ACQUISITION AGREEMENT
ACQUISITION AGREEMENT, dated effective as of January 1, 2000
(the "Agreement"), by and among AIC Community Management Holding Corp., a
Delaware corporation ("Newco"), AIC MANAGEMENT HOLDINGS, LLC, a Delaware limited
liability company ("AICMH" and, together with Newco, the "Purchasers"),
COMMUNITY MANAGEMENT INVESTORS CORPORATION, a Delaware corporation (the
"Seller").
WHEREAS, the Seller owns approximately 50% of the outstanding
partnership interests (the "AICCMP Interests") in AIC Community Management
Partnership, a Delaware general partnership ("AICCMP") and the Seller owns
approximately 50% of the outstanding limited liability company interests (the
"AICPMC Interests") in AIC Property Management Co., LLC, a Delaware limited
liability company ("AICPMC" and, together with AICMP, the "Companies"); and
WHEREAS, the Seller desires to sell all of its AICCMP
Interests and all of its AICPMC Interests, and (i) Newco desires to purchase all
of the Seller's AICCMP Interests and (ii) AICMH desires to purchase all of the
Seller's AICPMC Interests, each of such purchases upon the terms and subject to
the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements set forth in this Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
ARTICLE I
PURCHASE AND SALE; CLOSING
I.1 Newco Purchase and Sale. The Seller agrees to sell to
Newco and Newco agrees to purchase, all of the Seller's AICCMP Interests at the
Closing (as herein defined) upon the terms and subject to the conditions set
forth in this Agreement.
I.2 AICMH Purchase and Sale. The Seller agrees to sell to
AICMH and AICMH agrees to purchase, all of the Seller's AICCMP Interests at the
Closing (as herein defined) upon the terms and subject to the conditions set
forth in this Agreement.
I.3 Consideration. The consideration for the AICCMP Interests
(the "AICCMP Consideration") shall be THREE HUNDRED AND EIGHTY THOUSAND DOLLARS
AND NO CENTS ($380,000.00), such payment to be delivered at the Closing in the
form of a promissory note substantially similar to Exhibit C hereto (the
"Promissory Note"). The consideration for the AICPMC Interests (the "AICPMC
Consideration" and, together with the AICCMP Consideration, the "Consideration")
shall be ONE MILLION, SEVEN HUNDRED AND FORTY THOUSAND DOLLARS AND NO CENTS
($1,740,000.00), such payment to be delivered at the Closing in the form of a
promissory note substantially similar to the Promissory Note attached as Exhibit
C hereto (the "Promissory Note").
I.4 Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place effective as of January 1, 2000
(the "Closing Date") at 10:00 a.m. Denver time, or on such other date as the
parties hereto agree.
I.5 Deliveries by the Seller at the Closing. (a) At the
Closing, the Seller shall deliver to Newco an executed Assignment and Assumption
of Partnership Interest Agreement in substantially the same form as Exhibit A
hereto. (b) At the Closing, the Seller shall deliver to AICMH an executed
Assignment and Assumption of Limited Liability Company Interest Agreement in
substantially the same form as Exhibit B hereto. (c) At the Closing, the Seller
shall deliver to the Purchasers, and each of them, a certificate executed by an
officer of the Seller authorized to so certify on behalf of the Seller, to the
effect that all of the representations and warranties of the Seller contained
herein at Article II are true and correct as of the Closing Date.
I.6 Deliveries by the Purchasers at the Closing. At the
Closing, the Purchasers and each of them shall deliver to the Seller (i) a
certificate executed by an officer of such Purchaser authorized to so certify on
behalf of such Purchaser, to the effect that all of the representations and
warranties of such Purchaser contained herein at Article III are true and
correct as of the Closing Date, and (ii) an executed counterpart to the
Promissory Note.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller represents and warrants to the Purchasers, and each
of them, that as of the date hereof:
II.1 Authority. The Seller has the right, power, legal
capacity and authority to enter into and perform its obligations under this
Agreement. This Agreement has been duly and validly executed and delivered by
the Seller and, assuming the due authorization, execution and delivery hereof by
each of the Purchasers, constitutes a valid and binding obligation of the
Seller, enforceable against it in accordance with its terms, except as such
enforceability may be subject to the effects of bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting the
rights of creditors and of general principles of equity.
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II.2 No Conflict; Consents and Approvals. The execution and
delivery by the Seller of this Agreement do not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will not,
(i) conflict with, or result in any violation of any provision of the
Certificate of Incorporation of the Seller, (ii) violate or conflict with or
result in a breach or termination of or default under, any material agreement,
instrument, license, judgment, order, write, injunction, decree, statute, law,
ordinance, rule or regulation applicable to the Seller or any of the property or
assets of the Seller or (iii) result in a default (or an event which with notice
or lapse of time or both would become a default) or give to any third party any
right of termination, cancellation, amendment or acceleration under, or result
in the creation or imposition of any Lien on any material asset of the Seller
such as would reasonably be expected to materially impair the validity or
enforceability of this Agreement or the ability of the Seller to perform in any
material respect, its obligations under this Agreement. No consent, approval or
authorization of, or declaration, filing or registration with any court,
administrative agency or commission or other governmental or regulatory
authority or any other person or entity is required to be made or obtained by or
with respect to the Seller in connection with the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby.
