EXHIBIT 10.27
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ASSET PURCHASE AGREEMENT
Between
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK,
as Seller
and
ROAD BAY INVESTMENTS, LLC,
as Purchaser
Dated as of March 9, 2011
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS 1
Section 1.01 Definitions 1
Section 1.02 Other Definitional Provisions. 2
ARTICLE II PURCHASE AND SALE OF ASSETS 3
Section 2.01 Purchase and Sale of Assets 3
Section 2.02 Delivery and Payment 3
Section 2.03 Forms of Notes 3
ARTICLE III TERMS AND CONDITIONS OF REPAYMENT OF NOTES; MATURITY 3
Section 3.01 Interest 3
Section 3.02 Principal 3
Section 3.03 Payments by the Purchaser. 3
Section 3.04 Prepayment 4
ARTICLE IV REGISTRATION OF NOTES; TRANSFER AND EXCHANGE 4
Section 4.01 Note Register 4
Section 4.02 Exchanges and Transfers 4
ARTICLE V RATIO OF DEBT TO TOTAL ASSETS COVENANT 4
ARTICLE VI EVENTS OF DEFAULT 5
Section 6.01 Events of Default 5
Section 6.02 Remedies Upon an Event of Default 5
ARTICLE VII MISCELLANEOUS 5
Section 7.01 Notices 5
Section 7.02 Amendments, Waivers 5
Section 7.03 Successors and Assigns; Third Party Beneficiaries 6
Section 7.04 Severability 6
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Section 7.05 Binding Effect 6
Section 7.06 GOVERNING LAW; CONSENT TO JURISDICTION 6
Section 7.07 Execution in Counterparts 6
Section 7.08 Entire Agreement 6
Section 7.09 Headings 6
SCHEDULES AND EXHIBITS
Schedule I Initial Assets
Schedule II Notice Information
Exhibit A Form of Note
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This ASSET PURCHASE AGREEMENT, dated as of March 9, 2011, is made by and
between Allstate Life Insurance Company of New York, a life insurance company
domiciled in New York (together with its successors and assigns, the "Seller"),
and Road Bay Investments, LLC, a limited liability company organized under the
laws of the State of Delaware (together with its successors and assigns, the
"Purchaser").
RECITALS
WHEREAS, the Seller desires to sell to the Purchaser on the date hereof and
from time to time hereafter on or before December 31, 2011, and the Purchaser
desires to purchase from the Seller, commercial mortgage loans, participations
in commercial mortgage loans, bonds, or real estate acquired by Seller in
connection with such loans with an aggregate fair value not in excess of
$25,000,000 (the "Assets"); and
WHEREAS, as consideration for the sale of the Assets, the Seller shall
receive one or more notes (the " Notes") from the Purchaser with an aggregate
principal amount equal to the fair value of the Assets;
NOW, THEREFORE, for full and fair consideration, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. The following capitalized terms shall have the
following meanings:
"Agreement" means this Asset Purchase Agreement, as the same may from time
to time be amended, supplemented, or otherwise modified in accordance with the
terms hereof.
"Assets" has the meaning specified in the first WHEREAS clause in the
recitals hereof.
"Business Day" means any day other than a Saturday or a Sunday or any day on
which banking institutions in Chicago, Illinois, are authorized or obligated by
law, regulation, or executive order to be closed.
"Debt" means, without duplication, the Purchaser's liabilities for borrowed
money; liabilities for the deferred purchase price of property (excluding
accounts payable arising in the ordinary course of business but including,
without limitation, all liabilities created or arising under any conditional
sale or other title retention agreement with respect to any such property);
capital lease obligations; all liabilities for borrowed money secured by any
lien with respect to any property owned by the Purchaser (whether or not it has
assumed or otherwise become liable for such liabilities); and any guaranty by
the Purchaser with respect to such liabilities or obligations of another person
or entity.
"Event of Default" has the meaning specified in Section 6.01 hereof.
