Exhibit 2 Page 1 of 6
ASSET ACQUISITION AGREEMENT
This ASSET ACQUISITION AGREEMENT (the "Agreement"), dated as of October
26, 1995, is entered into between Phoenix Leasing Income Fund 1982-2, a
California limited partnership ("Seller") and Phoenix Leasing Liquidation
Corporation, a California corporation ("Buyer"), with reference to the following
facts:
A. Seller has placed various assets, more particularly described on
Exhibit A hereto (the "Assets"), for sale in an auction procedure and Buyer has
successfully bid for the Assets.
B. This Agreement sets forth the terms and conditions upon which Seller
will sell to Buyer, and Buyer will purchase from Seller, the Assets.
In consideration of the mutual agreements contained herein, intending
to be legally bound hereby, the parties hereto agree as follows:
ARTICLE 1
THE PURCHASE AND SALE OF ASSETS
1.1 Purchase and Sale of Assets. For the consideration set forth herein
and subject to the terms and conditions of this Agreement, Seller hereby sells,
transfers, conveys, assigns and delivers to Buyer free and clear of any and all
claims, liens, rights, restrictions, security interests or encumbrances of any
kind, other than any of the foregoing imposed as a result or actions of Buyer
(collectively, "Encumbrances"), and Buyer hereby purchases, acquires and accepts
from Seller the Assets.
1.2 Purchase Price. The purchase price for the Assets is $42,587, which
has been determined in the auction conducted by Kennedy Wilson and is payable in
cash as determined in the final bid in such auction.
(a) Bid Deposit. Buyer has deposited the sum of $2,129 (five
percent of bid amount) in escrow with Comerica Bank-California, San Jose,
California (the "Escrow Agent"), as a deposit pending acceptance of Buyer's bid.
Such payment shall now be applied to the down payment portion of the purchase
price.
(b) Down Payment. Upon execution of this Agreement by Seller
and buyer at the auction upon acceptance of Buyer's bid, Buyer shall deposit
with the Escrow Agent an additional amount equal to the difference between ten
percent of the purchase price and the amount of the bid deposit. The bid deposit
and the amount deposited pursuant to this paragraph shall together constitute
the entire down payment of the purchase price.
(c) Balance. The balance of the purchase price shall be paid
at the closing of the sale of the Assets, which shall take place on or before
November 15, 1995.
Exhibit 2 Page 2 of 6
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Seller represents and warrants to Buyer that, as of the closing:
2.1 Ownership of Assets. Seller owns all right, title and interest in
and to the Assets. The delivery of the Assets by Seller to the Buyer pursuant to
the terms of this Agreement will transfer to Buyer good and valid title thereto
free and clear of any and all Encumbrances. The Seller has not entered into any
agreement, option or right with any person for the purchase of all or any
portion of the Assets. Seller has full power to transfer the Assets to the Buyer
without obtaining the consent or approval of any other person or governmental
authority.
2.2 Due Authorization and Execution. Seller has the necessary
partnership power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized and approved by all necessary partnership action on the part of
Seller. No other partnership proceedings or actions on the part of Seller is
necessary to authorize this Agreement and the consummation of such transactions.
This Agreement has been duly and validly executed and delivered by Seller and,
assuming due execution and delivery by the Buyer, constitutes a valid and
binding obligation of Seller enforceable in accordance with its terms.
2.3 Consents, Violations and Authorizations. The Seller is not a party
to or bound by any order, judgment or decree which would require the consent of
another to the execution of this Agreement or the consummation of the
transactions contemplated hereby
2.4 Limitations. Except for the representations and warranties
contained in this Article 2, Seller makes no other representations regarding the
Assets. THE ASSETS ARE BEING SOLD "AS IS," "WHERE IS" AND NO WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE IS BEING MADE BY SELLER.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE BUYER
Buyer represents and warrants to Seller, as follows:
3.1 Due Authorization and Execution. Buyer has the necessary corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The Board of Directors of Buyer has duly
authorized and approved the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby. No other corporate
proceedings on the part of Buyer are necessary to authorize this Agreement and
the consummation of such transactions. This Agreement has been duly and validly
executed and delivered by the Buyer and, assuming due execution and delivery by
Seller constitutes a valid and binding obligation of Buyer enforceable against
it in accordance with its terms.
3.2 Organization of the Buyer. Buyer is a California corporation
validly existing and in good standing under the laws of the State of California,
and has all requisite power and authority to enter into this Agreement and to
perform its obligations hereunder.
Exhibit 2 Page 3 of 6
3.3 Buyer's Acknowledgments.
(a) Buyer acknowledges that any projections or financial
statements it has reviewed regarding the Assets are subject to change and that
Buyer has had the opportunity to conduct its own due diligence, pose questions
to Seller and perform its own analysis, and Seller has provided access to
records and personnel for the purpose thereof.
