ASSET PURCHASE AGREEMENT
between
HALL INSTITUTIONAL MORTGAGE FUND LIMITED PARTNERSHIP
as Seller
and
HALL FINANCIAL GROUP, INC.
as Buyer
dated as of October 15, 1996
TABLE OF CONTENTS
Page
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I. TRANSFER OF LOANS. . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Loans to be Sold. . . . . . . . . . . . . . . . . . 1
Section 1.2 Consideration.. . . . . . . . . . . . . . . . . . . 1
Section 1.3 Closing.. . . . . . . . . . . . . . . . . . . . . . 2
Section 1.4 Deliveries by Seller. . . . . . . . . . . . . . . . 2
Section 1.5 Deliveries by Buyer.. . . . . . . . . . . . . . . . 2
II. REPRESENTATIONS AND WARRANTIES OF SELLER AND GENERAL PARTNER . . . 2
Section 2.1 Organization and Good Standing. . . . . . . . . . . 2
Section 2.2 Authorization.. . . . . . . . . . . . . . . . . . . 3
Section 2.3 Consents and Approvals. . . . . . . . . . . . . . . 3
III. REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . 3
Section 3.1 Organization and Good Standing. . . . . . . . . . . 3
Section 3.2 Authorization.. . . . . . . . . . . . . . . . . . . 4
Section 3.3 Consents and Approvals. . . . . . . . . . . . . . . 4
IV. OTHER OBLIGATIONS OF SELLER AND BUYER. . . . . . . . . . . . . . . 4
Section 4.1 Survival of Representations.. . . . . . . . . . . . 4
Section 4.2 Access. . . . . . . . . . . . . . . . . . . . . . . 4
Section 4.3 Consents. . . . . . . . . . . . . . . . . . . . . . 4
Section 4.4 Governmental Filings. . . . . . . . . . . . . . . . 5
Section 4.5 Covenant to Satisfy Conditions. . . . . . . . . . . 5
V. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. . . . . . . . . . . . 5
Section 5.1 Representations and Warranties. . . . . . . . . . . 5
Section 5.2 Performance.. . . . . . . . . . . . . . . . . . . . 5
Section 5.3 No Injunction.. . . . . . . . . . . . . . . . . . . 5
Section 5.4 Consents and Approvals. . . . . . . . . . . . . . . 5
VI. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. . . . . . . . . . . 5
Section 6.1 Representations and Warranties. . . . . . . . . . . 6
Section 6.2 Performance.. . . . . . . . . . . . . . . . . . . . 6
Section 6.3 No Injunction.. . . . . . . . . . . . . . . . . . . 6
Section 6.4 Consents. . . . . . . . . . . . . . . . . . . . . . 6
Section 6.5 Fairness Opinion. . . . . . . . . . . . . . . . . . 6
VII. TERMINATION OF AGREEMENT. . . . . . . . . . . . . . . . . . . . . 6
Section 7.1 Termination of Agreement. . . . . . . . . . . . . . 6
VIII. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 8.1 Expenses, Taxes, Etc. . . . . . . . . . . . . . . . 6
Section 8.2 Further Assurances. . . . . . . . . . . . . . . . . 6
Section 8.3 Parties in Interest.. . . . . . . . . . . . . . . . 7
Section 8.4 Entire Agreement, Amendments and Waiver.. . . . . . 7
Section 8.5 Headings. . . . . . . . . . . . . . . . . . . . . . 7
Section 8.6 Notices.. . . . . . . . . . . . . . . . . . . . . . 7
Section 8.7 GOVERNING LAW.. . . . . . . . . . . . . . . . . . . 7
Section 8.8 Third Parties.. . . . . . . . . . . . . . . . . . . 8
Section 8.9 Counterparts. . . . . . . . . . . . . . . . . . . . 8
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement"), dated as of August 6,
1996, is by and between Hall Financial Group, Inc., a Delaware corporation
("Buyer"), and Hall Institutional Mortgage Fund Limited Partnership, an
Arizona limited partnership ("Seller").
INTRODUCTORY STATEMENT
This Agreement sets forth the terms and conditions upon which Buyer
agrees to purchase from Seller, and Seller agrees to sell to Buyer, loans
made by Seller to certain of its affiliates (the "Loans").
Accordingly, in consideration of the preceding statement and the
mutual agreements, representations, warranties, covenants and conditions in
this Agreement, and for other good, valuable and binding consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
STATEMENT OF AGREEMENT
I. TRANSFER OF LOANS
Section 1.1 Loans to be Sold.
(a) Subject to the terms and conditions of this Agreement, at
the Closing provided for in Section 1.4 hereof (the "Closing"), Seller
shall sell, convey, assign, transfer and deliver to Buyer the Loans.
