UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): January 31, 2000
ASSET INVESTORS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 1-9360 84-1500244
(State or other jurisdiction of (Commission File (IRS Employer
incorporation or organization) Number) Identification No.)
3410 South Galena Street, Suite 210 80231
Denver, Colorado (Zip Code)
(Address of principal executive offices)
(303) 614-9400
(Registrant's telephone number, including area code)
N/A
(Former name or former address,
if changed since last report)
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Item 2. Acquisition or Disposition of Assets
On January 31, 2000, Asset Investors Corporation (the "Company") entered into a
series of agreements dated effective as of January 1, 2000 and acquired four
manufactured home communities and undeveloped homesites at three manufactured
home communities from Community Acquisition and Development Corporation ("CADC")
and affiliates of CADC (collectively, the "Seller"). Joseph W. Gaynor is the
President of CADC and owns 31% of the Seller. Mr. Gaynor was appointed the
Company's Vice President of Development in January 2000. These communities
consist of 535 developed homesites and 2,183 undeveloped homesites. The
developed homesites are 95% occupied.
The consideration for the communities was determined through arms-length
negotiations with the Seller. Total consideration for the communities was
$36,816,000 and was paid as follows:
o Cancellation of $24,851,000 of participating mortgages and other loans
previously made by the Company to Seller;
o Assumption of $10,704,000 of third-party debt;
o Issuance of 44,572 units of limited partnership interests ("OP Units") in
the Company's subsidiary, Asset Investors Operating Partnership, L.P., at an
assigned value of $496,000; and
o $765,000 cash, the source of which is the Company's cash on hand and its
line of credit with U.S. Bank National Association.
The Company generally intends to continue to utilize the assets acquired in the
transaction as rental properties, which is the same manner as they were employed
prior to the acquisition. Due to the Company's intent to acquire additional
manufactured home communities, the Company's future dividends and the taxable
portion thereof cannot be estimated at this time.
Some of the statements in this report, as well as oral statements made by the
Company's officials to analysts and stockholders in the course of presentations
about the Company and conference calls following quarterly earnings releases,
constitute "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995. Such statements may include
projections of the Company's adjusted funds from operations, cash flow,
dividends and anticipated returns on real estate investments. Such
forward-looking statements involve known and unknown risks, uncertainties and
other factors that may cause the actual results, performance or achievements of
the Company to be materially different from any future results, performance or
achievements expressed or implied by the forward-looking statements. Such
factors include: general economic and business conditions; interest rate
changes; financing and refinancing risks; risks inherent in owning real estate
or debt secured by real estate; future development rate of homesites;
competition; the availability of real estate assets at prices which meet the
Company's investment criteria; and the Company's ability to reduce expense
levels, implement rent increases, use leverage and other risks set forth in the
Company's Securities and Exchange Commission filings.
Item 7. Financial Statements and Exhibits
(a) Financial Statements
The required financial statements will be filed by amendment within 60
days.
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(b) Pro Forma Financial Information
The required pro forma financial information will be filed by amendment
within 60 days.
(c) Exhibits
Exhibit No. Description
2.8 Contribution Agreement dated effective as of January
1, 2000, by and among Asset Investors Operating
Partnership, L.P., CADC Holding L.L.C. and Community
Acquisition and Development Corporation.
2.8 (a) Purchase and Sale Agreement dated effective as of
January 1, 2000, by and between Asset
2.8 (b) Purchase and Sale Agreement dated effective as of
January 1, 2000, by and between Prime
2.8 (c) Purchase and Sale Agreement dated effective as of
January 1, 2000, by and between Asset
2.8 (d) Asset Purchase Agreement dated effective as of
January 1, 2000, by and between AIC Homesales Corp.
and Community Acquisition and Development Corporation.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ASSET INVESTORS CORPORATION
Date: February 15, 2000
By: /s/David M. Becker
----------------------------
David M. Becker
Chief Financial Officer
CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT, dated effective as of January 1, 2000
(the "Agreement"), by and among Asset Investors Operating Partnership, L.P., a
Delaware limited partnership ("AIOP"),CADC Holding L.L.C., a Georgia limited
liability company ("CADC Holding"), and Community Acquisition and Development
Corporation, a Delaware corporation ("CADC" and, together with CADC Holding, the
"Contributors").
WHEREAS, the Contributors own membership interests (the
"Interests") in the limited liability companies listed on Schedule A hereto (the
"LLCs"); and
WHEREAS, the Contributors desire to contribute the Interests
to AIOP and AIOP desires to accept such contribution 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
CONTRIBUTION; CLOSING
I.1 Contribution. The Contributors agree to contribute,
convey, assign, transfer and deliver to AIOP and AIOP agrees to accept, all of
the Seller's Interests at the Closing (as herein defined) upon the terms and
subject to the conditions set forth in this Agreement.
I.2 Consideration. In exchange for the contribution of the
Interests to AIOP, at the Closing, subject to the conditions set forth in this
Agreement, AIOP shall:
(a) issue 44,528 units of limited partnership of AIOP
("OP Units") to CADC Holding; and
(b) issue 44 OP Units to CADC.
I.3 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.4 Deliveries by the Contributors at the Closing. At the
Closing, each of the Contributors shall deliver to AIOP (a) an executed
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Assignment and Assumption of Limited Liability Company Interest Agreement in
substantially the same form as Exhibit 1.4 hereto and (b) a certificate executed
by an officer of each Contributor authorized to so certify on behalf of the
Contributor, to the effect that all of the representations and warranties of the
Contributor contained herein at Article II are true and correct as of the
Closing Date.
I.5 Deliveries by AIOP at the Closing. At the Closing, AIOP
shall deliver to the Contributors (a) 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
(b) certificates representing OP Units in the amounts set forth in Section 1.2
hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF CONTRIBUTORS
Each Contributor represents and warrants individually but not
jointly to AIOP that as of the date hereof:
II.1 Authority. The Contributor 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 Contributor and, assuming the due authorization, execution and delivery
hereof by AIOP, constitutes a valid and binding obligation of the Contributor,
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 the Contributor 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 such Contributor's
constituent documents, (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 Contributor or any of the property or assets of the
Contributor 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 Contributor such
as would reasonably be expected to materially impair the validity or
enforceability of this Agreement or the ability of the Contributor 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 Contributor in connection with the execution, delivery and
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performance of this Agreement or the consummation of the transactions
contemplated hereby.
II.3 Ownership. Contributor is the owner, beneficially and of
record, of all of the Interests set forth opposite such Contributor's name on
the signature pages 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 the Interests 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).
II.4 Investment Representations. Contributor:
(a) is an "Accredited Investor," as such term is
defined in Regulation D under the Securities Act of 1933, as amended (the
"Securities Act");
(b) has had access to such financial and other
information, and has been afforded the opportunity to ask questions of
representatives of AIOP and Asset Investors Corporation, a Delaware corporation
("AIC"), and to receive answers to those questions, as it has deemed necessary
in connection with its acquisition of OP Units;
(c) acknowledges that the OP Units that will be
acquired pursuant to this Agreement are being acquired in a transaction not
involving any public offering within the meaning of the Securities Act, and the
OP Units, and any Common Stock, par value $0.01, of AIC (the "AIC Stock") that
may be issued in exchange for OP Units tendered for redemption, have not been,
and may never be, registered under the Securities Act;
(d) agrees not to offer, sell, transfer or otherwise
dispose of the OP Units, or any AIC Stock issued in exchange for OP Units
tendered for redemption, in the absence of registration under the Securities Act
unless it delivers to AIOP and AIC an opinion of counsel reasonably satisfactory
to AIOP and AIC, in form and substance satisfactory to AIOP and AIC, to the
effect that the proposed sale, transfer or other disposition may be effected
without registration under the Securities Act and under applicable state
securities and blue sky laws;
(e) acknowledges that the OP Units, and any AIC Stock
issued in exchange for OP Units tendered for redemption, will be in the form of
physical certificates and that, unless and until such OP Units or AIC Stock
shall have been registered under the Securities Act, the certificates will bear
a legend to the following effect:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
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STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF SUCH REGISTRATION, UNLESS THE TRANSFEROR DELIVERS TO THE COMPANY AN OPINION
OF COUNSEL OR OTHER EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY, IN FORM AND
SUBSTANCE SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT THE PROPOSED SALE,
TRANSFER OR OTHER DISPOSITION MAY BE EFFECTED WITHOUT REGISTRATION UNDER THE
SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS.
(f) has such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks of an
acquisition of the OP Units and is able to bear the economic risk of a loss of
an investment in the OP Units and is not acquiring any OP Units with a view to
the distribution thereof or any present intention of offering or selling any
thereof in a transaction that would violate the Securities Act or the securities
laws of any state or any other applicable jurisdiction; and
(g) has been advised by its own counsel with respect
to this Agreement and the tax implications of the contributions and transactions
contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF AIOP
AIOP represents and warrants to the Contributors 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 AIOP, and the issuance
by AIOP of the OP Units have been duly authorized by AIOP and no further action
is necessary on the part of AIOP. This Agreement has been duly and validly
executed and delivered by AIOP and, assuming the due execution and delivery by
the Contributors, constitutes a valid and binding obligation of AIOP,
enforceable against it in accordance with its terms.
III.2 No Conflict; Consents and Approvals. The execution and
delivery by AIOP 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 limited
partnership agreement or certificate of limited partnership of AIOP, (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
AIOP or any of the property or assets of AIOP or (iii) result in a default (or
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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 AIOP such as would reasonably be expected to materially impair
the validity or enforceability of this Agreement or the ability of AIOP 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 AIOP in connection with the execution, delivery
and performance of this Agreement or the consummation of the transactions
contemplated hereby.
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
AIOP shall otherwise agree in writing prior to the taking of any action
prohibited by the terms of this Section, the Contributors shall cause each of
the LLCs 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 AIOP, to the extent
within its control, the Contributors shall not permit any of the LLCs 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 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 it is a party.
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IV.2 Special Election. The parties agree that with respect to
the contributed real estate assets owned directly or indirectly by Contributors
through limited liability companies or joint ventures, at the election of the
Contributors, AIOP will either (1) use the remedial method as set out in
Treasury Regulation Section 1.704-3(d) for partnership allocation purposes, or
(2) use the traditional method as set out in Treasury Regulation Section
1.704-3(b) for partnership allocation purposes and allow the Contributors to
guarantee AIOP debt and/or elect to undertake an obligation to restore deficit
capital accounts in an amount that is sufficient to allocate an amount of either
recourse debt or partner nonrecourse debt ( as defined in Treasury Regulation
Section 1.704-2(b)(4)) that equals or exceeds such partners tax basis deficit
capital accounts.
If the contributors elect to use the remedial method as
described above, the parties agree that AIOP will maintain nonrecourse debt on
the contributed properties in an amount not less than the current amount of that
certain loan from GE Financial Assurance Corporation dated December 21, 1998 in
the original amount of $2,654,000 secured by the Sunlake Mobile Home Park, as
adjusted in the future by scheduled principal payments called for in such loan.
To the extent that any of the contributed real estate is sold
or otherwise disposed of by AIOP in a taxable transaction other than a
non-taxable like-kind exchange of property pursuant to IRC Section 1031 within
five years of the date of this agreement, the Contributors' shall have the
right, but not the obligation, for their OP Units to have the same
characteristics as other OP Units with respect to all items of income, gain,
loss, deduction and distributions other than the following: the Contributors' OP
Units will receive a special allocation of depreciation and other deductions in
the year of such sale and each year thereafter as necessary until the cumulative
amount of such depreciation and other deductions equals the amount of gain on
the taxable sale of contributed property allocated to the Contributors pursuant
to IRC Section 704 (c). In no event will such special allocation be made in a
year in which, after considering such special allocation, Asset Investors
Corporation fails to make distributions (as defined pursuant to IRC Sections 561
and 857 (b)(2)(B)) in an amount at least equal to its taxable income for such
year (as defined pursuant to IRC Section 857 (b)(2)). If the above special
allocation is made to the Contributors' OP Units, then the Contributors' OP
Units will also receive a special gain allocation provision whereby the
Contributors will receive a priority allocation of gain under IRC Section 704
(b) and the Treasury Regulations thereunder from a sale of substantially all of
AIOP's assets after five years in an amount equal to the special allocation of
depreciation and other deductions that they previously received. If a
Contributor redeems its OP Units prior to the date on which it has been
specially allocated gains equal to the special allocation of depreciation and
other deductions, the redemption consideration shall be adjusted for the
difference between the fair market value per unit of the Contributor's OP Units
and the fair market value per unit of OP Units not held by the Contributors.
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IV.3 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.
(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 AIOP. The obligations of AIOP
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 Contributors
in connection with the transactions contemplated by this Agreement and all
documents, instruments and certificates to be delivered by each of the LLCs in
connection with the transactions contemplated by this Agreement shall be
reasonably satisfactory in form and substance to AIOP and its counsel.
(b) All representations and warranties of the
Contributors contained herein at Article II shall be true and correct at the
Closing as if made as of the Closing Date.
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(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 LLCs.
(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 Contributors. The
obligations of the Contributors are subject to the satisfaction at or prior to
the Closing of the following conditions:
(a) All proceedings to be taken by AIOP in connection
with the transactions contemplated by this Agreement and all documents,
instruments and certificates to be delivered by each of the LLCs in connection
with the transactions contemplated by this Agreement shall be reasonably
satisfactory in form and substance to the Contributors and its counsel.
(b) All representations and warranties of AIOP
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.
ARTICLE VI
MISCELLANEOUS
VI.1 Survival. The representations, warranties, covenants and
agreements made by the Contributors and the Purchaser in this Agreement, or in
any certificate delivered by the Contributors or the Purchaser will survive
until the first anniversary of 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 Contributors, to:
c/o Community Acquisition and Development Corporation
2 Ponds Edge Drive
P.O. Box 500
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Chadds Ford, Pennsylvania 19317
Attention: President
Telephone: (610) 388-9600
Fax: (610) 388-9616
If to AIOP, to:
Asset Investors Operating Partnership, L.P.
c/o Asset Investors Corporation
3410 South Galena Street, Suite 210
Denver, Colorado 80231
Attention: David Becker
Telephone: (303) 614-9422
Fax: (303) 614-9401
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
Attention: Michael V. Gisser
Telephone: (213) 687-5000
Fax: (213) 687-5600
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.
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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.
ASSET INVESTORS OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership
By: Asset Investors Corporation
Its: General Partner
By: /s/David M. Becker
-----------------------
David M. Becker
Its: Chief Financial Officer
CADC HOLDING L.L.C.,
a Georgia limited liability company
By: Community Acquisition and
Development Corporation
Its: Manager
By: /s/Joseph W. Gaynor
-----------------------
Its: President
COMMUNITY ACQUISITION AND DEVELOPMENT
CORPORATION, a Delaware corporation
By: /s/Joseph W. Gaynor
-----------------------
Its: President
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SCHEDULE A
LIMITED LIABILITY COMPANY INTERESTS
1. AIOP Florida Properties I, L.L.C., a Delaware limited liability company
CADC Holding, L.L.C.: 100%
2. AIOP Florida Properties II, L.L.C., a Delaware limited liability
company Community Acquisition and Development Corporation: 100%
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PURCHASE AND SALE AGREEMENT
dated
January 1, 2000,
by and between
Asset Investors Operating Partnership, L.P., a Delaware limited partnership,
as Buyer,
and
Community Acquisition and Development Corporation, a Delaware corporation,
as Seller
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made
and entered into effective as of January 1, 2000 (the "Execution Date"), by and
between Asset Investors Operating Partnership, L.P., a Delaware limited
partnership ("Buyer"), and Community Acquisition and Development Corporation, a
Delaware corporation ("Seller"), for the purpose of setting forth the agreement
of the parties.
R E C I T A L S
A. Seller is the owner of a fee simple interest in those
certain mobile home spaces on that certain parcel of real property located at
Stonebrook Mobile Home Park, in the City of Homosassa, County of Citrus, State
of Florida, as more particularly described on Exhibit "A" attached hereto (the
"Property"), compris ing a portion of a manufactured home community commonly
known as "Stonebrook Mobile Home Park."
B. Seller desires to sell and Buyer desires to purchase the
Property upon and subject to the terms and conditions set forth in this
Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants
contained in this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Buyer and Seller
hereby agree as follows:
1. AGREEMENT TO PURCHASE AND SELL.
Subject to all of the terms and conditions of this Agreement,
Seller agrees to sell, transfer and convey to Buyer, and Buyer agrees to acquire
and purchase from Seller, all the rights, title, interests and claim of Seller
in the Property, upon and subject to the terms and conditions set forth herein.
2. PURCHASE PRICE.
The purchase price for the Property (the "Purchase Price")
shall be the sum of one hundred fifty-seven thousand, one hundred sixty-four
dollars and fifty-eight cents ($157,164.58) plus the forgiveness of indebtedness
as identified on Exhibit
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"B" attached hereto (the "Cancellation of Indebtedness"), subject to adjustment
as hereinafter provided.
2.1 Cash. Buyer shall deliver to Seller the sum of $157,164.58
by wire transfer or Buyer's check payable to the order of the Seller on or
before March 31, 2000.
2.2 Secured Indebtedness. Seller has advised Buyer that, as of
the Execution Date, the Property is not encumbered by any liens securing
indebtedness other than the indebtedness identified on Exhibit "B."
3. ACTIONS PENDING CLOSING.
Upon the Closing, Seller shall transfer, contribute and convey
to Buyer all the rights, title, interest and claim of Seller in the Property by
a duly executed and acknowledged quitclaim deed. Prior to the Closing, Seller
shall not take any action or commit or suffer any acts which would give rise to
a variance from the current legal description of the Property, or cause the
creation of any exception or encumbrance against or respecting the Property
without the prior written consent of Buyer, which consent may be withheld in
Buyer's sole and absolute discretion.
4. CONDITIONS TO CLOSING.
4.1 Buyer's Closing Conditions. The obligation of Buyer to
complete the transactions contemplated by this Agreement is subject to the
following conditions precedent (and conditions concurrent, with respect to
deliveries to be made by the parties at Closing) (the "Buyer's Closing
Conditions"), which conditions may be waived, or the time for satisfaction
thereof extended, by Buyer only in a writing executed by Buyer (provided,
however, that any such waiver shall not affect Buyer's ability to pursue any
remedy it may have with respect to any breach hereunder by Seller):
4.1.1 Seller's Due Performance. All of the
representations and warranties of Seller set forth in this Agreement shall be
true, correct and complete in all material respects as of the Closing Date, and
Seller, on or prior to the Closing Date, shall have complied with and/or
performed all of the obligations, covenants and agreements required on the part
of Seller to be complied with or performed pursuant to the terms of this
Agreement.
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4.1.2 Bankruptcy. No action or proceeding shall have
been commenced by or against Seller under the federal bankruptcy code or any
state law for the relief of debtors or for the enforcement of the rights of
creditors and no attach ment, execution, lien or levy shall have attached to or
been issued with respect to Seller's interest in the Property or any portion
thereof.
4.1.3 Leases. At the Closing, Seller shall assign all
of its rights and remedies under the Leases (including, without limitation, its
right to any security deposits and prepaid rent) to Buyer and Buyer shall assume
the obligations of Seller with respect thereto, pursuant to an assignment of
leases and security deposits in the form of Exhibit "C" attached hereto (the
"Assignment of Leases").
4.1.4 Non-Foreign Affidavit. At the Closing, Seller
shall deliver to Buyer a non-foreign affidavit in the form of Exhibit "D"
attached hereto, executed by Seller (the "Non-Foreign Affidavit").
4.1.5 No Moratoria. No moratorium, statute,
regulation, ordinance, legislation, order, judgment, ruling or decree of any
governmental agency or of any court shall have been enacted, adopted, issued,
entered or pending which is directed specifically at the Project and which would
have a material adverse effect on the value of the Project.
4.2 Failure of Buyer's Closing Conditions. If any of the
Buyer's Closing Conditions have not been fulfilled within the applicable time
periods, Buyer may:
4.2.1 waive the Buyer's Closing Condition and close
in accordance with this Agreement, without adjustment or abatement of the
Purchase Price; or
4.2.2 terminate this Agreement by written notice to
Seller.
4.3 Seller's Closing Conditions. The obligation of Seller to
complete the transactions contemplated by this Agreement is subject to the
following conditions precedent (and conditions concurrent, with respect to
deliveries to be made by the parties at Closing) (the "Seller's Closing
Conditions"), which conditions may be waived, or the time for satisfaction
thereof extended, by Seller only in a writing executed by Seller (provided,
however, that any such waiver shall not affect Seller's abilities to pursue any
remedy it may have with respect to any breach hereunder by Buyer):
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4.3.1 Buyer's Due Performance. All of the
representations and warranties of Buyer set forth in this Agreement shall be
true, correct and complete in all material respects as of the Closing Date, and
Buyer, on or prior to the Closing Date, shall have complied with and/or
performed all of the obligations, covenants and agreements required on the part
of Buyer to be complied with or performed pursuant to the terms of this
Agreement.
4.3.2 Deliveries. Buyer shall have delivered to
Seller such documents or instruments as are required to be delivered by Buyer
pursuant to the terms of this Agreement.
4.4 Failure of Seller's Closing Conditions. If any of the
Seller's Closing Conditions have not been fulfilled within the applicable time
periods, Seller may:
4.4.1 waive the Seller's Closing Condition and close
in accordance with this Agreement, without adjustment or abatement of the
Purchase Price; or
4.4.2 terminate this Agreement by written notice to
Buyer.
5. CLOSING.
5.1 Closing Date. Subject to the provisions of this Agreement,
the Closing shall take place effective as of January 1, 2000 (the "Closing
Date").
5.2 Deliveries by Seller. Seller, at its sole cost and
expense, shall deliver or cause to be delivered to Buyer the following documents
and instruments, as applicable, in addition to all other items and payments
required by this Agreement to be delivered by Seller at the Closing:
5.2.1 Deed. An original executed and acknowledged
Deed from Seller, conveying the Property to Buyer;
5.2.2 Non-Foreign Affidavit. An original executed
Non-Foreign Affidavit from Seller;
5.2.3 Assignment of Leases. An original executed
Assignment of Leases, executed by Seller; and
5.2.4 Other. Such other documents and instruments,
signed and properly acknowledged by Seller, if appropriate, as may be reasonably
required by
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Buyer or otherwise in order to effectuate the provisions of this Agreement and
the Closing of the transactions contemplated herein.
5.3 Deliveries by Buyer. Buyer, at its sole cost and expense,
shall deliver or cause to be delivered to Seller the following funds, documents
and instru ments, in addition to the other items and payments required by this
Agreement to be delivered by Buyer at the Closing:
5.3.1 Assignment of Leases. An original executed
Assignment of Leases, executed by Buyer; and
5.3.2 Other. Such other documents and instruments,
signed and properly acknowledged by Buyer, if appropriate, as may be reasonably
required by Seller or otherwise in order to effectuate the provisions of this
Agreement and the Closing of the transactions contemplated herein.
5.4 Closing Costs. Each party shall pay its own costs and
expenses arising in connection with the Closing (including, without limitation,
its own attorneys' and advisors' fees, charges and disbursements).
5.5 Deliveries by Seller. Seller shall deliver possession of
the Property, subject to the Leases, to Buyer upon the Closing.
6. SELLER'S REPRESENTATIONS AND WARRANTIES.
Seller represents and warrants to and agrees with Buyer, as of
the Execution Date and as of the Closing Date, as follows:
6.1 Leases.
6.1.1 Lease Schedule. The schedule attached hereto as
Exhibit " E" (the "Lease Schedule") is true, correct and complete with respect
to the leases, licenses, tenancies and other occupancy agreements (whether
written or oral) now in effect at the Project (collectively, the "Leases").
6.1.2 Delivery of Leases. True, correct and complete
copies of all Leases and all amendments, guarantees and other documents relating
thereto shall be made available to Buyer.
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6.1.3 No Pre-Paid Rent. Except as set forth on the
Lease Schedule, no Tenant has paid any rent for more than one (1) month in
advance.
6.1.4 No Rent Concessions. Except as set forth on the
Lease Schedule, no Tenant is entitled to any rent concessions or other offsets
against any rent payable by such Tenant after the Execution Date.
6.2 Litigation. There are no actions, suits or proceedings
before any judicial or quasi-judicial body, by any governmental authority or
other third party, pending, or to Seller's knowledge, threatened, against or
affecting all or any portion of the Project and, to Seller's knowledge, there is
no basis for any such action. Except for unlawful detainer or similar actions
against Tenants that are brought in the ordinary course of Seller's operation of
the Project, there are no actions, suits or proceedings pending, contemplated or
threatened by Seller in connection with all or any portion of the Project or
Seller's ownership, rights, use, development or maintenance thereof, including,
without limitation, tax reduction proceedings; and from and after the date
hereof, Seller shall not commence or allow to be commenced on its behalf any
action, suit or proceeding with respect to all or any portion of the Project
without the prior written consent of Buyer. No attachments, execution
proceedings, assignments for the benefit of creditors, insolvency, bankruptcy,
reorganization or other proceedings are pending, or, to Seller's knowledge,
threatened, against Seller.