II.3 Ownership. Seller is the owner, beneficially and of
record, of all of the AICCMP Interests and all of the AICPMC Interests free and
clear of all Liens. As used in this Agreement, "Lien" means any mortgage,
pledge, lien, encumbrance, charge, adverse claim or restriction of any kind
affecting title or resulting in an encumbrance against property, real or
personal, tangible or intangible, or a security interest of any kind (including
any conditional sale or other title retention agreement, any lease in the nature
thereof, any third party option or other agreement to sell and any filing of or
agreement to give, any financing statement under the Uniform Commercial Code (or
equivalent statute) of any jurisdiction).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser represents and warrants to the Seller
individually but not jointly that as of the date hereof:
III.1 Authority. It has the right, power, legal capacity and
authority to enter into and perform its obligations under this Agreement. The
execution, delivery and performance of this Agreement by such Purchaser, and the
payment by such Purchaser of the AICCMP Consideration and the AICPMC
Consideration , respectively, have been duly authorized by such Purchaser and no
further action is necessary on the part of such Purchaser. This Agreement has
been duly and validly executed and delivered by such Purchaser and, assuming the
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due execution and delivery by the Seller, constitutes a valid and binding
obligation of such Purchaser, enforceable against it in accordance with its
terms.
III.2 No Conflict; Consents and Approvals. The execution and
delivery by such Purchaser of this Agreement does not, and the consummation of
the transactions contemplated hereby and compliance with the terms hereof will
not, (i) conflict with, or result in any violation of any provision of the
Certificate of Incorporation or Bylaws of Newco, or the Operating Agreement of
AICMH, (ii) violate or conflict with or result in a breach or termination of or
default under, any material agreement, instrument, license, judgment, order,
writ, injunction, decree, statute, law, ordinance, rule or regulation applicable
to such Purchaser or any of the property or assets of such Purchaser or (iii)
result in a default (or an event which with notice or lapse of time or both
would become a default) or give to any third party any right of termination,
cancellation, amendment or acceleration under, or result in the creation or
imposition of any Lien on any material asset of such Purchaser such as would
reasonably be expected to materially impair the validity or enforceability of
this Agreement or the ability of such Purchaser to perform in any material
respect, its obligations under this Agreement. No consent, approval or
authorization of, or declaration, filing or registration with any court,
administrative agency or commission or other governmental or regulatory
authority or any other person or entity is required to be made or obtained by or
with respect to such Purchaser in connection with the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby.
III.3 Diligence Review. Without limiting such Purchaser's
right to rely on the representations and warranties contained in Article II
hereof, such Purchaser acknowledges that it has had the opportunity to review
such financial and other data as it has requested of the Seller, and that it has
had the opportunity to conduct such due diligence investigations as it deemed
appropriate.
ARTICLE IV
COVENANTS
IV.1 Conduct of Business. From the date hereof through the
Closing, except as expressly permitted or contemplated by this Agreement, unless
the Purchasers shall otherwise agree in writing prior to the taking of any
action prohibited by the terms of this Section, the Seller shall cause each of
the Companies to conduct its operations and business in the ordinary and usual
course of business and consistent with past practice. Without limiting the
generality of the foregoing, and except as otherwise expressly permitted by this
Agreement, prior to the Closing, without the prior written consent of the
Purchasers, to the extent within its control, the Seller shall not permit AICCMP
or AICPMC to: (a) issue, sell, pledge or dispose of, grant or otherwise create
or agree to issue, sell, pledge or dispose of, grant or otherwise create any
equity interest, any debt or any securities convertible into or exchangeable for
any equity interest; (b) purchase, redeem or otherwise acquire or retire, or
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offer to purchase, redeem or otherwise acquire or retire, any equity interest
(including any options with respect to any equity interest and any security
convertible or exchangeable into any equity interest); (c) declare, set aside,
make any distribution, payable in cash, stock, property or otherwise, with
respect to any of its equity interests, or subdivide, reclassify, recapitalize,
split, combine or exchange any of its equity interests; (d) incur or become
contingently liable with respect to any indebtedness or guarantee any such
indebtedness or issue any debt securities or incur any other obligation or
liability outside the ordinary course of business; (e) acquire or agree to
acquire by merging or consolidating with, or by purchasing a substantial equity
interest in or a substantial portion of the assets of, or by any other manner,
any business or any corporation, partnership, association or other business
entity; (f) mortgage or otherwise encumber or subject to any lien of its
properties or assets; (g) other than with respect to tenant leases in the
ordinary course of business consistent with past practice, sell, transfer or
assign any of its assets or properties; (h) other than with respect to tenant
leases in the ordinary course of business consistent with past practice, enter
into any contract not terminable within 30 days; (i) other than with respect to
tenant leases in the ordinary course of business consistent with past practice,
pay or settle any claim or liability, or enter into, amend or terminate any
transaction, contract, commitment or arrangement to which AICCMP or AICPMC is a
party.
IV.2 Further Assurances. Each party hereto agrees to use its
best efforts to obtain all consents and approvals and to do all other things
necessary for the consummation of the transactions contemplated by this
Agreement. The parties agree to take such further action to deliver or cause to
be delivered to each other at the Closing and at such other times thereafter as
shall be reasonably agreed by such additional agreements or instruments as any
of them may reasonably request for the purpose of carrying out this Agreement
and the transactions contemplated hereby.
ARTICLE V
CONDITIONS
V.1 Conditions to Each Party's Obligations Under this
Agreement. The respective obligations of each party under this Agreement shall
be subject to the fulfillment at or prior to the Closing Date of the following:
(a) Injunctions. At the Closing Date, (i) there shall
be no injunction, restraining order, decision or decree of any nature of any
United States or foreign court or governmental entity or body or competent
jurisdiction that is in effect that restrains or prohibits the consummation of
the transactions contemplated hereby and (ii) there shall be no suit,
proceeding, or governmental investigation threatened or pending before any
United States or foreign governmental entity or body of competent jurisdiction
which seeks to restrain or prohibit the consummation of the transactions
contemplated hereby in whole or material part, or to obtain damages or other
relief in connection with the transactions contemplated hereby.
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(b) Regulatory Approvals. All necessary approvals,
authorizations and consents of all governmental entities required to consummate
the transactions contemplated by this Agreement shall have been obtained and
shall remain in full force and effect and all waiting periods relating to such
approvals, authorizations or consents shall have expired.
V.2 Conditions to Obligations of the Purchasers. The
obligations of each of the Purchasers individually and not jointly are subject
to the satisfaction at or prior to the Closing of the following conditions:
(a) All proceedings to be taken by the Seller in
connection with the transactions contemplated by this Agreement and all
documents, instruments and certificates to be delivered by each of the Companies
in connection with the transactions contemplated by this Agreement shall be
reasonably satisfactory in form and substance to each of the Purchasers and
their counsel.
(b) All representations and warranties of the Seller
contained herein at Article II shall be true and correct at the Closing as if
made as of the Closing Date.
(c) There shall not have occurred as of the Closing
Date any material adverse condition with respect the business, properties,
financial condition or prospects of the Companies.
(d) There shall not be in effect as of the Closing
Date any writ, judgment, injunction, decree or similar order of any court
restraining, or enjoining or otherwise preventing consummation of any of the
transactions contemplated by this Agreement.
V.3 Conditions to Obligations of the Seller. The obligations
of the Seller are subject to the satisfaction at or prior to the Closing of the
following conditions:
(a) All proceedings to be taken by each of the
Purchasers in connection with the transactions contemplated by this Agreement
and all documents, instruments and certificates to be delivered by each of the
Companies in connection with the transactions contemplated by this Agreement
shall be reasonably satisfactory in form and substance to the Seller and its
counsel.
(b) All representations and warranties of the
Purchasers contained herein at Article III are true and correct at the Closing
as if made as of the Closing Date.
(c) There shall not be in effect as of the Closing
Date any writ, judgment, injunction, decree or similar order of any court
restraining, or enjoining or otherwise preventing consummation of any of the
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transactions contemplated by this Agreement.
ARTICLE VI
MISCELLANEOUS
VI.1 Survival. The representations, warranties, covenants and
agreements made by the Seller and the Purchaser in this Agreement, or in any
certificate delivered by the Seller or the Purchaser will [not] survive closing.
VI.2 Notices. All notices and other communications under this
Agreement must be in writing and will be deemed to have been duly given if
delivered, telecopied or mailed, by certified mail, return receipt requested,
first-class postage prepaid, to the parties at the following address:
If to the Seller, to:
Community Management Investors Corporation
2 Ponds ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to either of the Purchasers, to:
Asset Investors Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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VI.3 Separability. If any provision of this Agreement shall be
declared to be invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
VI.4 Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns.
VI.5 Interpretation. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
VI.6 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same Agreement,
and shall become effective when one or more such counterparts have been signed
by each of the parties and delivered to each party.
VI.7 Entire Agreement. This Agreement represents the entire
Agreement of the parties with respect to the subject matter hereof and shall
supersede any and all previous contracts, arrangements or understandings between
the parties hereto with respect to the subject matter hereof.
VI.8 Governing Law. This Agreement shall be construed,
interpreted, and governed in accordance with the laws of the State of Delaware,
without reference to rules relating to conflicts of law.
VI.9 No Third Party Beneficiaries. No person or entity other
than the parties hereto is an intended beneficiary of this Agreement or any
portion hereof.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement effective as of the date first above written.
AIC COMMUNITY MANAGEMENT HOLDING
CORP.
a Delaware corporation
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
TITLE: Chief Financial Officer
DATE: January 19, 2000
AIC MANAGEMENT HOLDINGS, LLC,
a Delaware limited liability company
By: Asset Investors Operating
Partnership, L.P.
Its Managing Member
By: Asset Investors Corporation
Its General Partner
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
TITLE: Chief Financial Officer
DATE: January 19, 2000
COMMUNITY MANAGEMENT INVESTORS
CORPORATION,
a Delaware corporation
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇
TITLE: President
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