto is, in breach or default thereof in any material
respect and no event has occurred which, with notice or lapse of time, would
constitute a breach or default thereof by the Partnership in any material
respect or permit termination, modification, or acceleration thereunder by any
other party thereto except as otherwise provided for therein, and (iv) no party
thereto has repudiated any provisions thereof. The Partnership is not a party to
any verbal contract, agreement, or other arrangement which, if reduced to
written form, would be required to be listed Exhibit "C".
(j) Rent Roll. The rent roll attached hereto as Exhibit "D" is
true, correct and complete as of April 30, 1997.
(k) Litigation. There are no actions, suits or orders pending
or, to the best knowledge of Assignor, investigations or proceedings threatened
against or affecting the Partnership, its business or the Assets at law or in
equity, or before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, and, to the best knowledge of Assignor there is no basis for any of the
foregoing.
(l) Employment. The Partnership has complied in all material
respects with all applicable laws relating to the employment of labor, including
provisions thereof relating to wages, hours, equal opportunity and collective
bargaining with respect to any and all employees employed in its business. The
Partnership has no material labor relations problems with respect to any and all
employees employed in its business, and, there has been no union organization
efforts by its employees employed in its business.
4
(m) Employee Benefit Plans.
(i) The Partnership does not maintain or
contribute to any (i) nonqualified deferred
compensation, bonus, severance or retirement
plans or arrangements, (ii) qualified
defined contribution or defined benefit
plans or arrangements which are employee
pension benefit plans (as defined in Section
3(2) of the Employee Retirement Income
Security Act of 1974 ("ERISA"), or (iii)
employee welfare benefit plans, (as defined
in Section 3(1) of ERISA), or material
fringe benefit plans or programs. The
Partnership does not and has not within the
last five years contributed to or had any
potential liability under any defined
benefit pension or multiemployer pension
plan (as defined in Section 3(37) of ERISA).
The Partnership does not maintain or
contribute to or have any liability with
respect to any employee welfare benefit plan
which provides health, accident or life
insurance benefits to former employees,
their spouses or dependents, other than for
claims incurred while an employee in
accordance with Section 4980(B) or the
Internal Revenue Code of 1986 (the "Code")
or Sections 601 et seq. Of ERISA
(collectively referred to as "COBRA").
(ii) The employee pension benefit plans and
employee welfare benefit plans (and related
trusts and insurance contracts) comply in
form and in operation in all respects with
the applicable requirements of ERISA and the
Code; and the employee pension benefit plans
meet the requirements of "qualified plans"
under Section 401(a) of the Code, and each
such employee pension benefit plan has
received a favorable determination letter
from the Internal Revenue Service.
(iii) The Partnership has not incurred any
liability to the Pension Benefit Guaranty
Corporation (the "PBGC"), the Internal
Revenue Service, any multiemployer plan or
otherwise with respect to any Plan or with
respect to any employee pension benefit plan
currently or previously maintained by
members of the controlled group of companies
(as defined in Sections 414(b) and (c) of
the Code) that includes the Partnership (the
"Controlled Group") that has not been
satisfied in full, and no condition exists
that presents a material risk to the
Partnership or any member of the Controlled
Group of incurring such a liability.
(n) Tax Matters. The Partnership has filed all Tax Returns
that it was required by applicable federal, state or local law to file. All such
Tax Returns were prepared in good faith and are correct and complete in all
material respects. All Taxes owed by the Partnership (shown on any Tax Return or
otherwise assessed against the Seller) have been paid. No claim has ever been
made by an authority in a jurisdiction where the Partnership does not file Tax
Returns that it is or may be subject to taxation by that jurisdiction. There are
no security interests on any of the Assets of its business that arose in
connection with any failure (or alleged failure) to pay any Tax.
(o) Creditors and Liabilities. Exhibit "E" is a true and
accurate listing of the names, addresses and liabilities of the Partnership to
5
every Creditor of the Partnership, other than those who are parties to service
type contracts, as of April 30, 1997. "Creditor" means a Person who has a right
to payment, whether or not the right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured. The Partnership is not a guarantor or
otherwise liable for any liability or obligation (including indebtedness) of any
other Person.