(b) Such sale, conveyance, assignment, transfer and delivery
shall be effected by delivery by Seller to Buyer of (i) the duly executed
instruments of assignment and assumption with respect to the Loans whereby
Buyer will be assigned all rights existing under the Loans and will assume
all liabilities existing under the Loans (the "Instruments of Assignment
and Assumption"); and (ii) such other good and sufficient instruments of
conveyance and transfer as shall be necessary to vest in Buyer good, valid
and marketable title to the Loans.
Section 1.2 Consideration. In consideration of the aforesaid sale,
conveyance, assignment, transfer and delivery of the Loans, Buyer shall
deliver at the Closing the following:
(a) a cash payment, certified check, official bank check or wire
transfer of federal or other immediately available funds in an amount
equal to $1,600,000 (the "Purchase Price"); and
Section 1.3 Closing. The Closing of the transactions contemplated
by this Agreement shall take place at the offices of Akin, Gump, Strauss,
Xxxxx & Xxxx, L.L.P., 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, at
9:00 a.m. Dallas, Texas time, on ____________, 1996 (the "Closing Date").
The Closing Date may be postponed to such other date as Buyer and Seller
may agree.
Section 1.4 Deliveries by Seller. At the Closing, Seller shall
deliver to Buyer (unless delivered previously), the following:
(a) the Instruments of Assignment and Assumption (to be drafted
by Buyer);
(b) all other general instruments of transfer, assignment and
conveyance in form and substance reasonably satisfactory to Buyer to
evidence or perfect the sale, transfer and conveyance of the Loans to
Buyer; and
(c) executed counterparts of any consents or waivers required to
be obtained by Seller which are referred to in Section 5.4 hereof.
Section 1.5 Deliveries by Buyer. At the Closing, Buyer shall
deliver to Seller (unless delivered previously) the following:
(a) the cash payment, certified check, official bank check or
wire transfer of federal or other immediately available funds for the
Purchase Price; and
II. REPRESENTATIONS AND WARRANTIES OF SELLER AND GENERAL PARTNER
Seller and Hall Apartment Associates, Inc. (the "Managing General
Partner"), a Texas corporation which is the general partner of Hall 1985
Management Associates Limited Partnership, a Texas limited partnership
which is the general partner of Hall Pension Fund Associates, a Texas
limited partnership and the general partner of the Partnership, hereby
represent and warrant to Buyer as follows:
Section 2.1 Organization and Good Standing. Seller is a limited
partnership duly formed, validly existing and in good standing as a limited
partnership under the laws of the State of Arizona. Managing General
Partner is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Texas. Each of Seller and Managing
General Partner has the power and authority to conduct business as it is
now being conducted and to own assets that it now owns.
Section 2.2 Authorization.
(a) Each such party has all requisite power and authority to
enter into, execute, deliver and consummate the transactions contemplated
by this Agreement and any instruments and agreements executed and delivered
pursuant to this Agreement (collectively, the "Documents").
(b) The Board of Directors of Managing General Partner has taken
all action required by law or otherwise to authorize the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby, including the execution, delivery and consummation of
the Documents. Other than obtaining the requisite consent of its limited
partners of Seller in connection with the transactions contemplated hereby,
no other act or proceeding on the part of Seller or the Managing General
Partner is necessary to authorize this Agreement or any of the Documents or
the transactions contemplated hereby or thereby. This Agreement is, and
each of the Documents, when executed and delivered to Buyer by Managing
General Partner, on behalf of Seller, will be, a valid and binding
obligation of Seller enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, reorganization and other laws and
judicial decisions of general applicability relating to or affecting
creditors' rights and to general principles of equity.
(c) Seller has previously delivered to Buyer true and complete
copies, certified by the Secretary or an Assistant Secretary of Managing
General Partner, of the resolutions duly and validly adopted by the Board
of Directors of Managing General Partner evidencing its authorization of
the execution and delivery of this Agreement and the Documents and the
consummation of the transactions contemplated hereby and thereby (which
resolutions have not been modified, revoked or rescinded in any respect).
Section 2.3 Consents and Approvals. Except as set forth in
Schedule 2.3, Seller is not required to obtain, transfer or cause to be
transferred any material consent, approval, license, permit or
authorization of, or make any declaration, filing or registration with, any
third party in connection with (a) the execution and delivery by Managing
General Partner, on behalf of Seller, of this Agreement or any of the
Documents or (b) the consummation by Seller and Managing General Partner of
the transactions contemplated hereby or thereby, including but not limited
to the sale of the Loans.
III. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
Section 3.1 Organization and Good Standing. Buyer is a corporation
duly incorporated, validly existing and in good standing under the laws of
the State of Delaware, and has the power to conduct business as it is now
being conducted and to own assets that it now owns.
Section 3.2 Authorization.