"Fair Value" with respect to any Asset means the fair value of such Asset on
the date of purchase and sale under this Agreement determined in accordance
with statutory accounting principles as set forth in the National Association
of Insurance Commissioners' Accounting Practices and Procedures Manual as then
in effect.
"Holder" means, with respect to any Note, the Person in whose name such Note
is registered in the Note Register.
"Initial Assets" has the meaning specified in Section 2.01 hereof.
"Interest Payment Date" means each April 1 and October 1, commencing
April 1, 2011, provided that if such day is not a Business Day, the next
succeeding Business Day.
"Interest Period" means, with respect to any Note, (a) in the case of the
initial interest period with respect to such Note, the period from, and
including, the date such Note was issued to the Seller to, but excluding, the
immediately following Payment Date, (b) thereafter, the period from, and
including, the preceding Payment Date to, but excluding, the next succeeding
Payment Date, and (c) in the case of the final interest period with respect to
such Note, the period from, and including, the preceding Payment Date to, but
excluding, the Maturity Date.
"Interest Rate" means, with respect to each Note, the rate set forth in such
note.
"Maturity Date" means, with respect to a Note, the date on which all
outstanding unpaid principal on such Note becomes due and payable, whether at
the Stated Maturity Date or by acceleration pursuant to Section 6.02.
"Note Register" has the meaning specified in Section 4.01 hereof.
"Notes" has the meaning specified in the second WHEREAS clause in the
recitals hereof.
"Payment Date" means any Interest Payment Date or Maturity Date.
"Person" means an individual, corporation (including a business trust),
partnership, limited liability company, joint venture, association, joint stock
company, trust (including any beneficiary thereof), unincorporated association
or government or any agency or political subdivision thereof.
"Purchaser" has the meaning specified in the introduction to this Agreement.
"Record Date" means the date on which the Holders of any Note entitled to
receive a payment with respect to principal or interest on the next succeeding
Payment Date are determined, such date as to any Payment Date being five
(5) Business Days prior to such Payment Date.
"Seller" has the meaning specified in the introduction to this Agreement.
"Stated Maturity Date" means, with respect to each Note, the seventh
(7/th/) anniversary of the issuance date of such Note, provided such date is a
Business Day.
"Total Assets" means, at any time, the total assets of the Purchaser which
would be shown as assets on a balance sheet as of such time prepared in
accordance with generally accepted accounting principles as in effect from time
to time in the United States of America.
Section 1.02 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or
delivered pursuant hereto.
(b) The words "hereof," "herein," and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement
as a whole and not
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to any particular provision of this Agreement; and Section and
subsection references contained in this Agreement are references to
Sections or subsections in or to this Agreement unless otherwise
specified.
ARTICLE II
PURCHASE AND SALE OF ASSETS
Section 2.01 Purchase and Sale of Assets. Upon the terms and subject to the
conditions set forth in this Agreement, and in reliance on the covenants and
agreements herein set forth, on the date hereof, the Seller shall sell and the
Purchaser shall purchase the Assets listed on Schedule I (the "Initial
Assets"). From time to time on or after the date hereof and on or before
December 31, 2011, the Seller may, on ten (10) Business Days' notice to the
Purchaser, offer to sell to the Purchaser, and the Purchaser may purchase,
additional Assets. Notwithstanding the foregoing provisions of this
Section 2.01, the aggregate fair value of Assets that may be purchased and sold
under this agreement shall not exceed $25,000,000. As security for the
performance of the Purchaser's obligations under this Agreement, the parties
hereto shall, concurrent with this Agreement, enter into a Pledge and Security
Agreement wherein Purchaser grants a pledge of and security interest in the
Purchaser's right, title, and interest in the Assets and the other collateral
identified therein.
Section 2.02 Delivery and Payment. The Seller shall deliver the Initial
Assets to the Purchaser on the date hereof. Against delivery of the Initial
Assets or any additional Assets, the Purchaser shall issue to Seller Notes with
an aggregate principal amount equal to the aggregate Fair Value of such Assets.
Purchaser shall issue a separate Note for the purchase of each Asset.
