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Acquisition Agreement
Acquisition Agreement (73K)
Doc #257944: Click preview link for longer preview.
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the "Agreement") is made and entered into
on November 15, 2000, but effective for all purposes as of January 1, 2001 (the
"Effective Date") by and among TARRAGON REALTY INVESTORS, INC., a Nevada
corporation ("Tarragon") and EILEEN A. SWENSON, ROBERT P. ROTHENBERG and SAUL
SPITZ, all individuals (each individually referred to herein by their last name
and all collectively referred to as the "Individuals"), each of whom is the
current owner and holder of an Interest as a Member in ACCORD PROPERTIES
ASSOCIATES, LLC ("Accord").
WHEREAS, each of the Individuals is presently the owner of an
"Interest" as a "Member" (as those terms are defined in the Operating Agreement
of Accord dated as of December 31, 1998) in Accord, each having originally made
a capital contribution of $11,316.67, and each holding a one third Interest as a
Member in Accord;
WHEREAS, Tarragon desires to acquire from the Individuals their entire
Interest as a Member in Accord, such that Tarragon or a subsidiary of Tarragon
shall become the only Member of Accord (which is permitted under Section
34-101(9) of the Connecticut Limited Liability Company Act), and each of the
Individuals desire to sell and convey to Tarragon, all upon the terms and
subject to the conditions set forth in this Agreement, all (but not less than
all) of the Member Interest in Accord, together with the business of Accord as a
going concern.
ACCORDINGLY, for and in consideration of the foregoing premises, the
mutual promises, covenants, representations and warranties contained herein, and
on the terms and subject to the conditions set forth herein, and for other good
and valuable consideration, the receipt, sufficiency and adequacy of which is
hereby acknowledged by all the parties hereto, Tarragon and the Individuals
hereby agree as follows:
{PAGE} 2
1. Adoption of Recitals. All of the recitals set forth above are hereby
adopted, ratified and confirmed in the same manner as if fully re-copied herein.
2. Procedural Items and Definitions.
2.01 Closing of this Agreement. The Closing of the transaction
contemplated by this Agreement (herein called the "Closing") shall take
place at a location mutually acceptable to Tarragon and the
Individuals, at such date and time as shall be fixed by mutual
agreement among the parties hereto, but in any event shall occur no
later than January 15, 2001. The date on which the Closing shall take
place shall be hereinafter referred to as the "Closing Date."
2.02 Certain Definitions. As used in this Agreement, the
following terms or phrases shall have the meanings set forth below:
(a) The term "Business Day" shall mean a day on which
business is regularly transacted by national banks in New York
City, New York, but shall not include any Saturday, Sunday or
national holiday.
(b) The term "Generally Accepted Accounting
Principles" shall mean those Generally Accepted Accounting
Principles and practices which are recognized as such by the
American Institute of Certified Public Accountants acting
through its Accounting Principles Board or by the Financial
Accounting Standards Board or through other appropriate boards
or committees thereof and which are consistently applied for
all periods after the date hereof so as to properly reflect
the financial condition and results of operation and changes
in financial position of the Person in question, except that
any accounting principal or practice required to be changed by
said Accounting Principles Board or Financial Accounting
Standards Board (or other appropriate boards or committees of
said Boards) in order to continue as a Generally Accepted
Accounting Principle or practice may be so changed.
257944
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Accord Ventures
As referenced in this Acquisition Agreement:
Accord Ventures, Inc. – Closing Date, Tarragon shall assume and agree to pay in accordance with
their terms that certain promissory note in the original principal
amount of $60,000, payable by Accord to Accord Ventures, Inc. , and such
other reasonable obligations of Accord that are disclosed to Tarragon
in the Financial Statements prior to the Closing Date.
7. Survival of Representations, Warranties and Covenants. All
_____________
dt 1316620
;
Accord Ventures
As referenced in this Acquisition Agreement:
Accord Ventures, Inc. – Closing Date, Tarragon shall assume and agree to pay in accordance with
their terms that certain promissory note in the original principal
amount of $60,000, payable by Accord to Accord Ventures, Inc. , and such
other reasonable obligations of Accord that are disclosed to Tarragon
in the Financial Statements prior to the Closing Date.
7. Survival of Representations, Warranties and Covenants. All
_____________
dt 1316621
;
|
Tarragon
As referenced in this Acquisition Agreement:
TARRAGON REALTY INVESTORS, – and entered into
on November 15, 2000, but effective for all purposes as of January 1, 2001 (the
"Effective Date") by and among TARRAGON REALTY INVESTORS, INC., a Nevada
corporation ("Tarragon") and EILEEN A. SWENSON, ROBERT P. ROTHENBERG and SAUL
SPITZ, all individuals (each individually referred to herein
_____________
TARRAGON REALTY INVESTORS, – WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date and year first above written.
ADDRESS FOR NOTICES:
TARRAGON REALTY INVESTORS, INC.
1775 Broadway, 23rd Floor By: /s/ William S. Friedman
New York, New York 10019 ------------------------
212-949-5000 William S. Friedman
212-
_____________
dt 132529
|
| Preview
Full Doc
| 2002 |
Leasehold Acquisition Agreement
Leasehold Acquisition Agreement (72K)
Doc #259647: Click preview link for longer preview.
LEASEHOLD ACQUISITION AGREEMENT
THIS LEASEHOLD ACQUISITION AGREEMENT (the "Agreement") is made and
entered into as of this 28th day of June, 2002, by and among CapStar Winston
Company, LLC ("CapStar"), Meristar Management Company, LLC (the "Manager"),
Winston Hotels, Inc. ("Winston"), WINN Limited Partnership ("WINN"), Evanston
Hotel Associates, LLC ("Evanston"), Marsh Landing Hotel Associates, LLC ("Marsh
Landing" and, together with WINN and Evanston, the "Lessors") and Barclay
Hospitality Services Inc. ("Barclay"). The Agreement is effective as of July 1,
2002 (the "Effective Date").
WITNESSETH:
WHEREAS, CapStar has entered into lease agreements with the Lessors
with respect to the forty-seven (47) hotels described in Exhibit A (the
"Hotels") (as such agreements may have been amended or modified, each a "Lease
Agreement" and collectively, the "Lease Agreements"); and
WHEREAS, the parties desire to provide for the purchase and assignment
of the Lease Agreements subject to the terms and conditions described herein;
and
WHEREAS, thirty-nine (39) of the Hotels described in Exhibit A are
managed by Meristar Management Company, LLC, an affiliate of CapStar; and
WHEREAS, seven (7) of the Hotels (the "IMIC Hotels") are managed by the
Interstate Management and Investment Corporation ("IMIC") and one (1) Hotel (the
"Hilton Hotel") is managed by the Hilton Corporation ("Hilton"); and
WHEREAS, the parties desire to set forth other agreements and covenants
as set forth herein;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
expressly acknowledged, the parties do hereby agree as follows:
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto do hereby
agree as follows:
1. Assignment and Assumption of Lease Agreements and Leasehold Assets.
(a) CapStar hereby conveys, sells, transfers, assigns and
delivers to Barclay as of the Effective Date the Lease Agreements and, as
contemplated by Section 1(b) hereof, the Leasehold Assets (as hereinafter
defined). Barclay hereby assumes as of the Effective Date the Lease Agreements
and the Leasehold Assets and, subject to the provisions of Section 3 hereof,
{PAGE}
all liabilities and/or obligations of CapStar arising under the Lease Agreements
and/or the Leasehold Assets to the extent (i) such liabilities and/or
obligations arise or are incurred with respect to periods from and after the
Effective Date or (ii) to the extent Barclay or Winston receives a credit
therefor on the Estimated Settlement Statement or Actual Settlement Statement
(as defined in Section 6 hereof), such liabilities and/or obligations are paid
or performed or remain to be paid or performed from and after the Effective Date
but first arose or were incurred with respect to periods prior to the Effective
Date.
(b) Upon the terms and subject to the conditions set forth in
this Agreement, CapStar hereby conveys, sells, transfers, assigns and delivers
to Barclay as of 12:01 AM on the Effective Date (the "Cut-off Time"), and
Barclay hereby assumes and accepts from CapStar as of the Cut-off Time, all
right, title and interest of CapStar in and to the following assets, properties,
rights (contractual or otherwise) of CapStar relating to the Lease Agreements
and/or the Hotels (collectively, the "Leasehold Assets"):
(i) All expendable supplies, including, but not
limited to, all china, glassware, linens, towels, washcloths, bedding,
napkins, tablecloths, silverware, kitchen and bar small goods, paper
goods, guest supplies, cleaning and maintenance supplies, office
supplies, operating supplies, printing, stationery and uniforms owned
by CapStar or the Manager and located at the Hotels or held in storage
for use at the Hotels (the "Expendables");
(ii) All fixtures, furniture, furnishings, fittings,
equipment, machinery, apparatus, appliances, computer hardware and
equipment, software, reservations terminals, vehicles, building
materials, telephones and other communications equipment, copiers,
facsimile machines, postal machines, televisions, signs, vacuum
cleaners, video equipment and other articles of personal property owned
by CapStar or the Manager and located at the Hotels or held in storage
for use at the Hotels, excluding therefrom (A) all property owned by
any hotel franchisor or by any tenant under a Space Lease (as defined
in Section 2(b)(ix) hereof) and (B) the property listed on Exhibit B
(the "Furnishings");
(iii) All opened and unopened food and beverages
(alcoholic and non-alcoholic) owned by CapStar or the Manager and
located at the Hotels or held in storage for use at the Hotels
("Consumables");
(iv) All service and equipment contracts, employment
agreements, union contracts, purchase orders, equipment leases, and
other contracts or agreements relating to the ownership, operation,
maintenance, provisioning or equipping of the Hotels, together with all
assignable related written warranties and guaranties (individually and
collectively, "Contracts"). The parties acknowledge and agree that the
Contracts may be subject to the terms of certain master agreements
pursuant to which goods are provided and/or services rendered to
properties owned, leased or managed by CapStar, the Manager and/or
their respective affiliates, but that any and all right, title or
interest which CapStar or the Manager or their respective affiliates
may have in such master agreements are not included within the
definition of Contracts and are not being assigned or assumed under
this Agreement;
-2-
{PAGE}
(v) All goodwill, trade names and logos (if any, and
used solely in connection with the Hotels, and only to the extent of
CapStar's or the Manager's interest therein, if any), the Hotels'
websites and web addresses, if any, and the Hotels' telephone numbers;
(vi) All contracts or reservations for the use or
occupancy of guest rooms, meeting rooms and/or banquet facilities of
the Hotels, and (except to the extent Barclay has received a credit
therefor on the Estimated Settlement Statement or the Actual Settlement
Statement) all advance deposits with respect thereto.
(vii) All books of original financial entry, books of
account and other records with respect to the Hotels only, and all
guest lists, customer files, group files, sales records, sales
literature, brochures and other written marketing materials used in
conducting the business and operations of the Hotels, to the extent in
the possession of CapStar or the Manager, in such form as they exist on
the Effective Date and to the extent not consolidated with items
relating to other hotels owned, leased or managed by CapStar, the
Manager or their respective affiliates (but the parties hereto
acknowledge and agree that such books, records, lists, files, records
and other items shall be with respect to the Hotels, and the guests and
customers of the Hotels, only and not books, records, lists, files,
records and other items of CapStar, the Manager and/or their affiliates
which relate to hotels other than the Hotels);
(viii) All governmental licenses, permits,
certificates, authorizations and approvals, to the extent transferable,
used in or relating to the ownership, leasing, occupancy or operations
of the Hotels including, without limitation, those necessary for the
sale and on-premises consumption of liquor and other alcoholic
beverages, to the extent held by CapStar or the Manager (individually
259647
|
Barclay
As referenced in this Leasehold Acquisition Agreement:
Barclay
Hospitality Services Inc – Manager"),
Winston Hotels, Inc. ("Winston"), WINN Limited Partnership ("WINN"), Evanston
Hotel Associates, LLC ("Evanston"), Marsh Landing Hotel Associates, LLC ("Marsh
Landing" and, together with WINN and Evanston, the "Lessors") and Barclay
Hospitality Services Inc . ("Barclay"). The Agreement is effective as of July 1,
2002 (the "Effective Date").
WITNESSETH:
WHEREAS, CapStar has entered into lease agreements with the Lessors
with respect to the forty-
_____________
BARCLAY HOSPITALITY SERVICES INC – of laws provisions.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
-16-
{PAGE}
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
BARCLAY HOSPITALITY SERVICES INC .
By: /s/ Joseph V. Green
-----------------------------------------
Name: Joseph V. Green
---------------------------------------
Title: Executive Vice President
--------------------------------------
CAPSTAR WINSTON COMPANY, LLC
By: /s/ Chris Bennett
-----------------------------------------
Name: Chris Bennett
---------------------------------------
Title:
--------------------------------------
MERISTAR MANAGEMENT COMPANY, LLC
_____________
dt 1338936
;
MeriStar
As referenced in this Leasehold Acquisition Agreement:
MeriStar
Hospitality Corp – the other
Winston Parties hereby unconditionally release the existing $20,000,000
Guarantee of Leases, dated as of November 17, 1997, provided by MeriStar
Hospitality Corp oration (as successor-in-interest to CapStar Hotel Company) of
CapStar's obligations under the Lease Agreements, which Guarantee of Leases is
hereby
_____________
MeriStar Hospitality Corp – certified mail (return receipt requested and postage
prepaid) or by reputable overnight courier service and addressed as follows:
(a) If to CapStar, Manager, MeriStar Hospitality Corp oration
or MHR, to:
c/o MeriStar Hotels & Resorts, Inc.
1010 Wisconsin Ave., N.W.
Washington, D.C. 20007
Attention: General Counsel
Tel: (
_____________
dt 134327
;
Winston Hotels
As referenced in this Leasehold Acquisition Agreement:
Winston Hotels, – into as of this 28th day of June, 2002, by and among CapStar Winston
Company, LLC ("CapStar"), Meristar Management Company, LLC (the "Manager"),
Winston Hotels, Inc. ("Winston"), WINN Limited Partnership ("WINN"), Evanston
Hotel Associates, LLC ("Evanston"), Marsh Landing Hotel Associates, LLC ("Marsh
Landing" and, together with WINN
_____________
Winston Hotels, – Manager has indemnified Barclay with respect thereto under the New Management
Agreements) Manager with respect to all such Matters.
