UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Under Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 31, 2003
ANGELES PARTNERS XIV
(Exact name of registrant as specified in its charter)
California 0-14248 95-3959771
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification Number)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices)
(864) 239-1000
(Registrant's telephone number)
Item 2. Acquisition or Disposition of Assets.
On March 31, 2003, the Registrant sold one of its investment properties,
Waterford Square Apartments, located in Huntsville, Alabama. The Registrant sold
Waterford Square Apartments to Sealy Management Company, Inc., an unrelated
party, for $18,200,000. The sale price was determined based on the fair market
value of the investment property.
The Registrant expects that substantially all of the net proceeds will be used
to repay certain debt obligations of the Registrant. It is expected that no net
proceeds will be distributed to the Registrant's partners.
Item 7. Financial Statements and Exhibits
(b) Pro forma financial information.
As a result of the Partnership's adoption of the liquidation basis of accounting
as of December 31, 2002, no pro forma financial information will be presented.
(c) Exhibits.
The following exhibits are filed with this report:
10.43.1 Purchase and Sale Contract - Between Waterford Square Apartments, as
Seller and Sealy Management Company, Inc., as Purchaser, effective October
31, 2002
10.43.2 Reinstatement and First Amendment to Purchase and Sale Contract -
Between Waterford Square as Seller and Sealy Management Company Inc., as
Purchaser, effective November 15, 2002
10.43.3 Reinstatement and Second Amendment to Purchase and Sale Contract -
Between Waterford Square as Seller and Sealy Management Company Inc., as
Purchaser, effective November 25, 2002
10.43.4 Third Amendment to Purchase and Sale Contract - Between Waterford Square
as Seller and Sealy Management Company Inc., as Purchaser, effective
December 3, 2002
10.43.5 Fourth Amendment to Purchase and Sale Contract - Between Waterford
Square as Seller and Sealy Management Company Inc., as Purchaser, effective
January 15, 2003
10.43.6 Fifth Amendment to Purchase and Sale Contract - Between Waterford Square
as Seller and Sealy Management Company Inc., as Purchaser, effective
January 24, 2003
10.43.7 Sixth Amendment to Purchase and Sale Contract - Between Waterford Square
as Seller and Sealy Management Company Inc., as Purchaser, effective
February 5, 2003
10.43.8 Seventh Amendment to Purchase and Sale Contract - Between Waterford
Square as Seller and Sealy Management Company Inc., as Purchaser, effective
February 14, 2003
10.43.9 Eighth Amendment to Purchase and Sale Contract - Between Waterford
Square as Seller and Sealy Management Company Inc., as Purchaser, effective
February 21, 2003
10.43.10 Ninth Amendment to Purchase and Sale Contract - Between Waterford
Square as Seller and Sealy Management Company Inc., as Purchaser, effective
February 26, 2003
10.43.11 Tenth Amendment to Purchase and Sale Contract - Between Waterford
Square as Seller and Sealy Management Company Inc., as Purchaser, effective
March 7, 2003
10.43.12 Eleventh Amendment to Purchase and Sale Contract - Between Waterford
Square as Seller and Sealy Management Company Inc., as Purchaser, effective
March 14, 2003
10.43.13 Twelfth Amendment to Purchase and Sale Contract - Between Waterford
Square as Seller and Sealy Management Company Inc., as Purchaser, effective
March 20, 2003
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ANGELES PARTNERS XIV
(a California Limited Partnership)
By: Angeles Realty Corporation II
Managing General Partner
By: /s/Patrick J. Foye
Patrick J. Foye
Executive Vice President
Date: April 14, 2003
Exhibit 10.43.1
PURCHASE AND SALE CONTRACT
BETWEEN
WATERFORD SQUARE APARTMENTS,
a California general partnership
AS SELLER
AND
SEALY MANAGEMENT COMPANY, INC.,
An Alabama corporation
AS PURCHASER
WATERFORD SQUARE APARTMENTS
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT (this "Contract") is made and entered into
as of the 31st day of October, 2002 (the "Effective Date") by and between
WATERFORD SQUARE APARTMENTS, a California general partnership, having a
principal address at c/o Apartment Investment and Management Company, 2000 South
Colorado Blvd., Tower Two, Suite 2-1000, Denver, Colorado 80222 ("Seller"), and
SEALY MANAGEMENT COMPANY, Inc., an Alabama corporation, having a principal
address at P.O. Box 1370, 1200 Greensboro Avenue, Tuscaloosa, Alabama 35403
("Purchaser").
NOW, THEREFORE, in consideration of mutual covenants set forth herein,
Seller and Purchaser hereby agree as follows:
RECITALS
A. Seller owns the real estate located in Madison County, Alabama, as more
particularly described in Exhibit A attached hereto and made a part hereof, and
the improvements thereon.
B. Purchaser desires to purchase, and Seller desires to sell, such land,
improvements and certain associated property, on the terms and conditions set
forth below.
ARTICLE 1
DEFINED TERMS
1.1 Unless otherwise defined herein, any term with its initial letter
capitalized in this Contract shall have the meaning set forth in this ARTICLE 1.
1.1.1 "ADA" shall have the meaning set forth in Section 13.22.
1.1.2 "Additional Deposit" shall have the meaning set forth in
Section 2.2.2.
1.1.3 "AIMCO" means Apartment Investment and Management Company.
1.1.4 "AIMCO Marks" means all words, phrases, slogans, materials, software,
proprietary systems, trade secrets, proprietary information and lists, and other
intellectual property owned or used by Seller, the Property Manager, or AIMCO in
the marketing, operation or use of the Property (or in the marketing, operation
or use of any other properties managed by the Property Manager or owned by AIMCO
or an affiliate of either Property Manager or AIMCO).
1.1.5 "Assumed Mortgage" shall have the meaning set forth in
Section 4.5.1.
1.1.6 "Assumed Encumbrances" shall have the meaning set forth in
Section 4.5.1.
1.1.7 "Assumed Loan Documents" shall have the meaning set forth in
Section 4.5.1.
1.1.8 "Broker" shall have the meaning set forth in Section 9.1.
1.1.9 "Business Day" means any day other than a Saturday or Sunday or Federal
holiday or legal holiday in the States of Alabama, Colorado, or Texas or, in the
case of the day which would otherwise be the Closing Date, a day on which the
Lender is not open for business.
1.1.10 "Closing" means the consummation of the purchase and sale and related
transactions contemplated by this Contract in accordance with the terms and
conditions of this Contract.
1.1.11 "Closing Date" means the date on which date the Closing of the conveyance
of the Property is required to be held pursuant to Section 5.1.
1.1.12 "Code" shall have the meaning set forth in Section 2.3.6.
1.1.13 "Consent Contract" shall have the meaning set forth in Section 14.2.
1.1.14 "Consultants" shall have the meaning set forth in Section 3.1.
1.1.15 "Damage Notice" shall have the meaning set forth in Section 11.1.
1.1.16 "Deed" shall have the meaning set forth in Section 5.2.1.
1.1.17 "Deposit" means, to the extent actually deposited by Purchaser with
Escrow Agent, the Initial Deposit and the Additional Deposit.
1.1.18 "Escrow Agent" shall have the meaning set forth in Section 2.2.1.
1.1.19 "Excluded Permits" means those Permits which, under applicable law, are
nontransferable and such other Permits, if any, as may be designated as Excluded
Permits on Schedule 1.1.19.
1.1.20 "Feasibility Period" shall have the meaning set forth in Section 3.1.
1.1.21 "Fixtures and Tangible Personal Property" means all fixtures, furniture,
furnishings, fittings, equipment, machinery, apparatus, appliances and other
articles of tangible personal property located on the Land or in the
Improvements as of the Effective Date and used or usable in connection with the
occupation or operation of all or any part of the Property, but only to the
extent owned by Seller. The term "Fixtures and Tangible Personal Property" does
not include the property and equipment, if any, expressly identified in Schedule
1.1.21.
1.1.22 "General Assignment" shall have the meaning set forth in Section 5.2.3.
1.1.23 "Good Funds" shall have the meaning set forth in Section 2.2.1.
1.1.24 "HUD" means the United States Department of Housing and Urban
Development.
1.1.25 "HUD Approval" means the approval of HUD to the consummation of the
transactions contemplated by this Contract as set forth in form HUD 92266.
1.1.26 "Improvements" means all buildings and improvements located on the Land.
1.1.27 "Initial Deposit" shall have the meaning set forth in Section 2.2.1.
1.1.28 "Land" means all of those certain tracts of land located in the State of
Alabama described on Exhibit A, and all rights, privileges and appurtenances
pertaining thereto.
1.1.29 "Lease(s)" means the interest of Seller in and to all leases, subleases
and other occupancy contracts, whether or not of record, which provide for the
use or occupancy of space or facilities on or relating to the Property.
1.1.30 "Leases Assignment" shall have the meaning set forth in Section 5.2.4.
1.1.31 "Lender" shall have the meaning set forth in Section 4.5.1.
1.1.32 "Lender's Assumption Fees" shall have the meaning set forth in Section
4.5.4.
1.1.33 "Loan" shall have the meaning set forth in Section 4.5.1.
1.1.34 "Loan Assumption and Release" shall have the meaning set forth in Section
4.5.2.
1.1.35 "Loan Balance" shall have the meaning set forth in Section 2.2.3.
1.1.36 "Losses" shall have the meaning set forth in Section 3.4.1.
1.1.37 "Materials" shall have the meaning set forth in Section 3.5.
1.1.38 "Miscellaneous Property Assets" means all contract rights, leases,
concessions, manufacturer or other warranties, plans, drawings and other items
of intangible personal property relating to the ownership or operation of the
Property and owned by Seller, excluding, however, (a) receivables, (b) Property
Contracts, (c) Leases, (d) Permits, (e) cash or other funds, whether in petty
cash or house "banks," or on deposit in bank accounts or in transit for deposit,
(f) refunds, rebates or other claims, or any interest thereon, for periods or
events occurring prior to the Closing Date, (g) utility and similar deposits,
(h) insurance or other prepaid items, (i) Seller's proprietary books and
records, or (j) any right, title or interest in or to the AIMCO Marks. The term
"Miscellaneous Property Assets" also shall include all of Seller's rights, if
any, in and to the name "WATERFORD SQUARE APARTMENTS" as it relates solely to
use in connection with the Property (and not with respect to any other property
owned or managed by Seller, Property Manager, AIMCO, or their respective
affiliates).
1.1.39 "Note" shall have the meaning set forth in Section 4.5.1.
1.1.40 "Objection Deadline" shall have the meaning set forth in Section 4.3.
1.1.41 "Objection Notice" shall have the meaning set forth in Section 4.3.
1.1.42 "Objections" shall have the meaning set forth in Section 4.3.
1.1.43 "Permits" means all licenses and permits granted by any governmental
authority having jurisdiction over the Property owned by Seller and required in
order to own and operate the Property.
1.1.44 "Permitted Exceptions" shall have the meaning set forth in Section 4.4.
1.1.45 "Property" means (a) the Land and Improvements and all rights of Seller,
if any, in and to all of the easements, rights, privileges, and appurtenances
belonging or in any way appertaining to the Land and Improvements, (b) the
Property Contracts, Leases, Permits (other than Excluded Permits), and the
Fixtures and Tangible Personal Property, and (c) the Miscellaneous Property
Assets which are located on the Property and used in its operation.
1.1.46 "Property Contracts" means all purchase orders, maintenance, service, or
utility contracts and similar contracts, excluding Leases, which relate to the
ownership, maintenance, construction or repair and/or operation of the Property,
but only to the extent the assignment of such contract to Purchaser is permitted
pursuant to the express terms of such contract, and not including (a) any
national contracts entered into by Seller, Property Manager, or AIMCO with
respect to the Property (i) which terminate automatically upon transfer of the
Property by Seller, or (ii) which Seller, in Seller's sole discretion, elects to
terminate with respect to the Property effective as of the Closing Date, or (b)
any property management contract for the Property.
1.1.47 "Property Contracts Notice" shall have the meaning set forth in Section
3.6.
1.1.48 "Property Manager" means the current property manager of the Property.
1.1.49 "Proration Schedule" shall have the meaning set forth in Section 5.4.1.
1.1.50 "Purchase Price" means the consideration to be paid by Purchaser to
Seller for the purchase of the Property pursuant to Section 2.2.
1.1.51 "Regional Property Manager" shall have the meaning set forth in Section
6.4.
1.1.52 "Regulatory Agreement" shall mean that certain Regulatory Agreement for
Multifamily Housing Projects, dated as of October 30, 1996, entered into by
Seller and HUD, in connection with the Assumed Mortgage, recorded in Book 2232,
Page 0857 of the Office of the Judge of Probate of Madison County, Alabama.
1.1.53 "Remediation" shall have the meaning set forth in Section 14.2.
1.1.54 "Required Loan Fund Amounts" shall have the meaning set forth in Section
4.5.4.
1.1.55 "Response Deadline" shall have the meaning set forth in Section 4.3.
1.1.56 "Response Notice" shall have the meaning set forth in Section 4.3.
1.1.57 "Seller's Indemnified Parties" shall have the meaning set forth in
Section 3.4.1
1.1.58 "Seller's Representations" shall have the meaning set forth in
Section 6.1.
1.1.59 "Survey" shall have the meaning ascribed thereto in Section 4.2.
1.1.60 "Survival Period" shall have the meaning set forth in Section 6.3.
1.1.61 "Survival Provisions" shall have the meaning set forth in Section
13.28.