Section 2.03 Forms of Notes. The Notes shall be issued substantially in the
form of the Note attached as Exhibit A hereto and shall be duly executed and
delivered by the Purchaser as hereinafter provided.
ARTICLE III
TERMS AND CONDITIONS OF REPAYMENT OF NOTES; MATURITY
Section 3.01 Interest. Each Note shall bear interest during each Interest
Period at the Interest Rate set forth in such Note. Interest shall be due and
payable on each Interest Payment Date. Interest shall be computed on the basis
of a 360-day year comprised of twelve 30-day months.
Section 3.02 Principal. The principal of each Note shall be due and payable
on the Stated Maturity Date.
Section 3.03 Payments by the Purchaser.
(a) On any Payment Date, the Purchaser shall pay in accordance with
the terms of this Agreement: (i) all accrued but unpaid interest on the
Notes and (ii) any principal payments due with respect to the Notes, if
any.
(b) Any interest or principal that has not been paid when due shall
accrue interest at a rate per annum equal to the Interest Rate from and
including, for each such amount, the Payment Date therefor, up to but
excluding the date on which each such amount is actually paid.
(c) All payments required to be made by the Purchaser with respect to
this Article III shall be made: (i) by wire transfer of immediately
available funds and/or
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the transfer of marketable securities (valued at their fair market
value) not later than 1:00 p.m., Chicago time, and (ii) to the account
of the Seller, or to such other account as the Seller may have most
recently designated in writing for such purpose by notice to the
Purchaser.
(d) The Purchaser and any agent of the Purchaser may treat the Person
in whose name any Note is registered on the Note Register as the owner
of such Note on the applicable Record Date for the purpose of receiving
payments of principal and interest on such Note and on any other date
for all other purposes whatsoever (regardless of whether such payment is
overdue), and neither the Purchaser nor any agent of the Purchaser shall
be affected by notice to the contrary.
Section 3.04 Prepayment. The Purchaser may prepay the Notes, in part or in
full, at any time. Upon Purchaser's disposition of any Asset, or any real
estate related to such Asset, Purchaser shall prepay, in full, the Note issued
in connection with the purchase of such Asset.
ARTICLE IV
REGISTRATION OF NOTES; TRANSFER AND EXCHANGE
Section 4.01 Note Register. The Purchaser shall keep a register (the "Note
Register") at its office in Northbrook, Illinois, in which it shall provide for
the registration of the Notes and the registration of transfers of the Notes.
Such Note Register shall be in written form or in any other form capable of
being converted into written form within a reasonable time. Upon surrender for
registration of transfer of any Note at the office of the Purchaser and in
compliance with the restrictions set forth in any legend appearing on any Note,
the Purchaser shall execute and deliver, in the name of the designated
transferee or transferees, one or more new Notes of any authorized denomination
and of like terms.
Section 4.02 Exchanges and Transfers. At the option of any Holder, any Note
may be exchanged for one or more Notes, of any authorized denomination and of
like terms, upon surrender of the Note to be exchanged at the office of the
Purchaser or such other office as the Purchaser may designate for such
purposes. Whenever any Note is surrendered for exchange, the Purchaser shall
execute and deliver the Note that the Holder making the exchange is entitled to
receive. Any Notes issued upon any registration of transfer or exchange of a
Note shall be the valid obligations of the Purchaser, evidencing the same debt,
and entitled to the same benefits under this Agreement, as the Note surrendered
upon such registration of transfer or exchange. Every Note presented or
surrendered for registration of transfer or exchange shall be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Purchaser duly executed by the Holder thereof or its attorney duly authorized
in writing. No service charge shall be made to a purchaser for any registration
of transfer or exchange of a Note, but the Purchaser may require payment of a
sum sufficient to cover the expenses of delivery (if any) not made by regular
mail or any tax or other governmental charge payable in connection therewith.
