ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT dated as of March 25, 1998, between
▇▇▇▇-▇▇▇▇ REALTY, L.P. a Delaware limited partnership ("Acquiror"), and PACIFICA
HOLDING COMPANY LLC, a Colorado limited liability corporation ("Contributor").
Section 15. Defined Terms
15.1 Definitions. For purposes of this Agreement, the following
terms shall have the respective meanings set forth below:
"Acquiror Indemnified Parties" has the meaning set forth in Section
6.1.
"Acquiror Transaction Documents" mean this Agreement and the
Assignment and Assumption Agreement.
"Affiliate" means any of ▇▇▇▇-▇▇▇▇ Realty Corporation, a Maryland
corporation ("▇▇▇▇-▇▇▇▇ Realty Corporation") or any corporate or partnership
entity affiliated with, or related to, Acquiror or ▇▇▇▇-▇▇▇▇ Realty Corporation.
"Agreement" means this Agreement and includes all of the schedules
and exhibits annexed hereto.
"Assumed Liabilities" means all liabilities arising after the
Closing under the Management Contracts.
"Assignment and Assumption Agreement" means an assignment and
assumption agreement with respect to the Assumed Liabilities in the form of
Exhibit A hereto.
"▇▇▇▇ of Sale" means a ▇▇▇▇ of sale in the form of Exhibit B hereto.
"Business Day" means any day that is not a Saturday, Sunday or
statutory holiday in the State of Colorado.
"Closing" means the closing of the purchase and sale of the
Transferred Assets and the other transactions contemplated by this Agreement.
"Closing Date" means March 25, 1998 or such other date as
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is mutually acceptable to Acquiror and Contributor.
"Consents" shall mean those consents set forth on Schedule 3.3
hereto.
"Contribution Agreements" means the Contribution Agreements of even
date herewith between Contributor, Acquiror and the other parties signatory
thereto.
"Contributor Indemnified Parties" has the meaning set forth in
Section 6.1.
"Contributor Transaction Documents" means, collectively, this
Agreement, the Assignment and Assumption Agreement and the ▇▇▇▇ of Sale.
"Encumbrance" means any lien, pledge, option, charge, easement,
security interest, right-of-way or similar restriction or encumbrance.
"Excluded Assets" means any assets of Contributor exclusively
relating to any business unrelated to the Management Contracts other than the
Transferred Assets.
"Excluded Liabilities" means all liabilities or obligations of
Contributor of whatever nature, whether known or unknown, absolute or contingent
or otherwise other than the Assumed Liabilities, including but not limited to
the liabilities set forth on Schedule 1.1(a).
"Losses" means any and all loss, claim, damage, suit, action, cause
of action, liability, penalty, judgment, decree, cost and expense (including,
without limitation, reasonable attorneys' fees and costs).
"Management Contracts" shall mean the Pacifica Management Contracts
and the Third Party Management Contracts.
"Pacifica Management Contracts" means the contracts identified as
such on Schedule 1.1(b).
"Permitted Encumbrances" has the meaning set forth in Section 3.5.
"Purchase Price" has the meaning set forth in Section 2.2.
"Third Party Management Contracts" means the contracts identified as
such on Schedule 1.1(b).
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"Transferred Assets" means all of Contributor's right, title and
interest in and to (i) all rights under the Management Contracts existing after
the Closing Date, (ii) all machinery, equipment, furniture, fixtures, supplies
and other assets set forth on Schedule 1.1(c) hereto (collectively, the
"Equipment"); (iii) all books and records (other than minute books and original
documents and records relating to the corporate existence of Contributor and
federal and state tax returns and supporting documents) relating to the
Management Contracts and the Equipment (provided that Contributor may retain
copies thereof and original records which Contributor is required to maintain as
a matter of law (which Acquiror shall have unrestricted access to for a period
of time equivalent to the statutory retention period of such records)); and (iv)
all goodwill associated with the foregoing.
Capitalized terms used herein and not otherwise defined have the
meanings set forth for such terms in the Contribution Agreements.