1.1.62 "TAP Application" means an application for Transfer of Physical Assets,
form HUD 92266, and supporting documentation, for submission to HUD in
connection with the consummation of the Closing.
1.1.63 "Tenant" means any person or entity entitled to occupy any portion of the
Property under a Lease.
1.1.64 "Tenant Deposits" means all security deposits, prepaid rentals, cleaning
fees and other deposits, plus any interest accrued thereon, paid by Tenants to
Seller pursuant to the Leases.
1.1.65 "Tenant Security Deposit Balance" shall have the meaning set forth in
Section 5.4.6.2.
1.1.66 "Terminated Contracts" shall have the meaning set forth in
Section 3.6.
1.1.67 "Testing" shall have the meaning set forth in Section 14.2.
1.1.68 "Title Commitment" shall have the meaning ascribed thereto in
Section 4.1.
1.1.69 "Title Documents" shall have the meaning set forth in Section
4.1.
1.1.70 "Title Insurer" shall have the meaning set forth in Section 2.2.1.
1.1.71 "Title Policy" shall have the meaning set forth in Section 4.1.
1.1.72 "Uncollected Rents" shall have the meaning set forth in Section
5.4.6.1.
1.1.73 "Vendor Terminations" shall have the meaning set forth in Section
5.2.5.
ARTICLE 2
PURCHASE AND SALE, PURCHASE PRICE & DEPOSIT
2.1 Purchase and Sale. Seller agrees to sell and convey the Property to
Purchaser and Purchaser agrees to purchase the Property from Seller, all in
accordance with the terms and conditions set forth in this Contract.
2.2 Purchase Price and Deposit. The total purchase price ("Purchase Price") for
the Property shall be $18,550,000.00, which shall be paid by Purchaser, as
follows:
2.2.1 On the Effective Date, Purchaser shall deliver to Stewart Title Guaranty
Company, c/o Wendy Howell, National Commercial Closing Specialist, 1980 Post Oak
Boulevard, Suite 610, Houston, TX 77056 (800) 729-1906 ("Escrow Agent" or "Title
Insurer") a deposit (the "Initial Deposit") of $185,500.00 in cash or other
immediately available funds ("Good Funds"). The Initial Deposit shall be held
and disbursed in accordance with the escrow provisions set forth in Section 2.3.
2.2.2 On the day that the Feasibility Period expires, Purchaser shall deliver to
Escrow Agent an additional deposit (the "Additional Deposit") of $185,500.00 in
Good Funds. The Additional Deposit shall be held and disbursed in accordance
with the escrow provisions set forth in Section 2.3. The Additional Deposit
shall be held and disbursed in accordance with the escrow provisions set forth
in Section 2.3.
2.2.3 In addition to the Deposit, Seller and Purchaser agree that the amount of
One Hundred and No/100 Dollars ($100.00) shall be paid by Purchaser to Seller
concurrently with the deposit into escrow of the Deposit, as consideration for
Seller's execution and delivery of this Purchase Contract (the "Independent
Contract Consideration"). The Independent Contract Consideration is independent
of any other consideration or payment provided for in this Purchase Contract
and, notwithstanding anything to the contrary herein, is non-refundable in all
events.
2.2.4 At the Closing, subject to Purchaser's obligations under Section 4.5,
Purchaser shall receive a credit against the Purchase Price in the amount of the
outstanding principal balance of the Note, together with all accrued but unpaid
interest (if any) thereon, as of the Closing Date (the "Loan Balance").
2.2.5 The balance of the Purchase Price for the Property shall be paid to and
received by Escrow Agent in Good Funds no later than 11:00 a.m., Houston, Texas
time, on the Closing Date (or such earlier time as required by Seller's lender).
2.3 Escrow Provisions Regarding Deposit.
2.3.1 Escrow Agent shall hold the Deposit and make delivery of the Deposit to
the party entitled thereto under the terms of this Contract. Escrow Agent shall
invest the Deposit in such short-term, high-grade securities, interest-bearing
bank accounts, money market funds or accounts, bank certificates of deposit or
bank repurchase contracts as Escrow Agent, in its discretion, deems suitable,
and all interest and income thereon shall become part of the Deposit and shall
be remitted to the party entitled to the Deposit pursuant to this Contract.
2.3.2 Escrow Agent shall hold the Deposit until the earlier occurrence of (i)
the Closing Date, at which time the Deposit shall be applied against the
Purchase Price, or (ii) the date on which Escrow Agent shall be authorized to
disburse the Deposit as set forth in Section 2.3.3. The tax identification
numbers of the parties shall be furnished to Escrow Agent upon request.
2.3.3 If the Deposit has not been released earlier in accordance with Section
2.3.2, and either party makes a written demand upon Escrow Agent for payment of
the Deposit, Escrow Agent shall give written notice to the other party of such
demand. If Escrow Agent does not receive a written objection from the other
party to the proposed payment within 5 Business Days after the giving of such
notice, Escrow Agent is hereby authorized to make such payment. If Escrow Agent
does receive such written objection within such 5-Business Day period, Escrow
Agent shall continue to hold such amount until otherwise directed by written
instructions from the parties to this Contract or a final judgment or
arbitrator's decision. However, Escrow Agent shall have the right at any time to
deposit the Deposit and interest thereon, if any, with a court of competent
jurisdiction in the state in which the Property is located. Escrow Agent shall
give written notice of such deposit to Seller and Purchaser. Upon such deposit,
Escrow Agent shall be relieved and discharged of all further obligations and
responsibilities hereunder.
2.3.4 The parties acknowledge that Escrow Agent is acting solely as a
stakeholder at their request and for their convenience, that Escrow Agent shall
not be deemed to be the agent of either of the parties for any act or omission
on its part unless taken or suffered in bad faith in willful disregard of this
Contract or involving gross negligence. Seller and Purchaser jointly and
severally shall indemnify and hold Escrow Agent harmless from and against all
costs, claims and expenses, including reasonable attorney's fees, incurred in
connection with the performance of Escrow Agent's duties hereunder, except with
respect to actions or omissions taken or suffered by Escrow Agent in bad faith,
in willful disregard of this Contract or involving gross negligence on the part
of the Escrow Agent.
2.3.5 The parties shall deliver to Escrow Agent an executed copy of this
Contract, which shall constitute the sole instructions to Escrow Agent. Escrow
Agent shall execute the signature page for Escrow Agent attached hereto with
respect to the provisions of this Section 2.3; provided, however, that (a)
Escrow Agent's signature hereon shall not be a prerequisite to the binding
nature of this Contract on Purchaser and Seller, and the same shall become fully
effective upon execution by Purchaser and Seller, and (b) the signature of
Escrow Agent will not be necessary to amend any provision of this Contract other
than this Section 2.3.
2.3.6 Escrow Agent, as the person responsible for closing the transaction within
the meaning of Section 6045(e)(2)(A) of the Internal Revenue Code of 1986, as
amended (the "Code"), shall file all necessary information, reports, returns,
and statements regarding the transaction required by the Code including, but not
limited to, the tax reports required pursuant to Section 6045 of the Code.
Further, Escrow Agent agrees to indemnify and hold Purchaser, Seller, and their
respective attorneys and brokers harmless from and against any Losses resulting
from Escrow Agent's failure to file the reports Escrow Agent is required to file
pursuant to this section.
2.3.7 The provisions of this Section 2.3 shall survive the termination of this
Contract, and if not so terminated, the Closing and delivery of the Deed to
Purchaser.
ARTICLE 3
FEASIBILITY PERIOD
3.1 Feasibility Period. Subject to the terms of Section 3.3 and 3.4 and the
right of Tenants under the Leases, from the Effective Date to and including
November 15, 2002 (the "Feasibility Period"), Purchaser, and its agents,
contractors, engineers, surveyors, attorneys, and employees (collectively,
"Consultants") shall have the right from time to time to enter onto the
Property:
3.1.1 To conduct and make any and all customary studies, tests, examinations,
inquiries, and inspections, or investigations (collectively, the "Inspections")
of or concerning the Property (including, without limitation, engineering and
feasibility studies, evaluation of drainage and flood plain, soil tests for
bearing capacity and percolation and surveys, including topographical surveys);
3.1.2 To confirm any and all matters which Purchaser may reasonably
desire to confirm with respect to the Property;
3.1.3 To ascertain and confirm the suitability of the Property for
Purchaser's intended use of the Property; and
3.1.4 To review the Materials at Purchaser's sole cost and expense.
3.2 Expiration of Feasibility Period. If the results of any of the matters
referred to in Section 3.1 appear unsatisfactory to Purchaser for any reason or
if Purchaser elects not to proceed with the transaction contemplated by this
Contract for any other reason, or for no reason whatsoever, in Purchaser's sole
and absolute discretion, then Purchaser shall have the right to terminate this
Contract by giving written notice to that effect to Seller and Escrow Agent on
or before 5:00 p.m. (in the time zone in which the Escrow Agent is located) on
the date of expiration of the Feasibility Period. If Purchaser exercises such
right to terminate, this Contract shall terminate and be of no further force and
effect, subject to and except for Purchaser's liability pursuant to Section 3.3
and any other provision of this Contract which survives such termination, and
Escrow Agent shall forthwith return the Initial Deposit to Purchaser. If
Purchaser fails to provide Seller with written notice of termination prior to
the expiration of the Feasibility Period in strict accordance with the notice
provisions of this Contract, Purchaser's right to terminate under this Section
3.2 shall be permanently waived and this Contract shall remain in full force and
effect and Purchaser's obligation to purchase the Property shall be
non-contingent and unconditional except only for satisfaction of the conditions
expressly stated in Section 8.1 and subject to Purchaser's rights to terminate
this Contract provided in Section 4.5.4, Section 10.2, Section 11.1 and Section
12.1.
3.3 Conduct of Investigation. Purchaser shall not permit any mechanic's or
materialmen's liens or any other liens to attach to the Property by reason of
the performance of any work or the purchase of any materials by Purchaser or any
other party in connection with any Inspections conducted by or for Purchaser.
Purchaser shall give notice to Seller a reasonable time prior to entry onto the
Property and shall permit Seller to have a representative present during all
Inspections conducted at the Property. All information made available by Seller
to Purchaser in accordance with this Contract or obtained by Purchaser in the
course of its Inspections shall be treated as confidential information by
Purchaser, and, prior to the purchase of the Property by Purchaser, Purchaser
shall use its best efforts to prevent its Consultants from divulging such
information to any unrelated third parties except as reasonably necessary to
third parties engaged by Purchaser for the limited purpose of analyzing and
investigating such information for the purpose of consummating the transaction
contemplated by this Contract. The provisions of this Section 3.3 shall survive
the termination of this Contract.
3.4 Purchaser Indemnification.
3.4.1 Purchaser shall indemnify, hold harmless and, if requested by Seller (in
Seller's sole discretion), defend (with counsel approved by Seller) Seller,
together with Seller's affiliates, parent and subsidiary entities, successors,
assigns, partners, managers, members, employees, officers, directors, trustees,
shareholders, counsel, representatives, agents, Property Manager, Regional
Property Manager, and AIMCO (collectively, including Seller, "Seller's
Indemnified Parties"), from and against any and all damages, mechanics' liens,
liabilities, losses, demands, actions, causes of action, claims, costs and
expenses (including reasonable attorneys' fees, including the cost of in-house
counsel and appeals) (collectively, "Losses") arising from or related to
Purchaser's or its Consultant's entry onto the Property, and any Inspections or
other matters performed by Purchaser with respect to the Property at any time
prior to Closing.
3.4.2 Notwithstanding anything in this Contract to the contrary, Seller shall
have the right, without limitation, to disapprove any and all entries, surveys,
tests (including, without limitation, a Phase II environmental study of the
Property), investigations and other matters that in Seller's reasonable judgment
could result in any injury to the Property or breach of any contract, or expose
Seller to any Losses or violation of applicable law, or otherwise adversely
affect the Property or Seller's interest therein. Purchaser shall use best
efforts to minimize disruption to Tenants in connection with Purchaser's or its
Consultants' activities pursuant to this Section. No consent by the Seller to
any such activity shall be deemed to constitute a waiver by Seller or assumption
of liability or risk by Seller. Purchaser hereby agrees to restore, at
Purchaser's sole cost and expense, the Property to the same condition existing
immediately prior to Purchaser's exercise of its rights pursuant to this Article
3. Purchaser shall maintain and cause its third party consultants to maintain
(a) casualty insurance and comprehensive public liability insurance with
coverages of not less than $1,000,000.00 for injury or death to any one person
and $3,000,000.00 for injury or death to more than one person and $500,000.00
with respect to property damage, by water or otherwise, and (b) worker's
compensation insurance for all of their respective employees in accordance with
the law of the state in which the Property is located. Seller shall deliver
proof of the insurance coverage required pursuant to this Section 3.4.2 to
Seller (in the form of a certificate of insurance) prior to the earlier to occur
of (i) Purchaser's or Purchaser's Consultants' entry onto the Property, or (ii)
the expiration of 5 days after the Effective Date. The provisions of this
Section 3.4 shall survive the termination of this Contract, and if not so
terminated, the Closing and delivery of the Deed to Purchaser.