(a) Buyer has all requisite corporate power and authority to
enter into, execute, deliver and consummate the transactions contemplated
by this Agreement and the Documents. The Board of Directors of Buyer has
taken all action required by law or otherwise to authorize the execution
and delivery of this Agreement and the Documents and the consummation of
the transactions contemplated hereby and thereby. No other corporate act
or proceeding on the part of Buyer is necessary to authorize this Agreement
or any of the Documents or the transactions contemplated hereby or thereby.
This Agreement is a valid and binding obligations of Buyer enforceable
against Buyer in accordance with its terms, subject to bankruptcy,
insolvency, reorganization and other laws and judicial decision of general
applicability relating to or affecting creditors' rights and to general
principles of equity.
(b) Buyer has previously delivered to Seller true and complete
copies, certified by the Secretary or Assistant Secretary of Buyer, of the
resolutions duly and validly adopted by the Board of Directors of Buyer
evidencing its authorization of the execution and delivery of this
Agreement, the Documents and the consummation of the transactions
contemplated hereby and thereby (which resolutions have not been modified,
revoked or rescinded in any respect).
Section 3.3 Consents and Approvals. Except as set forth in
Schedule 3.3, Buyer is not required to obtain any material consent,
approval, license, permit or authorization of, or make any declaration,
filing or registration with, any third party or any public body or
authority in connection with the execution and delivery by Buyer of this
Agreement, the Documents, or the consummation by Buyer of the transactions
contemplated hereby or thereby.
IV. OTHER OBLIGATIONS OF SELLER AND BUYER
Section 4.1 Survival of Representations. All representations,
warranties, covenants and agreements made by any party to this Agreement or
pursuant hereto shall be true, complete and correct as of the date hereof
and as of the Closing Date as though such representations, warranties,
covenants and agreements were made at the Closing Date.
Section 4.2 Access. In order that Buyer may have full opportunity
to make such investigations as it shall desire to make of the affairs of
Seller in connection with the transactions contemplated by this Agreement,
Seller shall permit Buyer and its counsel, accountants, auditors and other
representatives reasonable access during normal business hours to all of
the offices, properties, books and records, contracts and commitments of
Seller from the date hereof until such time as Buyer reasonably deems
necessary to facilitate the transition of ownership.
Section 4.3 Consents. Seller and Buyer shall use their best
efforts to obtain prior to the Closing all consents necessary in connection
with the consummation of the transactions contemplated hereby, including,
without limitation, each of the consents, approvals, licenses, permits and
authorizations listed or referred to in Schedule 2.3 or in Schedule 3.3.
Each party agrees to assist and cooperate with the other in obtaining such
consents, including furnishing financial and other information as may
reasonably be requested by it or a third party.
Section 4.4 Governmental Filings. As soon as practicable, Seller
and Buyer shall make any and all filings and submissions to any
governmental agency which are required to be made in connection with the
transactions contemplated hereby. Seller shall furnish to Buyer and Buyer
shall furnish to Seller such information and assistance as the other party
or parties may reasonably request in connection with the preparation of any
such filings or submissions.
Section 4.5 Covenant to Satisfy Conditions. Seller, on the one
hand, and Buyer, on the other hand, shall each use their respective best
efforts to insure that the conditions set forth in Articles V and VI
hereof, respectively, are satisfied, insofar as such matters are within
their respective control.
V. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
The obligations of Buyer under this Agreement are subject to the
satisfaction at or before the Closing of each of the following conditions,
any one or more of which may be waived by Buyer, in its sole discretion:
Section 5.1 Representations and Warranties. The representations
and warranties of Seller and Managing General Partner contained herein
shall be true, complete and accurate in all material respects as of the
date when made and as of the Closing Date as though such representations
and warranties were made as of such date, except for any changes expressly
permitted by the terms of this Agreement.
Section 5.2 Performance. Seller shall have performed and complied
in all material respects with all agreements, obligations and conditions
required by this Agreement to be so performed or complied with by it at or
prior to the Closing.
Section 5.3 No Injunction. On the Closing Date, there shall be no
effective injunction, writ, preliminary restraining order or any order of
any nature issued by a court of competent jurisdiction restraining or
prohibiting the consummation of the transactions contemplated hereby.
Section 5.4 Consents and Approvals. All material licenses,
permits, consents, approvals and authorizations of all third parties and
governmental bodies and agencies, including the requisite consent of
Seller's limited partners, shall have been obtained which are necessary in
connection with the execution and delivery by Managing General Partner, on
behalf of Seller, of this Agreement, and the consummation by Seller and
Managing General Partner of the transactions contemplated hereby.