(p) Environmental and Safety Matters. The Partnership and
Assignor hereby represent and warrant with respect to its business and the real
property owned by the Partnership and located in Citrus County, Florida, (the
"Real Property") and, as to any other business or property of the Partnership,
in each instance to the best knowledge of Assignor and except for such
conditions as are otherwise disclosed in that certain Inspection Report prepared
by Xxxxxxxxx Xxxxx, Architect and/or that certain Environmental Audit prepared
by Enviro Assessments, Inc., as follows:
(i) the Partnership has complied and is in
compliance, in all material respects, with
all applicable Environmental and Safety
Requirements, and the Partnership and
Assignor have received no written notice,
report or information regarding any
liabilities (whether accrued, absolute,
contingent, unliquidated or otherwise), or
any corrective, investigatory or remedial
obligations, arising under Environmental and
Safety Requirements;
(ii) without limiting the generality or the
foregoing, the Partnership and Assignor have
obtained and complied with, and are in
material compliance with, all terms and
conditions of all permits, licenses and
other authorizations that may be required
pursuant to Environmental and Safety
Requirements for the occupation of the Real
Property and the operation of the
Partnership's business;
(iii) without limiting the generality of the
foregoing, none of the following exists at
the Real Property:
[A] underground storage tanks;
[B] material in any form or condition
containing asbestos; or
[C] materials or equipment containing
polychlorinated biphenyls;
(iv) the transactions contemplated by this
Agreement do not impose any obligations
under the Environmental and Safety
Requirements for site investigation or
cleanup, or notification to or consent of
government agencies or third parties; and
(v) without limiting the generality of the
foregoing, no facts, events or conditions
relating to the past or present properties
or operations of the Partnership will
prevent, hinder or limit continued
compliance with Environmental and Safety
6
Requirements, give rise to any corrective,
investigatory or remedial obligations
pursuant to Environmental and Safety
Requirements, or give rise to any
liabilities (whether accrued, absolute,
contingent, unliquidated or otherwise),
including without limitation those
liabilities relating to onsite or offsite
hazardous substance releases, personal
injury, property damage or natural resources
damage, pursuant to Environmental and Safety
Requirements.
(q) Compliance with Laws; Permits; Certain Operations. To the
best knowledge of Assignor,
(i) the Partnership and Assignor and each of their
respective officers, directors, agents and
employees have complied in all material respects
with all applicable laws and regulations of
foreign, federal, state and local governments and
all agencies thereof that affect its business or
the Assets, and no written claims have been filed
against the Partnership alleging a violation of
any such law or regulation which have not been
heretofore settled;
(ii) the Partnership holds all of the material
permits, licenses, certificates and other
authorizations of foreign, federal, state and
local governmental agencies required for the
conduct of its business; and
(iii) the Partnership has not violated, nor received
a notice or charge asserting any violation of any
state or federal acts (including rules and
regulations thereunder) regulating or otherwise
affecting federal communications, public
utilities, the employment of aliens or employee
health and safety, except for violations which
heretofore have been duly cured and except for
violations which individually or in the aggregate
will not have a material adverse effect on the
Partnership, its business or the Assets.
(v) Brokers' Fees. Assignor has not retained any broker or
finder in connection with the transactions contemplated herein so as to give
rise to any valid claim against Assignee for any brokerage or finder's
commission, fee or similar compensation.
(s) Disclosure. No representation or warranty made by the
Partnership and Assignor in the Key Documents, as defined in the Purchase and
Sale Agreement dated even date herewith as to which Assignee and certain of the
affiliates of Assignor are parties, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements contained herein or therein, in light of the
circumstances in which they were made, not misleading.
(t) Material Changes. Since April 30, 1997, there has been
no change in any material respect in the assets and liabilities of the
Partnership's business.
Assignee warrants, represents, covenants and agrees that
Assignee (1) is acquiring the Partnership Interest solely for Assignee's own
7
account for investment and not with a view to any resale or distribution
thereof; (2) has reviewed the Partnership Agreement; (3) has consulted with an
attorney, accountant or investment advisor to determine the suitability of the
investment for Assignee's tax and financial planning purposes; and (4)
understands and agrees that: (a) the Partnership Interest has not been
registered under the Securities Act of 1933, as amended (the "Act"); (b)
Assignee must hold the Partnership Interest indefinitely unless an exemption
under the Act is available; (c) the Partnership has not made any commitment to
register the Partnership Interest under the Act or to file reports with the
Securities and Exchange Commission or any other governmental agency or to take
any other action which will enable Assignee to sell the Partnership Interests;
and (d) the transfer of the Partnership Interest is further restricted by the
terms of the Partnership Agreement, and Assignee shall abide by such
restrictions.
Assignee further warrants, represents, covenants and agrees to
the following at or as of the date hereof:
(a) Organization and Standing. Assignee is a corporation duly
organized validly existing and in good standing under the laws of the State of
Florida.
(b) Due Authorization and Performance. Assignee has all
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution, delivery and performance of
this Agreement by Assignee has been duly authorized by the board of directors of
Assignee. This Agreement is a valid and legally binding obligation of Assignee,
enforceable against Assignee in accordance with its terms except as such
enforceability may be limited by general equity principles and by applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws of general
application affecting the rights and remedies of creditors.
(c) No Violation. The execution, delivery and performance of
this Agreement by Assignee will not (i) violate any statute, regulation or
ordinance of any governmental authority or require any filing with or
authorization, consent or approval of any government or governmental agency,
(ii) conflict with any term, condition or provision of its articles of
incorporation or bylaws, or (iii) conflict with or result in a breach or any
agreement, deed, mortgage, indenture, writ, order, decree, contractual
obligation or instrument to which Assignee is a party or by which Assignee or
its assets are or may be bound, or constitute a default (or an event which, with
the lapse of time or the giving of notice, or both, would constitute a material
default) thereunder.
(d) Brokers' Fees. Assignee has not retained any broker or
finder in connection with the transactions contemplated herein so as to give
rise to any valid claim against Assignor for any brokerage or finder's
commission, fee or similar compensation.
(e) Litigation. There are no actions, suits, proceedings,
orders or investigations pending or, to the best knowledge of Assignee,
threatened against or affecting Assignee or its assets at law or in equity, or
before or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, and
to the best of Assignee's knowledge, there is no basis for any of the foregoing.
(f) Representations and Warranties. Assignee hereby further
represents and warrants to Assignor that the representations and warranties of
Assignee in this Agreement are true and correct in all material respects.
Assignee hereby additionally represents and warrants to Assignor that neither
Assignee, nor any of its officers, directors, stockholders, employees or agents
has any knowledge as of the date of this Agreement of the breach or default on
the part of Assignor of any of the representations and warranties or covenants
and agreements of Assignor contained and set forth in this Agreement.
The representations and warranties set forth hereinabove shall
survive the performance of this Agreement (a) for a period of two (2) years
after the Closing Date with respect to representations and warranties relating
to other than (i) organization and authority of the Partnership and Assignor, on
the one hand, and Assignee, on the other hand, and (ii) environmental matters
8
and (b) forever with respect to the representations and warranties referred to
in clause (a)(i) and (ii) above. The covenants and other agreements of Assignee
and Assignor contained in this Agreement shall survive the Closing and continue
in full force and effect forever thereafter. From and after the Closing,
Assignor shall indemnify Assignee and the Partnership against, and hold Assignee
and the Partnership harmless from, any and all liabilities, damages, fines,
penalties, fees, assessments, costs and expenses (including, without limitation,
interest and reasonable attorneys' fees) (collectively, the "Damages") paid,
suffered or incurred by Assignee and/or the Partnership as a result of or
arising from the following: (a) any breach of any representation and warranty by
Assignor; (b) any breach of any covenant or agreement made by Assignor in this
Agreement or in any Schedule hereto; (c) except for those existing obligations
described on Exhibit "F" attached hereto an incorporated herein by reference,
any obligation or liability of the Partnership which was incurred by the
Partnership or relates to events that occurred prior to the Closing Date.
Assignor hereby irrevocably appoints each General Partner of
the Partnership from time to time serving in such capacity as the
attorney-in-fact of Assignor (with full power of substitution), to make,
execute, swear to, acknowledge, record and file, in the name, place and stead of
Assignor, any and all documents (including, without limitation, an amendment to
the Partnership Agreement) necessary to effect the within assignment.
Any provision, of this Agreement that is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining provisions of this Agreement, or affecting the
validity or enforceability of any provisions of this Agreement in any other
jurisdiction.
9
IN WITNESS WHEREOF, the parties hereto have executed this
instrument as of the 13th day of May 1997.
ASSIGNOR:
FOREST VIEW INVESTORS, LLC, a Georgia limited
liability company
By: PARKEMORE CORPORATION, a Pennsylvania
corporation, a Member
By:/s/Xxxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxx, President
ASSIGNEE:
ASSET INVESTORS OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: ASSET INVESTORS CORPORATION, a Maryland
corporation, general partner
By: /s/ Xxxxxx X. Xxx
-----------------------------
Xxxxxx X. Xxx, President
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