3.5 Property Materials.
3.5.1 Within 5 days after the Effective Date, Seller agrees to deliver or cause
to be delivered to Purchaser a copy the documents set forth on Schedule 3.5 (the
"Materials") (subject to Section 3.5.2), provided that, where indicated on
Schedule 3.5, certain of the Materials will be available to Purchaser only at
the Property for review and copying by Purchaser at Purchaser's sole cost and
expense. In the alternative, at Seller's option and within the foregoing 5-day
period, Seller may make the same available to Purchaser on a secure web site
(Purchaser agrees that any item to be delivered by Seller under this Contract
shall be deemed delivered to the extent available to Purchaser on such secure
web site so long as Seller has advised Purchaser of such availability). To the
extent that Purchaser determines that any of the Materials have not been made
available or delivered to Purchaser pursuant to this Section 3.5.1, Purchaser
shall notify Seller and Seller shall use commercially reasonable efforts to
deliver the same to Purchaser within 3 Business Days after such notification is
received by Seller.
3.5.2 Seller agrees that, prior to the expiration of the Feasibility Period,
Seller will provide to Purchaser a listing of all of the items of equipment and
other personal property used by Seller in the operation of the Property or made
available to Tenants for use at the Property which is not owned by Seller and is
the subject of a lease agreement in favor of Seller as the lessee.
3.5.3 In providing such information and Materials to Purchaser, except for
Seller's Representations, Seller makes no representation or warranty, express,
written, oral, statutory, or implied, and all such representations and
warranties are hereby expressly excluded and disclaimed. Any information and
Materials provided by Seller to Purchaser under the terms of this Contract is
for informational purposes only and shall be returned by Purchaser to Seller as
a condition to return of the Deposit to Purchaser (if Purchaser is otherwise
entitled to such Deposit pursuant to the terms of this Contract) if this
Contract is terminated for any reason. Except for Seller's Representations,
Purchaser shall not in any way be entitled to rely upon the accuracy of such
information and Materials. Purchaser recognizes and agrees that the Materials
and other documents and information delivered or made available by Seller
pursuant to this Contract may not be complete or constitute all of such
documents which are in Seller's possession or control, but are those that are
readily available to Seller after reasonable inquiry to ascertain their
availability. Purchaser understands that, although Seller will use commercially
reasonable efforts to locate and make available the Materials and other
documents required to be delivered or made available by Seller pursuant to this
Contract, Purchaser will not rely on such Materials or other documents as being
a complete and accurate source of information with respect to the Property, and
except for Seller's Representations, will instead in all instances rely
exclusively on its own Inspections and Consultants with respect to all matters
which it deems relevant to its decision to acquire, own and operate the
Property.
3.5.4 The provisions of this Section 3.5 shall survive the Closing and delivery
of the Deed to Purchaser.
3.6 Property Contracts. On or before the expiration of the Feasibility Period,
Purchaser may deliver written notice to Seller (the "Property Contracts Notice")
specifying any Property Contracts with respect to which Purchaser desires to
have Seller deliver notices of termination at the Closing (the "Terminated
Contracts"); provided that (a) the effective date of such termination after
Closing shall be subject to the express terms of such Terminated Contracts, (b)
if any such Property Contract cannot by its terms be terminated, it shall be
assumed by Purchaser and not be a Terminated Contract, and (c) to the extent
that any such Terminated Contract requires payment of a penalty or premium for
cancellation, Purchaser shall be solely responsible for the payment of any such
cancellation fees or penalties. If Purchaser fails to deliver the Property
Contracts Notice on or before the expiration of the Feasibility Period, there
shall be no Terminated Contracts and Purchaser shall assume all Property
Contracts at the Closing.
ARTICLE 4
TITLE
4.1 Title Documents. Within 5 Business Days after the Effective Date, Seller
shall cause to be delivered to Purchaser a standard form commitment for title
insurance ("Title Commitment") for the Property in an amount equal to the
Purchase Price from Title Insurer for an owner's title insurance policy (the
"Title Policy"), together with copies of all instruments identified as
exceptions therein (together with the Title Commitment, referred to herein as
the "Title Documents"). Seller shall be responsible only for payment of the
basic premium for the Title Policy. Purchaser shall be solely responsible for
payment of all other costs relating to procurement of the Title Commitment, the
Title Policy, and any requested amendments or endorsements.
4.2 Survey. Within 4 days after the Effective Date, Seller shall deliver to
Purchaser or make available at the Property any existing survey of the Property
which to Seller's knowledge is in Seller's possession or reasonable control
(subject to Section 3.5.2) (the "Survey"). Purchaser, at Purchaser's sole cost
and expense, may cause to be prepared an update of the Survey for the Property
to be delivered to Purchaser and Seller no later than 14 days after the
Effective Date.
4.3 Objection and Response Process. On or before the date which is 5 days
following Purchaser's receipt of the Title Documents and the Survey (including
receipt of any update of the Survey obtained by Purchaser within the 14 day time
period provided in Section 4.2) (the "Objection Deadline"), Purchaser shall give
written notice (the "Objection Notice") to the attorneys for Seller of any
matter set forth in the Title Documents or the Survey to which Purchaser objects
(the "Objections"). If Purchaser fails to tender an Objection Notice on or
before the Objection Deadline, Purchaser shall be deemed to have approved and
irrevocably waived any objections to any matters covered by the Title Documents
and the Survey. On or before 5 days after Seller's receipt of the Objection
Notice (the "Response Deadline"), Seller may, in Seller's sole discretion, give
Purchaser notice (the "Response Notice") of those Objections which Seller is
willing to cure, if any. Seller shall be entitled to reasonable adjournments of
the Closing Date to cure the Objections. If Seller fails to deliver a Response
Notice by the Response Deadline, Seller shall be deemed to have elected not to
cure or otherwise resolve any matter set forth in the Objection Notice. If
Purchaser is dissatisfied with the Response Notice, Purchaser may, as its
exclusive remedy, elect by written notice given to Seller on or before the
expiration of 5 days following the Response Deadline, either (a) to accept the
Title Documents and Survey with resolution, if any, of the Objections as set
forth in the Response Notice (or if no Response Notice is tendered, without any
resolution of the Objections) and without any reduction or abatement of the
Purchase Price, or (b) to terminate this Contract, in which event the Initial
Deposit shall be returned to Purchaser. If Purchaser fails to give notice to
terminate this Contract on or before the expiration of such 5 day Period,
Purchaser shall be deemed to have elected to approve and irrevocably waived any
objections to any matters covered by the Title Documents and the Survey, subject
only to resolution, if any, of the Objections as set forth in the Response
Notice (or if no Response Notice is tendered, without any resolution of the
Objections).
4.4 Permitted Exceptions. The Deed delivered pursuant to this Contract shall be
subject to the following, all of which shall be deemed "Permitted Exceptions":
4.4.1 All matters shown in the Title Documents and the Survey, other than (a)
those Objections, if any, which Seller has agreed to cure pursuant to the
Response Notice under Section 4.3, (b) mechanics' liens and taxes due and
payable with respect to the period preceding Closing, (c) the standard exception
regarding the rights of parties in possession which shall be limited to those
parties in possession pursuant to the Leases, and (d) the standard exception
pertaining to taxes which shall be limited to taxes and assessments payable in
the year in which the Closing occurs and subsequent taxes and assessments;
4.4.2 All Leases;
4.4.3 The Assumed Encumbrances;
4.4.4 Applicable zoning and governmental regulations and ordinances; and
4.4.5 Any defects in or objections to title to the Property, or title exceptions
or encumbrances, arising by, through or under Purchaser.
4.5 Assumed Encumbrances.
4.5.1 Purchaser recognizes and agrees that, in connection with a HUD-insured
loan (the "Loan") made to Seller by Washington Capital Associations, Inc. (the
"Lender"), that the Property presently is encumbered by a mortgage dated October
28, 1996 and recorded in Book 2232, Page 849, in the Office of the Judge of
Probate of Madison County, Alabama (the "Assumed Mortgage") and by the
Regulatory Agreement (collectively, the Assumed Mortgage and Regulatory
Agreement are referred to herein as the "Assumed Encumbrances"). The Loan is
evidenced by that certain promissory note dated October 28, 1996 in the stated
principal amount of $11,998,900.00 (the "Note", and together with the Assumed
Mortgage, the Assumed Encumbrances and any other documents executed by Seller in
connection with the Loan, the "Assumed Loan Documents"), executed by Seller and
payable to the order of the Lender. The outstanding principal balance of the
Note as of the Effective Date is approximately $11,319,743.00. Monthly payments
of principal and interest under the Note presently are $86,527.20 (references
made herein to the Assumed Mortgage, the Assumed Encumbrances and the Assumed
Loan Documents shall be applicable to describe the documents referenced thereby
whether or not such are assumed by Purchaser pursuant to a Loan Assumption and
Release). Within 5 days after the Effective Date, Seller agrees that it will
deliver or cause to be delivered to Purchaser (in the same manner in which
Seller is permitted to make the Materials available to Purchaser under Section
3.5.1) copies of the Assumed Loan Documents (subject to Section 3.5.2).
4.5.2 Purchaser agrees that, at the Closing, Purchaser shall obtain the consent
of each of Lender and HUD to the transfer of the Property by Seller to Purchaser
subject to the Assumed Encumbrances and both (i) Purchaser shall assume Seller's
obligations under the Note arising on or after Closing and all of the other
Assumed Loan Documents and accept title to the Property subject to the Mortgage
and the other Assumed Encumbrances, and (ii) the Lender and HUD shall release
Seller, as well as any guarantors and other obligated parties under the Assumed
Loan Documents, from all obligations under the Assumed Loan Documents arising
from and after the Closing Date (and any related guarantees or letters of
credit), including, without limitation, any obligation to make payments of
principal and interest under the Note (collectively, the foregoing (b) referred
to herein as the "Loan Assumption and Release").
4.5.3 Purchaser acknowledges that the Assumed Loan Documents require the
satisfaction by Purchaser of certain requirements to allow for the Loan
Assumption and Release, including but not limited to the consent of the Lender
and HUD thereto and the obtainment of HUD Approval. In connection therewith,
Seller and Purchaser shall cooperate in preparation and submission of a TAP
Application to HUD requesting HUD Approval, and each shall cooperate fully in
providing information reasonably requested by HUD in connection with its
consideration thereof. The TPA Application shall be completed and submitted to
HUD by Purchaser on or before 21 days from and after the Effective Date.
Purchaser shall provide Seller a completed draft of the TPA Application prior to
its submission to HUD. The cost of the TPA Application (and the cost of
receiving HUD Approval) and any physical inspection report required thereby
shall be borne by Purchaser. Purchaser shall use commercially reasonable efforts
to satisfy all conditions of the requirements on Purchaser's part to be
performed in connection with the foregoing.
4.5.4 Seller and Purchaser shall cooperate in the preparation and submission of
all necessary applications to the Lender for the obtainment of the consent of
Lender and HUD to the Loan Assumption and Release prior to the Closing Date.
Purchaser shall be responsible for the payment of the fees and expenses
(including, without limitation, all servicing fees and charges, transfer fees,
assumption fees and other fees) imposed or charged by the Lender or its counsel
(such fees and expenses collectively being referred to as the "Lender's
Assumption Fees"), in connection with the Loan Assumption and Release (which
obligation shall survive the termination of this Contract and the Closing).
Additionally, Purchaser shall be responsible for (a) replacing (and increasing
to the extent required by Lender) all reserves, impounds and other accounts
required to be maintained in connection with the Loan, and (b) funding any
additional reserves, impounds or accounts required by Lender to be maintained by
Purchaser in connection with the Loan after the Loan Assumption and Release (the
foregoing amounts in (a) and (b) collectively referred to herein as the
"Required Loan Fund Amounts"). Any existing reserves, impounds and other
accounts required to be replaced by Purchaser pursuant to the foregoing sentence
shall be released in Good Funds to Seller at the Closing. Purchaser agrees
promptly to deliver to the Lender all documents and information reasonably
required by HUD and Lender, including, without limitation, financial statements,
income tax returns and other financial information for Purchaser and any
required guarantor.
ARTICLE 5
CLOSING
5.1 Closing Date. The Closing shall occur 15 days following the expiration of
the Feasibility Period (the "Closing Date") through an escrow with Escrow Agent,
whereby the Seller, Purchaser and their attorneys need not be physically present
at the Closing and may deliver documents by overnight air courier or other
means. Seller and Purchaser may agree in writing to extend the Closing Date in
order to obtain the approvals of HUD contemplated in Section 8.1.5 and Section
8.2.5. Notwithstanding the foregoing to the contrary, Seller shall have the
option, by delivering written notice to Purchaser on or before 10 days prior to
the Closing Date, to extend the Closing Date to the last Business Day of the
month in which the Closing Date otherwise would occur pursuant to the preceding
sentence. Further, the Closing Date may be extended without penalty at the
option of Seller to a date not later than 30 days following the Closing Date
specified in the first sentence of this paragraph above (or, if applicable, as
extended by Seller pursuant to the second sentence of this paragraph) to satisfy
a condition to be satisfied by Seller, or such later date as is mutually
acceptable to Seller and Purchaser.
5.2 Seller Closing Deliveries. No later than 1 Business Day prior to the Closing
Date, Seller shall deliver to Escrow Agent, each of the following items:
5.2.1 Special Warranty Deed (the "Deed") executed by Seller in the form attached
as Exhibit B to Purchaser, subject to the Permitted Exceptions.
5.2.2 A Bill of Sale executed by Seller in the form attached as Exhibit C.
5.2.3 A General Assignment executed by Seller in the form attached as Exhibit D
(the "General Assignment").
5.2.4 An Assignment of Leases and Security Deposits executed by Seller in the
form attached as Exhibit E (the "Leases Assignment").
5.2.5 A letter prepared by Purchaser and countersigned by Seller to each of the
vendors under the Terminated Property Contracts informing them of the
termination of such Terminated Property Contract as of the Closing Date (subject
to any delay in the effectiveness of such termination pursuant to the express
terms of each applicable Terminated Property Contract) (the "Vendor
Terminations").
5.2.6 A closing statement executed by Seller.
5.2.7 A title affidavit or, at Seller's option, an indemnity, as applicable,
executed by Seller in the customary form reasonably acceptable to Seller to
enable Title Insurer to delete the standard exceptions to the title insurance
policy set forth in this Contract (other than matters constituting any Permitted
Exceptions and matters which are to be completed or performed post-Closing) to
be issued pursuant to the Title Commitment and to insure the period from the
effective date of the Title Commitment to the Closing Date as to any matter
affecting the title of the Land and Improvements (other than matters
constituting any Permitted Exceptions and matters which are to be completed or
performed post-Closing), but only to the extent of any such matter which
attaches or arises during such interim period by or through Seller, and provided
further that such affidavit or indemnity does not subject Seller to any greater
liability, or impose any additional obligations, other than as set forth in this
Contract.
5.2.8 A certification, executed by Seller, of Seller's non-foreign status
pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended.
5.2.9 A rent roll for the Property certified by Seller, but limited to Seller's
knowledge, listing each tenant space rented, tenant name, the monthly base rent
payable, lease term and expiration date, status of rent payment and unapplied
security deposit as of the Closing Date.
5.2.10 Notification letters to all Tenants, executed by Seller in the form
attached hereto as Exhibit F.
5.2.11 Resolutions, certificates of good standing, and such other organizational
documents as Title Insurer shall reasonably require evidencing Seller's
authority to consummate this transaction.
5.3 Purchaser Closing Deliveries. No later than 1 Business Day prior to the
Closing Date (except for the balance of the Purchase Price which is to be
delivered at the time specified in Section 2.2.5), Purchaser shall deliver to
the Escrow Agent (for disbursement to Seller upon the Closing) the following
items with respect to the Property being conveyed at such Closing:
5.3.1 The full Purchase Price (with credit for the Deposit and the Loan
Balance), plus or minus the adjustments or prorations required by this Contract
(including, without limitation, adjustments to made with respect to the payment
of Lender's Assumption Fees).
5.3.2 Any declaration or other statement which may be required to be submitted
to the local assessor with respect to the terms of the sale of the Property.
5.3.3 A closing statement executed by Purchaser.
5.3.4 A countersigned counterpart of the General Assignment.
5.3.5 A countersigned counterpart of the Leases Assignment.
5.3.6 Notification letters to all Tenants, executed by Purchaser in the
form attached hereto as Exhibit F.
5.3.7 The Vendor Terminations.
5.3.8 Any cancellation fees or penalties due to any vendor under any Terminated
Property Contract as a result of the termination thereof.
5.3.9 Resolutions, certificates of good standing, and such other organizational
documents as Title Insurer shall reasonably require evidencing Purchaser's
authority to consummate this transaction.
5.3.10 All documents, instruments, guaranties, and other items required by the
Lender and HUD to cause the Loan Assumption and Release together with any
Required Loan Fund Amounts.
5.3.11 Such other instruments, documents or certificates as are required to be
delivered by Purchaser to Seller in accordance with any of the other provisions
of this Contract.
5.4 Closing Prorations and Adjustments.
5.4.1 General. All normal and customarily proratable items, including, without
limitation, collected rents, operating expenses, personal property taxes, other
operating expenses and fees, shall be prorated as of the Closing Date, Seller
being charged or credited, as appropriate, for all of same attributable to the
period up to the Closing Date (and credited for any amounts paid by Seller
attributable to the period on or after the Closing Date, if assumed by
Purchaser) and Purchaser being responsible for, and credited or charged, as the
case may be, for all of same attributable to the period on and after the Closing
Date. Seller shall prepare a proration schedule (the "Proration Schedule") of
the adjustments described in this Section 5.4 prior to Closing. Such adjustments
shall be paid by Purchaser to Seller (if the prorations result in a net credit
to Seller) or by Seller to Purchaser (if the prorations result in a net credit
to Purchaser), by increasing or reducing the cash to be paid by Purchaser at
Closing.
5.4.2 Operating Expenses. All of the operating, maintenance, taxes (other than
real estate taxes, such as rental taxes), and other expenses incurred in
operating the Property that Seller customarily pays, and any other costs
incurred in the ordinary course of business for the management and operation of
the Property, shall be prorated on an accrual basis. Seller shall pay all such
expenses that accrue prior to Closing and Purchaser shall pay all such expenses
that accrue from and after the Closing Date.
5.4.3 Utilities. The final readings and final billings for utilities will be
made if possible as of the Closing Date, in which case Seller shall pay all such
bills as of the Closing Date and no proration shall be made at the Closing with
respect to utility bills. Otherwise, a proration shall be made based upon the
parties' reasonable good faith estimate and a readjustment made within 30 days
after the Closing, if necessary. Seller shall be entitled to the return of any
deposit(s) posted by it with any utility company, and Seller shall notify each
utility company serving the Property to terminate Seller's account, effective as
of noon on the Closing Date.
5.4.4 Real Estate Taxes. Any real estate ad valorem or similar taxes for the
Property, or any installment of assessments payable in installments which
installment is payable in the calendar year of Closing, shall be prorated to the
date of Closing, based upon actual days involved. The proration of real property
taxes or installments of assessments shall be based upon the assessed valuation
and tax rate figures for the year in which the Closing occurs to the extent the
same are available; provided, that in the event that actual figures (whether for
the assessed value of the Property or for the tax rate) for the year of Closing
are not available at the Closing Date, the proration shall be made using figures
from the preceding year. The proration of real property taxes or installments of
assessments shall be made based upon the parties' reasonable good faith estimate
and a readjustment made within 12 months after the Closing, if necessary.
5.4.5 Property Contracts. Purchaser shall assume at Closing the obligations
under the Property Contracts assumed by Purchaser, provided that any payments
under the Property Contracts have been prorated.
5.4.6 Leases.
5.4.6.1 All collected rent (whether fixed monthly rentals, additional rentals,
escalation rentals, retroactive rentals, operating cost pass-throughs or other
sums and charges payable by Tenants under the Leases), income and expenses from
any portion of the Property shall be prorated as of the Closing Date (prorated
for any partial month). Purchaser shall receive all collected rent and income
attributable to dates from and after the Closing Date. Seller shall receive all
collected rent and income attributable to dates prior to the Closing Date.
Notwithstanding the foregoing, no prorations shall be made in relation to either
(a) non-delinquent rents which have not been collected as of the Closing Date,
or (b) delinquent rents existing, if any, as of the Closing Date (the foregoing
(a) and (b) referred to herein as the "Uncollected Rents"). In adjusting for
Uncollected Rents, no adjustments shall be made in Seller's favor for rents
which have accrued and are unpaid as of the Closing, but Purchaser shall pay
Seller such accrued Uncollected Rents as and when collected by Purchaser.
Purchaser agrees to bill Tenants of the Property for all Uncollected Rents and
to take reasonable actions to collect Uncollected Rents. After the Closing,
Seller shall continue to have the right, but not the obligation, in its own
name, to demand payment of and to collect Uncollected Rents owed to Seller by
any Tenant whose tenancy at the Property has ended, which right shall include,
without limitation, the right to continue or commence legal actions or
proceedings against any Tenant and the delivery of the Leases Assignment shall
not constitute a waiver by Seller of such right. Purchaser agrees to cooperate
with Seller in connection with all efforts by Seller to collect such Uncollected
Rents and to take all steps, whether before or after the Closing Date, as may be
necessary to carry out the intention of the foregoing, including, without
limitation, the delivery to Seller, within 7 days after a written request, of
any relevant books and records (including, without limitation, rent statements,
receipted bills and copies of tenant checks used in payment of such rent), the
execution of any and all consents or other documents, and the undertaking of any
act reasonably necessary for the collection of such Uncollected Rents by Seller;
provided, however, that Purchaser's obligation to cooperate with Seller pursuant
to this sentence shall not obligate Purchaser to terminate any Tenant lease with
an existing Tenant or evict any existing Tenant from the Property or to incur
any expense for attorneys fees, legal testimony or other legal expenses unless
the same are reimbursed to Purchaser by Seller.
5.4.6.2 At Closing, Purchaser shall receive a credit against the Purchase Price
in an amount equal to the unapplied balance of all cash (or cash equivalent)
Tenant Deposits, including, but not limited to, security, damage or other
deposits or required to be paid by any of the Tenants to secure their respective
obligations under the Leases, together, in all cases, with any interest payable
to the Tenants thereunder as may be required by their respective Tenant Lease or
state law (the "Tenant Security Deposit Balance"). Any cash (or cash
equivalents) held by Seller which constitute the Tenant Security Deposit Balance
shall be retained by Seller in exchange for the foregoing credit against the
Purchase Price and shall not be transferred by Seller pursuant to this Contract
(or any of the documents delivered at Closing), but the obligation with respect
to the Tenant Security Deposit Balance nonetheless shall be assumed by
Purchaser.
5.4.6.3 With respect to operating expenses, taxes, utility charges, other
operating cost pass-throughs, retroactive rental escalations, sums or charges
payable by Tenants under the Tenant Leases, to the extent that Seller has
received as of the Closing payments allocable to periods subsequent to Closing,
the same shall be properly prorated with an adjustment in favor of Purchaser,
and Purchaser shall reserve a credit therefor at Closing. With respect to any
payments received by Purchaser after the Closing allocable to Seller prior to
Closing, Purchaser shall promptly pay the same to Seller.
5.4.7 Existing Loan. Seller shall be responsible for all principal required to
be paid under the terms of the Note prior to Closing, together with all interest
accrued under the Note prior to Closing, all of which may be a credit against
the Purchase Price as provided in Section 2.2.2. Purchaser shall be responsible
for the payment of (a) all principal required to be paid from and after Closing,
together with all interest accruing under the Note from and after Closing.
Purchaser also shall be responsible for all Lender's Assumption Fees due at
Closing and all other fees, penalties, interest and other amounts due and owing
from and after Closing under the Assumed Loan Documents. As set forth in Section
4.5.3, any existing reserves, impounds and other accounts maintained in
connection with the Loan and required to be replaced by Purchaser, shall be
released in Good Funds to Seller at the Closing.
5.4.8 Insurance. No proration shall be made in relation to insurance premiums
and insurance policies will not be assigned to Purchaser.
5.4.9 Employees. All of Seller's and Seller's manager's on-site employees shall
have their employment at the Property terminated by Seller or Seller's manager
as of the Closing Date.
5.4.10 Closing Costs. Purchaser shall pay any transfer, sales, use, gross
receipts or similar taxes, the cost of recording any instruments required to
discharge the Assumed Encumbrances against the Property, any premiums or fees
required to be paid by Purchaser with respect to the Title Policy pursuant to
Section 4.1, and one-half of the customary closing costs of the Escrow Agent.
Seller shall pay the base premium for the Title Policy to the extent required by
Section 4.1, and one-half of the customary closing costs of the Escrow Agent. In
addition to the customary closing costs of the Escrow Agent (except for costs or
liabilities arising from Escrow Agent's gross negligence and/or willful
misconduct), Escrow Agent shall receive a fee of $500 for its services
hereunder, to be borne equally by Purchaser and Seller.
5.4.11 Survival. The provisions of this Section 5.4 shall survive the Closing
and delivery of the Deed to Purchaser.
5.4.12 Possession. Possession of the Property, subject to the Leases, Property
Contracts which are not identified as Terminated Contracts during the
Feasibility Period (subject to the limitations of Section 3.6), and Permitted
Exceptions, shall be delivered to Purchaser at the Closing upon release from
escrow of all items to be delivered by Purchaser pursuant to Section 5.3,
including, without limitation, the Purchase Price. To the extent reasonably
available to Seller, originals or copies of the Leases and Property Contracts,
lease files, warranties, guaranties, operating manuals, keys to the property,
and Seller's books and records (other than proprietary information) regarding
the Property shall be made available to Purchaser at the Property after the
Closing.
5.5 Post Closing Adjustments. In general, and except as provided in this
Contract or the Closing Documents, Seller shall be entitled to all income, and
shall pay all expenses, relating to the operation of the Property for the period
prior to the Closing Date and Purchaser shall be entitled to all income, and
shall pay all expenses, relating to the operation of the Property for the period
commencing on and after the Closing Date. Purchaser or Seller may request that
Purchaser and Seller undertake to re-adjust any item on the Proration Schedule
(or any item omitted therefrom) in accordance with the provisions of Section 5.4
of this Contract; provided, however, that neither party shall have any
obligation to re-adjust any items (a) after the expiration of 12 months after
Closing, or (b) subject to such 12 month period, unless such items exceeds
$10,000.00 in magnitude (either individually or in the aggregate). The
provisions of this Section 5.6 shall survive the Closing and delivery of the
Deed to Purchaser.
5.6 Mandatory HUD Provision.
This Contract is expressly conditioned upon the obtainment of HUD
Approval, as set forth in the TAP Application. No transfer of any interest in
the Property under this Contract shall be effective prior to the obtainment of
HUD Approval. Purchaser will not take possession of the Property nor assume the
benefits of ownership of the Property prior to the obtainment of HUD Approval.