Section 16. Purchase and Sale of Assets; Tax Matters
16.1 Transferred Assets. Subject to the terms and conditions set
forth in this Agreement, Contributor shall sell, transfer, convey, assign and
deliver to Acquiror, and Acquiror shall purchase and acquire from Contributor,
on the Closing Date, all of the Transferred Assets, free and clear of all
Encumbrances other than Permitted Encumbrances.
16.2 Purchase Price. Subject to Section 2.3, the purchase price for
the Transferred Assets (the "Purchase Price") shall consist of (i) a cash
payment equal to $10,000 to Contributor by wire transfer of immediately
available federal funds to an account specified by Contributor in writing and
(ii) the assumption by Acquiror of the Assumed Liabilities.
16.3 Purchase Price Adjustment. All revenues and expenses with
respect to the Transferred Assets, and applicable to the period of time before
and after Closing, determined in accordance with sound accounting principles
consistently applied, shall be allocated between Contributor and Acquiror as
provided herein. Contributor shall be entitled to all revenue and shall be
responsible for all expenses accruing during the period of time up to and
including the Closing Date, and Acquiror shall be entitled to all revenue and
shall be responsible for all expenses accruing during the period of time from
and after the Closing Date. Acquiror shall pay all use taxes in connection with
the sale of the Transferred Assets.
16.4 The Closing. The Closing shall take place on the Closing Date
at a location to be mutually and reasonably agreed upon by Acquiror and
Contributor. At the Closing, the parties hereto shall make the deliveries
described below, provided that the obligation of each to do so shall depend upon
the performance by the other party of its obligations hereunder:
(a) Contributor shall deliver to Acquiror the following
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(which shall be in form and substance reasonably
satisfactory to Acquiror):
(i) the Assignment and Assumption Agreement;
(ii) a ▇▇▇▇ of Sale and such other instruments of
transfer and conveyance as shall be effective to
vest in Acquiror good and marketable title to the
tangible personal property included in the
Transferred Assets held by Contributor free and
clear of all Encumbrances other than Permitted
Encumbrances;
(iii) the Consents;
(iv) such other documents as may be reasonably
necessary to consummate the transactions
contemplated hereby.
(b) Acquiror shall deliver to Contributor the following:
(i) the Assignment and Assumption Agreement;
(ii) a wire transfer of immediately available funds in
the amount set forth in Section 2.2; and
(iii) such other documents as may be reasonably
necessary to consummate the transactions
contemplated hereby.
16.5 Allocation of Purchase Price. Contributor and Acquiror agree to
allocate the Purchase Price among the Transferred Assets as set forth on
Schedule 2.5. Contributor and Acquiror shall report for tax and other relevant
purposes (and shall defend in any tax audit or contest) the sale of the
Transferred Assets in a manner consistent with such allocation. Contributor and
Acquiror agree to execute an Internal Revenue Service Form 8594 reflecting such
allocation.
16.6 Further Assurances. From time to time after the Closing,
Contributor will execute and deliver to Acquiror such instruments of sale,
transfer, conveyance, assignment and delivery, and such consents, assurances,
powers of attorney and other instruments as may be reasonably requested by
Acquiror or its counsel in order to vest in Acquiror all right, title and
interest of Contributor in and to the Transferred Assets and otherwise in order
to carry out the purpose and intent of this Agreement.
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Section 17. Representations And Warranties of Contributor
Contributor represents and warrants to Acquiror as follows:
17.1 Organization and Authorization. Contributor is a limited
liability company duly organized, validly existing in good standing under the
laws of the State of Colorado. Contributor has all requisite corporate power and
authority to enter into the Contributor Transaction Documents and to perform
fully its obligations hereunder and thereunder. The execution and delivery of
the Contributor Transaction Documents and the performance by Contributor of its
obligations hereunder have been duly and validly authorized by all necessary
limited liability action. This Agreement is, and when executed and delivered in
accordance with this Agreement, each other Contributor Transaction Document will
be, a legal, valid and binding obligation of Contributor enforceable in
accordance with its terms.