ARTICLE V
RATIO OF DEBT TO TOTAL ASSETS COVENANT
Until this Agreement is terminated and all obligations of the Purchaser
under this Agreement and the Notes have been paid or performed in full, the
Purchaser covenants and agrees that it will not directly or indirectly, create,
incur, assume, guarantee, or otherwise become directly or indirectly liable
with respect to any Debt, unless on the date the Purchaser becomes liable with
respect to any such Debt and immediately after giving effect thereto and the
concurrent retirement of any other Debt, no Event of Default exists and the
aggregate amount of its Debt does not exceed 50% of its Total Assets for its
then most recently ended fiscal year.
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ARTICLE VI
EVENTS OF DEFAULT
Section 6.01 Events of Default. The occurrence of any of the following
events shall constitute an "Event of Default" hereunder:
(a) default is made in the payment of any installment of interest on
the Notes when such interest becomes due and payable and such default
continues for a period of 30 days,
(b) default is made in the payment of the principal of the Notes when
such principal becomes due and payable, or
(c) default is made in the performance of the covenant set forth in
Article V of this Agreement or any other part of this Agreement as it
may be amended from time to time.
Section 6.02 Remedies Upon an Event of Default. Upon the occurrence of an
Event of Default, the Seller may give notice of such Event of Default to the
Purchaser and demand payment of the entire outstanding principal amount of such
Notes, plus all accrued but unpaid interest, plus interest on such overdue
principal and overdue interest at the Interest Rate, plus such further amounts
as shall be necessary to cover the Seller's costs and expenses of collection,
including reasonable attorneys' fees.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Notices. Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications provided for herein shall be delivered by the following means:
(i) hand delivery, (ii) overnight courier service (e.g., FedEx, or Airborne
Express); (iii) registered or certified U.S. mail, postage prepaid, and return
receipt requested; or (iv) facsimile transmission. If any notice or other
communication provided for herein is sent by any party by electronic e-mail it
shall not be deemed to have been delivered to the addressee if the party
sending such notice or communication receives a response from the intended
addressee that he or she will not be able to retrieve e-mail due to vacation,
other absence from the office, system failure, or other reason. All such
notices shall be delivered to the parties as set forth on Schedule II hereof.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt.
Section 7.02 Amendments, Waivers.
(a) Except as otherwise expressly provided herein, no amendment or
waiver of any provision of this Agreement shall in any event be
effective unless the same shall be in writing and signed by the parties
hereto.
(b) The Seller and the Purchaser may amend any provision of this
Agreement to effectuate the division of any Notes held by the Seller
into paid and unpaid portions and the surrender of the paid portion.
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(c) Each such amendment, waiver, or consent shall be effective only
in the specific instance and for the specific purpose for which given. A
failure or delay in exercising any right, power, or privilege with
respect to this Agreement will not be presumed to operate as a waiver,
and a single or partial exercise of any right, power, or privilege will
not be presumed to preclude any subsequent or further exercise of that
right, power, or privilege or the exercise of any other right, power, or
privilege.
Section 7.03 Successors and Assigns; Third Party Beneficiaries. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors. This Agreement shall not be
transferred or assigned under any circumstances. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto and their respective successors and permitted transferees)
any legal or equitable right, remedy, or claim under or by reason of this
Agreement.
Section 7.04 Severability. Any provision of this Agreement held to be
invalid, illegal, or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality, or
unenforceability without affecting the validity, legality, and enforceability
of the remaining provisions hereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in
any other jurisdiction.
Section 7.05 Binding Effect. This Agreement shall remain in full force and
effect until such time as all of the Notes issued by the Purchaser shall have
been repaid in full and cancelled.
Section 7.06 GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL IN
ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF ILLINOIS.
Section 7.07 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 7.08 Entire Agreement. This Agreement constitutes the entire
agreement between the parties relating to the subject matter hereof and
supersedes any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof.
Section 7.09 Headings. Article and Section headings used herein are for
convenience of reference only, are not part of this Agreement, and shall not
affect the construction of, or be taken into consideration in interpreting,
this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective officers thereunto duly authorized, as of the first date
written above.