(e) Barclay, WINN and Winston Hotels, Inc. acknowledge and
agree that the parties hereto intended that Winston SPE LLC ("Winston SPE")
would be included as a party to
_____________
Winston Hotels, – party to this Agreement only because Winston SPE's managing member,
Winston Manager Corporation, a Virginia corporation and a wholly-owned
subsidiary of Winston Hotels, Inc. ("Winston Manager Corporation"), which is the
only entity authorized under Winston SPE's operating agreement to enter into
binding agreements on
_____________
Winston Hotels, – this
Agreement, validly existing and in good standing as a corporation in the State
of Virginia with the State Corporation Commission of Virginia. Winston Hotels,
Inc. hereby covenants and undertakes to take all steps necessary to cause
Winston Manager Corporation, as the managing member of Winston SPE, (
_____________
Winston Hotels, – this Agreement, and is bound by
all of the terms and conditions of this Agreement applicable to the Lessors or
the Winston Parties. Winston Hotels, Inc. hereby agrees to indemnify, defend and
hold harmless the MeriStar Indemnified Parties (as defined in Section 3(a)
below) from and
_____________
dt 133632
;
| CapStar Winston Company, LLC;
Meristar Management Company, LLC;
More... |
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Acquisition Agreement
Acquisition Agreement (257K)
Doc #265717: Click preview link for longer preview.
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT, executed and effective as of June 28, 2000
(the "Effective Date"), by and among Apartment Investment and Management
Company, a Maryland corporation ("AIMCO"), AIMCO Properties, L.P., a Delaware
limited partnership ("AIMCO OP"), AIMCO/NHP Properties, Inc., a Delaware
corporation ("AIMCO/NHP") and NHP Management Company, a District of Columbia
corporation ("NHP" and, together with AIMCO, AIMCO/NHP and AIMCO OP, the
"Buyers"), Leo E. Zickler, an individual ("Zickler"), Francis P. Lavin, an
individual ("Lavin"), Robert B. Downing, an individual ("Downing"), Mark E.
Schifrin, an individual ("Schifrin"), Marc B. Abrams, an individual ("Abrams"),
and Richard R. Singleton, an individual ("Singleton", and, together with
Zickler, Lavin, Downing, Schifrin and Abrams, the "Sellers")(the "Agreement").
WHEREAS, Sellers desire to sell and/or contribute their respective
interests in the Acquired Assets (as hereinafter defined) to Buyers in exchange
for cash, units of limited partnership interest in AIMCO OP ("OP Units"), and/or
shares of AIMCO Stock (as hereinafter defined), and Buyers desire to accept such
interests in exchange for such consideration; and
WHEREAS, the parties hereto agree that each and every provision
incorporated in this Agreement has been a material inducement for Buyers and
Sellers entering into the transaction contemplated by this Agreement, including,
without limitation the representations and warranties and the indemnifications
of Buyers and Sellers.
NOW, THEREFORE, in consideration of the foregoing and the covenants of
the parties set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, subject to the terms
and conditions set forth herein, the parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.1. Definitions. The capitalized terms used in this Agreement and not
otherwise defined herein shall have the following meanings (unless the context
otherwise requires, such capitalized terms shall include the singular and plural
and the conjunctive and disjunctive forms of the terms defined):
"Accredited Investor" shall have the meaning ascribed thereto in
Regulation D of the Rules and Regulations promulgated under the Securities Act.
"Acknowledgment" shall mean an Acknowledgment and Acceptance of
Admission of Limited Partner, substantially in the form of Exhibit A.
1
{PAGE} 10
"Acquired Assets" shall mean, without duplication, the assets set
forth on Exhibit 2.1, subject to adjustment and/or exclusion as provided by the
terms of this Agreement.
"Acquired Business" shall mean, (i) the Acquired Assets and (ii) the
Assumed Liabilities.
"Actual AIMCO Market Price" shall mean, as of any Determination Date,
the average of the high and low reported sale prices (regular way) of AIMCO
Stock on the New York Stock Exchange on each of twenty (20) consecutive full
trading days ending on the fifth (5th) full trading day prior to the
Determination Date.
"ADA" shall mean the Americans with Disabilities Act of 1990.
"Affiliate" shall mean, with respect to any Person, any other Person
that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with such Person within the meaning of
SEC Rule 144(a)(1).
"Agreed Representations and Warranties" shall have the meaning set
forth in Section 11.2.
"AIMCO Market Price" shall mean, as of any Determination Date, (i) the
average of the high and low reported sale prices (regular way) of AIMCO Stock on
the New York Stock Exchange on each of twenty (20) consecutive full trading days
ending on the fifth (5th) full trading day prior to the Determination Date, (ii)
$40 per share if the average determined pursuant to clause (i) is less than $40
per share or (iii) $45 per share if the average determined pursuant to clause
(i) is greater than $45 per share.
"AIMCO/SEC Reports" shall have the meaning set forth in Section 7.7.
"AIMCO Stock" shall mean shares of Class A Common Stock, par value
$.01 per share, of AIMCO.
"Amended and Restated Warrant Agreement" shall mean a warrant
agreement in the form of Exhibit V.
"Applicable Sellers' Cap" shall have the meaning set forth in Section
11.1(c).
"Approvals" shall have the meaning set forth in Section 5.12.
"Assignment and Assumption of Corporate Debt" shall mean an Assignment
and Assumption of Corporate Debt, substantially in the form of Exhibit B.
265717
|
Aimco Properties
As referenced in this Acquisition Agreement:
AIMCO PROPERTIES, L.P., – 00
{TEXT}
{PAGE} 1
EXHIBIT 2.1
ACQUISITION AGREEMENT
dated as of
JUNE 28, 2000
by and among
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
AIMCO PROPERTIES, L.P.,
NHP Management company
and
AIMCO/NHP PROPERTIES, INC.,
as Buyers,
and
LEO E. ZICKLER,
FRANCIS P. LAVIN,
ROBERT B. DOWNING,
MARK E.
_____________
AIMCO Properties, L.P., – executed and effective as of June 28, 2000
(the "Effective Date"), by and among Apartment Investment and Management
Company, a Maryland corporation ("AIMCO"), AIMCO Properties, L.P., a Delaware
limited partnership ("AIMCO OP"), AIMCO/NHP Properties, Inc., a Delaware
corporation ("AIMCO/NHP") and NHP Management Company, a District of
_____________
AIMCO
PROPERTIES, L.P., – MAY BE
SOLD OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE RESTRICTIONS ON
TRANSFER SET FORTH IN THE AGREEMENT OF LIMITED PARTNERSHIP OF AIMCO
PROPERTIES, L.P., DATED AS OF JULY 29, 1994/THE BY-LAWS OF THE CORPORATION,
AS IT MAY BE AMENDED AND/OR SUPPLEMENTED FROM TIME
_____________
AIMCO PROPERTIES, L.P., – this Agreement as of
the date first above written.
BUYERS:
APARTMENT INVESTMENT
AND MANAGEMENT COMPANY,
a Maryland corporation
By:
----------------------------------
Peter K. Kompaniez
President
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
By: AIMCO-GP, Inc.
its general partner
By:
-------------------------
Peter K. Kompaniez
President
NHP MANAGEMENT COMPANY, a District
of
_____________
dt 194119
;
Aimco Properties
As referenced in this Acquisition Agreement:
AIMCO PROPERTIES, L.P., – 00
{TEXT}
{PAGE} 1
EXHIBIT 2.1
ACQUISITION AGREEMENT
dated as of
JUNE 28, 2000
by and among
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
AIMCO PROPERTIES, L.P.,
NHP Management company
and
AIMCO/NHP PROPERTIES, INC.,
as Buyers,
and
LEO E. ZICKLER,
FRANCIS P. LAVIN,
ROBERT B. DOWNING,
MARK E.
_____________
AIMCO Properties, L.P., – executed and effective as of June 28, 2000
(the "Effective Date"), by and among Apartment Investment and Management
Company, a Maryland corporation ("AIMCO"), AIMCO Properties, L.P., a Delaware
limited partnership ("AIMCO OP"), AIMCO/NHP Properties, Inc., a Delaware
corporation ("AIMCO/NHP") and NHP Management Company, a District of
_____________
AIMCO
PROPERTIES, L.P., – MAY BE
SOLD OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE RESTRICTIONS ON
TRANSFER SET FORTH IN THE AGREEMENT OF LIMITED PARTNERSHIP OF AIMCO
PROPERTIES, L.P., DATED AS OF JULY 29, 1994/THE BY-LAWS OF THE CORPORATION,
AS IT MAY BE AMENDED AND/OR SUPPLEMENTED FROM TIME
_____________
AIMCO PROPERTIES, L.P., – this Agreement as of
the date first above written.
BUYERS:
APARTMENT INVESTMENT
AND MANAGEMENT COMPANY,
a Maryland corporation
By:
----------------------------------
Peter K. Kompaniez
President
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
By: AIMCO-GP, Inc.
its general partner
By:
-------------------------
Peter K. Kompaniez
President
NHP MANAGEMENT COMPANY, a District
of
_____________
dt 194119
;
AIMCO
As referenced in this Acquisition Agreement:
APARTMENT INVESTMENT AND MANAGEMENT – ACQUSITION AGREEMENT DATED 6/28/00
{TEXT}
{PAGE} 1
EXHIBIT 2.1
ACQUISITION AGREEMENT
dated as of
JUNE 28, 2000
by and among
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
AIMCO PROPERTIES, L.P.,
NHP Management company
and
AIMCO/NHP PROPERTIES, INC.,
as Buyers,
and
LEO E. ZICKLER,
FRANCIS P. LAVIN,
ROBERT
_____________
Apartment Investment and Management
– TABLE}
3
{PAGE} 9
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT, executed and effective as of June 28, 2000
(the "Effective Date"), by and among Apartment Investment and Management
Company, a Maryland corporation ("AIMCO"), AIMCO Properties, L.P., a Delaware
limited partnership ("AIMCO OP"), AIMCO/NHP Properties, Inc., a Delaware
corporation ("
_____________
Apartment Investment and Management – Service mail or nationally recognized
overnight courier service; in each case to the address set forth below:
if to any of Buyers, to:
Apartment Investment and Management Company
2000 South Colorado Boulevard
Tower Two; Suite 2 - 1000
Denver, Colorado 80222
Attention: Mr. Terry Considine
Telephone: (303) 757-8600; Fax: (303)
_____________
Apartment Investment and Management – Colorado Boulevard
Tower Two; Suite 2 - 1000
Denver, Colorado 80222
Attention: Mr. Terry Considine
Telephone: (303) 757-8600; Fax: (303) 692-0786
And
Apartment Investment and Management Company
18350 Mt. Langley Ave.
Suite 220
Fountain Valley, CA 92708
Attention: Mr. Peter K. Kompaniez
Telephone: (714) 593-1733; Fax (714) 593-
_____________
APARTMENT INVESTMENT
AND MANAGEMENT – INTENTIONALLY BLANK]
71
{PAGE} 80
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BUYERS:
APARTMENT INVESTMENT
AND MANAGEMENT COMPANY,
a Maryland corporation
By:
----------------------------------
Peter K. Kompaniez
President
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
By: AIMCO-GP, Inc.
its general
_____________
dt 152629
;
|
AIMCO
As referenced in this Acquisition Agreement:
APARTMENT INVESTMENT AND MANAGEMENT – ACQUSITION AGREEMENT DATED 6/28/00
{TEXT}
{PAGE} 1
EXHIBIT 2.1
ACQUISITION AGREEMENT
dated as of
JUNE 28, 2000
by and among
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
AIMCO PROPERTIES, L.P.,
NHP Management company
and
AIMCO/NHP PROPERTIES, INC.,
as Buyers,
and
LEO E. ZICKLER,
FRANCIS P. LAVIN,
ROBERT
_____________
Apartment Investment and Management
– TABLE}
3
{PAGE} 9
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT, executed and effective as of June 28, 2000
(the "Effective Date"), by and among Apartment Investment and Management
Company, a Maryland corporation ("AIMCO"), AIMCO Properties, L.P., a Delaware
limited partnership ("AIMCO OP"), AIMCO/NHP Properties, Inc., a Delaware
corporation ("
_____________
Apartment Investment and Management – Service mail or nationally recognized
overnight courier service; in each case to the address set forth below:
if to any of Buyers, to:
Apartment Investment and Management Company
2000 South Colorado Boulevard
Tower Two; Suite 2 - 1000
Denver, Colorado 80222
Attention: Mr. Terry Considine
Telephone: (303) 757-8600; Fax: (303)
_____________
Apartment Investment and Management – Colorado Boulevard
Tower Two; Suite 2 - 1000
Denver, Colorado 80222
Attention: Mr. Terry Considine
Telephone: (303) 757-8600; Fax: (303) 692-0786
And
Apartment Investment and Management Company
18350 Mt. Langley Ave.
Suite 220
Fountain Valley, CA 92708
Attention: Mr. Peter K. Kompaniez
Telephone: (714) 593-1733; Fax (714) 593-
_____________
APARTMENT INVESTMENT
AND MANAGEMENT – INTENTIONALLY BLANK]
71
{PAGE} 80
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BUYERS:
APARTMENT INVESTMENT
AND MANAGEMENT COMPANY,
a Maryland corporation
By:
----------------------------------
Peter K. Kompaniez
President
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
By: AIMCO-GP, Inc.
its general
_____________
dt 152629
;
Fannie Mae
As referenced in this Acquisition Agreement:
FNMA – REIT Status.
78
{PAGE} 87
DISCLOSURE SCHEDULE 4.3
REQUIRED CONSENTS OF BUYERS:
General Electric
CNA
REQUIRED CONSENTS OF SELLERS:
General Electric
CNA
FNMA
Banco Santander
Merrill Lynch
Conduit loans originally securitized by DLJ, First Union, Nomura and
Merrill Lynch
Northwestern Mutual
CIGNA
79
{/TEXT}
{/DOCUMENT}
_____________
dt 161980
;
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Acquisition Agreement
Acquisition Agreement (257K)
Doc #275274: Click preview link for longer preview.
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT, executed and effective as of June 28, 2000
(the "Effective Date"), by and among Apartment Investment and Management
Company, a Maryland corporation ("AIMCO"), AIMCO Properties, L.P., a Delaware
limited partnership ("AIMCO OP"), AIMCO/NHP Properties, Inc., a Delaware
corporation ("AIMCO/NHP") and NHP Management Company, a District of Columbia
corporation ("NHP" and, together with AIMCO, AIMCO/NHP and AIMCO OP, the
"Buyers"), Leo E. Zickler, an individual ("Zickler"), Francis P. Lavin, an
individual ("Lavin"), Robert B. Downing, an individual ("Downing"), Mark E.
Schifrin, an individual ("Schifrin"), Marc B. Abrams, an individual ("Abrams"),
and Richard R. Singleton, an individual ("Singleton", and, together with
Zickler, Lavin, Downing, Schifrin and Abrams, the "Sellers")(the "Agreement").
WHEREAS, Sellers desire to sell and/or contribute their respective
interests in the Acquired Assets (as hereinafter defined) to Buyers in exchange
for cash, units of limited partnership interest in AIMCO OP ("OP Units"), and/or
shares of AIMCO Stock (as hereinafter defined), and Buyers desire to accept such
interests in exchange for such consideration; and
WHEREAS, the parties hereto agree that each and every provision
incorporated in this Agreement has been a material inducement for Buyers and
Sellers entering into the transaction contemplated by this Agreement, including,
without limitation the representations and warranties and the indemnifications
of Buyers and Sellers.
NOW, THEREFORE, in consideration of the foregoing and the covenants of
the parties set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, subject to the terms
and conditions set forth herein, the parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.1. Definitions. The capitalized terms used in this Agreement and not
otherwise defined herein shall have the following meanings (unless the context
otherwise requires, such capitalized terms shall include the singular and plural
and the conjunctive and disjunctive forms of the terms defined):
"Accredited Investor" shall have the meaning ascribed thereto in
Regulation D of the Rules and Regulations promulgated under the Securities Act.
"Acknowledgment" shall mean an Acknowledgment and Acceptance of
Admission of Limited Partner, substantially in the form of Exhibit A.
1
{PAGE} 10
"Acquired Assets" shall mean, without duplication, the assets set
forth on Exhibit 2.1, subject to adjustment and/or exclusion as provided by the
terms of this Agreement.
"Acquired Business" shall mean, (i) the Acquired Assets and (ii) the
Assumed Liabilities.
"Actual AIMCO Market Price" shall mean, as of any Determination Date,
the average of the high and low reported sale prices (regular way) of AIMCO
Stock on the New York Stock Exchange on each of twenty (20) consecutive full
trading days ending on the fifth (5th) full trading day prior to the
Determination Date.
"ADA" shall mean the Americans with Disabilities Act of 1990.
"Affiliate" shall mean, with respect to any Person, any other Person
that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with such Person within the meaning of
SEC Rule 144(a)(1).
"Agreed Representations and Warranties" shall have the meaning set
forth in Section 11.2.
"AIMCO Market Price" shall mean, as of any Determination Date, (i) the
average of the high and low reported sale prices (regular way) of AIMCO Stock on
the New York Stock Exchange on each of twenty (20) consecutive full trading days
ending on the fifth (5th) full trading day prior to the Determination Date, (ii)
$40 per share if the average determined pursuant to clause (i) is less than $40
per share or (iii) $45 per share if the average determined pursuant to clause
(i) is greater than $45 per share.
"AIMCO/SEC Reports" shall have the meaning set forth in Section 7.7.
"AIMCO Stock" shall mean shares of Class A Common Stock, par value
$.01 per share, of AIMCO.
"Amended and Restated Warrant Agreement" shall mean a warrant
agreement in the form of Exhibit V.
"Applicable Sellers' Cap" shall have the meaning set forth in Section
11.1(c).
"Approvals" shall have the meaning set forth in Section 5.12.
"Assignment and Assumption of Corporate Debt" shall mean an Assignment
and Assumption of Corporate Debt, substantially in the form of Exhibit B.
275274
|
Aimco Properties
As referenced in this Acquisition Agreement:
AIMCO PROPERTIES, L.P., – 00
{TEXT}
{PAGE} 1
EXHIBIT 2.1
ACQUISITION AGREEMENT
dated as of
JUNE 28, 2000
by and among
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
AIMCO PROPERTIES, L.P.,
NHP Management company
and
AIMCO/NHP PROPERTIES, INC.,
as Buyers,
and
LEO E. ZICKLER,
FRANCIS P. LAVIN,
ROBERT B. DOWNING,
MARK E.
_____________
AIMCO Properties, L.P., – executed and effective as of June 28, 2000
(the "Effective Date"), by and among Apartment Investment and Management
Company, a Maryland corporation ("AIMCO"), AIMCO Properties, L.P., a Delaware
limited partnership ("AIMCO OP"), AIMCO/NHP Properties, Inc., a Delaware
corporation ("AIMCO/NHP") and NHP Management Company, a District of
_____________
AIMCO
PROPERTIES, L.P., – MAY BE
SOLD OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE RESTRICTIONS ON
TRANSFER SET FORTH IN THE AGREEMENT OF LIMITED PARTNERSHIP OF AIMCO
PROPERTIES, L.P., DATED AS OF JULY 29, 1994/THE BY-LAWS OF THE CORPORATION,
AS IT MAY BE AMENDED AND/OR SUPPLEMENTED FROM TIME
_____________
AIMCO PROPERTIES, L.P., – this Agreement as of
the date first above written.
BUYERS:
APARTMENT INVESTMENT
AND MANAGEMENT COMPANY,
a Maryland corporation
By:
----------------------------------
Peter K. Kompaniez
President
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
By: AIMCO-GP, Inc.
its general partner
By:
-------------------------
Peter K. Kompaniez
President
NHP MANAGEMENT COMPANY, a District
of
_____________
dt 194391
;
Aimco Properties
As referenced in this Acquisition Agreement:
AIMCO PROPERTIES, L.P., – 00
{TEXT}
{PAGE} 1
EXHIBIT 2.1
ACQUISITION AGREEMENT
dated as of
JUNE 28, 2000
by and among
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
AIMCO PROPERTIES, L.P.,
NHP Management company
and
AIMCO/NHP PROPERTIES, INC.,
as Buyers,
and
LEO E. ZICKLER,
FRANCIS P. LAVIN,
ROBERT B. DOWNING,
MARK E.
_____________
AIMCO Properties, L.P., – executed and effective as of June 28, 2000
(the "Effective Date"), by and among Apartment Investment and Management
Company, a Maryland corporation ("AIMCO"), AIMCO Properties, L.P., a Delaware
limited partnership ("AIMCO OP"), AIMCO/NHP Properties, Inc., a Delaware
corporation ("AIMCO/NHP") and NHP Management Company, a District of
_____________
AIMCO
PROPERTIES, L.P., – MAY BE
SOLD OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE RESTRICTIONS ON
TRANSFER SET FORTH IN THE AGREEMENT OF LIMITED PARTNERSHIP OF AIMCO
PROPERTIES, L.P., DATED AS OF JULY 29, 1994/THE BY-LAWS OF THE CORPORATION,
AS IT MAY BE AMENDED AND/OR SUPPLEMENTED FROM TIME
_____________
AIMCO PROPERTIES, L.P., – this Agreement as of
the date first above written.
BUYERS:
APARTMENT INVESTMENT
AND MANAGEMENT COMPANY,
a Maryland corporation
By:
----------------------------------
Peter K. Kompaniez
President
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
By: AIMCO-GP, Inc.
its general partner
By:
-------------------------
Peter K. Kompaniez
President
NHP MANAGEMENT COMPANY, a District
of
_____________
dt 194391
;
AIMCO
As referenced in this Acquisition Agreement:
APARTMENT INVESTMENT AND MANAGEMENT – ACQUSITION AGREEMENT DATED 6/28/00
{TEXT}
{PAGE} 1
EXHIBIT 2.1
ACQUISITION AGREEMENT
dated as of
JUNE 28, 2000
by and among
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
AIMCO PROPERTIES, L.P.,
NHP Management company
and
AIMCO/NHP PROPERTIES, INC.,
as Buyers,
and
LEO E. ZICKLER,
FRANCIS P. LAVIN,
ROBERT
_____________
Apartment Investment and Management
– TABLE}
3
{PAGE} 9
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT, executed and effective as of June 28, 2000
(the "Effective Date"), by and among Apartment Investment and Management
Company, a Maryland corporation ("AIMCO"), AIMCO Properties, L.P., a Delaware
limited partnership ("AIMCO OP"), AIMCO/NHP Properties, Inc., a Delaware
corporation ("
_____________
Apartment Investment and Management – Service mail or nationally recognized
overnight courier service; in each case to the address set forth below:
if to any of Buyers, to:
Apartment Investment and Management Company
2000 South Colorado Boulevard
Tower Two; Suite 2 - 1000
Denver, Colorado 80222
Attention: Mr. Terry Considine
Telephone: (303) 757-8600; Fax: (303)
_____________
Apartment Investment and Management – Colorado Boulevard
Tower Two; Suite 2 - 1000
Denver, Colorado 80222
Attention: Mr. Terry Considine
Telephone: (303) 757-8600; Fax: (303) 692-0786
And
Apartment Investment and Management Company
18350 Mt. Langley Ave.
Suite 220
Fountain Valley, CA 92708
Attention: Mr. Peter K. Kompaniez
Telephone: (714) 593-1733; Fax (714) 593-
_____________
APARTMENT INVESTMENT
AND MANAGEMENT – INTENTIONALLY BLANK]
71
{PAGE} 80
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BUYERS:
APARTMENT INVESTMENT
AND MANAGEMENT COMPANY,
a Maryland corporation
By:
----------------------------------
Peter K. Kompaniez
President
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
By: AIMCO-GP, Inc.
its general
_____________
dt 189168
;
|
AIMCO
As referenced in this Acquisition Agreement:
APARTMENT INVESTMENT AND MANAGEMENT – ACQUSITION AGREEMENT DATED 6/28/00
{TEXT}
{PAGE} 1
EXHIBIT 2.1
ACQUISITION AGREEMENT
dated as of
JUNE 28, 2000
by and among
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
AIMCO PROPERTIES, L.P.,
NHP Management company
and
AIMCO/NHP PROPERTIES, INC.,
as Buyers,
and
LEO E. ZICKLER,
FRANCIS P. LAVIN,
ROBERT
_____________
Apartment Investment and Management
– TABLE}
3
{PAGE} 9
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT, executed and effective as of June 28, 2000
(the "Effective Date"), by and among Apartment Investment and Management
Company, a Maryland corporation ("AIMCO"), AIMCO Properties, L.P., a Delaware
limited partnership ("AIMCO OP"), AIMCO/NHP Properties, Inc., a Delaware
corporation ("
_____________
Apartment Investment and Management – Service mail or nationally recognized
overnight courier service; in each case to the address set forth below:
if to any of Buyers, to:
Apartment Investment and Management Company
2000 South Colorado Boulevard
Tower Two; Suite 2 - 1000
Denver, Colorado 80222
Attention: Mr. Terry Considine
Telephone: (303) 757-8600; Fax: (303)
_____________
Apartment Investment and Management – Colorado Boulevard
Tower Two; Suite 2 - 1000
Denver, Colorado 80222
Attention: Mr. Terry Considine
Telephone: (303) 757-8600; Fax: (303) 692-0786
And
Apartment Investment and Management Company
18350 Mt. Langley Ave.
Suite 220
Fountain Valley, CA 92708
Attention: Mr. Peter K. Kompaniez
Telephone: (714) 593-1733; Fax (714) 593-
_____________
APARTMENT INVESTMENT
AND MANAGEMENT – INTENTIONALLY BLANK]
71
{PAGE} 80
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BUYERS:
APARTMENT INVESTMENT
AND MANAGEMENT COMPANY,
a Maryland corporation
By:
----------------------------------
Peter K. Kompaniez
President
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
By: AIMCO-GP, Inc.
its general
_____________
dt 189168
;
Fannie Mae
As referenced in this Acquisition Agreement:
FNMA – REIT Status.
78
{PAGE} 87
DISCLOSURE SCHEDULE 4.3
REQUIRED CONSENTS OF BUYERS:
General Electric
CNA
REQUIRED CONSENTS OF SELLERS:
General Electric
CNA
FNMA
Banco Santander
Merrill Lynch
Conduit loans originally securitized by DLJ, First Union, Nomura and
Merrill Lynch
Northwestern Mutual
CIGNA
79
{/TEXT}
{/DOCUMENT}
_____________
dt 190899
;
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Leasehold Acquisition Agreement
Leasehold Acquisition Agreement (32K)
Doc #336828: Click preview link for longer preview.
LEASEHOLD ACQUISITION AGREEMENT
THIS LEASEHOLD ACQUISITION AGREEMENT ("Agreement") is made and entered
into this 12th day of October, 2000, by and among Bass (U.S.A.) Incorporated
("Bass"), in its individual capacity and on behalf of its subsidiaries and
affiliates, including but not limited to Bristol Hotel Tenant Company, Bristol
Hospitality Tenant Company and Bristol Lodging Tenant Company (collectively,
the "Bass Parties"), and FelCor Lodging Trust Incorporated ("FCH"), in its
individual capacity and on behalf of its subsidiaries and affiliates
(collectively, the "FCH Parties").
WITNESSETH:
WHEREAS, one of the FCH Parties is the owner of, and one or more of the
Bass Parties is the lessee, manager and/or franchisee of, each of the hotels
described on Exhibit A attached hereto and incorporated herein by reference
(individually, a "Hotel" and collectively, the "Hotels"); and
WHEREAS, the parties hereto desire to provide for the transfer to FCH, or
its designee, of all of the leasehold estates in, and the other assets related
to the operation of, each such Hotel, all in accordance with the terms set
forth herein, and the parties intend such transfer to qualify as one or more
reorganizations within the meaning of Section 368(a)(1)(C) of the Internal
Revenue Code of 1986 (the "Code").
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements hereinafter set forth, the parties hereto do hereby agree as
follows:
1. With respect to each Hotel, Bass shall cause the leasehold estate owned
by the Bass Parties in such Hotel (including all rights, title, interest and
benefits arising under or by virtue of the lease creating such leasehold
estate) and all rights, title, interest and benefits owned or held by the Bass
Parties in, to or under all tangible and intangible assets, contract rights,
licenses, permits and other assets, benefits or rights located at, relating to,
or used primarily in the operation or maintenance of, such Hotel (collectively,
the "Leasehold Assets") to be transferred to FCH, or its designee, effective
upon the earlier of (i) the closing of a sale by any of the FCH Parties of such
Hotel to an unrelated third party and (ii) 12:01 a.m. January 1, 2001. For
purposes of this Agreement, an "unrelated third party" shall be one in which
the FCH Parties hold or retain no more than a 50% interest. The provision of
Paragraph 9 shall govern the transition of hotel operations as the Leasehold
Assets are transferred. In no event shall the FCH Parties acquire, prior to
January 1, 2001, any Leasehold Assets relating to a particular Hotel prior to
the date of sale of such Hotel to an unrelated third party.
2. Concurrently with each transfer of Leasehold Assets to FCH or its
designee, (a) FCH shall execute and deliver to Bass an indemnity agreement, in
form and substance reasonably satisfactory to Bass, indemnifying the Bass
Parties of and from any and all debts, liabilities, obligations, actions,
causes of action, suits, and claims relating to such Leasehold Assets, or the
Hotel to which such Leasehold Assets relate, that are incurred, or arise out of
or relate to the
-1-
{PAGE}
occurrence of any act, action, omission or event, on or after the effective
date of such transfer and (b) Bass shall execute and deliver to FCH an
indemnity and warranty agreement, in form and substance reasonably satisfactory
to FCH, indemnifying the FCH Parties of and from any and all debts,
liabilities, obligations, actions, causes of action, suits, and claims relating
to such Leasehold Assets, or the Hotel to which such Leasehold Assets relate,
that are existing or incurred, or arise out of or relate to the occurrence of
any act, action, omission or event, prior to the effective date of such
transfer and warranting that the Leasehold Assets transferred to FCH, or its
designee, are, at the time of transfer, free and clear of any liens, claims or
encumbrances whatsoever, and that no person held any right or option to acquire
any interest in the Leasehold Assets that are being so transferred. In the
event that either the Bass Parties or the FCH Parties (as opposed to any
unrelated third party purchaser) shall incur any extraordinary cost, charge or
expense with respect to obtaining any necessary consent to the transfer of
Leasehold Assets contemplated hereby, or any termination payment or penalty in
connection with the termination of any contract, license or permit which cannot
be assigned (other than liquidated damages related solely to the termination of
franchise agreements due to the sale of the Hotels to which they relate), in
connection with the sale of any of the Hotels to an unrelated third party, any
such cost, charge, or expense, and all real estate commissions and other costs
and expenses incurred by the FCH Parties in effecting such sale, shall be
payable out of the proceeds of sale of such Hotel. The net proceeds of sale
received by the FCH Parties, whether in cash or other property (with any
non-cash property being valued as provided in Paragraph 6 below), from the sale
of any such Hotel, after the deduction of all such expenses related thereto, is
hereinafter referred to as the "Net Proceeds" of such sale.
3. In consideration of and in exchange for the Bass Parties transfer of
the Leasehold Assets to FCH, or its designees, pursuant to Section 1 hereof,
FCH agrees to issue and pay to the applicable Bass Parties, on January 2, 2001:
(A) Shares of common stock, par value $0.01 per share, in FCH
("Shares") having an aggregate value, determined in the manner provided in
Section 4 below, most nearly equal to the sum of (i) with respect to
Hotels which have not been sold by the FCH Parties to an unrelated third
party on or before December 31, 2000, the aggregate "Post 12/31/00 Minimum
Exchange Values" for such Hotels, as set forth opposite the names of such
Hotels on Exhibit A attached hereto and incorporated herein by reference,
plus (ii) with respect to the Hampton Inn - Dallas Downtown hotel, which
the FCH Parties have elected to retain and not to offer for sale, an
additional $167,000, to reflect an adjusted Minimum Exchange Value for
this hotel of $1,652,000, plus (iii) with respect to Hotels which have
been sold by the FCH Parties to an unrelated third party on or before
336828
| | |
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Leasehold Acquisition Agreement
Leasehold Acquisition Agreement (201K)
Doc #336924: Click preview link for longer preview.
LEASEHOLD ACQUISITION AGREEMENT
THIS LEASEHOLD ACQUISITION AGREEMENT ("Agreement") is made and entered
into this 30th day of March, 2001, by and among Bass (U.S.A.) Incorporated
("Bass"), in its individual capacity and on behalf of its subsidiaries and
affiliates, including but not limited to Bristol Hotel Tenant Company, Bristol
Hospitality Tenant Company, Bristol Salt Lake Tenant Company and Bristol Lodging
Tenant Company (collectively, the "Bass Parties"), and FelCor Lodging Trust
Incorporated ("FCH"), in its individual capacity and on behalf of its
subsidiaries and affiliates (collectively, the "FCH Parties").
WITNESSETH:
WHEREAS, pursuant to a Leasehold Acquisition Agreement, dated October
12, 2000 (the "C Leasehold Agreement"), by and among the Bass Parties and the
FCH Parties, Bass agreed to cause all of the leasehold estates in, and the other
assets related to the operation of, each of the hotels described on Exhibit A
attached to the C Leasehold Agreement (the "C Hotels") to be transferred to FCH
or its designee effective upon the earlier of (i) the closing of a sale by any
of the FCH Parties of any C Hotel to an unrelated third party and (ii) 12:01
a.m. January 1, 2001 (the "C Leasehold Acquisition");
WHEREAS, one of the FCH Parties is the owner of, and one or more of the
Bass Parties is the lessee, manager and/or franchisee of, each of the hotels
described on Exhibit A attached hereto and incorporated herein by reference
(individually, a "Hotel" and collectively, the "Hotels");
WHEREAS, prior to the transfer by each of the Bass Parties owning one
or more leasehold estates with respect to the Hotels (the "Bass Lessees") of
their leasehold estates therein to one of the FCH Parties, all as provided for
herein, each of the Bass Lessees shall enter into a management agreement, in the
form of Exhibit B attached hereto and incorporated herein by reference,with
another Bass Party (the "Manager") with respect to each such Hotel (the
"Management Agreements"), pursuant to which the Manager will operate such Hotel
on behalf of the related Bass Lessee (or its assignee);
WHEREAS, as part of the same "plan of reorganization" (within the
meaning of Treasury Regulations Section 1.368-2(g)) that includes the C
Leasehold Acquisition, the parties hereto desire to provide for the transfer to
FCH or its designee of all of the leasehold estates in, and the other assets
related to the operation of, the Hotels, subject to the Management Agreements
and in accordance with the terms set forth herein (the "A and B Leasehold
Acquisition"); and
WHEREAS, the parties intend for the transaction that includes the A and
B Leasehold Acquisition and the C Leasehold Acquisition (the "Leasehold
Acquisition") to qualify as one or more reorganizations within the meaning of
Section 368(a)(1)(C) of the Internal Revenue Code of 1986, as amended (the
"Code").
{PAGE} 2
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto do hereby
agree as follows:
1. Transfer of Leasehold Assets. With respect to each Hotel, Bass
shall, by appropriate instrument of assignment and assumption to be effective as
of July 1, 2001, cause the leasehold estate owned by the Bass Parties in such
Hotel (including all rights, title, interest, and benefits arising under or by
virtue of the lease creating such leasehold estate) (the "Leasehold") and all
rights, title, interest, and benefits owned or held by the Bass Parties in, to
or under all tangible and intangible assets, including inventories, contract
rights, licenses, permits, and other assets, benefits, or rights located at,
relating to, or used primarily in the operation or maintenance of, such Hotel,
excepting and excluding any franchise license agreement, system marks, or master
technology agreement relating to any Bass-branded Hotel (collectively, the
"Leasehold Assets"), to be transferred to FCH or its designee effective as of
12:01 a.m. (the "Closing Time") on July 1, 2001 (the "Closing Date"), and FCH or
its designee will expressly assume all liabilities of the applicable Bass Lessee
with respect to the Leasehold and the applicable Management Agreement arising
from and after the Closing Time, as well as all accounts payable (including
intra-company accounts payable) and other liabilities for which FCH receives a
credit on the Working Capital Settlement Statement to be jointly prepared by the
parties pursuant to Section 5(c) hereof. Simultaneously with the execution and
delivery of such instrument of assignment and assumption, FCH will execute and
deliver to the Bass Parties a guarantee of the obligations of the Leasehold
Owners (as defined in the Management Agreements) under the Management
Agreements. The transfer of the Leasehold Assets shall be subject to the
Management Agreements, a schedule of which is attached hereto as Exhibit C and
hereby made a part hereof.
2. Indemnification. Upon the Closing Date, (a) FCH shall execute and
deliver to Bass an indemnity agreement, in form and substance reasonably
satisfactory to Bass, indemnifying the Bass Parties of and from any and all
debts, liabilities, obligations, actions, causes of action, suits, and claims
relating to the Leasehold Assets or the Hotels (but excluding those arising
under or in connection with the Management Agreements) that are incurred, or
arise out of or relate to the occurrence of any act, action, omission, or event
on or after the Closing Date, or which are otherwise assumed by FCH pursuant to
Section 1 above, and (b) Bass shall execute and deliver to FCH an indemnity and
warranty agreement, in form and substance reasonably satisfactory to FCH,
indemnifying the FCH Parties of and from any and all debts, liabilities (except
for such liabilities as are assumed by FCH), obligations, actions, causes of
action, suits, and claims relating to the Leasehold Assets or the Hotels that
are existing or incurred, or arise out of or relate to the occurrence of any
act, action, omission or event, prior to the Closing Date and warranting that
the Leasehold Assets are, at the Closing Date, free and clear of any liens,
claims, or encumbrances whatsoever caused by, related to, or arising in any
manner out of the actions of any Bass Party, and that no person held any right
or option to acquire any interest in the Leasehold Assets.
-2-
{PAGE} 3
3. Consideration. In consideration of and in exchange for the transfer
by the Bass Parties of the Leasehold Assets to FCH or its designee pursuant to
Section 1 hereof, (i) FCH agrees to issue and pay to the applicable Bass Parties
on the Closing Date one hundred (100) shares of the common stock, par value
$0.01 per share, of FCH ("FCH Shares"), and (ii) FCH or Bass, as may be
determined pursuant to Section 5(c) hereof, agrees to make or cause to be made
the payments required under Section 5(c) with respect to the items described
therein.
4. Tax Reporting. Each of FCH and Bass hereby agrees to report the
Leasehold Acquisition (which includes the A and B Leasehold Acquisition and the
C Leasehold Acquisition) on its federal and conforming state income tax returns
as one or more tax-free reorganizations pursuant to Section 368(a)(1)(C) of the
Code except to the extent that (i) FCH obtains the prior written consent of Bass
to report such transaction or transactions in another manner or (ii) FCH is
required to report such transaction or transactions in another manner by the
Internal Revenue Service or applicable state taxing authority or by applicable
judicial or administrative order.
5. Transition Rules. As and when the Leasehold Assets relating to each
Hotel are transferred to FCH or its designee, the following transition rules
will apply with respect to the Bass Parties' hotel operations activities at each
such Hotel:
(a) Employees. Because a Bass Party will continue to manage
and operate each of the Hotels, FCH will not be responsible or liable for any
employee severance payments or costs, any expenses or liabilities arising under
the Worker Adjustment Retraining and Notification Act, or any other
employee-related costs and expenses arising out of, or resulting from, the A and
B Leasehold Acquisition.
(b) Pre-Closing Date Reservations and Agreements. The Managers
will honor the terms and rates of all room reservations, room allocation, and
banquet facility and service agreements relating to the Hotels that are
confirmed or entered into by any of the Bass Parties, as owners of the Leasehold
Assets, in the ordinary and normal course of business prior to the Closing Date
and that are to be honored or performed on or subsequent to the Closing Date.
(c) Working Capital Settlement. As of the Closing Time, Bass
and FCH shall jointly prorate rents, revenues, other income, deposits, taxes
(including personal property taxes), expenses (including pre-paid expenses),
336924
|
Citibank
As referenced in this Leasehold Acquisition Agreement:
Citibank, N.A. – law or (b) the rate that is 200 basis points in excess of the
most recently announced prime rate of interest quoted by Citibank, N.A. , as
announced from time to time.
22.03 Formalities. Any change to or modification of this Agreement must be
in writing signed
_____________
dt 684967
;
|
 Citibank
As referenced in this Leasehold Acquisition Agreement:
Citibank, N.A. – law or (b) the rate that is 200 basis points in excess of the
most recently announced prime rate of interest quoted by Citibank, N.A. , as
announced from time to time.
22.03 Formalities. Any change to or modification of this Agreement must be
in writing signed
_____________
dt 684967
|
| Preview
Full Doc
| 2004 |
Plan of Merger and Acquisition Agreement
Plan of Merger and Acquisition Agreement (164K)
Doc #376113: Click preview link for longer preview.
PLAN OF MERGER
AND
ACQUISITION AGREEMENT
BY AND AMONG
EXTENDICARE HEALTH SERVICES, INC.,
ALPHA ACQUISITION, INC.
AND
ASSISTED LIVING CONCEPTS, INC.
NOVEMBER 4, 2004
================================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE
----
{S} {C}
Article 1 The Merger.................................................................................. 1
1.1 The Merger................................................................................ 1
1.2 The Closing............................................................................... 2
1.3 Effective Time............................................................................ 2
1.4 Effect of the Merger...................................................................... 2
1.5 Effect on Capital Stock................................................................... 2
1.6 Articles of Incorporation and Bylaws of the Surviving Corporation......................... 3
1.7 Directors and Officers.................................................................... 3
1.8 Assets, Liabilities, Reserves and Accounts................................................ 3
1.9 Exchange of Certificates.................................................................. 4
1.10 Effect of the Merger on Stock Options..................................................... 6
1.11 Stockholders' Meeting..................................................................... 7
Article 2 Representations and Warranties of the Acquiring Companies................................... 8
2.1 Organization.............................................................................. 8
2.2 Authority................................................................................. 8
2.3 Noncontravention; Required Filings and Consents........................................... 8
2.4 Advisors' and Brokers' Fees............................................................... 9
2.5 Sufficient Funds.......................................................................... 9
2.6 No Share Ownership........................................................................ 9
Article 3 Representations and Warranties of The Company............................................... 9
3.1 Organization, Qualification, and Corporate Power.......................................... 9
3.2 Subsidiaries.............................................................................. 10
3.3 Authority................................................................................. 10
3.4 Noncontravention; Required Filings and Consents........................................... 10
3.5 Capitalization............................................................................ 11
3.6 Contracts................................................................................. 11
3.7 Insurance................................................................................. 12
3.8 Financial Statements; Fees................................................................ 12
3.9 SEC Filings............................................................................... 13
3.10 Certain Events............................................................................ 13
3.11 Property.................................................................................. 14
3.12 Compliance with Laws...................................................................... 16
3.13 Company Permits........................................................................... 17
3.14 Tax Matters............................................................................... 18
3.15 Litigation................................................................................ 18
3.16 Benefit Plans and Arrangements............................................................ 18
3.17 Security Interests........................................................................ 20
3.18 Labor..................................................................................... 20
3.19 Board Recommendation...................................................................... 20
3.20 Opinion of Financial Advisor.............................................................. 21
{/TABLE}
i
{PAGE}
{TABLE}
{S} {C}
3.21 Brokers or Finders........................................................................ 21
3.22 Inapplicability of Anti-takeover Defense Provisions....................................... 21
3.23 Rights Agreement.......................................................................... 21
Article 4 Pre-Closing Covenants....................................................................... 21
4.1 Notices and Consents...................................................................... 21
4.2 Responsibility of Acquiring Companies in Connection with Antitrust Matters................ 21
4.3 Conduct of the Business of the Company and its Subsidiaries............................... 22
4.4 Access.................................................................................... 24
4.5 Confidentiality Agreement................................................................. 24
4.6 Further Actions........................................................................... 24
4.7 No Solicitation........................................................................... 24
4.8 Fees and Expenses......................................................................... |