6.3 Compliance with Laws. To Seller's knowledge, the Project
is in full compliance with all existing laws, rules, regulations, ordinances and
orders of all applicable federal, state, city and other governmental authorities
in effect as of the Execution Date (collectively, "Laws"), including, without
limitation, (a) the Americans with Disabilities Act, 42 U.S.C. ss. 12102, et
seq., together with all rules, regulations and official interpretations
promulgated pursuant thereto, and (b) all Laws with respect to zoning, building,
fire, life safety, health codes and sanitation. Seller has received no notice
of, and has no knowledge of, any condition currently or previously existing on
the Project or any portion thereof which may give rise to any violation of any
existing Law applicable to the Project if it were disclosed to the authorities
having jurisdiction over the Project.
6.4 No Conflicts. The execution and delivery of this Agreement
by Seller, the consummation of the transactions herein contemplated to be
performed by Seller, and compliance with the terms of this Agreement by Seller
will not conflict with, or, with or without notice or the passage of time or
both, result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, deed of trust, mortgage, loan agreement, or other
document, instrument or agreement, oral or
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written, to which Seller is a party or by which Seller or its assets are bound,
or any applicable regulation of any governmental agency, or any judgment, order
or decree of any court having jurisdiction over Seller or all or any portion of
the Property.
6.5 Due Organization. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
6.6 Seller's Authority; Validity of Agreements. Seller has
full right, power and authority to transfer, contribute and convey the Property
to Buyer as provided in this Agreement, to carry out its obligations hereunder
and to execute, deliver and perform, and enter into and consummate, all of the
documents and transactions contemplated by this Agreement. The individual(s)
executing this Agreement and the instruments referenced herein on behalf of
Seller have the legal power, right and actual authority to bind Seller to the
terms hereof and thereof. This Agreement is, and all instruments, documents and
agreements to be executed by Seller in connection herewith shall be, duly
authorized, executed and delivered by Seller and shall be valid, binding and
enforceable obligations of Seller.
6.7 Condition of Property. Except as otherwise expressly
provided herein or in any of the Closing documents executed in connection
herewith, Seller makes no representation or warranty as to the condition of the
Property and Buyer is purchasing the Property "AS-IS," and "WITH ALL FAULTS."
6.8 Survival. All of the representations and warranties of
Seller set forth in this Agreement shall be true upon the Execution Date, shall
be deemed to be repeated at and as of the Closing Date (except as otherwise
disclosed in writing to Buyer) and shall survive the delivery of the Deed and
the Closing.
7. BUYER'S REPRESENTATIONS AND WARRANTIES.
Buyer represents and warrants to Seller, as of the Execution
Date and as of the Closing Date, as follows:
7.1 Due Organization. Buyer is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
7.2 Buyer's Authority; Validity of Agreements. Buyer has full
right, power and authority to accept the Property from Seller as provided in
this Agreement, to carry out its obligations hereunder and to execute, deliver
and perform, and enter into and consummate, all of the documents and
transactions contemplated by this
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Agreement. The individual(s) executing this Agreement on behalf of Buyer and the
instruments referenced herein on behalf of Buyer have the legal power, right and
actual authority to bind Buyer to the terms hereof and thereof. This Agreement
is, and all other documents and instruments to be executed and delivered by
Buyer in connection herewith shall be, duly authorized, executed and delivered
by Buyer and shall be valid, binding and enforceable obligations of Buyer.
7.3 Survival. All of the representations and warranties of
Buyer set forth in this Agreement shall be true upon the Execution Date, shall
be deemed to be repeated at and as of the Closing Date (except as otherwise
disclosed in writing to Seller) and shall survive the delivery of the Deed and
the Closing.
8. ADDITIONAL COVENANTS OF SELLER.
In addition to the covenants and agreements of Seller set
forth else where in this Agreement, Seller covenants and agrees that between the
Execution Date and the Closing Date (or the date of earlier termination hereof,
if applicable):
8.1 Title. Subject to the terms of Sections 8.2 and 8.3
hereof, Seller shall not directly or indirectly sell, contribute, assign or
create any right, title or interest whatsoever in or to the Property, or create
or permit to exist thereon any lien, charge or encumbrance, or enter into any
agreement to do any of the foregoing, without the prior written consent of Buyer
(which consent may be granted or withheld in Buyer's sole and absolute
discretion).
8.2 Maintenance of Property. Seller shall operate and maintain
the Property in accordance with Seller's past practice and all applicable Laws,
rules and regulations affecting the Property or any portion thereof.
8.3 Service, Management and Employment Contracts. Seller shall
not enter into any new service, property management or employment contract or
extend, renew or replace any existing service, property management or employment
contract in respect of the Property without Buyer's prior written consent (which
consent may be withheld in Buyer's sole and absolute discretion), unless the
same shall be cancel lable without penalty or premium, upon not more than thirty
(30) days' notice from the owner of the Property.
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9. RISK OF LOSS.
9.1 Condemnation. If, prior to the Closing, all or any
"Material Portion" (as hereinafter defined) is taken by condemnation or eminent
domain (or is the subject of a pending or contemplated taking which has not been
consummated), Seller shall immediately notify Buyer of such fact. In such event,
Buyer shall have the option to terminate this Agreement upon written notice to
Seller given not later than three (3) days after Buyer's receipt of such notice
from Seller. Buyer shall have no right to terminate this Agreement as a result
of any taking of any portion of the Property that is not a Material Portion. If
Buyer does not elect or has no right to terminate this Agreement, Seller shall
assign and turn over to Buyer, and Buyer shall be entitled to receive and keep,
all awards for the taking by condemnation and Buyer shall be deemed to have
accepted the Property subject to the taking without reduction in the Purchase
Price. As used herein, the term "Material Portion" shall mean any portion having
a value in excess of $10,000.00.
9.2 Casualty. Prior to the Closing and notwithstanding the
pendency of this Agreement, the entire risk of loss or damage by earthquake,
hurricane, tornado, flood, landslide, fire or other casualty shall be borne and
assumed by Seller. If, prior to the Closing any "Material Damage" (as
hereinafter defined) occurs to any portion of the Property as a result of
earthquake, hurricane, tornado, flood, landslide, fire or other casualty, Seller
shall immediately notify Buyer of such fact. In such event, Buyer shall have the
option to terminate this Agreement upon written notice to Seller given not later
than three (3) days after Buyer's receipt of such notice from Seller. Upon such
termination, neither party shall have any further rights or obligations
hereunder, other than pursuant to any provision hereof which expressly survives
the termination of this Agreement. Buyer shall have no right to terminate this
Agreement as a result of any damage or destruction of any portion of the
Property that does not constitute Material Damage. If Buyer does not elect or
has no right to terminate this Agreement, Seller shall assign and turn over, and
Buyer shall be entitled to receive and keep, all insurance proceeds payable with
respect to such damage or destruction (which shall then be repaired or not at
Buyer's option and cost) and Buyer shall receive, as a credit against the
Purchase Price, an amount equal to the deductible amount with respect to the
insurance and the parties shall proceed to the Closing pursuant to the terms
hereof without modification of the terms of this Agreement. If Buyer does not
elect or has no right to terminate this Agreement by reason of any casualty,
Buyer shall have the right to participate in any adjustment of any insurance
claim. As used herein, the term "Material Damage" shall mean damage or
destruction, the cost of repair of which exceeds $10,000.00.
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ARTICLES 10 AND 11 ARE NOT USED.
12. BROKERS.
Buyer and Seller each hereby represent, warrant to and agree
with each other that it has not had, and shall not have, any dealings with any
third party to whom the payment of any broker's fee, finder's fee, commission or
other similar compensation ("Commission") shall or may become due or payable in
connection with the transac tions contemplated hereby. Seller shall indemnify,
protect, defend and hold Buyer harmless from and against any and all claims,
losses, damages, costs and expenses (including, without limitation, reasonable
attorneys' fees, charges and disbursements) incurred by Buyer by reason of any
breach or inaccuracy of the representation, warranty and agreement of Seller
contained in this Section 12. Buyer shall indemnify, protect, defend and hold
Seller harmless from and against any and all claims, losses, damages, costs and
expenses (including, without limitation, reasonable attorneys' fees, charges and
disbursements) incurred by Seller by reason of any breach or inaccuracy of the
representation, warranty and agreement of Buyer contained in this Section 12.
The provisions of this Section 12 shall survive the Closing or earlier
termination of this Agreement.
13. MISCELLANEOUS PROVISIONS.
1. Governing Law. This Agreement and the legal relations between
the parties hereto shall be governed by and construed and
enforced in accordance with the laws of the State of Florida,
without regard to its principles of conflicts of law.
2. Entire Agreement. This Agreement, including the exhibits and
sched ules attached hereto, constitutes the entire agreement
between Buyer and Seller pertaining to the subject matter
hereof and supersedes all prior agreements, understandings,
letters of intent, negotiations and discussions, whether oral
or written, of the parties, and there are no warranties,
representations or other agreements, express or implied, made
to any party by any other party in connection with the subject
matter hereof except as specifically set forth herein or in
the documents delivered pursuant hereto or in connection
herewith.
3. Modification; Waiver. No supplement, modification, waiver or
termi nation of this Agreement shall be binding unless
executed in writing by
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the party to be bound thereby. No waiver of any provision of
this Agreement shall be deemed or shall constitute a waiver of
any other provision hereof (whether or not similar), nor shall
such waiver consti tute a continuing waiver unless otherwise
expressly provided.
4. Notices. All notices, consents, requests, reports, demands or
other communications hereunder (collectively, "Notices") shall
be in writing and may be given personally, by registered or
certified mail, by telecopy or by Federal Express (or other
reputable overnight delivery service) as follows:
To Buyer: Asset Investors Operating Partnership, L.P.,
a Delaware limited partnership
c/o Asset Investors Corporation
3410 S. Galena Street, Suite 210
Denver, CO 80231
Attention: President
Telephone: (303) 614-9400
Telecopy: (303) 614-9401
With a Copy to: Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
Attention: Rick Madden, Esq.
Telephone: (213) 687-5230
Telecopy: (213) 687-5600
To Seller: Community Acquisition and Development Corporation,
a Delaware corporation
2 Ponds Edge Drive
P.O. Box 500
Chadds Ford, PA 19317
Attention: President
Telephone: (610) 388-9600
Telecopy: (610) 388-9616
or to such other address or such other person as the addressee party shall have
last designated by notice to the other parties. All Notices shall be deemed to
have been given when received. All Notices given by telecopy shall be followed
by the delivery
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of a hard copy of such Notice, provided that such Notice shall be deemed to have
been given when received by telecopy.
5. Expenses. Subject to the provision for payment of Closing
Costs in accordance with the terms of Section 6.6 hereof
and any other provision of this Agreement, whether or not
the transactions con templated by this Agreement shall be
consummated, all fees and expenses incurred by any party
hereto in connection with this Agree ment shall be borne
by such party.
6. Assignment.
1. Seller's Right to Assign. Seller shall not have
the right, power or authority to assign all or any
portion of this Agree ment or its rights hereunder
or to delegate any duties or obligations arising
under this Agreement, voluntarily, invol untarily
or by operation of law, without Buyer's prior
written consent.
2. Buyer's Right to Assign. Buyer shall have the
right, power and authority to assign all or any
portion of this Agreement or its rights hereunder
or to delegate any duties or obliga tions arising
under this Agreement, voluntarily, involuntarily
or by operation of law, without Seller's consent,
to any affiliate of Buyer; provided, however, that
no such assign ment or delegation shall relieve
Buyer of its obligations or liabilities under this
Agreement.
7. Severability. Any provision or part of this Agreement
which is invalid or unenforceable in any situation in any
jurisdiction shall, as to such situation and such
jurisdiction, be ineffective only to the extent of such
invalidity and shall not affect the enforceability of the
remaining provisions hereof or the validity or
enforceability of any such provision in any other
situation or in any other jurisdiction.
8. Successors and Assigns; Third Parties. All of the rights,
duties, benefits, liabilities and obligations of the
parties shall inure to the benefit of, and be binding
upon, their respective successors and assigns. Except as
specifically set forth or referred to herein, noth ing
herein expressed or implied is intended or shall be
construed to
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confer upon or give to any person or entity, other than
the parties hereto and their successors or permitted
assigns, any rights or remedies under or by reason of this
Agreement.
9. Counterparts. This Agreement may be executed in as many
counter parts as may be deemed necessary and convenient,
and by the differ ent parties hereto on separate
counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall
constitute one and the same instrument.
10. Headings. The Section headings of this Agreement are for
conve nience of reference only and shall not be deemed to
modify, explain, restrict, alter or affect the meaning or
interpretation of any provision hereof.
11. Time of Essence. Time shall be of the essence with respect
to all matters contemplated by this Agreement.
12. Further Assurances. In addition to the actions recited
herein and contemplated to be performed, executed, and/or
delivered by Seller and Buyer, Seller and Buyer agree to
perform, execute and/or deliver or cause to be performed,
executed and/or delivered at or after the Closing any and
all such further acts, instruments, deeds and assurances
as may be reasonably required to consummate the
transactions contemplated hereby.
13. Number and Gender. Whenever the singular number is used,
and when required by the context, the same includes the
plural, and the masculine gender includes the feminine and
neuter genders.
14. Post-Closing Access to Records. Upon receipt by Seller of
Buyer's reasonable written request at anytime and from
time to time within a period of three (3) years after the
Closing, Seller shall, at Seller's principal place of
business, during Seller's normal business hours, make all
of Seller's records relating to the Property available to
Buyer for inspection and copying (at Buyer's sole cost and
expense).
15. Exhibits. All exhibits attached hereto are hereby
incorporated by reference as though set out in full
herein.
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16. Business Days. As used herein, the term "Business Day"
shall mean a day that is not a Saturday, Sunday or legal
holiday. In the event that the date for the performance of
any covenant or obligation under this Agreement shall fall
on a Saturday, Sunday or legal holiday, the date for
performance thereof shall be extended to the next Business
Day.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement effective as of the day and year first above written.
BUYER:
ASSET INVESTORS OPERATING
PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Assets Investors Corporation,
a Delaware corporation
its general partner
By: /s/David M. Becker, 1/31/00
------------------------
Name: David M. Becker
Title: C.F.O
SELLER:
COMMUNITY ACQUISITION AND DEVELOPMENT
CORPORATION,
a Delaware corporation
By: /s/Joseph W. Gaynor
------------------------
Name: Joseph W. Gaynor
Title: President
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LIST OF EXHIBITS
EXHIBIT "A" PROPERTY
EXHIBIT "B" CANCELLATION OF INDEBTEDNESS
EXHIBIT "C" ASSIGNMENT OF LEASES
EXHIBIT "D" NON-FOREIGN AFFIDAVIT
EXHIBIT "E" LEASE SCHEDULE
<PAGE>
EXHIBIT "B"
CANCELLATION OF INDEBTEDNESS
Loans from Seller to Buyer (including accrued but unpaid interest) $74,107
PURCHASE AND SALE AGREEMENT
dated
January 1, 2000,
by and between
Prime Forest Partners, a Florida general partnership,
as Buyer,
and
Community Acquisition and Development Corporation, a Delaware Corporation,
as Seller
<PAGE>
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made
and entered into effective as of January 1, 2000 (the "Execution Date"), by and
between Prime Forest Partners, a Florida general partnership ("Buyer"), and
Commu nity Acquisition and Development Corporation, a Delaware corporation
("Seller"), for the purpose of setting forth the agreement of the parties.
R E C I T A L S
A. Seller is the owner of a fee simple interest in those
certain mobile home spaces on that certain parcel of real property located at
Forest View Mobile Home Park, in the City of Homosassa, County of Citrus, State
of Florida, as more particularly described on Exhibit "A" attached hereto (the
"Property"), compris ing a portion of a manufactured home community commonly
known as "Forest View Mobile Home Park."
B. Seller desires to sell and Buyer desires to purchase the
Property upon and subject to the terms and conditions set forth in this
Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants
contained in this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Buyer and Seller
hereby agree as follows:
1. AGREEMENT TO PURCHASE AND SELL.
Subject to all of the terms and conditions of this Agreement,
Seller agrees to sell, transfer and convey to Buyer, and Buyer agrees to acquire
and purchase from Seller, all the rights, title, interests and claim of Seller
in the Property, upon and subject to the terms and conditions set forth herein.
2. PURCHASE PRICE.
The purchase price for the Property (the "Purchase Price")
shall be the sum of one hundred seven thousand, eight hundred thirty-five
dollars and forty-two cents ($107,835.42) plus the forgiveness of indebtedness
as identified on Exhibit "B" attached hereto (the "Cancellation of
Indebtedness").
<PAGE>
2.1 Cash. Buyer shall deliver to Seller the sum of 107,835.42
by wire transfer or Buyer's check payable to the order of the Seller on or
before March 31, 2000.
2.2 Secured Indebtedness. Seller has advised Buyer that, as of
the Execution Date, the Property is encumbered by any liens securing
indebtedness other than the indebtedness identified on Exhibit "B."
3. ACTIONS PENDING CLOSING.
Upon the Closing, Seller shall transfer, contribute and convey
to Buyer all the rights, title, interest and claim of Seller in the Property by
a duly executed and acknowledged quitclaim deed. Prior to the Closing, Seller
shall not take any action or commit or suffer any acts which would give rise to
a variance from the current legal description of the Property, or cause the
creation of any exception or encumbrance against or respecting the Property
without the prior written consent of Buyer, which consent may be withheld in
Buyer's sole and absolute discretion.
4. CONDITIONS TO CLOSING.
4.1 Buyer's Closing Conditions. The obligation of Buyer to
complete the transactions contemplated by this Agreement is subject to the
following conditions precedent (and conditions concurrent, with respect to
deliveries to be made by the parties at Closing) (the "Buyer's Closing
Conditions"), which conditions may be waived, or the time for satisfaction
thereof extended, by Buyer only in a writing executed by Buyer (provided,
however, that any such waiver shall not affect Buyer's ability to pursue any
remedy it may have with respect to any breach hereunder by Seller):
4.1.1 Seller's Due Performance. All of the
representations and warranties of Seller set forth in this Agreement shall be
true, correct and complete in all material respects as of the Closing Date, and
Seller, on or prior to the Closing Date, shall have complied with and/or
performed all of the obligations, covenants and agreements required on the part
of Seller to be complied with or performed pursuant to the terms of this
Agreement.
4.1.2 Bankruptcy. No action or proceeding shall have
been commenced by or against Seller under the federal bankruptcy code or any
state law for the relief of debtors or for the enforcement of the rights of
creditors and no attachment, execution, lien or levy shall have attached to or
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been issued with respect to Seller's interest in the Property or any portion
thereof.
4.1.3 Leases. At the Closing, Seller shall assign all
of its rights and remedies under the Leases (including, without limitation, its
right to any security deposits and prepaid rent) to Buyer and Buyer shall assume
the obligations of Seller with respect thereto, pursuant to an assignment of
leases and security deposits in the form of Exhibit "C" attached hereto (the
"Assignment of Leases").
4.1.4 Non-Foreign Affidavit. At the Closing, Seller
shall deliver to Buyer a non-foreign affidavit in the form of Exhibit "D"
attached hereto, executed by Seller (the "Non-Foreign Affidavit").
4.1.5 No Moratoria. No moratorium, statute,
regulation, ordinance, legislation, order, judgment, ruling or decree of any
governmental agency or of any court shall have been enacted, adopted, issued,
entered or pending which is directed specifically at the Project and which would
have a material adverse effect on the value of the Project.
4.2 Failure of Buyer's Closing Conditions. If any of the
Buyer's Closing Conditions have not been fulfilled within the applicable time
periods, Buyer may:
4.2.1 waive the Buyer's Closing Condition and close
in accordance with this Agreement, without adjustment or abatement of the
Purchase Price; or
4.2.2 terminate this Agreement by written notice to
Seller.
4.3 Seller's Closing Conditions. The obligation of Seller to
complete the transactions contemplated by this Agreement is subject to the
following conditions precedent (and conditions concurrent, with respect to
deliveries to be made by the parties at Closing) (the "Seller's Closing
Conditions"), which conditions may be waived, or the time for satisfaction
thereof extended, by Seller only in a writing executed by Seller (provided,
however, that any such waiver shall not affect Seller's abilities to pursue any
remedy it may have with respect to any breach hereunder by Buyer):
4.3.1 Buyer's Due Performance. All of the
representations and warranties of Buyer set forth in this Agreement shall be
true, correct and complete in
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all material respects as of the Closing Date, and Buyer, on or prior to the
Closing Date, shall have complied with and/or performed all of the obligations,
covenants and agreements required on the part of Buyer to be complied with or
performed pursuant to the terms of this Agreement.
4.3.2 Deliveries. Buyer shall have delivered to
Seller such documents or instruments as are required to be delivered by Buyer
pursuant to the terms of this Agreement.
4.4 Failure of Seller's Closing Conditions. If any of the
Seller's Closing Conditions have not been fulfilled within the applicable time
periods, Seller may:
4.4.1 waive the Seller's Closing Condition and close
in accordance with this Agreement, without adjustment or abatement of the
Purchase Price; or
4.4.2 terminate this Agreement by written notice to
Buyer.
5. CLOSING.
5.1 Closing Date. Subject to the provisions of this Agreement,
the Closing shall take place effective as of January 1, 2000 (the "Closing
Date").
5.2 Deliveries by Seller. Seller, at its sole cost and
expense, shall deliver or cause to be delivered to Buyer the following documents
and instruments, as applicable, in addition to all other items and payments
required by this Agreement to be delivered by Seller at the Closing:
5.2.1 Deed. An original executed and acknowledged
Deed from Seller, conveying the Property to Buyer;
5.2.2 Non-Foreign Affidavit. An original executed
Non- Foreign Affidavit from Seller;
5.2.3 Assignment of Leases. An original executed
Assignment of Leases, executed by Seller; and
5.2.4 Other. Such other documents and instruments,
signed and properly acknowledged by Seller, if appropriate, as may be reasonably
required by Buyer or otherwise in order to effectuate the provisions of this
Agreement and the Closing of the transactions contemplated herein.
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5.3 Deliveries by Buyer. Buyer, at its sole cost and expense,
shall deliver or cause to be delivered to Seller the following funds, documents
and instru ments, in addition to the other items and payments required by this
Agreement to be delivered by Buyer at the Closing:
5.3.1 Assignment of Leases. An original executed
Assignment of Leases, executed by Buyer; and
5.3.2 Other. Such other documents and instruments,
signed and properly acknowledged by Buyer, if appropriate, as may be reasonably
required by Seller or otherwise in order to effectuate the provisions of this
Agreement and the Closing of the transactions contemplated herein.
5.4 Closing Costs. Each party shall pay its own costs and
expenses arising in connection with the Closing (including, without limitation,
its own attorneys' and advisors' fees, charges and disbursements).
5.5 Deliveries by Seller. Seller shall deliver possession of
the Property, subject to the Leases, to Buyer upon the Closing.
6. SELLER'S REPRESENTATIONS AND WARRANTIES.
Seller represents and warrants to and agrees with Buyer, as of
the Execution Date and as of the Closing Date, as follows:
6.1 Leases.
6.1.1 Lease Schedule. The schedule attached hereto as
Exhibit "E" (the "Lease Schedule") is true, correct and complete with respect to
the leases, licenses, tenancies and other occupancy agreements (whether written
or oral) now in effect at the Project (collectively, the "Leases").
6.1.2 Delivery of Leases. True, correct and complete
copies of all Leases and all amendments, guarantees and other documents relating
thereto shall be made available to Buyer.
6.1.3 No Pre-Paid Rent. Except as set forth on the
Lease Schedule, no Tenant has paid any rent for more than one (1) month in
advance.
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6.1.4 No Rent Concessions. Except as set forth on the
Lease Schedule, no Tenant is entitled to any rent concessions or other offsets
against any rent payable by such Tenant after the Execution Date.
6.2 Litigation. There are no actions, suits or proceedings
before any judicial or quasi-judicial body, by any governmental authority or
other third party, pending, or to Seller's knowledge, threatened, against or
affecting all or any portion of the Project and, to Seller's knowledge, there is
no basis for any such action. Except for unlawful detainer or similar actions
against Tenants that are brought in the ordinary course of Seller's operation of
the Project, there are no actions, suits or proceedings pending, contemplated or
threatened by Seller in connection with all or any portion of the Project or
Seller's ownership, rights, use, development or maintenance thereof, including,
without limitation, tax reduction proceedings; and from and after the date
hereof, Seller shall not commence or allow to be commenced on its behalf any
action, suit or proceeding with respect to all or any portion of the Project
without the prior written consent of Buyer. No attachments, execution
proceedings, assignments for the benefit of creditors, insolvency, bankruptcy,
reorganization or other proceedings are pending, or, to Seller's knowledge,
threatened, against Seller.
6.3 Compliance with Laws. To Seller's knowledge, the Project
is in full compliance with all existing laws, rules, regulations, ordinances and
orders of all applicable federal, state, city and other governmental authorities
in effect as of the Execution Date (collectively, "Laws"), including, without
limitation, (a) the Americans with Disabilities Act, 42 U.S.C. ss. 12102, et
seq., together with all rules, regulations and official interpretations
promulgated pursuant thereto, and (b) all Laws with respect to zoning, building,
fire, life safety, health codes and sanitation. Seller has received no notice
of, and has no knowledge of, any condition currently or previously existing on
the Project or any portion thereof which may give rise to any violation of any
existing Law applicable to the Project if it were disclosed to the authorities
having jurisdiction over the Project.
6.4 No Conflicts. The execution and delivery of this Agreement
by Seller, the consummation of the transactions herein contemplated to be
performed by Seller, and compliance with the terms of this Agreement by Seller
will not conflict with, or, with or without notice or the passage of time or
both, result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, deed of trust, mortgage, loan agreement, or other
document, instrument or agreement, oral or written, to which Seller is a party
or by which Seller or its assets are bound, or any applicable regulation of any
governmental agency, or any judgment, order or decree of any court having
jurisdiction over Seller or all or any portion of the Property.
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6.5 Due Organization. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
6.6 Seller's Authority; Validity of Agreements. Seller has
full right, power and authority to transfer, contribute and convey the Property
to Buyer as provided in this Agreement, to carry out its obligations hereunder
and to execute, deliver and perform, and enter into and consummate, all of the
documents and transactions contemplated by this Agreement. The individual(s)
executing this Agreement and the instruments referenced herein on behalf of
Seller have the legal power, right and actual authority to bind Seller to the
terms hereof and thereof. This Agreement is, and all instruments, documents and
agreements to be executed by Seller in connection herewith shall be, duly
authorized, executed and delivered by Seller and shall be valid, binding and
enforceable obligations of Seller.
6.7 Condition of Property. Except as otherwise expressly
provided herein or in any of the Closing documents executed in connection
herewith, Seller makes no representation or warranty as to the condition of the
Property and Buyer is purchasing the Property "AS-IS," and "WITH ALL FAULTS."
6.8 Survival. All of the representations and warranties of
Seller set forth in this Agreement shall be true upon the Execution Date, shall
be deemed to be repeated at and as of the Closing Date (except as otherwise
disclosed in writing to Buyer) and shall survive the delivery of the Deed and
the Closing.
7. BUYER'S REPRESENTATIONS AND WARRANTIES.
Buyer represents and warrants to Seller, as of the Execution
Date and as of the Closing Date, as follows:
7.1 Due Organization. Buyer is a general partnership duly
organized, validly existing and in good standing under the laws of the State of
Florida.
7.2 Buyer's Authority; Validity of Agreements. Buyer has full
right, power and authority to accept the Property from Seller as provided in
this Agreement, to carry out its obligations hereunder and to execute, deliver
and perform, and enter into and consummate, all of the documents and
transactions contemplated by this Agreement. The individual(s) executing this
Agreement on behalf of Buyer and the instruments referenced herein on behalf of
Buyer have the legal power, right and actual authority to bind Buyer to the
terms hereof and thereof. This Agreement is, and all other documents and
instruments to be executed and delivered by Buyer in connection
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herewith shall be, duly authorized, executed and delivered by Buyer and shall be
valid, binding and enforceable obligations of Buyer.
7.3 Survival. All of the representations and warranties of
Buyer set forth in this Agreement shall be true upon the Execution Date, shall
be deemed to be repeated at and as of the Closing Date (except as otherwise
disclosed in writing to Seller) and shall survive the delivery of the Deed and
the Closing.
8. ADDITIONAL COVENANTS OF SELLER.
In addition to the covenants and agreements of Seller set
forth else where in this Agreement, Seller covenants and agrees that between the
Execution Date and the Closing Date (or the date of earlier termination hereof,
if applicable):
8.1 Title. Subject to the terms of Sections 8.2 and 8.3
hereof, Seller shall not directly or indirectly sell, contribute, assign or
create any right, title or interest whatsoever in or to the Property, or create
or permit to exist thereon any lien, charge or encumbrance, or enter into any
agreement to do any of the foregoing, without the prior written consent of Buyer
(which consent may be granted or withheld in Buyer's sole and absolute
discretion).
8.2 Maintenance of Property. Seller shall operate and maintain
the Property in accordance with Seller's past practice and all applicable Laws,
rules and regulations affecting the Property or any portion thereof.
8.3 Service, Management and Employment Contracts. Seller shall
not enter into any new service, property management or employment contract or
extend, renew or replace any existing service, property management or employment
contract in respect of the Property without Buyer's prior written consent (which
consent may be withheld in Buyer's sole and absolute discretion), unless the
same shall be cancel lable without penalty or premium, upon not more than thirty
(30) days' notice from the owner of the Property.
9. RISK OF LOSS.
9.1 Condemnation. If, prior to the Closing, all or any
"Material Portion" (as hereinafter defined) is taken by condemnation or eminent
domain (or is the subject of a pending or contemplated taking which has not been
consummated), Seller shall immediately notify Buyer of such fact. In such event,
Buyer shall have the option to terminate this Agreement upon written notice to
Seller given not later than
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three (3) days after Buyer's receipt of such notice from Seller. Buyer shall
have no right to terminate this Agreement as a result of any taking of any
portion of the Property that is not a Material Portion. If Buyer does not elect
or has no right to terminate this Agreement, Seller shall assign and turn over
to Buyer, and Buyer shall be entitled to receive and keep, all awards for the
taking by condemnation and Buyer shall be deemed to have accepted the Property
subject to the taking without reduction in the Purchase Price. As used herein,
the term "Material Portion" shall mean any portion having a value in excess of
$10,000.00.
9.2 Casualty. Prior to the Closing and notwithstanding the
pendency of this Agreement, the entire risk of loss or damage by earthquake,
hurricane, tornado, flood, landslide, fire or other casualty shall be borne and
assumed by Seller. If, prior to the Closing any "Material Damage" (as
hereinafter defined) occurs to any portion of the Property as a result of
earthquake, hurricane, tornado, flood, landslide, fire or other casualty, Seller
shall immediately notify Buyer of such fact. In such event, Buyer shall have the
option to terminate this Agreement upon written notice to Seller given not later
than three (3) days after Buyer's receipt of such notice from Seller. Upon such
termination, neither party shall have any further rights or obligations
hereunder, other than pursuant to any provision hereof which expressly survives
the termination of this Agreement. Buyer shall have no right to terminate this
Agreement as a result of any damage or destruction of any portion of the
Property that does not constitute Material Damage. If Buyer does not elect or
has no right to terminate this Agreement, Seller shall assign and turn over, and
Buyer shall be entitled to receive and keep, all insurance proceeds payable with
respect to such damage or destruction (which shall then be repaired or not at
Buyer's option and cost) and Buyer shall receive, as a credit against the
Purchase Price, an amount equal to the deductible amount with respect to the
insurance and the parties shall proceed to the Closing pursuant to the terms
hereof without modification of the terms of this Agreement. If Buyer does not
elect or has no right to terminate this Agreement by reason of any casualty,
Buyer shall have the right to participate in any adjustment of any insurance
claim. As used herein, the term "Material Damage" shall mean damage or
destruction, the cost of repair of which exceeds $10,000.00.
ARTICLES 10 AND 11 ARE NOT USED.
12. BROKERS.
Buyer and Seller each hereby represent, warrant to and agree
with each other that it has not had, and shall not have, any dealings with any
third party to whom the payment of any broker's fee, finder's fee, commission or
other similar compensation
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("Commission") shall or may become due or payable in connection with the transac
tions contemplated hereby. Seller shall indemnify, protect, defend and hold
Buyer harmless from and against any and all claims, losses, damages, costs and
expenses (including, without limitation, reasonable attorneys' fees, charges and
disbursements) incurred by Buyer by reason of any breach or inaccuracy of the
representation, warranty and agreement of Seller contained in this Section 12.
Buyer shall indemnify, protect, defend and hold Seller harmless from and against
any and all claims, losses, damages, costs and expenses (including, without
limitation, reasonable attorneys' fees, charges and disbursements) incurred by
Seller by reason of any breach or inaccuracy of the representation, warranty and
agreement of Buyer contained in this Section 12. The provisions of this Section
12 shall survive the Closing or earlier termination of this Agreement.
13. MISCELLANEOUS PROVISIONS.
1. Governing Law. This Agreement and the legal relations between
the parties hereto shall be governed by and construed and
enforced in accordance with the laws of the State of Florida,
without regard to its principles of conflicts of law.
2. Entire Agreement. This Agreement, including the exhibits and
sched- ules attached hereto, constitutes the entire agreement
between Buyer and Seller pertaining to the subject matter
hereof and supersedes all prior agreements, understandings,
letters of intent, negotiations and discussions, whether oral
or written, of the parties, and there are no warranties,
representations or other agreements, express or implied, made
to any party by any other party in connection with the subject
matter hereof except as specifically set forth herein or in
the documents delivered pursuant hereto or in connection
herewith.
3. Modification; Waiver. No supplement, modification, waiver or
termi nation of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. No
waiver of any provision of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof
(whether or not similar), nor shall such waiver consti tute a
continuing waiver unless otherwise expressly provided.
4. Notices. All notices, consents, requests, reports, demands or
other communications hereunder (collectively, "Notices") shall
be in writing and may be given personally, by registered or
certified mail, by telecopy
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or by Federal Express (or other reputable overnight delivery service) as
follows:
To Buyer: Prime Forest Partners, a Florida general partnership
c/o Asset Investors Corporation
3410 S. Galena Street, Suite 210
Denver, CO 80231
Attention: President
Telephone: (303) 614-9400
Telecopy: (303) 614-9401
With A Copy to: Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
Attention: Rick Madden, Esq.
Telephone: (213) 687-5230
Telecopy: (213) 687-5600
To Seller: Community Acquisition and Development Corporation,
a Delaware corporation
2 Ponds Edge Drive
P.O. Box 500
Chadds Ford, PA 19317
Attention: President
Telephone: (610) 388-9600
Telecopy: (610) 388-9616
or to such other address or such other person as the addressee party shall have
last designated by notice to the other parties. All Notices shall be deemed to
have been given when received. All Notices given by telecopy shall be followed
by the delivery of a hard copy of such Notice, provided that such Notice shall
be deemed to have been given when received by telecopy.
5. Expenses. Subject to the provision for payment of Closing
Costs in accordance with the terms of Section 6.6 hereof
and any other provision of this Agreement, whether or not
the transactions con templated by this Agreement shall be
consummated, all fees and expenses incurred by any party
hereto in connection with this Agree ment shall be borne
by such party.
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6. Assignment.
1. Seller's Right to Assign. Seller shall not have
the right, power or authority to assign all or any
portion of this Agree ment or its rights hereunder
or to delegate any duties or obligations arising
under this Agreement, voluntarily, invol untarily
or by operation of law, without Buyer's prior
written consent.
2. Buyer's Right to Assign. Buyer shall have the
right, power and authority to assign all or any
portion of this Agreement or its rights hereunder
or to delegate any duties or obliga tions arising
under this Agreement, voluntarily, involuntarily
or by operation of law, without Seller's consent,
to any affiliate of Buyer; provided, however, that
no such assign ment or delegation shall relieve
Buyer of its obligations or liabilities under this
Agreement.
7. Severability. Any provision or part of this Agreement
which is invalid or unenforceable in any situation in any
jurisdiction shall, as to such situation and such
jurisdiction, be ineffective only to the extent of such
invalidity and shall not affect the enforceability of the
remaining provisions hereof or the validity or
enforceability of any such provision in any other
situation or in any other jurisdiction.
8. Successors and Assigns; Third Parties. All of the rights,
duties, benefits, liabilities and obligations of the
parties shall inure to the benefit of, and be binding
upon, their respective successors and assigns. Except as
specifically set forth or referred to herein, noth ing
herein expressed or implied is intended or shall be
construed to confer upon or give to any person or entity,
other than the parties hereto and their successors or
permitted assigns, any rights or remedies under or by
reason of this Agreement.
9. Counterparts. This Agreement may be executed in as many
counter parts as may be deemed necessary and convenient,
and by the differ ent parties hereto on separate
counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall
constitute one and the same instrument.
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10. Headings. The Section headings of this Agreement are for
conve nience of reference only and shall not be deemed to
modify, explain, restrict, alter or affect the meaning or
interpretation of any provision hereof.
11. Time of Essence. Time shall be of the essence with respect
to all matters contemplated by this Agreement.
12. Further Assurances. In addition to the actions recited
herein and contemplated to be performed, executed, and/or
delivered by Seller and Buyer, Seller and Buyer agree to
perform, execute and/or deliver or cause to be performed,
executed and/or delivered at or after the Closing any and
all such further acts, instruments, deeds and assurances
as may be reasonably required to consummate the
transactions contemplated hereby.
13. Number and Gender. Whenever the singular number is used,
and when required by the context, the same includes the
plural, and the masculine gender includes the feminine and
neuter genders.
14. Post-Closing Access to Records. Upon receipt by Seller of
Buyer's reasonable written request at anytime and from
time to time within a period of three (3) years after the
Closing, Seller shall, at Seller's principal place of
business, during Seller's normal business hours, make all
of Seller's records relating to the Property available to
Buyer for inspection and copying (at Buyer's sole cost and
expense).
15. Exhibits. All exhibits attached hereto are hereby
incorporated by reference as though set out in full
herein.
16. Business Days. As used herein, the term "Business Day"
shall mean a day that is not a Saturday, Sunday or legal
holiday. In the event that the date for the performance of
any covenant or obligation under this Agreement shall fall
on a Saturday, Sunday or legal holiday, the date for
performance thereof shall be extended to the next Business
Day.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement effective as of the day and year first above written.
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BUYER:
PRIME FOREST PARTNERS,
a Florida general partnership
By: Asset Investors Operating Partnership,
L.P., a Delaware limited partnership
its general partner
By: Asset Investors Corporation, a
Delaware corporation
its general partner
By: /s/David M. Becker, 1/31/00
-----------------------------
Name: David M. Becker
Title: C.F.O.
SELLER:
COMMUNITY ACQUISITION AND DEVELOPMENT
CORPORATION, a Delaware corporation
By: /s/Joseph W. Gaynor
----------------------
Name: Joseph W. Gaynor
Title: President
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LIST OF EXHIBITS
EXHIBIT "A" PROPERTY
EXHIBIT "B" CANCELLATION OF INDEBTEDNESS
EXHIBIT "C" ASSIGNMENT OF LEASES
EXHIBIT "D" NON-FOREIGN AFFIDAVIT
EXHIBIT "E" LEASE SCHEDULE
<PAGE>
EXHIBIT "B"
CANCELLATION OF INDEBTEDNESS
Loans from Seller to Buyer (including accrued but unpaid interest) $ 558,838
B-1
PURCHASE AND SALE AGREEMENT
dated
January 1, 2000,
by and between
Asset Investors Operating Partnership, L.P., a Delaware limited partnership,
as Buyer,
and
Community Acquisition and Development Corporation, a Delaware corporation,
as Seller
<PAGE>
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made
and entered into effective as of January 1, 2000 (the "Execution Date"), by and
between Asset Investors Operating Partnership, L.P., a Delaware limited
partnership ("Buyer"), and Community Acquisition and Development Corporation, a
Delaware corporation ("Seller"), for the purpose of setting forth the agreement
of the parties.
R E C I T A L S
A. Seller is the owner of a fee simple interest in those
certain mobile home spaces on that certain parcel of real property located at
Park Royale Mobile Home Park, in the City of Pinellas Park, County of Pinellas,
State of Florida, as more particularly described on Exhibit "A" attached hereto
(the "Property"), comprising a portion of a manufactured home community commonly
known as "Park Royale Mobile Home Park."
B. Seller desires to sell and Buyer desires to purchase the
Property upon and subject to the terms and conditions set forth in this
Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants
contained in this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Buyer and Seller
hereby agree as follows:
1. AGREEMENT TO PURCHASE AND SELL.
Subject to all of the terms and conditions of this Agreement,
Seller agrees to sell, transfer and convey to Buyer, and Buyer agrees to acquire
and purchase from Seller, all the rights, title, interests and claim of Seller
in the Property, upon and subject to the terms and conditions set forth herein.
2. PURCHASE PRICE.
The purchase price for the Property (the "Purchase Price")
shall be the forgiveness of indebtedness as identified on Exhibit "B" attached
hereto (the "Cancel lation of Indebtedness"), subject to adjustment as
hereinafter provided.
<PAGE>
3. ACTIONS PENDING CLOSING.
Upon the Closing, Seller shall transfer, contribute and convey
to Buyer all the rights, title, interest and claim of Seller in the Property by
a duly executed and acknowledged quitclaim deed. Prior to the Closing, Seller
shall not take any action or commit or suffer any acts which would give rise to
a variance from the current legal description of the Property, or cause the
creation of any exception or encumbrance against or respecting the Property
without the prior written consent of Buyer, which consent may be withheld in
Buyer's sole and absolute discretion.
4. CONDITIONS TO CLOSING.
4.1 Buyer's Closing Conditions. The obligation of Buyer to
complete the transactions contemplated by this Agreement is subject to the
following conditions precedent (and conditions concurrent, with respect to
deliveries to be made by the parties at Closing) (the "Buyer's Closing
Conditions"), which conditions may be waived, or the time for satisfaction
thereof extended, by Buyer only in a writing executed by Buyer (provided,
however, that any such waiver shall not affect Buyer's ability to pursue any
remedy it may have with respect to any breach hereunder by Seller):
4.1.1 Seller's Due Performance. All of the
representations and warranties of Seller set forth in this Agreement shall be
true, correct and complete in all material respects as of the Closing Date, and
Seller, on or prior to the Closing Date, shall have complied with and/or
performed all of the obligations, covenants and agreements required on the part
of Seller to be complied with or performed pursuant to the terms of this
Agreement.
4.1.2 Bankruptcy. No action or proceeding shall have
been commenced by or against Seller under the federal bankruptcy code or any
state law for the relief of debtors or for the enforcement of the rights of
creditors and no attach ment, execution, lien or levy shall have attached to or
been issued with respect to Seller's interest in the Property or any portion
thereof.
4.1.3 Leases. At the Closing, Seller shall assign all
of its rights and remedies under the Leases (including, without limitation, its
right to any security deposits and prepaid rent) to Buyer and Buyer shall assume
the obligations of Seller with respect thereto, pursuant to an assignment of
leases and security deposits in the form of Exhibit "C" attached hereto (the
"Assignment of Leases").
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4.1.4 Non-Foreign Affidavit. At the Closing, Seller
shall deliver to Buyer a non-foreign affidavit in the form of Exhibit "D"
attached hereto, executed by Seller (the "Non-Foreign Affidavit").
4.1.5 No Moratoria. No moratorium, statute,
regulation, ordinance, legislation, order, judgment, ruling or decree of any
governmental agency or of any court shall have been enacted, adopted, issued,
entered or pending which is directed specifically at the Project and which would
have a material adverse effect on the value of the Project.
4.2 Failure of Buyer's Closing Conditions. If any of the
Buyer's Closing Conditions have not been fulfilled within the applicable time
periods, Buyer may:
4.2.1 waive the Buyer's Closing Condition and close
in accordance with this Agreement, without adjustment or abatement of the
Purchase Price; or
4.2.2 terminate this Agreement by written notice to
Seller.
4.3 Seller's Closing Conditions. The obligation of Seller to
complete the transactions contemplated by this Agreement is subject to the
following conditions precedent (and conditions concurrent, with respect to
deliveries to be made by the parties at Closing) (the "Seller's Closing
Conditions"), which conditions may be waived, or the time for satisfaction
thereof extended, by Seller only in a writing executed by Seller (provided,
however, that any such waiver shall not affect Seller's abilities to pursue any
remedy it may have with respect to any breach hereunder by Buyer):
4.3.1 Buyer's Due Performance. All of the
representations and warranties of Buyer set forth in this Agreement shall be
true, correct and complete in all material respects as of the Closing Date, and
Buyer, on or prior to the Closing Date, shall have complied with and/or
performed all of the obligations, covenants and agreements required on the part
of Buyer to be complied with or performed pursuant to the terms of this
Agreement.
4.3.2 Deliveries. Buyer shall have delivered to
Seller such documents or instruments as are required to be delivered by Buyer
pursuant to the terms of this Agreement.
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4.4 Failure of Seller's Closing Conditions. If any of the
Seller's Closing Conditions have not been fulfilled within the applicable time
periods, Seller may:
4.4.1 waive the Seller's Closing Condition and close
in accordance with this Agreement, without adjustment or abatement of the
Purchase Price; or
4.4.2 terminate this Agreement by written notice to
Buyer.
5. CLOSING.
5.1 Closing Date. Subject to the provisions of this Agreement,
the Closing shall take place effective as of January 1, 2000 (the "Closing
Date").
5.2 Deliveries by Seller. Seller, at its sole cost and
expense, shall deliver or cause to be delivered to Buyer the following documents
and instruments, as applicable, in addition to all other items and payments
required by this Agreement to be delivered by Seller at the Closing:
5.2.1 Deed. An original executed and acknowledged
Deed from Seller, conveying the Property to Buyer;
5.2.2 Non-Foreign Affidavit. An original executed
Non- Foreign Affidavit from Seller;
5.2.3 Assignment of Leases. An original executed
Assignment of Leases, executed by Seller; and
5.2.4 Other. Such other documents and instruments,
signed and properly acknowledged by Seller, if appropriate, as may be reasonably
required by Buyer or otherwise in order to effectuate the provisions of this
Agreement and the Closing of the transactions contemplated herein.
5.3 Deliveries by Buyer. Buyer, at its sole cost and expense,
shall deliver or cause to be delivered to Seller the following funds, documents
and instru ments, in addition to the other items and payments required by this
Agreement to be delivered by Buyer at the Closing:
5.3.1 Assignment of Leases. An original executed
Assignment of Leases, executed by Buyer; and
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5.3.2 Other. Such other documents and instruments,
signed and properly acknowledged by Buyer, if appropriate, as may be reasonably
required by Seller or otherwise in order to effectuate the provisions of this
Agreement and the Closing of the transactions contemplated herein.
5.4 Closing Costs. Each party shall pay its own costs and
expenses arising in connection with the Closing (including, without limitation,
its own attorneys' and advisors' fees, charges and disbursements).
5.5 Deliveries by Seller. Seller shall deliver possession of
the Property, subject to the Leases, to Buyer upon the Closing.
6. SELLER'S REPRESENTATIONS AND WARRANTIES.
Seller represents and warrants to and agrees with Buyer, as of
the Execution Date and as of the Closing Date, as follows:
6.1 Leases.
6.1.1 Lease Schedule. The schedule attached hereto as
Exhibit " E" (the "Lease Schedule") is true, correct and complete with respect
to the leases, licenses, tenancies and other occupancy agreements (whether
written or oral) now in effect at the Project (collectively, the "Leases").
6.1.2 Delivery of Leases. True, correct and complete
copies of all Leases and all amendments, guarantees and other documents relating
thereto shall be made available to Buyer.
6.1.3 No Pre-Paid Rent. Except as set forth on the
Lease Schedule, no Tenant has paid any rent for more than one (1) month in
advance.
6.1.4 No Rent Concessions. Except as set forth on the
Lease Schedule, no Tenant is entitled to any rent concessions or other offsets
against any rent payable by such Tenant after the Execution Date.
6.2 Litigation. There are no actions, suits or proceedings
before any judicial or quasi-judicial body, by any governmental authority or
other third party, pending, or to Seller's knowledge, threatened, against or
affecting all or any portion of the Project and, to Seller's knowledge, there is
no basis for any such action. Except for unlawful detainer or similar actions
against Tenants that are brought in the ordinary
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course of Seller's operation of the Project, there are no actions, suits or
proceedings pending, contemplated or threatened by Seller in connection with all
or any portion of the Project or Seller's ownership, rights, use, development or
maintenance thereof, including, without limitation, tax reduction proceedings;
and from and after the date hereof, Seller shall not commence or allow to be
commenced on its behalf any action, suit or proceeding with respect to all or
any portion of the Project without the prior written consent of Buyer. No
attachments, execution proceedings, assignments for the benefit of creditors,
insolvency, bankruptcy, reorganization or other proceedings are pending, or, to
Seller's knowledge, threatened, against Seller.
6.3 Compliance with Laws. To Seller's knowledge, the Project
is in full compliance with all existing laws, rules, regulations, ordinances and
orders of all applicable federal, state, city and other governmental authorities
in effect as of the Execution Date (collectively, "Laws"), including, without
limitation, (a) the Americans with Disabilities Act, 42 U.S.C. ss. 12102, et
seq., together with all rules, regulations and official interpretations
promulgated pursuant thereto, and (b) all Laws with respect to zoning, building,
fire, life safety, health codes and sanitation. Seller has received no notice
of, and has no knowledge of, any condition currently or previously existing on
the Project or any portion thereof which may give rise to any violation of any
existing Law applicable to the Project if it were disclosed to the authorities
having jurisdiction over the Project.
6.4 No Conflicts. The execution and delivery of this Agreement
by Seller, the consummation of the transactions herein contemplated to be
performed by Seller, and compliance with the terms of this Agreement by Seller
will not conflict with, or, with or without notice or the passage of time or
both, result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, deed of trust, mortgage, loan agreement, or other
document, instrument or agreement, oral or written, to which Seller is a party
or by which Seller or its assets are bound, or any applicable regulation of any
governmental agency, or any judgment, order or decree of any court having
jurisdiction over Seller or all or any portion of the Property.
6.5 Due Organization. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
6.6 Seller's Authority; Validity of Agreements. Seller has
full right, power and authority to transfer, contribute and convey the Property
to Buyer as provided in this Agreement, to carry out its obligations hereunder
and to execute, deliver and perform, and enter into and consummate, all of the
documents and transactions contemplated by this Agreement. The individual(s)
executing this
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Agreement and the instruments referenced herein on behalf of Seller have the
legal power, right and actual authority to bind Seller to the terms hereof and
thereof. This Agreement is, and all instruments, documents and agreements to be
executed by Seller in connection herewith shall be, duly authorized, executed
and delivered by Seller and shall be valid, binding and enforceable obligations
of Seller.
6.7 Condition of Property. Except as otherwise expressly
provided herein or in any of the Closing documents executed in connection
herewith, Seller makes no representation or warranty as to the condition of the
Property and Buyer is purchasing the Property "AS-IS," and "WITH ALL FAULTS."
6.8 Survival. All of the representations and warranties of
Seller set forth in this Agreement shall be true upon the Execution Date, shall
be deemed to be repeated at and as of the Closing Date (except as otherwise
disclosed in writing to Buyer) and shall survive the delivery of the Deed and
the Closing.
7. BUYER'S REPRESENTATIONS AND WARRANTIES.
Buyer represents and warrants to Seller, as of the Execution
Date and as of the Closing Date, as follows:
7.1 Due Organization. Buyer is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
7.2 Buyer's Authority; Validity of Agreements. Buyer has full
right, power and authority to accept the Property from Seller as provided in
this Agreement, to carry out its obligations hereunder and to execute, deliver
and perform, and enter into and consummate, all of the documents and
transactions contemplated by this Agreement. The individual(s) executing this
Agreement on behalf of Buyer and the instruments referenced herein on behalf of
Buyer have the legal power, right and actual authority to bind Buyer to the
terms hereof and thereof. This Agreement is, and all other documents and
instruments to be executed and delivered by Buyer in connection herewith shall
be, duly authorized, executed and delivered by Buyer and shall be valid, binding
and enforceable obligations of Buyer.
7.3 Survival. All of the representations and warranties of
Buyer set forth in this Agreement shall be true upon the Execution Date, shall
be deemed to be repeated at and as of the Closing Date (except as otherwise
disclosed in writing to Seller) and shall survive the delivery of the Deed and
the Closing.
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8. ADDITIONAL COVENANTS OF SELLER.
In addition to the covenants and agreements of Seller set
forth else where in this Agreement, Seller covenants and agrees that between the
Execution Date and the Closing Date (or the date of earlier termination hereof,
if applicable):
8.1 Title. Subject to the terms of Sections 8.2 and 8.3
hereof, Seller shall not directly or indirectly sell, contribute, assign or
create any right, title or interest whatsoever in or to the Property, or create
or permit to exist thereon any lien, charge or encumbrance, or enter into any
agreement to do any of the foregoing, without the prior written consent of Buyer
(which consent may be granted or withheld in Buyer's sole and absolute
discretion).
8.2 Maintenance of Property. Seller shall operate and maintain
the Property in accordance with Seller's past practice and all applicable Laws,
rules and regulations affecting the Property or any portion thereof.
8.3 Service, Management and Employment Contracts. Seller shall
not enter into any new service, property management or employment contract or
extend, renew or replace any existing service, property management or employment
contract in respect of the Property without Buyer's prior written consent (which
consent may be withheld in Buyer's sole and absolute discretion), unless the
same shall be cancel lable without penalty or premium, upon not more than thirty
(30) days' notice from the owner of the Property.
9. RISK OF LOSS.
9.1 Condemnation. If, prior to the Closing, all or any
"Material Portion" (as hereinafter defined) is taken by condemnation or eminent
domain (or is the subject of a pending or contemplated taking which has not been
consummated), Seller shall immediately notify Buyer of such fact. In such event,
Buyer shall have the option to terminate this Agreement upon written notice to
Seller given not later than three (3) days after Buyer's receipt of such notice
from Seller. Buyer shall have no right to terminate this Agreement as a result
of any taking of any portion of the Property that is not a Material Portion. If
Buyer does not elect or has no right to terminate this Agreement, Seller shall
assign and turn over to Buyer, and Buyer shall be entitled to receive and keep,
all awards for the taking by condemnation and Buyer shall be deemed to have
accepted the Property subject to the taking without reduction
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in the Purchase Price. As used herein, the term "Material Portion" shall mean
any portion having a value in excess of $10,000.00.
9.2 Casualty. Prior to the Closing and notwithstanding the
pendency of this Agreement, the entire risk of loss or damage by earthquake,
hurricane, tornado, flood, landslide, fire or other casualty shall be borne and
assumed by Seller. If, prior to the Closing any "Material Damage" (as
hereinafter defined) occurs to any portion of the Property as a result of
earthquake, hurricane, tornado, flood, landslide, fire or other casualty, Seller
shall immediately notify Buyer of such fact. In such event, Buyer shall have the
option to terminate this Agreement upon written notice to Seller given not later
than three (3) days after Buyer's receipt of such notice from Seller. Upon such
termination, neither party shall have any further rights or obligations
hereunder, other than pursuant to any provision hereof which expressly survives
the termination of this Agreement. Buyer shall have no right to terminate this
Agreement as a result of any damage or destruction of any portion of the
Property that does not constitute Material Damage. If Buyer does not elect or
has no right to terminate this Agreement, Seller shall assign and turn over, and
Buyer shall be entitled to receive and keep, all insurance proceeds payable with
respect to such damage or destruction (which shall then be repaired or not at
Buyer's option and cost) and Buyer shall receive, as a credit against the
Purchase Price, an amount equal to the deductible amount with respect to the
insurance and the parties shall proceed to the Closing pursuant to the terms
hereof without modification of the terms of this Agreement. If Buyer does not
elect or has no right to terminate this Agreement by reason of any casualty,
Buyer shall have the right to participate in any adjustment of any insurance
claim. As used herein, the term "Material Damage" shall mean damage or
destruction, the cost of repair of which exceeds $10,000.00.
ARTICLES 10 AND 11 ARE NOT USED.
12. BROKERS.
Buyer and Seller each hereby represent, warrant to and agree
with each other that it has not had, and shall not have, any dealings with any
third party to whom the payment of any broker's fee, finder's fee, commission or
other similar compensation ("Commission") shall or may become due or payable in
connection with the transac tions contemplated hereby. Seller shall indemnify,
protect, defend and hold Buyer harmless from and against any and all claims,
losses, damages, costs and expenses (including, without limitation, reasonable
attorneys' fees, charges and disbursements) incurred by Buyer by reason of any
breach or inaccuracy of the representation, warranty and agreement of Seller
contained in this Section 12. Buyer shall indemnify,
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protect, defend and hold Seller harmless from and against any and all claims,
losses, damages, costs and expenses (including, without limitation, reasonable
attorneys' fees, charges and disbursements) incurred by Seller by reason of any
breach or inaccuracy of the representation, warranty and agreement of Buyer
contained in this Section 12. The provisions of this Section 12 shall survive
the Closing or earlier termination of this Agreement.
13. MISCELLANEOUS PROVISIONS.
1. Governing Law. This Agreement and the legal relations between
the parties hereto shall be governed by and construed and
enforced in accordance with the laws of the State of Florida,
without regard to its principles of conflicts of law.
2. Entire Agreement. This Agreement, including the exhibits and
schedules attached hereto, constitutes the entire agreement
between Buyer and Seller pertaining to the subject matter
hereof and supersedes all prior agreements, understandings,
letters of intent, negotiations and discussions, whether oral
or written, of the parties, and there are no warranties,
representations or other agreements, express or implied, made
to any party by any other party in connection with the subject
matter hereof except as specifically set forth herein or in
the documents delivered pursuant hereto or in connection
herewith.
3. Modification; Waiver. No supplement, modification, waiver or
termi nation of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. No
waiver of any provision of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof
(whether or not similar), nor shall such waiver consti tute a
continuing waiver unless otherwise expressly provided.
4. Notices. All notices, consents, requests, reports, demands or
other communications hereunder (collectively, "Notices") shall
be in writing and may be given personally, by registered or
certified mail, by telecopy or by Federal Express (or other
reputable overnight delivery service) as follows:
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To Buyer: Asset Investors Operating Partnership, L.P.,
a Delaware limited partnership
c/o Asset Investors Corporation
3410 S. Galena Street, Suite 210
Denver, CO 80231
Attention: President
Telephone: (303) 614-9400
Telecopy: (303) 614-9401
With a Copy to: Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
Attention: Rick Madden, Esq.
Telephone: (213) 687-5230
Telecopy: (213) 687-5600
To Seller: Community Acquisition and Development Corporation,
a Delaware corporation
2 Ponds Edge Drive
P.O. Box 500
Chadds Ford, PA 19317
Attention: President
Telephone: (610) 388-9600
Telecopy: (610) 388-9616
or to such other address or such other person as the addressee party shall have
last designated by notice to the other parties. All Notices shall be deemed to
have been given when received. All Notices given by telecopy shall be followed
by the delivery of a hard copy of such Notice, provided that such Notice shall
be deemed to have been given when received by telecopy.
5. Expenses. Subject to the provision for payment of Closing
Costs in accordance with the terms of Section 6.6 hereof
and any other provision of this Agreement, whether or not
the transactions con templated by this Agreement shall be
consummated, all fees and expenses incurred by any party
hereto in connection with this Agree ment shall be borne
by such party.
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6. Assignment.
1. Seller's Right to Assign. Seller shall not have
the right, power or authority to assign all or any
portion of this Agree ment or its rights hereunder
or to delegate any duties or obligations arising
under this Agreement, voluntarily, invol untarily
or by operation of law, without Buyer's prior
written consent.
2. Buyer's Right to Assign. Buyer shall have the
right, power and authority to assign all or any
portion of this Agreement or its rights hereunder
or to delegate any duties or obliga tions arising
under this Agreement, voluntarily, involuntarily
or by operation of law, without Seller's consent,
to any affiliate of Buyer; provided, however, that
no such assign ment or delegation shall relieve
Buyer of its obligations or liabilities under this
Agreement.
7. Severability. Any provision or part of this Agreement
which is invalid or unenforceable in any situation in any
jurisdiction shall, as to such situation and such
jurisdiction, be ineffective only to the extent of such
invalidity and shall not affect the enforceability of the
remaining provisions hereof or the validity or
enforceability of any such provision in any other
situation or in any other jurisdiction.
8. Successors and Assigns; Third Parties. All of the rights,
duties, benefits, liabilities and obligations of the
parties shall inure to the benefit of, and be binding
upon, their respective successors and assigns. Except as
specifically set forth or referred to herein, noth ing
herein expressed or implied is intended or shall be
construed to confer upon or give to any person or entity,
other than the parties hereto and their successors or
permitted assigns, any rights or remedies under or by
reason of this Agreement.
9. Counterparts. This Agreement may be executed in as many
counter parts as may be deemed necessary and convenient,
and by the differ ent parties hereto on separate
counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall
constitute one and the same instrument.
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10. Headings. The Section headings of this Agreement are for
conve nience of reference only and shall not be deemed to
modify, explain, restrict, alter or affect the meaning or
interpretation of any provision hereof.
11. Time of Essence. Time shall be of the essence with respect
to all matters contemplated by this Agreement.
12. Further Assurances. In addition to the actions recited
herein and contemplated to be performed, executed, and/or
delivered by Seller and Buyer, Seller and Buyer agree to
perform, execute and/or deliver or cause to be performed,
executed and/or delivered at or after the Closing any and
all such further acts, instruments, deeds and assurances
as may be reasonably required to consummate the
transactions contemplated hereby.
13. Number and Gender. Whenever the singular number is used,
and when required by the context, the same includes the
plural, and the masculine gender includes the feminine and
neuter genders.
14. Post-Closing Access to Records. Upon receipt by Seller of
Buyer's reasonable written request at anytime and from
time to time within a period of three (3) years after the
Closing, Seller shall, at Seller's principal place of
business, during Seller's normal business hours, make all
of Seller's records relating to the Property available to
Buyer for inspection and copying (at Buyer's sole cost and
expense).
15. Exhibits. All exhibits attached hereto are hereby
incorporated by reference as though set out in full
herein.
16. Business Days. As used herein, the term "Business Day"
shall mean a day that is not a Saturday, Sunday or legal
holiday. In the event that the date for the performance of
any covenant or obligation under this Agreement shall fall
on a Saturday, Sunday or legal holiday, the date for
performance thereof shall be extended to the next Business
Day.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
BUYER:
ASSET INVESTORS OPERATING
PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Assets Investors Corporation,
a Delaware corporation
its general partner
By: /s/David M. Becker
--------------------------
Name: David M. Becker
Title: Chief Financial Officer
SELLER:
COMMUNITY ACQUISITION AND DEVELOPMENT
CORPORATION,
a Delaware corporation
By: /s/Joseph W. Gaynor
-------------------------
Name: Joseph W. Gaynor
Title: President
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LIST OF EXHIBITS
EXHIBIT "A" PROPERTY
EXHIBIT "B" CANCELLATION OF INDEBTEDNESS
EXHIBIT "C" ASSIGNMENT OF LEASES
EXHIBIT "D" NON-FOREIGN AFFIDAVIT
EXHIBIT "E" LEASE SCHEDULE
<PAGE>
EXHIBIT "B"
CANCELLATION OF INDEBTEDNESS
Loans from Seller to Buyer (including accrued but unpaid interest) $175,500
B-1
Asset Purchase Agreement
Dated as of
January 1, 2000
By and Between
AIC HOMESALES CORP.
and
COMMUNITY ACQUISITION AND DEVELOPMENT CORPORATION
<PAGE>
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement is made effective as of the 1st day of
January, 2000 by and between AIC Homesales Corp., a Delaware corporation
("Buyer"), and Community Acquisition and Development Corporation, a Delaware
corporation ("Seller").
WHEREAS, Seller desires (i) to sell and Buyer desires to buy the assets
listed on Schedule A from Seller, and (ii) to assign and Buyer desires to assume
the contracts listed on Schedule B; and
NOW, THEREFORE, in consideration of the premises and the mutual
promises hereinafter set forth, the parties agree as follows:
ARTICLE 1. PURCHASE AND SALE
1.1. Purchase and Sale. Upon and subject to the terms and conditions
hereof, at the Closing (as hereinafter defined), Seller shall sell, transfer and
assign to Buyer, and Buyer shall purchase and acquire from Seller, all right,
title and interest in and to all of the assets of Seller listed on Schedule A
hereto (the "Assets") in each case free and clear of all liens, charges,
security interests and other encumbrances except for the Assumed Liabilities (as
hereinafter defined).
1.2. No Assumption of Liabilities. Except for the liabilities listed in
Schedule B (the "Assumed Liabilities"); which Buyer shall assume and agree to
perform as of the Closing Date, Buyer is assuming no liabilities of Seller in
connection with this transaction. Without limiting the generality of the
foregoing, Seller shall be solely responsible for payment of all amounts at any
time owing by Seller with respect to the Assets, both before and after the
Closing Date, whether accrued or contingent, known or unknown, other than the
Assumed Liabilities.
ARTICLE 2. THE CLOSING
2.1. Closing. The closing of the purchase and sale of the Assets (the
"Closing") shall be effective as of January 1, 2000 (the "Closing Date") or on
such later date as the parties hereto may mutually agree upon in writing. The
Closing shall be effective as of 10:00 a.m., Denver time, on the Closing Date
(the "Effective Time") or at such other date and time as the parties hereto
agree.
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2.2. Bill of Sale, Assignment and Assumption Agreement. Each party shall
deliver executed counterparts to a Bill of Sale, Assignment Assumption Agreement
in substantially the form attached hereto as Exhibit A (the "Bill of Sale"),
whereby Seller shall transfer the Assets to the Buyer, and the Buyer shall
assume the Assumed Liabilities.
2.3. Purchase Price. As full and complete payment of the purchase price of
the Assets, the Buyer shall assume the Assumed Liabilities.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth in the Disclosure Schedule prepared by Seller and
delivered to Buyer simultaneously with the execution hereof (the "Seller
Disclosure Schedule"), Seller represents and warrants to Buyer as follows:
3.1. Authorization. Seller has the full legal right, power and authority
to enter into and perform the transactions contemplated by this Agreement,
without need for any consent, approval, authorization, license or order of, or
notice to, any court, Governmental Entity, instrumentality or regulatory
authority (governmental agencies, instrumentalities and regulatory authorities
being hereinafter referred to as "Governmental Entities"), or any other person
or entity. The execution, delivery and performance of this Agreement and the
documents contemplated hereby by Seller and the consummation by Seller of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action. This Agreement and the documents contemplated hereby
evidence the legal, valid and binding obligations of Seller, enforceable in
accordance with their respective terms except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws of general application affecting enforcement of creditor=s
rights generally and (ii) for the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought.
3.2. Title to Properties; Absence of Liens and Encumbrances. Seller has
the right to sell, transfer, and assign all of the Assets to Buyer, and owns
such assets, free and clear of all liens, charges, security interests and other
encumbrances whatsoever except for the Assumed Liabilities. At the Closing,
Seller=s execution of the Bill of Sale will transfer the Assets to Buyer, free
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and clear of all liens, charges, security interests and other encumbrances
whatsoever except for the Assumed Liabilities. Each of the Assets is in the
possession, custody or control of the Seller, and none of the Assets is in the
possession, custody or control of any person or entity other than Seller.
3.3. Assumed Liabilities. Seller has delivered to Buyer true and correct
copies of all instruments and other documents which constitute or evidence, in
whole or in part, any of the Assumed Liabilities. None of the Assumed
Liabilities and such instruments or documents has been modified or amended in
writing, and all of the Assumed Liabilities and such instruments and documents
are in full force and effect in accordance with their respective terms. Neither
Seller nor any other party to any of the Assumed Liabilities is in default
thereunder, or is otherwise in breach or has failed to comply with any of its
obligations thereunder. To Seller=s knowledge, there is no claim that any such
default, breach or failure to comply currently pending and there are no facts or
conditions known to Seller which, with or without the passage of time, notice or
both, would reasonably be expected to result in a material default under, breach
of, or failure to comply with any material term or provision of the Assumed
Liabilities.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF BUYER
Except as set forth in the Disclosure Schedule prepared by Buyer and
delivered to Seller simultaneously with the execution hereof (the ABuyer
Disclosure Schedule@), Buyer represents and warrants to Seller as follows:
4.1. Authorization. Buyer has the full legal right, power and authority
to enter into and perform the transactions contemplated by this Agreement,
without need for any consent, approval, authorization, license or order of, or
notice to, any court, Governmental Entity or other person or entity. The
execution, delivery and performance of this Agreement and the documents
contemplated hereby by Buyer and the consummation by Buyer of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action of Buyer. This Agreement evidences the legal, valid and binding
obligations of Buyer, enforceable against Buyer in accordance with its terms.
4.2. No Default or Violation. The execution, delivery and performance
of this Agreement by Buyer and the consummation by Buyer of the transactions
contemplated hereby (a) do not, and will not, conflict with any provision of the
Certificate of Incorporation or By-Laws of Buyer, and (b) do not, and will not,
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violate any law, regulation, order, judgment or decree to which Buyer or any of
its properties is subject.
ARTICLE 5. MISCELLANEOUS
5.1. Brokerage. Seller represents to Buyer, and Buyer represents to
Seller, that there has been no intermediary or broker in negotiations or
discussions incident to the execution of this Agreement or any of the
transactions contemplated hereby and that no intermediary or broker is or shall
be entitled to any commission or other compensation with respect to any of such
transactions.
5.2 Condition of Assets. Buyer acknowledges that it is purchasing the
Assets "as is and with all faults." The Seller makes no representation or
warranty with respect to the condition of the Assets or their suitability for
any particular purpose.
5.3. Waivers and Amendments. This Agreement may be amended, modified or
supplemented only by a written instrument executed by the parties hereto. No
waiver of any provision of this Agreement, or consent to any departure from the
terms hereof, shall be effective unless the same shall be in writing and signed
by the party waiving or consenting thereto. No failure on the part of any party
to exercise, and no delay in exercising, any right or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or remedy by such party preclude any other or further exercise
thereof or the exercise of any other right or remedy. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate as a
waiver of any subsequent breach. All rights and remedies hereunder are
cumulative and are in addition to and not exclusive of any other rights and
remedies provided by law.
5.4. Performance. Seller acknowledges that money damages alone will not
adequately compensate Buyer for breach of its obligations under this Agreement
and, therefore, agrees that in the event of the breach or threatened breach of
any such obligation, in addition to all other remedies available to Buyer, at
law, in equity or otherwise, Buyer shall be entitled to injunctive relief
compelling specific performance of, or other compliance with, the terms of this
Agreement.
5.5. Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
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<PAGE>
in writing and shall be deemed to have been duly given if delivered personally
or by overnight courier with delivery charges prepaid, or sent by telecopy, as
follows:
If to Seller:
Community and Acquisition Development Corporation
2 Ponds Edge Drive
P.O. Box 500
Chadds Ford, Pennsylvania 19317
Attention: President
Telephone: (610) 388-9600
Fax: (610) 388-9616
If to Buyer:
AIC Homesales Corporation
3410 South Galena Street, Suite 210
Denver, Colorado 80231
Attention: David Becker
Telephone: (303) 614-9422
Fax: (303) 614-9401
with a required copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
Attention: Michael V. Gisser
Telephone: (213) 687-5000
Fax: (213) 687-5600
or to such other address of which written notice in accordance with this Section
5.5. shall have been provided by such party. Notices may only be given in the
manner hereinabove described in this Section 5.5 and shall be deemed received
when given in such manner.
5.6. Expenses. Each party hereto shall pay its own expenses in
connection with the transactions contemplated hereby, whether or not they are
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<PAGE>
completed. In the event of any conflict between this provision and the
indemnification provisions of this Agreement, the indemnification provisions
shall control.
5.7. Miscellaneous.
(a) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, whether written or oral, among the parties,
or any of them, in connection with such subject matter.
(b) This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns. Without the consent of
Seller, Buyer shall be entitled to assign any or all of its rights hereunder,
whether as security or otherwise, to any entity.
(c) This Agreement shall be governed by, and construed and
enforced in accordance with, the substantive laws of Delaware applicable to
agreements made and to be performed entirely therein.
(d) All Schedules mentioned in this Agreement shall be
attached to this Agreement, and shall form an integral part hereof. All
capitalized terms defined in this Agreement which are used in any Schedule
shall, unless the context otherwise requires, have the same meaning therein as
given herein.
(e) This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
(f) This Agreement is personal to Seller, and Seller shall not
assign any of its rights or delegate any of its obligations hereunder without
the prior written consent of Buyer, which consent may be withheld for any
reason.
[Signature page follows]
7
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Agreement effective as of the date first above written.
Community Acquisition and Development
Corporation
a Delaware corporation
By:/s/Jospeh W. Gaynor
----------------------
Name: Joseph W. Gaynor
Title: President
AIC Homesales Corp.,
a Delaware corporation
By:/s/David M. Becker
---------------------
Name: David M. Becker
Title: Chief Financial Officer
Date: 1/31/00
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<PAGE>
SCHEDULE A TO
ASSET PURCHASE AGREEMENT
ASSIGNED ASSETS
<TABLE>
<CAPTION>
Assigned
Value
----------------
Manufactured home inventories located at the following
manufactured home communities:
<S> <C>
Forest View $ 656,497
Park Royale 329,600
Stonebrook 222,848
----------------
Subtotal $1,208,945
Other assets (including cash, receivables, refundable deposits,
equipment and other assets) 217,138
----------------
Total Assigned Assets $1,426,083
================
</TABLE>
11
<PAGE>
SCHEDULE B TO
ASSET PURCHASE AGREEMENT
ASSUMED LIABILITIES
<TABLE>
<CAPTION>
Loans from Conseco Finance Servicing Corp. (including accrued but
<S> <C>
unpaid interest) $ 875,267
Trade payables and accrued expenses 58,776
Loans from Asset Investors Operating Partnership, L.P. (including
accrued but unpaid interest) involving the following manufactured
home communities:
Park Royale 236,206
Stonebrook 255,834
----------------
Total Assumed Liabilities $1,426,083
================
</TABLE>
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