17.2 Consents and Approvals. No filings with, notices to, or
approvals of any governmental or regulatory body are required to be obtained or
made by Contributor in connection with the consummation of the transactions
contemplated hereby.
17.3 No Violations. The execution and delivery of the Contributor
Transaction Documents and the performance by Contributor of its obligations
thereunder do not and will not conflict with or violate any provision of the
Articles of Organization or Operating Agreement of Contributor. The execution
and delivery of the Contributor Transaction Documents and the performance by
Contributor of its obligations thereunder do not and will not (a) conflict with
or result in a breach of the terms, conditions or provisions of, (b) constitute
a default under, (c) result in the creation of any Encumbrance upon the
Transferred Assets pursuant to, (d) give any third party the right to modify,
terminate or accelerate any obligation under, (e) result in a violation of, or
(f) require any authorization, consent (other than the Consents, which are set
forth on Schedule 3.3 hereto), approval, exemption or other action by or notice
to any court or administrative or governmental body or other third party
pursuant to, in each case, any law, statute, rule or regulation to which
Contributor is or the Transferred Assets are subject, or any agreement,
instrument, order, judgment or decree to which Contributor is or the Acquired
Assets are subject.
17.4 Financial Information. All of Contributor's books and records
relating to the Transferred Assets are complete and correct in all material
respects and present accurately the material financial information related to
the Transferred Assets.
17.5 Transferred Assets; Title to Assets. All material assets used
in connection with Contributor's performance under the Management Contracts are
set forth on Schedule 1.1(c). Except as set forth on Schedule 3.5 ("Permitted
Encumbrances"), Contributor has good and marketable title to the Transferred
Assets held by it free and clear of all Encumbrances, and after the Closing Date
the Transferred Assets will be free and clear of all Encumbrances other than
Permitted Encumbrances.
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17.6 Compliance with Laws. Contributor's business has been operated
in compliance in all material respects with all applicable laws and regulations
of governmental authorities.
17.7 Litigation. Except as set forth on Schedule 3.7, there are no
material claims, actions, suits, approvals, investigations, complaints or
proceedings pending or, to Contributor's knowledge, threatened before any court,
arbitrator or administrative, governmental or regulatory authority or body with
respect to the business of Contributor relating to the Transferred Assets nor
are the Transferred Assets subject to any material order, judgment, writ,
injunction or decree.
17.8 Management Contracts. True and correct copies of each
Management Contract have been provided to Acquiror or will be provided to
Acquiror prior to Closing, and the information set forth on Schedule 1.1(b) is
true and correct. Neither Contributor nor, to the knowledge of Contributor, any
other party to any Management Contract, agreement or instrument, is in default
of the terms thereof.
17.9 Brokers. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Contributor for which Acquiror shall have any responsibility.
Section 18. Representations and Warranties of Acquiror
Acquiror represents and warrants to Contributor as follows:
18.1 Organization and Authorization. Acquiror is a limited
partnership duly organized and existing in good standing under the laws of the
State of Delaware. Acquiror has all requisite power and authority to enter into
the Acquiror Transaction Documents and to assume and perform fully its
obligations hereunder and thereunder. The execution and delivery of the Acquiror
Transaction Documents and the performance by Acquiror of its obligations
thereunder have been duly and validly authorized by all necessary partnership
action. This Agreement is, and when executed and delivered in accordance with
the terms hereof the other Acquiror Transaction Documents will be, a valid and
binding obligation of Acquiror enforceable in accordance with its terms.
18.2 No Violations. The execution and delivery of the performance of
the Acquiror Transaction Documents by Acquiror of its obligations thereunder do
not and will not conflict with or violate any provision of the Second Amended
and Restated Agreement of Limited Partnership of the Acquiror. Except for such
of the following as, individually or in the aggregate, will not have a material
adverse effect on Acquiror's ability to consummate the transactions contemplated
hereby, the execution and delivery of the Acquiror Transaction Documents and the
performance by Acquiror of its obligations thereunder do not and
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will not (a) conflict with or result in a breach of the terms, conditions or
provisions of, (b) constitute a default under, (c) result in the creation of any
lien, security interest, charge or encumbrance upon its assets pursuant to, (d)
give any third party the right to modify, terminate or accelerate any obligation
under, (e) result in a violation of, or (f) require any authorization, consent,
approval, exemption or other action by or notice to any court or administrative
or governmental body or any third party pursuant to, in each case, any law,
statute, rule or regulation or any agreement, instrument, order, judgment or
decree to which Acquiror is subject.