(b) Buyer understands that some of the Assets may consist of a
minority interest in joint ventures and that the acquisition of such interests
will not afford Buyer the opportunity to make decisions affecting such joint
ventures' operations without the consent of the requisite percentage of the
other joint venturers. Buyer further understands that it will be bound by the
terms of such joint venture agreements.
(c) BUYER EXPRESSLY ACKNOWLEDGES THE LIMITATIONS ON SELLER'S
WARRANTIES SET FORTH IN SECTION 2.4 HEREOF.
ARTICLE 4
SURVIVAL; INDEMNIFICATION
4.1 Survival of Representations and Warranties and Related Agreements.
The representations and warranties contained in Articles 2 and 3 of this
Agreement and all covenants, agreements and obligations to be performed
hereunder shall survive the execution and delivery of this Agreement.
ARTICLE 5
GENERAL PROVISIONS
5.1 Expenses. All expenses incurred pursuant to this Agreement,
including without limitation, legal fees and expenses, and the transactions
contemplated hereby shall be paid by the party incurring the expense.
5.2 Further Assurances. Each of the parties agrees to execute and
deliver any and all further agreements, documents or instruments reasonably
necessary to effectuate this Agreement and the transactions referred to herein
or contemplated hereby or reasonably requested by the other party to perfect or
evidence its rights hereunder.
5.3 Notices. Any notices hereunder shall be deemed sufficiently given
by one party to another only if in writing and if and when delivered or tendered
by personal delivery, on the first business day after facsimile transmission,
after confirmation of receipt of such transmission, 24 hours after the prepaid
deposit with Federal Express or other similar overnight courier, or as of five
business days after deposit in the United States mail in a sealed envelope,
registered or certified, with postage prepaid, addressed as follows:
If to Seller: Phoenix Leasing Income Fund 1982-2
2401 Kerner Boulevard
San Rafael, California 94901
Attention: Vince Fleming
Fax: 415-453-8203
Exhibit 2 Page 4 of 6
If to Buyer: Phoenix Leasing Liquidation Corporation
2401 Kerner Boulevard
San Rafael, California 94901
Phone: 415-485-4600
Fax: 415-453-8203
or to such other address or facsimile number as the party addressed shall have
previously designated by written notice to the serving party, given in
accordance with this Section 5.3. A notice not given as provided above shall, if
it is in writing, be deemed given if and when actually received by the party to
whom it is given.
5.4 Successors. This Agreement shall be binding upon and shall inure to
the benefit of each of the parties hereto and their successors and assigns. This
Agreement shall not be assignable by either party except with the prior express
written consent of the other.
5.5 Entire Agreement. This Agreement, together with the exhibits
hereto, constitutes the entire agreement among the parties pertaining to the
subject matter hereof and supersedes all prior agreements and understandings of
the parties in connection herewith. There are no restrictions, promises,
representations, warranties, covenants or undertakings, other than those
expressly set forth herein and therein.
5.6 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified and supplemented only by written agreement of
the parties hereto.
5.7 Severability. Any provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability without invalidating or rendering unenforceable
the remaining provisions hereof, and any such invalidity or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. If any provision is held to be invalid or unenforceable,
such provision shall be construed by the appropriate judicial body by limiting
or reducing it to the minimum extent necessary to make it legally enforceable.
5.8 Governing Law. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of California without
reference to conflict of laws rules.
5.9 Facsimile Execution. All documents contemplated by this Agreement,
including this Agreement, may be executed and communicated to the other parties
hereto or thereto by telecopier transmission (electronic receipt received). Such
documents, including this Agreement, as may be executed and transmitted by
telecopier shall be deemed binding and effective as of the date set forth on the
Exhibit 2 Page 5 of 6
applicable document. The parties hereto agree to exchange originally executed
documents by mail as soon as practicable after execution by telecopier
transmission.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
"Seller" Phoenix Leasing Income Fund 1982-2
a California limited partnership
By: Phoenix Leasing Incorporated,
Its General Partner
By /S/ BRYANT J. TONG
Its
"Buyer" Phoenix Leasing Liquidation Corporation,
a California corporation
By /S/ BRYANT J. TONG
Exhibit 2 Page 6 of 6
Phoenix Leasing Income Fund 1982-2
Exhibit A -- Schedule of Assets Sold at Auction October 26, 1995
Asset Purchase Price
1.001% interest in Phoenix Joint Venture 1994-1 21,311
100% of Income Fund 1982-2's remaining investment in the following 21,276
joint ventures:
Phoenix Funding Partnership
Phoenix Leasing Leveraged Joint Venture 1987-3
Phoenix Leasing Leveraged Joint Venture 1990-1
Total Purchase Price 42,587