ALLSTATE LIFE INSURANCE COMPANY OF
NEW YORK
as Seller
By: -----------------------------
Name:
Title: Authorized Signatory
By: -----------------------------
Name:
Title: Authorized Signatory
ROAD BAY INVESTMENTS, LLC
as Purchaser
By: -----------------------------
Name:
Title: Authorized Signatory
By: -----------------------------
Name:
Title: Authorized Signatory
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SCHEDULE I
TO
ASSET PURCHASE AGREEMENT BETWEEN ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
AND ROAD BAY INVESTMENTS, LLC
SCHEDULE II
TO
ASSET PURCHASE AGREEMENT BETWEEN ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
AND ROAD BAY INVESTMENTS, LLC
NOTICE INFORMATION
ADDRESS FOR NOTICES TO SELLER:
Allstate Life Insurance Company of New York
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WITH A COPY TO:
Allstate Life Inisurance Company of New York
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Attention: Allstate Financial - Chief Financial Officer
ADDRESS FOR NOTICES TO PURCHASER:
Road Bay Investments, LLC
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Attention: President
EXHIBIT A
FORM OF NOTE
[ISSUE DATE]
Road Bay Investments, LLC, a limited liability company duly organized and
existing under the laws of the State of Delaware (the "Company"), for value
received hereby promises to pay to [ ], or its assigns, the
outstanding balance of the principal sum of [ ] in cash on
[STATED MATURITY DATE] and to pay interest thereon semi-annually on the first
day of April and October in each year, commencing [FIRST INTEREST DATE], at
[RATE], until the principal hereof is paid in full, except that the final
payment of any accrued and unpaid interest shall be concurrent with the final
payment of principal. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. All principal and interest shall be paid at the
principal corporate office of the Company or such other place, which shall be
acceptable to the Company, as the holder hereof shall designate in writing to
the Company, in collected and immediately available funds in lawful money of
the United States of America. Principal and interest shall be payable on the
terms and conditions set forth below
1. The Company covenants that if:
(a) default is made in the payment of any installment of interest on
this Note when such interest becomes due and payable and such default
continues for a period of 30 days,
(b) default is made in the payment of the principal of this Note when
such principal becomes due and payable, or
(c) default is made in the performance of the covenant set forth in
Article V, or any other part, of that certain Asset Purchase Agreement
dated as of , 20 between the Company and , as it may
be amended from time to time,
the Company will, upon demand by the holder of this Note, pay to it the entire
outstanding principal amount of this Note, plus all accrued but unpaid
interest, plus interest on such overdue principal and overdue interest at the
interest rate borne by this Note; and, in addition thereof, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
reasonable attorneys' fees.
2. Each payment made hereunder will be credited first to accrued but
unpaid interest, if any, and the balance of such payment will be credited to
the principal amount hereof.
3. In the event that any payment of principal or interest on this Note
is scheduled to be made on a day that is not a Business Day, then such payment
shall be made on the next following Business Day and no additional interest
shall accrue as a result of payment on such following Business Day. For the
purpose of this paragraph, "Business Day" shall mean any day that is not a
Saturday, Sunday, or any other day on which banking institutions in the State
of Illinois are permitted or required by any applicable law to close.
4. The Company's obligations under this Note are secured pursuant to
that certain Pledge and Security Agreement dated as of , 20 between the
Company and , as it may be amended from time to time.
5. The Company may prepay this Note, in part or in full, at any time.
The Company shall prepay this Note upon disposition of the asset, or any real
estate related to such asset, purchased by the Company with this Note.
6. In the event the Company consolidates or merges into another entity
or transfers substantially all of its assets to another entity, the entity into
which the Company consolidates or merges or to which the assets of the Company
are transferred must assume the liability of the Company hereunder.
7. This Note shall be construed in accordance with, and governed by, the
laws of the State of Illinois.
IN WITNESS WHEREOF, the Company has caused this Note to be executed in its
name and attested to by its authorized officer, all as of the date first
written above.
ROAD BAY INVESTMENTS, LLC
By: -----------------------------
Name:
Title:
By: -----------------------------
Name:
Title: Authorized Signatory
Attest:
