ACQUISITION AGREEMENT
ACQUISITION AGREEMENT, dated effective as of January 1, 2000
(the "Agreement"), by and among CAX Riverside, L.L.C., a Delaware limited
liability company ("Purchaser"), CADC Holdings, L.L.C., a Georgia limited
liability company ("CADC LLC"), Riverside Golf Course Investors, Inc., a Florida
corporation ("Riverside") and Community Acquisition and Development Corporation
("CADC" and, together with CADC LLC and Riverside, the "Sellers").
WHEREAS, CADC LLC owns 98% of the outstanding limited
liability company interests (the "Interests") in Riverside Golf Course
Community, L.L.C., a Delaware limited liability company ("the LLC") and
Riverside and CADC each owns 1% of the outstanding Interests in the LLC; and
WHEREAS, the Sellers desire to sell all of their Interests,
and Purchaser desires to purchase all of the Sellers' Interests 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 Purchase and Sale. The Sellers agree to sell to Purchaser
and Purchaser agrees to purchase, all of the Sellers' Interests at the Closing
(as herein defined) upon the terms and subject to the conditions set forth in
this Agreement.
I.2 Consideration. The consideration for the Interests (the
"Consideration") shall be ONE DOLLAR AND NO CENTS ($1.00) in cash. The
Consideration shall be payable by Purchaser at the Closing in (i) cash or (ii)
such other form as the Sellers and Purchaser may agree to before Closing.
I.3 Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place 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.4 Deliveries by the Sellers at the Closing. (a) At the
Closing, the Sellers shall deliver to Purchaser an executed Assignment and
Assumption of Limited Liability Company Interest Agreement in substantially the
same form as Exhibit A hereto. (b) At the Closing, the Sellers shall also
deliver to the Purchaser certificates executed by officers of the Sellers
authorized to so certify on behalf of the Sellers, to the effect that all of the
representations and warranties of the Sellers contained herein at Article II are
true and correct as of the Closing Date.
I.5 Deliveries by the Purchasers at the Closing. At the
Closing, the Purchaser shall deliver to the Sellers a certificate executed by an
officer of the Purchaser authorized to so certify on behalf of the Purchaser, to
the effect that all of the representations and warranties of the Purchaser
contained herein at Article III are true and correct as of the Closing Date.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each of the Sellers represents and warrants to the Purchaser
that as of the date hereof:
II.1 Authority. Such 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
such Seller and, assuming the due authorization, execution and delivery hereof
by the Purchaser, constitutes a valid and binding obligation of such 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.
II.2 No Conflict; Consents and Approvals. The execution and
delivery by such Seller 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
organizational documents of such Seller, (ii) violate or conflict with or result
in a breach or termination of or default under, any material agreement
(including the limited liability company agreement of the LLC), 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
such 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 such Seller such as
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would reasonably be expected to materially impair the validity or enforceability
of this Agreement or the ability of such 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 such Seller in connection with the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby.
II.3 Ownership. Such Seller is the owner, beneficially and of
record, of the Interests as set forth in the recitals hereto 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 PURCHASER
The Purchaser represents and warrants to the Sellers 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 the Purchaser, and the
payment by the Purchaser of the Consideration has been duly authorized by the
Purchaser and no further action is necessary on the part of the Purchaser. This
Agreement has been duly and validly executed and delivered by the Purchaser and,
assuming the due execution and delivery by the Sellers, constitutes a valid and
binding obligation of the Purchaser, enforceable against it in accordance with
its terms.
III.2 No Conflict; Consents and Approvals. The execution and
delivery by the 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 Limited Liability Company or Limited Liability Company Agreement
of the Purchaser, (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
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regulation applicable to the Purchaser or any of the property or assets of the
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 the Purchaser such
as would reasonably be expected to materially impair the validity or
enforceability of this Agreement or the ability of the 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 the 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 the Purchaser's right
to rely on the representations and warranties contained in Article II hereof,
the Purchaser acknowledges that it has had the opportunity to review such
financial and other data as it has requested of the Sellers, 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 Purchaser shall otherwise agree in writing prior to the taking of any action
prohibited by the terms of this Section, the Sellers shall cause each of the LLC
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 Purchaser, the
Sellers shall not permit the LLC 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 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
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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 the LLC
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 of 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.
(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.
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V.2 Conditions to Obligations of the Purchaser. The
obligations of the Purchaser are subject to the satisfaction at or prior to the
Closing of the following conditions:
(a) All proceedings to be taken by the Sellers in
connection with the transactions contemplated by this Agreement and all
documents, instruments and certificates to be delivered by the LLC in connection
with the transactions contemplated by this Agreement shall be reasonably
satisfactory in form and substance to each of the Purchaser and its counsel.
(b) All representations and warranties of the Sellers
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 LLC.
(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 Sellers are subject to the satisfaction at or prior to the Closing of the
following conditions:
(a) All proceedings to be taken by the Purchaser in
connection with the transactions contemplated by this Agreement and all
documents, instruments and certificates to be delivered by the LLC in connection
with the transactions contemplated by this Agreement shall be reasonably
satisfactory in form and substance to the Sellers and their counsel.
(b) All representations and warranties of the
Purchaser 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
transactions contemplated by this Agreement.
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ARTICLE VI
MISCELLANEOUS
VI.1 Survival. The representations, warranties, covenants and
agreements made by the Sellers and the Purchaser in this Agreement, or in any
certificate delivered by the Sellers or the Purchaser will survive until the
first anniversary of the Closing Date.
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 Sellers, to:
c/o Community Acquisition and Development Corporation
2 Ponds Xxxx Xxxxx
X.X. Xxx 000
Xxxxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: President
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Purchaser, to:
c/o Commercial Assets, Inc.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
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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 as of the date first above written.
COMMUNITY ACQUISITION AND DEVELOPMENT
CORPORATION, a Delaware corporation
By: /s/Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
President
CADC HOLDING, L.L.C., a Georgia
limited liability company
By: /s/Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
Managing Member
RIVERSIDE GOLF COURSE INVESTORS,
INC., a Florida corporation
By: /s/Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
President
CAX RIVERSIDE, L.L.C., a Delaware
limited liability company
By: Commercial Assets, Inc., a
Delaware corporation,
Its Managing Member
By: /s/Xxxxx X. Xxxxxx, 1/19/00
----------------------------
Xxxxx X. Xxxxxx
Chief Financial Officer
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ASSIGNMENT AND ASSUMPTION
OF LIMITED LIABILITY COMPANY INTEREST
ASSIGNMENT AND ASSUMPTION OF LIMITED LIABILITY COMPANY
INTEREST, dated as of January 1, 2000 (this "Assignment"), by and among
Community Acquisition and Development Corporation, a Delaware corporation
("CADC"), Riverside Golf Course Investors, Inc., a Florida corporation
("Riverside"), CADC Holdings, L.L.C., a Delaware limited liability company
("CADC Holdings" and, together with CADC and Riverside, the "Assignors"), and
CAX Riverside, L.L.C., a Delaware limited liability company (the "Assignee").
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed thereto in the Acquisition Agreement, dated as of January 1, 2000 (the
"Acquisition Agreement"), by and among the Assignee and the Assignors.
WHEREAS, the Assignors hold interests (the "LLC Interests") in
Riverside Golf Course Community, L.L.C., a Delaware limited liability company
(the "LLC"); and
WHEREAS, pursuant to the Acquisition Agreement, the Assignors
have agreed to transfer, and the Assignee has agreed to accept from the
Assignors, the Assignors' LLC Interests in exchange for $1 (the "Consideration")
in cash, as provided therein.
NOW, THEREFORE, in consideration of the foregoing and the
covenants of the parties set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
subject to the terms and conditions set forth herein, the parties hereby agree
as follows:
1. In consideration of the transfer to the Assignors of the
Consideration pursuant to the Acquisition Agreement, the Assignor hereby
unconditionally and irrevocably transfer, assign, contribute and set over to the
Assignee all of the Assignors' rights, title and interests in and to the LLC
Interests, including, without limitation, (i) all of the Assignors' interests in
the capital of the LLC, and the Assignors' interests in all profits and
distributions of any kind to which the Assignors shall at any time be entitled
in respect of the LLC Interests; (ii) all other payments, if any, due or to
become due to the Assignors in respect of the LLC Interests, under or arising
out of the limited liability company agreement of the LLC, whether as
contractual obligations, damages, insurance proceeds, condemnation awards or
otherwise; and (iii) all present and future claims, if any, of the Assignors
against the LLC or its members or former managers under or arising out of the
limited liability company agreement of the LLC (or the operating agreement or
regulations of any predecessors of the LLC) for monies loaned or advanced, for
services rendered or otherwise.
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2. Assignee hereby accepts the LLC Interests and agrees to assume the
Assignors' obligations under the liability company agreement of the LLC with
respect to the LLC Interests from and after the date hereof.
3. This Assignment shall take effect as of the Closing. This Assignment
shall inure to the benefit of and be binding upon the Assignors and the Assignee
and their respective successors and assigns.
4. This Assignment shall be construed and enforced in accordance with
the laws of the State of Delaware, without regard to its principles of conflict
of laws.
This Assignment may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as
of the day and year first written above.
ASSIGNORS:
COMMUNITY ACQUISITION AND DEVELOPMENT
CORPORATION, a Delaware corporation
By: /s/Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
President
CADC HOLDING, L.L.C., a Georgia
limited liability company
By: /s/Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
Its Managing Member
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RIVERSIDE GOLF COURSE INVESTORS, INC.,
a Florida corporation
By: /s/Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
Its President
ASSIGNEE:
CAX RIVERSIDE, L.L.C.,
a Delaware limited liability company
By: Commercial Assets, Inc., a Delaware
Its Managing Member
By: /s/Xxxxx X. Xxxxxx
----------------------------
Xxxxx X. Xxxxxx
Chief Financial Officer
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