18.3 Brokers. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Acquiror for which Contributor shall have any responsibility.
Section 19. Conditions to Closing
19.1 Obligation of Acquiror to Close. The obligation of Acquiror to
close the transactions contemplated hereby shall be subject to the fulfillment
and satisfaction, prior to or at the Closing, of the following conditions, or
the written waiver thereof by Acquiror:
(a) No Injunction. No injunction or restraining order shall
be in effect which forbids or enjoins the consummation
of the transactions contemplated by this Agreement, no
proceedings for such purpose shall be pending, and no
federal, state, local or foreign statute, rule or
regulation shall have been enacted which prohibits,
restricts or delays the consummation of the transactions
contemplated hereby.
(b) Approvals. All governmental and third party approvals,
consents, permits or waivers necessary for consummation
of the transactions contemplated by this Agreement or
the financing thereof, and all Governmental Permits
required for the use by Acquiror of the Transferred
Assets, shall have been obtained in form and substance
reasonably satisfactory to Acquiror.
(c) Material Adverse Change. No material adverse change in
the Transferred Assets shall have occurred.
(d) Contribution Agreement Closing. The Closing
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under the Contribution Agreements shall have occurred or
be occurring simultaneously with the Closing.
(e) Encumbrances. Acquiror shall be satisfied that the
Transferred Assets are free and clear of all
Encumbrances as of the Closing Date.
(f) Management Contracts. Acquiror shall be satisfied, in
its sole discretion, that there are no defects in the
assignability, enforceability, evidence or existence of
any of the Management Contracts.
19.2 Obligation of Contributor to Close. The obligation of
Contributor to close the transactions contemplated hereby shall be subject to
the fulfillment and satisfaction, prior to or at the Closing, of the following
conditions, or the written waiver thereof by Contributor:
(a) No Injunction. No injunction or restraining order shall
be in effect which forbids or enjoins the consummation
of the transactions contemplated by this Agreement and
no federal, state, local or foreign statute, rule or
regulation shall have been enacted which prohibits,
restricts or delays such consummation.
(b) Contribution Agreement Closing. The Closing under the
contribution Agreements shall have occurred or be
occurring simultaneously with the Closing.
Section 20. Miscellaneous
20.1 Indemnification.
(a) Acquiror shall indemnify, defend and hold harmless
Contributor, and each of its directors, officers, members,
affiliates, agents, attorneys, accountants and employees, and each
of their respective successors and assigns (all collectively, the
"Contributor Indemnified Parties"), of, from and against, any and
all loss, claim, damage, suit, action, cause of action, liability,
penalty, judgment, decree, cost and expense (including, without
limitation, reasonable attorneys' fees and costs), which may at any
time be asserted or recovered against or incurred by
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any such Contributor Indemnified Parties, or any of them, arising
from, in connection with, on account of, or relating to any and all
debts, liabilities and obligations of Acquiror to any third party or
the government, whether fixed or contingent, known or unknown,
▇▇▇▇▇▇ or inchoate, liquidated or unliquidated, secured or unsecured
or otherwise, arising after the Closing Date with respect to the
Assumed Liabilities.
(b) Contributor shall indemnify, defend and hold harmless
Acquiror, and each of its directors, officers, partners, affiliates,
agents, attorneys, accountants and employees, and each of their
respective successors and assigns (all collectively, the "Acquiror
Indemnified Parties"), of, from and against, any and all loss,
claim, damage, suit, action, cause of action, liability, penalty,
judgment, decree, cost and expense (including, without limitation,
reasonable attorneys' fees and costs), which may at any time be
asserted or recovered against or incurred by any such Acquiror
Indemnified Parties, or any of them, arising from, in connection
with, on account of, or relating to any and all debts, liabilities
and obligations of Contributor to any third party or the government,
whether fixed or contingent, known or unknown, ▇▇▇▇▇▇ or inchoate,
liquidated or unliquidated, secured or unsecured or otherwise,
existing on the Closing Date or, except with respect to Assumed
Liabilities, arising thereafter.
20.2 Indemnification Limitation. Notwithstanding Section 6.1 of this
Agreement, (i) no claim for indemnification shall be asserted against either
Contributor or Acquiror with respect to any single Loss in an amount less than
$10,000 (it being understood that all Losses arising from the same operative
facts and circumstances shall be deemed a single aggregate Loss); (ii) no
amounts shall be payable by Acquiror or Contributor under this Section 6 unless
and until the aggregate amount otherwise payable by such Acquiror or Contributor
in the absence of this clause exceeds $50,000, in which event all amounts in
excess of such amount (but only such amounts in excess) shall be due; and (iii)
no claim for indemnification under this Section 6 shall first be asserted after
the first anniversary of the Closing Date.
20.3 Publicity. No press release or other public announcement
concerning this Agreement or the transactions contemplated hereby shall be made
without advance approval thereof by Contributor and Acquiror, except as required
by law.
20.4 Notices. Any and all notices or other communications or
deliveries required or permitted to be given or made pursuant to any of the
provisions of this Agreement shall be deemed to have been duly given or made for
all purposes if (i) hand delivered, (ii) sent by a nationally recognized
overnight courier for next business day
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delivery or (iii) sent by confirmed facsimile transmission as follows:
If to Acquiror, at:
c/o ▇▇▇▇-▇▇▇▇ Realty Corporation
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Contributor, at:
Pacifica Holding Company LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇▇ Hyatt ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Notices shall be deemed properly delivered and received when and if either (i)
personally delivered; (ii) on the first business day after deposit with Federal
Express or other commercial overnight courier for delivery on the next business
day, or (iii) facsimile transmission, receipt confirmed. Any party may change
its address for deliver of notices by properly notifying the
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others pursuant to this Section 6.4.
20.5 Governing Law; Severability. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of Colorado
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Colorado or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Colorado. Should any clause, section or part of this Agreement be held or
declared to be void or illegal for any reason, all other clauses, sections or
parts of this Agreement shall nevertheless continue in full force and effect.
20.6 Successors and Assigns. The terms, conditions and covenants of
this Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective nominees, successors, beneficiaries and assigns;
provided, however, no direct or indirect conveyance, assignment or transfer of
any interest whatsoever of, in or to any or all of the Management Contracts
shall be made by Contributor during the term of this Agreement. Acquiror may
assign all or any of its right, title and interest under this Agreement to an
Affiliate. No such assignee shall accrue any obligations or liabilities
hereunder until the effective date of such assignment. In addition to its right
of assignment, Acquiror shall also have the right, exercisable prior to Closing,
to designate any Affiliate, as the grantee or transferee of any or all of the
conveyances, transfers and assignments to be made by Contributor at Closing
hereunder, independent of, or in addition to, any assignment of this Agreement.
In the event of an assignment of this Agreement by Acquiror (but not in the
event of the designation of any Affiliate), its assignee shall be deemed to be
the Acquiror hereunder for purposes hereof, and shall have all rights of
Acquiror hereunder (including but not limited to, the right of further
assignment), and the assignor shall be released from all liability hereunder. In
the event that an Affiliate shall be designated as a transferee hereunder, that
transferee shall have the benefit of all of the representations and rights
which, by the terms of this Agreement, are incorporated in or relate to the
conveyance in question.
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* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed on the date and year first above written.
▇▇▇▇-▇▇▇▇ REALTY, L.P., a Delaware PACIFICA HOLDING COMPANY LLC, a
limited partnership limited liability company
By: ▇▇▇▇-▇▇▇▇ Realty Corporation, a
Delaware corporation and its sole general
partner
By:
-------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------- Manager
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
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