VI. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller under this Agreement are subject to the
satisfaction at or before the Closing, of each of the following conditions,
any one or more of which may be waived by Seller in its sole discretion:
Section 6.1 Representations and Warranties. The representations
and warranties of Buyer contained herein shall be true, complete and
accurate in all material respects as of the date when made and as of the
Closing Date as though such representations and warranties were made as of
such date, except for any changes expressly permitted by the terms of this
Agreement.
Section 6.2 Performance. Buyer shall have performed and complied
in all material respects with all agreements, obligations and conditions
required by this Agreement to be so performed or complied with by it at or
prior to the Closing.
Section 6.3 No Injunction. On the Closing Date, there shall be no
effective injunction, writ, preliminary restraining order or any order of
any nature issued by a court of competent jurisdiction restraining or
prohibiting consummation of the transactions contemplated hereby.
Section 6.4 Consents. Seller shall have obtained the requisite
consent of its limited partners for the consummation by Seller and Managing
General Partner of the transactions contemplated hereby.
Section 6.5 Fairness Opinion. Managing General Partner shall have
received a written opinion from Principal Financial Securities, Inc. or any
other reputable investment banking firm that the Purchase Price is fair to
Seller from a financial point of view.
VII. TERMINATION OF AGREEMENT
Section 7.1 Termination of Agreement. This Agreement may be
terminated:
(a) at any time prior to the Closing, by mutual agreement of
Seller and Buyer; or
(b) on the Closing Date, by either party, if any conditions
precedent to such party's performance shall not have been satisfied on the
Closing Date.
VIII. MISCELLANEOUS
Section 8.1 Expenses, Taxes, Etc. Except as otherwise provided
herein, each of the parties hereto shall pay all fees and expenses incurred
by it in connection with the transactions contemplated by this Agreement.
Section 8.2 Further Assurances.
(a) From time to time (including after the Closing Date), at
Buyer's request and without further consideration, Seller shall execute and
deliver to Buyer such documents and take such other action as Buyer may
reasonably request in order to consummate more effectively the transactions
contemplated hereby.
(b) From time to time (including after the Closing Date), at
Seller's request and without further consideration, Buyer shall execute and
deliver such documents and take such other action as Seller may reasonably
request in order to consummate more effectively the transactions
contemplated hereby.
Section 8.3 Parties in Interest. This Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the respective
successors and permitted assigns of the parties hereto. The rights and
obligations of Buyer and Seller hereunder may not be assigned without the
consent of the other, except that Buyer shall have the right to assign any
or all of its rights and obligations hereunder to any of its affiliates,
provided that each such affiliate assumes Buyer's obligations hereunder.
Section 8.4 Entire Agreement, Amendments and Waiver. This
Agreement, the exhibits, the schedules and other writings referred to
herein which form a part hereof shall constitute the entire understanding
of the parties with respect to its subject matter. This Agreement
supersedes all prior negotiations, agreements and understandings between
the parties with respect to its subject matter. This Agreement may be
amended only by a written instrument duly executed by the parties. Any
condition to a party's obligations hereunder may be waived in writing by
such party to the extent permitted by law.
Section 8.5 Headings. The Article and Section headings contained
in this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of any provision of this Agreement.
Section 8.6 Notices. Any notices or other communications required
or permitted to be given hereunder shall be in writing and shall be sent to
the parties at the following addresses or at such other addresses as shall
be specified by the parties by like notice:
If to Buyer:
000 Xxxxx Xx. Xxxx
Xxxxxx, Xxxxx 00000
If to Seller:
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxx, Xxxxxxx 00000
Such notices or other communications shall be deemed to have been duly
given and received (i) on the day of sending if sent by personal delivery,
cable, telegram, facsimile transmission or telex, (ii) on the next business
day after the day of sending if sent by Federal Express or other similar
express delivery service or (iii) on the fifth calendar day after the day
of sending if sent by registered or certified mail (return receipt
requested).
SECTION 8.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF TEXAS, WITHOUT REGARD TO ITS CONFLICTS OF LAW RULES.
Section 8.8 Third Parties. Nothing herein expressed or implied is
intended or shall be construed to confer upon or give to any person other
than the parties hereto and their successor or permitted assigns, any
rights or remedies under or by reason of this Agreement.
Section 8.9 Counterparts. This Agreement may be executed
simultaneously in several counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto on the date
first above written.
SELLER
HALL INSTITUTIONAL MORTGAGE FUND LIMITED PARTNERSHIP
By: Hall Pension Fund Associates, General Partner
By: Hall 1985 Management Associates Limited
Partnership, General Partner
By: Hall Apartment Associates, Inc.,
Managing General Partner
By: /s/Xxxxx Xxxxx
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Print Name: Xxxxx Xxxxx
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Print Title: Vice President
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BUYER
HALL FINANCIAL GROUP, INC.
By: /s/Xxxxxx X. Xxxxx
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Print Name: Xxxxxx X. Xxxxx
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Print Title: Chief Financial Officer
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