Purchaser, its successors, legal representatives and assigns, shall have no
right upon any default of Seller under this Contract to seek damages, directly
or indirectly, from the FHA project, that is, the Property, which is the subject
of this Contract, including from any assets, rents, issues or profits thereof,
and Purchaser shall have no right to effect a lien upon the Property or the
assets, issues or profits thereof.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER
6.1 Seller's Representations. Seller represents and warrants to Purchaser the
following (collectively, the "Seller's Representations") as of the Effective
Date and as of the Closing Date (provided that Purchaser's remedies if any such
Seller's Representations are untrue as of the Closing Date are limited to those
set forth in Section 8.1):
6.1.1 Seller is organized, validly existing and, if applicable, in good standing
under the laws of the state of its formation set forth in the initial paragraph
of this Contract; and, has or at the Closing shall have the entity power and
authority to sell and convey the Property and to execute the documents to be
executed by Seller and prior to the Closing will have taken as applicable, all
corporate, partnership, limited liability company or equivalent entity actions
required for the execution and delivery of this Contract, and the consummation
of the transactions contemplated by this Contract. The compliance with or
fulfillment of the terms and conditions hereof will not conflict with, or result
in a breach of, the terms, conditions or provisions of, or constitute a default
under, any contract to which Seller is a party or by which Seller is otherwise
bound, which conflict, breach or default would have a material adverse affect on
Seller's ability to consummate the transaction contemplated by this Contract or
on the Property. This Contract is a valid, binding and enforceable agreement
against Seller in accordance with its terms;
6.1.2 Other than the Leases, the Property is not subject to any written lease
executed by Seller or, to Seller's knowledge, any other possessory interests of
any person;
6.1.3 Seller is not a "foreign person," as that term is used and defined in the
Internal Revenue Code, Section 1445, as amended;
6.1.4 Except for any actions by Seller to evict Tenants under the Leases, to
Seller's knowledge, there are no actions, proceedings, litigation or
governmental investigations or condemnation actions either pending or threatened
against the Property;
6.1.5 Seller has not received any written notice of any uncured material
violations of any federal, state, county or municipal law, ordinance, order,
regulation or requirement affecting the Property; and
6.1.6 Seller has not received any written notice of any material default by
Seller under any of the Property Contracts that will not be terminated on the
Closing Date.
6.1.7 To Seller's knowledge: (A) no hazardous or toxic materials or other
substances regulated by applicable federal or state environmental laws are
stored by Seller on, in or under the Property in quantities which violate
applicable laws governing such materials or substances, and (B) the Property is
not used by Seller for the storage, treatment, generation or manufacture of any
hazardous or toxic materials or other substances in a manner which would
constitute a violation of applicable federal or state environmental laws.
6.1.8 Seller currently has in place and will maintain through the Closing Date,
public liability, casualty and other insurance coverage with respect to the
Property as would be customarily carried by prudent owners or operators of
properties similar to the Property in markets in which such Property is located
and each of such insurance policies is in full force and effect and all premiums
due and payable thereunder were fully paid when due, it being understood and
acknowledged that such coverage is and may be maintained through self-insurance.
6.1.9 To Seller's knowledge, the rent roll delivered by Seller to Purchaser
pursuant to Section 3.5 is, and the rent roll delivered to by Seller to
Purchaser at Closing will be, respectively, accurate in all material respects.
6.2 AS-IS. Except for Seller's Representations, the Property is expressly
purchased and sold "AS IS," "WHERE IS," and "WITH ALL FAULTS." The Purchase
Price and the terms and conditions set forth herein are the result of
arm's-length bargaining between entities familiar with transactions of this
kind, and said price, terms and conditions reflect the fact that Purchaser shall
have the benefit of, and is not relying upon, any information provided by Seller
or Broker or statements, representations or warranties, express or implied, made
by or enforceable directly against Seller or Broker, including, without
limitation, any relating to the value of the Property, the physical or
environmental condition of the Property, any state, federal, county or local
law, ordinance, order or permit; or the suitability, compliance or lack of
compliance of the Property with any regulation, or any other attribute or matter
of or relating to the Property (other than any covenants and warranties of title
contained in the Deed conveying the Property and Seller's Representations).
Except for Seller's Representations, Purchaser agrees that Seller shall not be
responsible or liable to Purchaser for any defects, errors or omissions, or on
account of any conditions affecting the Property. Except for Seller's
Representations, Purchaser, its successors and assigns, and anyone claiming by,
through or under Purchaser, hereby fully releases Seller's Indemnified Parties
from, and irrevocably waives its right to maintain, any and all claims and
causes of action that it or they may now have or hereafter acquire against
Seller's Indemnified Parties with respect to any and all Losses arising from or
related to any defects, errors, omissions or other conditions affecting the
Property. Purchaser represents and warrants that, as of the date hereof and as
of the Closing Date, it has and shall have reviewed and conducted such
independent analyses, studies (including, without limitation, environmental
studies and analyses concerning the presence of lead, asbestos, PCBs and radon
in and about the Property), reports, investigations and inspections as it deems
appropriate in connection with the Property. If Seller provides or has provided
any documents, summaries, opinions or work product of consultants, surveyors,
architects, engineers, title companies, governmental authorities or any other
person or entity with respect to the Property, including, without limitation,
the offering prepared by Broker, Purchaser and Seller agree that Seller has done
so or shall do so only for the convenience of both parties, Purchaser shall not
rely thereon and the reliance by Purchaser upon any such documents, summaries,
opinions or work product shall not create or give rise to any liability of or
against Seller's Indemnified Parties. Other than the warranties of title
contained in the Deed, Purchaser shall rely only upon any title insurance
obtained by Purchaser with respect to title to the Property. Purchaser
acknowledges and agrees that no representation has been made and no
responsibility is assumed by Seller with respect to current and future
applicable zoning or building code requirements or the compliance of the
Property with any other laws, rules, ordinances or regulations, the financial
earning capacity or expense history of the Property, the continuation of
contracts, continued occupancy levels of the Property, or any part thereof, or
the continued occupancy by tenants of any Leases or, without limiting any of the
foregoing, occupancy at Closing. Prior to Closing, Seller shall have the right,
but not the obligation, to enforce its rights against any and all Property
occupants, guests or tenants, provided that it does so in accordance with its
ordinary course of business with the respect to the Property. Purchaser agrees
that the departure or removal, prior to Closing, of any of such guests,
occupants or tenants shall not be the basis for, nor shall it give rise to, any
claim on the part of Purchaser, nor shall it affect the obligations of Purchaser
under this Contract in any manner whatsoever; and Purchaser shall close title
and accept delivery of the Deed with or without such tenants in possession and
without any allowance or reduction in the Purchase Price under this Contract.
Purchaser hereby releases Seller from any and all claims and liabilities
relating to the foregoing matters. The provisions of this Section 6.2 shall
survive the Closing and delivery of the Deed to Purchaser.
6.3 Survival of Seller's Representations. Seller and Purchaser agree that
Seller's Representations shall survive Closing for a period of 12 months (the
"Survival Period"). Seller shall have no liability after the Survival Period
with respect to Seller's Representations contained herein except to the extent
that Purchaser has filed a lawsuit against Seller during the Survival Period for
breach of any of Seller's Representations. Under no circumstances shall Seller
be liable to Purchaser for more than $100,000 in any individual instance or in
the aggregate for all breaches of Seller's Representations, nor shall Purchaser
be entitled to bring any claim for a breach of Seller's Representations unless
the claim for damage (either in the aggregate or as to any individual claim) by
Purchaser exceeds $5,000. In the event that Seller breaches any representation
contained in Section 6.1 and Purchaser had knowledge of such breach prior to the
Closing Date, Purchaser shall be deemed to have waived any right of recovery,
and Seller shall not have any liability in connection therewith.
6.4 Definition of Seller's Knowledge. Any representations and warranties made
"to the knowledge of Seller" shall not be deemed to imply any duty of inquiry.
For purposes of this Contract, the term Seller's "knowledge" shall mean and
refer only to actual knowledge of the Designated Representative of the Seller
and shall not be construed to refer to the knowledge of any other partner,
officer, director, agent, employee or representative of the Seller, or any
affiliate of the Seller, or to impose upon such Designated Representative any
duty to investigate the matter to which such actual knowledge or the absence
thereof pertains, or to impose upon such Designated Representative any
individual personal liability. As used herein, the term Designated
Representative shall refer to Ann Porter, who is the Regional Property Manager
handling this Property (the "Regional Property Manager").
6.5 Representations And Warranties Of Purchaser. For the purpose of inducing
Seller to enter into this Contract and to consummate the sale and purchase of
the Property in accordance herewith, Purchaser represents and warrants to Seller
the following as of the Effective Date and as of the Closing Date:
6.5.1 Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of Alabama.
6.5.2 Purchaser, acting through any of its or their duly empowered and
authorized officers or members, has all necessary entity power and authority to
own and use its properties and to transact the business in which it is engaged,
and has full power and authority to enter into this Contract, to execute and
deliver the documents and instruments required of Purchaser herein, and to
perform its obligations hereunder; and no consent of any of Purchaser's
partners, directors, officers or members are required to so empower or authorize
Purchaser. The compliance with or fulfillment of the terms and conditions hereof
will not conflict with, or result in a breach of, the terms, conditions or
provisions of, or constitute a default under, any contract to which Purchaser is
a party or by which Purchaser is otherwise bound, which conflict, breach or
default would have a material adverse affect on Purchaser's ability to
consummate the transaction contemplated by this Contract. This Contract is a
valid, binding and enforceable agreement against Purchaser in accordance with
its terms.
6.5.3 No pending or, to the knowledge of Purchaser, threatened litigation exists
which if determined adversely would restrain the consummation of the
transactions contemplated by this Contract or would declare illegal, invalid or
non-binding any of Purchaser's obligations or covenants to Seller.
6.5.4 Other than Seller's Representations, Purchaser has not relied on any
representation or warranty made by Seller or any representative of Seller
(including, without limitation, Broker) in connection with this Contract and the
acquisition of the Property.
6.5.5 The Broker and its affiliates do not, and will not at the Closing, have
any direct or indirect legal, beneficial, economic or voting interest in
Purchaser (or in an assignee of Purchaser, which pursuant to Section 13.3,
acquires the Property at the Closing), nor has Purchaser or any affiliate of
Purchaser granted (as of the Effective Date or the Closing Date) the Broker or
any of its affiliates any right or option to acquire any direct or indirect
legal, beneficial, economic or voting interest in Purchaser.
6.5.6 With respect to this Contract, Purchaser acknowledges and stipulates that
Seller is not a merchant as defined in ss. 7-2-104, Code of Alabama, 1975, as
amended.
6.5.7 No approval of Purchaser or any affiliate of Purchaser (as defined in 24
CFR ss. 200.215) for participation in a HUD project pursuant to 24 CFR Part 200,
Subpart H, has been delayed for more than 30 days after submission of HUD Form
2530, nor have any of them been denied preliminary approval (or not received
preliminary approval within 90 days of application therefore) as transferee
under a transfer of physical assets application requiring full or modified
review, in each case within the 12 calendar months preceding the date of this
Purchase Contract.
The provisions of this Section 6.5 shall survive the Closing and delivery of the
Deed to Purchaser.
ARTICLE 7
OPERATION OF THE PROPERTY
7.1 Leases and Property Contracts. During the period of time from the Effective
Date to the Closing Date, in the ordinary course of business Seller may enter
into new Property Contracts, new Leases, renew existing Leases or modify,
terminate or accept the surrender or forfeiture of any of the Leases, modify any
Property Contracts, or institute and prosecute any available remedies for
default under any Lease or Property Contract without first obtaining the written
consent of Purchaser; provided, however, Seller agrees that any such new
Property Contracts or any new or renewed Leases shall not have a term in excess
of 1 year (or such longer period of time for which such Property Contracts or
Leases are entered into by Seller in the ordinary course of its operation of the
Property) without the prior written consent of Purchaser, which consent shall
not be unreasonably withheld, conditioned or delayed. Seller agrees to provide
to Purchaser a monthly update of the rent roll for the Property following the
delivery of the initial rent roll constituting a component of the Seller's
Materials.
7.2 General Operation of Property. Except as specifically set forth in this
Article 7, Seller shall operate the Property after the Effective Date in the
ordinary course of business, and except as necessary in the Seller's sole
discretion to address (a) any life or safety issue at the Property or (b) any
other matter which in Seller's reasonable discretion materially adversely
affecting the use, operation or value of the Property, Seller will not make any
material alterations to the Property or remove any material Fixtures and
Tangible Personal Property without the prior written consent of Purchaser which
consent shall not be unreasonably withheld, denied or delayed.
7.3 Liens. Other than utility easements and temporary construction easements
granted by Seller in the ordinary course of business, Seller covenants that it
will not voluntarily create or cause any lien or encumbrance to attach to the
Property between the Effective Date and the Closing Date (other than Leases and
Property Contracts as provided in Section 7.1) unless Purchaser approves such
lien or encumbrance, which approval shall not be unreasonably withheld or
delayed. If Purchaser approves any such subsequent lien or encumbrance, the same
shall be deemed a Permitted Encumbrance for all purposes hereunder.
ARTICLE 8
CONDITIONS PRECEDENT TO CLOSING
8.1 Purchaser's Conditions to Closing. Purchaser's obligation to close
under this Contract, shall be subject to and conditioned upon the fulfillment
of each and all of the following conditions precedent:
8.1.1 All of the documents required to be delivered by Seller to
Purchaser at the Closing pursuant to the terms and conditions hereof shall
have been delivered;
8.1.2 Each of the representations, warranties and covenants of Seller
contained herein shall be true in all material respects as of the Closing
Date;
8.1.3 Seller shall have complied with, fulfilled and performed in all material
respects each of the covenants, terms and conditions to be complied with,
fulfilled or performed by Seller hereunder;
8.1.4 Neither Seller nor Seller's general partner shall be a debtor in any
bankruptcy proceeding nor shall have been in the last 6 months a debtor in any
bankruptcy proceeding; and
8.1.5 (a) HUD shall have issued approval of conveyance of the Property to
Purchaser and the Loan Assumption and Release, (b) the HUD Approval in
connection with the TPA Application shall have been obtained and (c) the Loan
Assumption and Release shall have occurred.
Notwithstanding anything to the contrary, there are no other conditions on
Purchaser's obligation to Close except as expressly set forth in this Section
8.1 and except for the rights of Purchaser to terminate this Contract provided
in Section 4.5.4, Section 10.2, Section 11.1 and Section 12.1. If any condition
set forth in Sections 8.1.1, 8.1.3 or 8.1.4 is not met, Purchaser may (a) waive
any of the foregoing conditions and proceed to Closing on the Closing Date with
no offset or deduction from the Purchase Price, or (b) if such failure
constitutes a default by Seller, exercise any of its remedies pursuant to
Section 10.2. If the condition set forth in Section 8.1.2 is not met, Purchaser
may, as its sole and exclusive remedy, (i) notify Seller of Purchaser's election
to terminate this Contract and receive a return of the Deposit from the Escrow
Agent, or (ii) waive such condition and proceed to Closing on the Closing Date
with no offset or deduction from the Purchase Price. If the condition set forth
in Section 8.1.5 is not met and Purchaser has satisfied its obligations under
Section 4.5.3 and Section 4.5.4, Purchaser may, as its sole and exclusive
remedy, notify Seller of Purchaser's election to terminate this Contract and
receive a return of the Deposit from the Escrow Agent.
8.2 Without limiting any of the rights of Seller elsewhere provided for in this
Contract, Seller's obligation to close with respect to conveyance of the
Property under this Contract shall be subject to and conditioned upon the
fulfillment of each and all of the following conditions precedent:
8.2.1 All of the documents and funds required to be delivered by Purchaser to
Seller at the Closing pursuant to the terms and conditions hereof shall have
been delivered;
8.2.2 Each of the representations, warranties and covenants of
Purchaser contained herein shall be true in all material respects as of the
Closing Date;
8.2.3 Purchaser shall have complied with, fulfilled and performed in all
material respects each of the covenants, terms and conditions to be complied
with, fulfilled or performed by Purchaser hereunder;
8.2.4 Seller shall have received all consents and approvals to the consummation
of the transactions contemplated hereby that are required by law; and
8.2.5 (a) HUD shall have issued approval of conveyance of the Property to
Purchaser and the Loan Assumption and Release, (b) the HUD Approval in
connection with the TPA Application shall have been obtained and (c) the Loan
Assumption and Release shall have occurred.
If any of the foregoing conditions to Seller's obligation to close with
respect to conveyance of the Property under this Contract are not met, Seller
may (a) waive any of the foregoing conditions and proceed to Closing on the
Closing Date, or (b) if such failure constitutes a default by Purchaser,
exercise any of its remedies under Section 10.1; provided, however, that if the
condition to Section 8.2.5 is not met and Purchaser has satisfied its
obligations under Section 4.5.3 and Section 4.5.4, if Seller elects to terminate
this Purchase Contract then Purchaser shall receive a return of the Deposit from
the Escrow Agent.
ARTICLE 9
BROKERAGE
9.1 Indemnity. Seller represents and warrants to Purchaser that it has dealt
only with John Brown of Insignia/ESG, Inc. ("Broker") in connection with this
Contract. Seller and Purchaser each represents and warrants to the other that,
other than Broker, it has not dealt with or utilized the services of any other
real estate broker, sales person or finder in connection with this Contract, and
each party agrees to indemnify, hold harmless, and, if requested in the sole and
absolute discretion of the indemnitee, defend (with counsel approved by the
indemnitee) the other party from and against all Losses relating to brokerage
commissions and finder's fees arising from or attributable to the acts or
omissions of the indemnifying party. The provisions of this Section 9.1 shall
survive the termination of this Contract, and if not so terminated, the Closing
and delivery of the Deed to Purchaser.
9.2 Survival. Seller agrees to pay Broker a commission according to the terms of
a separate contract. Broker shall not be deemed a party or third party
beneficiary of this Contract.
9.3 Broker Signature Page. Broker shall execute the signature page for Broker
attached hereto solely for purposes of confirming the matters set forth therein;
provided, however, that (a) Broker's signature hereon shall not be a
prerequisite to the binding nature of this Contract on Purchaser and Seller, and
the same shall become fully effective upon execution by Purchaser and Seller,
and (b) the signature of Broker will not be necessary to amend any provision of
this Contract.
ARTICLE 10
DEFAULTS AND REMEDIES
10.1 Purchaser Default. If Purchaser defaults in its obligations hereunder to
(a) deliver the Initial Deposit or Additional Deposit, (b) deliver to the Seller
the deliveries specified under Section 5.3 on the date required thereunder, or
(c) deliver the Purchase Price at the time required by Section 2.2.5 and close
on the purchase of the Property on the Closing Date, then, immediately and
without notice or cure, Purchaser shall forfeit the Deposit, and the Escrow
Agent shall deliver the Deposit to Seller, and neither party shall be obligated
to proceed with the purchase and sale of the Property. If, Purchaser defaults in
any of its other representations, warranties or obligations under this Contract,
and such default continues for more than 10 days after written notice from
Seller, then Purchaser shall forfeit the Deposit, and the Escrow Agent shall
deliver the Deposit to Seller, and neither party shall be obligated to proceed
with the purchase and sale of the Property. The Deposit is liquidated damages
and recourse to the Deposit is, except for Purchaser's indemnity obligations
hereunder, Seller's sole and exclusive remedy for Purchaser's failure to perform
its obligation to purchase the Property or breach of a representation or
warranty. Seller expressly waives the remedies of specific performance and
additional damages for such default by Purchaser. SELLER AND PURCHASER
ACKNOWLEDGE THAT SELLER'S DAMAGES WOULD BE DIFFICULT TO DETERMINE, AND THAT THE
DEPOSIT IS A REASONABLE ESTIMATE OF SELLER'S DAMAGES RESULTING FROM A DEFAULT BY
PURCHASER IN ITS OBLIGATION TO PURCHASE THE PROPERTY. SELLER AND PURCHASER
FURTHER AGREE THAT THIS SECTION 10.1.1 IS INTENDED TO AND DOES LIQUIDATE THE
AMOUNT OF DAMAGES DUE SELLER, AND SHALL BE SELLER'S EXCLUSIVE REMEDY AGAINST
PURCHASER, BOTH AT LAW AND IN EQUITY, ARISING FROM OR RELATED TO A BREACH BY
PURCHASER OF ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS
CONTRACT, OTHER THAN WITH RESPECT TO PURCHASER'S INDEMNITY OBLIGATIONS
HEREUNDER.
10.2 Seller Default. If Seller, prior to the Closing, defaults in its
representations, warranties, covenants, or obligations under this Contract,
including to sell the Property as required by this Contract and such default
continues for more than 10 days after written notice from Purchaser, then, at
Purchaser's election and as Purchaser's sole and exclusive remedy, either (A)
this Contract shall terminate, and all payments and things of value, including
the Deposit, provided by Purchaser hereunder shall be returned to Purchaser and
Purchaser may recover, as its sole recoverable damages (but without limiting its
right to receive a refund of the Deposit), its direct and actual out-of-pocket
expenses and costs (documented by paid invoices to third parties) in connection
with this transaction, which damages shall not exceed $30,000 in aggregate, or
(B) Purchaser may seek specific performance of Seller's obligation to deliver
the Deed pursuant to this Contract (but not damages). Purchaser agrees that it
shall promptly deliver to Seller an assignment of all of Purchaser's right,
title and interest in and to (together with possession of) all plans, studies,
surveys, reports, and other materials paid for with the out-of-pocket expenses
reimbursed by Seller pursuant to the foregoing sentence. SELLER AND PURCHASER
FURTHER AGREE THAT THIS SECTION 10.2 IS INTENDED TO AND DOES LIMIT THE AMOUNT OF
DAMAGES DUE PURCHASER AND THE REMEDIES AVAILABLE TO PURCHASER, AND SHALL BE
PURCHASER'S EXCLUSIVE REMEDY AGAINST SELLER, BOTH AT LAW AND IN EQUITY ARISING
FROM OR RELATED TO A BREACH BY SELLER OF ITS REPRESENTATIONS, WARRANTIES, OR
COVENANTS OR ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS
CONTRACT. UNDER NO CIRCUMSTANCES MAY PURCHASER SEEK OR BE ENTITLED TO RECOVER
ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, SPECULATIVE OR INDIRECT DAMAGES, ALL OF
WHICH PURCHASER SPECIFICALLY WAIVES, FROM SELLER FOR ANY BREACH BY SELLER, OF
ITS REPRESENTATIONS, WARRANTIES OR COVENANTS OR ITS OBLIGATIONS UNDER THIS
CONTRACT. PURCHASER SPECIFICALLY WAIVES THE RIGHT TO FILE ANY LIS PENDENS OR ANY
LIEN AGAINST THE PROPERTY UNLESS AND UNTIL IT HAS IRREVOCABLY ELECTED TO SEEK
SPECIFIC PERFORMANCE OF THIS CONTRACT AND HAS FILED AN ACTION SEEKING SUCH
REMEDY.
ARTICLE 11
RISK OF LOSS OR CASUALTY
11.1 Major Damage. In the event that the Property is damaged or destroyed by
fire or other casualty prior to Closing, and the cost of repair is more than
$200,000, then Seller shall have no obligation to repair such damage or
destruction and shall notify Purchaser in writing of such damage or destruction
(the "Damage Notice"). Within 10 days after Purchaser's receipt of the Damage
Notice, Purchaser may elect at its option to terminate this Contract by
delivering written notice to Seller and, in such event, the Deposit shall be
returned to Purchaser by the Escrow Agent. In the event Purchaser fails to
terminate this Contract within the foregoing 10-day period, this transaction
shall be closed in accordance with the terms of this Contract for the full
Purchaser Price notwithstanding any such damage or destruction and Purchaser
shall receive all insurance proceeds pertaining thereto (plus a credit against
the Purchase Price in the amount of any deductible payable by Seller in
connection therewith) at Closing.
11.2 Minor Damage. In the event that the Property is damaged or destroyed by
fire or other casualty prior to the Closing, and the cost of repair is less than
$200,000, this transaction shall be closed in accordance with the terms of this
Contract, notwithstanding the damage or destruction; provided, however, Seller
shall make such repairs to the extent of any recovery from insurance carried on
the Property if they can be reasonably effected before the Closing. Subject to
Section 11.3, if Seller is unable to effect such repairs, then Purchaser shall
receive all insurance proceeds pertaining thereto (plus a credit against the
Purchase Price in the amount of any deductible payable by Seller in connection
therewith) at Closing.
11.3 Repairs. To the extent that Seller elects to commence any repair,
replacement or restoration of the Property prior to Closing, then Seller shall
be entitled to receive and apply available insurance proceeds to any portion of
such repair, replacement or restoration completed or installed prior to Closing,
with Purchaser being responsible for completion of such repair, replacement or
restoration after Closing from the balance of any available insurance proceeds.
The provisions of this Section 11.3 shall survive the Closing and delivery of
the Deed to Purchaser.
ARTICLE 12
EMINENT DOMAIN
12.1 Eminent Domain. In the event that, at the time of Closing, any material
part of the Property is (or previously has been) acquired, or is about to be
acquired, by any governmental agency by the powers of eminent domain or transfer
in lieu thereof (or in the event that at such time there is any notice of any
such acquisition or intent to acquire by any such governmental agency),
Purchaser shall have the right, at Purchaser's option, to terminate this
Contract by giving written notice within 10 days after Purchaser's receipt from
Seller of notice of the occurrence of such event, and, in such event, the
Deposit shall be returned to Purchaser by the Escrow Agent. If Purchaser fails
to terminate this Contract within such 10-day period, this transaction shall be
closed in accordance with the terms of this Contract for the full Purchase Price
and Purchaser shall receive the full benefit of any condemnation award. It is
expressly agreed between the parties hereto that this section shall in no way
apply to customary dedications for public purposes which may be necessary for
the development of the Property.
ARTICLE 13
MISCELLANEOUS
13.1 Binding Effect of Contract. This Contract shall not be binding on either
party until executed by both Purchaser and Seller. As provided in Section 2.3.5
and Section 9.3 above, neither the Escrow Agent's nor the Broker's execution of
this Contract shall be a pre-requisite to its effectiveness.
13.2 Exhibits And Schedules. All Exhibits and Schedules, whether or
not annexed hereto, are a part of this Contract for all purposes.
13.3 Assignability. This Contract is not assignable by Purchaser without first
obtaining the prior written approval of the Seller, except that Purchaser may
assign this Contract to one or more entities so long as (a) Purchaser, one of
its shareholders or one or more of the immediate family members of Charlie O.
Sealy, Jr. is an affiliate of the purchasing entity(ies), and (b) Purchaser is
not released from its liability hereunder. Purchaser anticipates that Purchaser
or one or more of its shareholders will organize a new entity under Alabama law
(or other states' law and qualify/register such new entity in Alabama) and that
Purchaser will assign its rights and obligations under this Contract to such
entity, of which Purchaser and/or one or more of its shareholders will own in
part and/or control. Such entity will be considered an affiliate of Purchaser
for purposes of this Section 13.3. As used herein, an affiliate is a person or
entity controlled by, under common control with, or controlling another person
or entity.
13.4 Binding Effect. Subject to Section 13.3, this Contract shall be binding
upon and inure to the benefit of Seller and Purchaser, and their respective
successors, heirs and permitted assigns.
13.5 Captions. The captions, headings, and arrangements used in this Contract
are for convenience only and do not in any way affect, limit, amplify, or modify
the terms and provisions hereof.
13.6 Number And Gender Of Words. Whenever herein the singular number is used,
the same shall include the plural where appropriate, and words of any gender
shall include each other gender where appropriate.
13.7 Notices. All notices, demands, requests and other communications required
or permitted hereunder shall be in writing, and shall be (a) personally
delivered with a written receipt of delivery; (b) sent by a nationally
recognized overnight delivery service requiring a written acknowledgement of
receipt or providing a certification of delivery or attempted delivery; (c) sent
by certified or registered mail, return receipt requested; or (d) sent by
telecopier. All notices shall be deemed effective when actually delivered as
documented in a delivery receipt; provided, however, that if the notice was sent
by overnight courier or mail as aforesaid and is affirmatively refused or cannot
be delivered during customary business hours by reason of the absence of a
signatory to acknowledge receipt, or by reason of a change of address with
respect to which the addressor did not have either knowledge or written notice
delivered in accordance with this paragraph, then the first attempted delivery
shall be deemed to constitute delivery, and if the notice was sent by
telecopier, then the date of delivery shall be the actual date of delivery (as
evidenced by telecopier confirmation) provided that a copy of the telecopier and
confirmation is also sent by U.S. Mail. Each party shall be entitled to change
its address for notices from time to time by delivering to the other party
notice thereof in the manner herein provided for the delivery of notices. All
notices shall be sent to the addressee at its address set forth following its
name below:
To Purchaser:
Sealy Management Company, Inc.
P.O. Box 1370
1200 Greensboro Avenue
Tuscaloosa, Alabama 35403
Attn: Charlie O. Sealy, Jr.
Telephone No. (205) 391-6000
Facsimile No. (205) 349-4562
With a copy to (which may be just by facsimile) to:
J. Marland Hayes, Esq. TANNER & GUIN, LLC Capitol Park Center
2711 University Boulevard 35401-1465
Telephone No. (205) 633-0209
Facsimile No. (205) 633-0309
To Seller:
c/o AIMCO
2000 South Colorado Boulevard
Tower Two, Suite 2-1000
Denver, Colorado 80222
Attn: Patrick Slavin
Telephone No. (303) 691-4340
Facsimile No. (303) 300-3252
and (which may be just by facsimile) to:
c/o AIMCO
2000 South Colorado Boulevard
Tower Two, Suite 2-1000
Denver, Colorado 80222
Attn: Mr. Harry Alcock
Telephone No. (303) 691-4344
Facsimile No. (303) 300-3282
and (which may be just by facsimile) to:
c/o AIMCO
18350 Mt. Langley Avenue
Suite 220
Fountain Valley, California 92708
Attn: Mr. Peter Kompaniez
Telephone No. (714) 5693-1723
Facsimile No. (714) 593-1603
with copy (which may be just by facsimile) to:
Chad Asarch, Esq.
Vice President and Assistant General Counsel
AIMCO
2000 S. Colorado Blvd.
Tower Two, Suite 2-1000
Denver, Colorado 80222
Telephone No. (303) 691-4303
Fax: (303) 300-3297
and a copy (which may be just by facsimile) to:
Jackson Walker L.L.P.
112 E. Pecan
Suite 2100
San Antonio, Texas 78205
Attn: Eileen E. Sommer, Esq.
Telephone No. (210) 978-7784
Facsimile No. (210) 978-7790
Any notice required hereunder to be delivered to the Escrow Agent shall be
delivered in accordance with above provisions as follows:
Stewart Title Guaranty Company
1980 Post Oak Boulevard
Suite 610
Houston, Texas 77056
Attn: Wendy Howell
Telephone No. (800) 729-1906
Facsimile No. (713) 552-1703
Unless specifically required to be delivered to the Escrow Agent pursuant
to the terms of this Contract, no notice hereunder must be delivered to the
Escrow Agent in order to be effective so long as it is delivered to the other
party in accordance with the above provisions.
13.8 Governing Law And Venue. The laws of the State of Alabama shall govern the
validity, construction, enforcement, and interpretation of this Contract, unless
otherwise specified herein except for the conflict of laws provisions thereof.
Subject to Section 13.25, all claims, disputes and other matters in question
arising out of or relating to this Contract, or the breach thereof, shall be
decided by proceedings instituted and litigated in a court of competent
jurisdiction in the state in which the Property is situated, and the parties
hereto expressly consent to the venue and jurisdiction of such court.
13.9 Entire Agreement. This Contract embodies the entire Contract between the
parties hereto concerning the subject matter hereof and supersedes all prior
conversations, proposals, negotiations, understandings and Contracts, whether
written or oral.
13.10 Amendments. This Contract shall not be amended, altered, changed,
modified, supplemented or rescinded in any manner except by a written contract
executed by all of the parties; provided, however, that, (a) as provided in
Section 2.3.5 above, the signature of the Escrow Agent shall not be required as
to any amendment of this Contract other than an amendment of Section 2.3, and
(b) as provided in Section 9.3 above, the signature of the Broker shall not be
required as to any amendment of this Contract
13.11 Severability. In the event that any part of this Contract shall be held to
be invalid or unenforceable by a court of competent jurisdiction, such provision
shall be reformed, and enforced to the maximum extent permitted by law. If such
provision cannot be reformed, it shall be severed from this Contract and the
remaining portions of this Contract shall be valid and enforceable.
13.12 Multiple Counterparts/Facsimile Signatures. This Contract may be executed
in a number of identical counterparts. This Contract may be executed by
facsimile signatures which shall be binding on the parties hereto, with original
signatures to be delivered as soon as reasonably practical thereafter.
13.13 Construction. No provision of this Contract shall be construed in favor
of, or against, any particular party by reason of any presumption with respect
to the drafting of this Contract; both parties, being represented by counsel,
having fully participated in the negotiation of this instrument.
13.14 Confidentiality. Purchaser, Seller, Escrow Agent and Broker shall not
disclose the terms and conditions contained in this Contract and shall keep the
same confidential, provided that Purchaser, Seller, Escrow Agent and Broker may
disclose the terms and conditions of this Contract (a) as required by law, (b)
in order to make disclosures required of Seller under the rules promulgated by
the New York Stock Exchange, (c) to consummate the terms of this Contract, or
any financing relating thereto, or (d) to Purchaser's or Seller's lenders,
attorneys and accountants. Any information and Materials provided by Seller to
Purchaser hereunder are confidential and Purchaser shall be prohibited from
making such information public to any other person or entity other than its
agents and legal representatives, without Seller's prior written authorization,
which may be granted or denied in Seller's sole discretion.
13.15 Time Of The Essence. It is expressly agreed by the parties hereto that
time is of the essence with respect to this Contract.
13.16 Waiver. No delay or omission to exercise any right or power accruing upon
any default, omission, or failure of performance hereunder shall impair any
right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed
expedient. No waiver, amendment, release, or modification of this Contract shall
be established by conduct, custom, or course of dealing and all waivers must be
in writing and signed by the waiving party.
13.17 Attorneys Fees. In the event either party hereto commences litigation or
arbitration against the other to enforce its rights hereunder, the substantially
prevailing party in such litigation shall be entitled to recover from the other
party its reasonable attorneys' fees and expenses incidental to such litigation
and arbitration, including the cost of in-house counsel and any appeals.
13.18 Time Periods. Should the last day of a time period fall on a weekend or
legal holiday, the next Business Day thereafter shall be considered the end of
the time period.
13.19 1031 Exchange. Seller and Purchaser acknowledge and agree that the
purchase and sale of the Property may be part of a tax-free exchange under
Section 1031 of the Code for either Purchaser or Seller. Each party hereby
agrees to take all reasonable steps on or before the Closing Date to facilitate
such exchange if requested by the other party, provided that (a) no party making
such accommodation shall be required to acquire any substitute property, (b)
such exchange shall not affect the representations, warranties, liabilities and
obligations of the parties to each other under this Contract, (c) no party
making such accommodation shall incur any additional cost, expense or liability
in connection with such exchange, and (d) no dates in this Contract will be
extended as a result thereof.
13.20 No Personal Liability of Officers, Trustees or directors of Seller's
Limited Partners. Purchaser acknowledges that this Contract is entered into by
Seller which is a Connecticut limited partnership, and Purchaser agrees that
none of Seller's Indemnified Parties (other than Seller's general partner(s))
shall have any personal liability under this Contract or any document executed
in connection with the transactions contemplated by this Contract.
13.21 No Exclusive Negotiations. Seller shall have the right, at all times prior
to the expiration of the Feasibility Period, to solicit backup offers and enter
into discussions, negotiations, or any other communications concerning or
related to the sale of the Property with any third-party; provided, however,
that such communications are subject to the terms of this Contract, and that
Seller shall not enter into any contract or binding Contract with a third-party
for the sale of the Property unless such Contract is contingent on the
termination of this Contract without the Property having been conveyed to
Purchaser.
13.22 ADA Disclosure. Purchaser acknowledges that the Property may be subject to
the federal Americans With Disabilities Act (the "ADA"), which requires, among
other matters, that tenants and/or owners of "public accommodations" remove
barriers in order to make the Property accessible to disabled persons and
provide auxiliary aids and services for hearing, vision or speech impaired
persons. Seller makes no warranty, representation or guarantee of any type or
kind with respect to the Property's compliance with the ADA (or any similar
state or local law), and Seller expressly disclaims any such representation.
13.23 No Recording. Purchaser shall not cause or allow this Contract or any
contract or other document related hereto, nor any memorandum or other evidence
hereof, to be recorded or become a public record without Seller's prior written
consent, which consent may be withheld at Seller's sole discretion. If the
Purchaser records this Contract or any other memorandum or evidence thereof,
Purchaser shall be in default of its obligations under this Contract. Purchaser
hereby appoints the Seller as Purchaser's attorney-in-fact to prepare and record
any documents necessary to effect the nullification and release of the Contract
or other memorandum or evidence thereof from the public records. This
appointment shall be coupled with an interest and irrevocable.
13.24 Relationship of Parties. Purchaser and Seller acknowledge and agree that
the relationship established between the parties pursuant to this Contract is
only that of a seller and a purchaser of property. Neither Purchaser nor Seller
is, nor shall either hold itself out to be, the agent, employee, joint venturer
or partner of the other party.
13.25 Dispute Resolution. Any controversy, dispute, or claim of any nature
arising out of, in connection with, or in relation to the interpretation,
performance, enforcement or breach of this Contract, including any claim based
on contract, tort or statute, shall be resolved at the written request of any
party to this Contract by binding arbitration. The arbitration shall be
administered in accordance with the then current Commercial Arbitration Rules of
the American Arbitration Association. Any matter to be settled by arbitration
shall be submitted to the American Arbitration Association in the state in which
the Property is located. The parties shall attempt to designate one arbitrator
from the American Arbitration Association. If they are unable to do so within 30
days after written demand therefor, then the American Arbitration Association
shall designate an arbitrator. The arbitration shall be final and binding, and
enforceable in any court of competent jurisdiction. The arbitrator shall award
attorneys' fees (including those of in-house counsel) and costs to the
prevailing party and charge the cost of arbitration to the party which is not
the prevailing party. Notwithstanding anything herein to the contrary, this
Section 13.25 shall not prevent Purchaser or Seller from seeking and obtaining
equitable relief on a temporary or permanent basis, including, without
limitation, a temporary restraining order, a preliminary or permanent injunction
or similar equitable relief, from a court of competent jurisdiction located in
the state in which the Property is located (to which all parties hereto consent
to venue and jurisdiction) by instituting a legal action or other court
proceeding in order to protect or enforce the rights of such party under this
Contract or to prevent irreparable harm and injury. The court's jurisdiction
over any such equitable matter, however, shall be expressly limited only to the
temporary, preliminary, or permanent equitable relief sought; all other claims
initiated under this Contract between the parties hereto shall be determined
through final and binding arbitration in accordance with this Section 13.25.
13.26 AIMCO Marks. Purchaser agrees that Seller, the Property Manager or AIMCO,
or their respective affiliates, are the sole owners of all right, title and
interest in and to the AIMCO Marks (or have the right to use such AIMCO Marks
pursuant to license agreements with third parties) and that no right, title or
interest in or to the AIMCO Marks is granted, transferred, assigned or conveyed
as a result of this Contract. Purchaser further agrees that Purchaser will not
use the AIMCO Marks for any purpose.
13.27 Non-Solicitation of Employees. Purchaser acknowledges and agrees that,
without the express written consent of Seller, neither Purchaser nor any of
Purchaser's employees, affiliates or agents shall solicit any of Seller's
employees or any employees located at the Property for potential employment;
provided, however, that after the expiration of the Feasibility Period and
continuing until the Closing or the earlier termination of this Contract,
Purchaser may, at its option, interview any or all of the employees located at
the Property for employment by Purchaser after such employees' employment has
been terminated by Seller.
13.28 Survival. Except for (a) all of the provisions of this Article 13 (other
than Section 13.19, 13.21 and 13.23), and (b) any provision of this Contract
which expressly states that it shall so survive (the foregoing (a) and (b)
referred to herein as the "Survival Provisions"), none of the terms and
provisions of this Contract shall survive the termination of this Contract, and,
if the Contract is not so terminated, all of the terms and provisions of this
Contract (other than the Survival Provisions) shall be merged into the Closing
documents and shall not survive Closing.
ARTICLE 14
LEAD-BASED PAINT DISCLOSURE
14.1 Disclosure. Seller and Purchaser hereby acknowledge delivery of the Lead
Based Paint Disclosure attached as Exhibit G hereto. The provisions of this
Section 14.1 shall survive the Closing and delivery of the Deed to Purchaser.
14.2 Consent Agreement. Using reasonable and customary efforts, Seller shall (a)
perform any testing (the "Testing") required at the Property with respect to
lead-based paint in accordance with the requirements of the Consent Contract
(the "Consent Contract") by and among the United States Environmental Protection
Agency, the United States Department of Housing and Urban Development, and
Apartment Investment and Management Company ("AIMCO"), and (b) if required under
the Consent Contract, as determined by Seller and its counsel in their sole and
absolute discretion, remediate or abate (the "Remediation") any lead-based paint
condition at the Property prior to the Closing using reasonable and customary
efforts. In the event that Seller does not complete such Testing or Remediation,
if any is required under the Consent Contract, prior to the Closing, Seller
shall initiate, continue or complete such Testing or Remediation, if any is
required under the Consent Contract, promptly after Closing. Purchaser shall
provide Seller with full and unimpeded access to the Property, including,
without limitation, access to all units located thereon, for the purposes of
completing such Testing or Remediation, if any is required under the Consent
Contract, and Purchaser shall fully cooperate with Seller regarding and allow
Seller to perform such Testing or Remediation, if any is required under the
Consent Contract, as determined by Seller and its counsel in their sole and
absolute discretion, including, without limitation, allowing any alterations to
the Property, to comply with the Consent Contract, until such time as such
Testing or Remediation, if any is required under the Consent Contract, has been
completed. Seller shall provide 48 hours' notice to Purchaser in the event that
access to a unit is required to perform such Testing or Remediation, if any is
required under the Consent Contract; provided, however, Seller's obligations
hereunder after Closing shall be contingent on Purchaser's compliance herewith,
and Seller shall be relieved of all liability and obligations regarding such
Testing or Remediation or otherwise under the Consent Contract, if any is
required under the Consent Contract, as a result of any failure by Purchaser to
comply with this Section 14.2. Seller shall indemnify, hold harmless and, if
requested by Purchaser (in Purchaser's sole discretion), defend (with counsel
approved by Purchaser) Purchaser, together with Purchaser's affiliates, parent
and subsidiary entities, successors, assigns, partners, managers, members,
employees, officers, directors, trustees, shareholders, counsel,
representatives, and agents, from and against any and all damages, mechanics'
liens, liabilities, losses, demands, actions, causes of action, claims, costs
and expenses (including reasonable attorneys' fees, including the cost of
in-house counsel and appeals) arising from the activities of Seller or its
agents at the Property related to any such Testing or Remediation conducted by
Seller or its agents. Purchaser acknowledges and agrees that (1) after Closing,
the Purchaser and the Property shall be subject to the Consent Contract and the
provisions contained herein related thereto; (2) after Closing, Purchaser agrees
to undertake the obligations required by the Consent Agreement; (3) that Seller
will need necessary access to the Property to comply with the requirements of
the Consent Contract; (4) that Purchaser will provide such access to the
Property after Closing so that Seller can comply with the requirements of the
Consent Contract; and (5) that Purchaser shall not be deemed to be a third party
beneficiary to the Consent Contract; provided, however, for purposes of this
sentence and notwithstanding anything in Section 13.3 to the contrary, if Sealy
Management Company, Inc. assigns this Contract, then "Purchaser" only means and
is limited to such assignee and Sealy Management Company, Inc. shall have no
liability under this Section 14.2. By execution hereof, Purchaser further
acknowledges receipt of notice in writing of the existence of the Consent
Contract and receipt of a copy thereof. Seller agrees that, in the event
Purchaser complies with this Section 14.2, Seller shall hold harmless and
indemnify Purchaser from any liability arising out of any failure by Seller to
comply with the Consent Contract. The provisions of this Section 14.2 shall
survive the termination of this Contract, and if not so terminated, the Closing
and delivery of the Deed to Purchaser.
[Remainder of Page Intentionally Left Blank]
NOW, THEREFORE, the parties hereto have executed this Contract as of the
date first set forth above.
Seller:
Waterford Square Apartments,
a California general partnership
By: Angeles Realty Corporation II,
a California corporation,
its managing general partner
_By: /s/ Patrick Slavin
_ Patrick Slavin
_ Senior Vice President
Purchaser:
Sealy Management Company, Inc.
an Alabama corporation
By: _/s/ Charlie O. Sealy, Jr.
_Charlie O. Sealy, Jr.
_Vice-President
ESCROW AGENT SIGNATURE PAGE
The undersigned executes the Contract to which this signature page is
attached for the purpose of agreeing to the provisions of Section 2.3 of the
Contract, and hereby establishes November 1, 2002 as the date of opening of
escrow and designates 01160305 as the escrow number assigned to this escrow.
______ ESCROW AGENT:
______ STEWART TITLE GUARANTY COMPANY
______ By: /s/ Wendy Howell
______ Name: Wendy Howell
______ Title: National Commercial Closing
Specialist__
BROKER SIGNATURE PAGE
The undersigned Broker hereby executes this Broker Signature Page solely
to confirm the following: (a) Broker represents only the Seller in the
transaction described in the Contract to which this signature page is attached,
(b) Broker acknowledges that the only compensation due to Broker in connection
with the Closing of the transaction described in the Contract to which this
signature page is attached is pursuant to a separate agreement with the Seller,
and (c) Broker represents and warrants to Seller that Broker and its affiliates
do not, and will not at the Closing, have any direct or indirect legal,
beneficial, economic or voting interest in Purchaser (or in an assignee of
Purchaser, which pursuant to Section 13.3 of the Contract, acquires the Property
at the Closing) nor has Purchaser granted (as of the Effective Date or the
Closing Date) the Broker or any of its affiliates any right or option to acquire
any direct or indirect legal, beneficial, economic or voting interest in
Purchaser. Broker will execute and deliver at closing an affidavit as to his
payment in full of all commissions and other amounts owing to him in connection
with this Property.
BROKER:
Insignia/ESG, Inc.
By: /s/ James E. Ledbetter, Jr.
Name: James E. Ledbetter, Jr.
Title: Executive Director
EXHIBIT A
LEGAL DESCRIPTION FOR THE WATERFORD SQUARE APARTMENTS
PARCEL 3:
All that part of Westbury Estates, Fifth Addition, a plat of which is recorded
in Plat Book 5, at Page 96, and all that part of the Resubdivision of Lot 9,
Block 8, of Westbury Estates, Third Addition, a Plat of which is recorded in
Plat Book 6, at Page 39, all being recorded in the Office of the Judge of
Probate, Madison County, Alabama, particularly described as follows:
All that part of Block No. 8, of the said Westbury Estates Fifth Addition,
described as beginning at the Southeast corner of said Block 8; thence North 00
degrees 35 minutes East, a distance of 675.49 feet to a point on the South
margin of Wellington Road; thence South 85 degrees 31 minutes West and along the
South margin of Wellington Road, a distance of 160.00 feet to a point, said
point being the Northwest corner of said Block 8; thence South 00 degrees 17
minutes West along the West margin of said Block 8, a distance of 662.28 feet to
a point, said point being the Southwest corner of said Block 8; thence South 89
degrees 44 minutes East and along South margin of said Block 8, a distance of
156.05 feet to the Point of Beginning. Less and Except a 25 foot radius at the
Northwest and Southwest corners of said block for street rights-of-way.
Also, all that part of Lot 9, Block 8 of said Resubdivision of Lot 9, Block 8,
Westbury Estates, Third Addition, described as being the South 146.82 feet of
Lot 9, Block 8, as recorded in Plat Book 6, Page 39.
Also, all of Block No. 15 of the said Westbury Estates, Fifth Addition as
recorded in Plat Book 5, Page 96.
Also, all of Block No. 16 of the said Westbury Estates, Fifth Addition as
recorded in Plat Book 5, Page 96.
Also, all that part of Block No. 17, of the said Westbury Estates, Fifth
Addition described as beginning at the Southwest corner of said Block No. 17;
thence North 85 degrees 35 minutes East and along the South margin of said Block
No. 17, a distance of 831.32 feet to a point of curvature; thence around a curve
to the left, having a radius of 156.53 feet and having a chord bearing and
distance of North 53 degrees 16 minutes 23 seconds East 167.33 feet to a point;
thence South 85 degrees 30 minutes West, a distance of 989.95 feet to a point on
the West margin of said Block 17; thence South 15 degrees 29 minutes East a
distance of 89.65 feet to the Point of Beginning. Less and except a 25 foot
radius at the Northwest corner of said Block for a street right-of-way as
recorded in Plat Book 5, Page 96.
PARCEL 4:
Lots 1 and 2, in Block 13, according to the plat of Westbury Estates Fifth
Addition, Huntsville, Alabama as of record in Plat Book 5, Page 96, in the
Office of the Judge of Probate, Madison County, Alabama.
PARCEL 5:
Begin at the Northwest corner of Block No. 16 of Westbury Estates Fifth
Addition, a Plat of said subdivision being recorded in Plat Book 5, at Page 96,
in the Office of the Judge of Probate, Madison County, Alabama; thence from the
point of beginning North 85 degrees 04 minutes East and along the North margin
of said Lot 16, a distance of 141.50 feet to a point on the West margin of
Balmoral Drive; thence North 15 degrees 26 minutes 30 seconds West and along the
west margin of Balmoral Drive a distance of 205.69 feet to a point, said point
being the Southeast corner of that property described in Deed Book 465, at Page
821, Probate Records; thence South 85 degrees 48 minutes 30 seconds West and
along the South boundary of that property described in said Deed Book 465, at
Page 621, a distance of 160.15 feet to a point on the East margin of Louisville
and Nashville Railroad right-of-way (Right of Way width 100 feet); thence South
15 degrees 29 minutes East and along the said East margin of the Louisville and
Nashville Railroad right of way a distance of 273.17 feet to a point; thence
North 00 degrees 32 minutes East, and along the boundary of said Block 16,
Westbury Estate Fifth Addition a distance of 64.50 feet to the point of
beginning.
PARCEL 8:
Lot 22, Block 6, according to the plat of Westbury Estates Third Addition,
Huntsville, Alabama, as of record in Plat Book 4, Page 63, of the Probate
Records of Madison County, Alabama; also, Lot 10, Block 9, according to the plat
of Westbury Estates Third Addition, as recorded in Plat Book 4, Page 63, Probate
Records of Madison County, Alabama.
PARCEL 9:
All that part of Lot 1, Block 12, according to the plat of Westbury Estates,
Third Addition, Huntsville, Alabama, as of record in Plat Book 4, Page 63, of
the Probate Records of Madison County, Alabama, particularly described as
beginning at the Southwest corner of said Lot 1, Block 12; thence from the place
of the true beginning South 89 degrees 45 minutes East along the North margin of
Jones Valley Drive, a distance of 150.0 feet; thence North 0 degrees 35 minutes
East along the West margin of Queensbury Drive a distance of 940.3 feet; thence
North 89 degrees 25 minutes West 150.0 feet; thence South 0 degrees 35 minutes
West along the West boundary of said Lot 1, Block 12, a distance of 941.18 feet
to the place of beginning.
PARCEL 10:
Lot 10, Block 9, according to the plat of Westbury Estates Third Addition, as
recorded in Plat Book 4, Page 63, in the Office of the Judge of Probate, Madison
County, Alabama.
PARCEL 11:
All that part of Lot 1, Block 12, according to the plat of Westbury Estates
Third Addition, Huntsville, Alabama as of record in Plat Book 4, Page 63 of the
Probate Records of Madison County, Alabama particularly described as beginning
at the Northwest corner of said Lot 1, Block 12, thence South 89 degrees 28
minutes East along the South margin of Westbury Place a distance of 150.0 feet;
thence South 0 degrees 35 minutes West along the West margin of Queensbury Drive
(formerly Westbury Drive) a distance of 233.95 feet; thence North 89 degrees 25
minutes West 150.0 feet; thence North 0 degrees 35 minutes East 233.82 feet to
the place of beginning.
PARCEL 12:
All that part of Lot 9, Block 8, according to the plat of the Resubdivision of
Lot 9, Block 8, Westbury Estates, Third Addition, Huntsville, Alabama as of
record in Plat Book 6, Page 39 of the Probate Records of Madison County,
Alabama, particularly described as beginning South 0 degrees 35 minutes West
15.13 feet from the Northeast corner of said Lot 9, Block 8, thence from the
place of true beginning, South 0 degrees 35 minutes West along the West margin
of Queensbury Drive, a distance of 449.35 feet; thence North 89 degrees 28
minutes West 150.0 feet; thence North 0 degrees 35 minutes East along the West
boundary of said Lot 9, Block 8, a distance of 449.85 feet; thence South 89
degrees 18 minutes East 150.03 feet to the place of beginning.
LESS AND EXCEPT All that part of Lot 9, Block 8 of the Plat of the Resubdivision
of Lot 9, Block 8, Westbury Estates, Third Addition, said Plat being recorded in
Plat Book 6, Page 39 in the Office of the Judge of Probate, Madison County,
Alabama and all that part of Block 8, Westbury Estates Fifth Addition, said plat
being recorded in Plat Book 5, Page 96, in said Probate Records, particularly
described as follows:
Begin at the Northeast corner of Lot 9, Block 8 of the said resubdivision of
Westbury Estates Third Addition, said point being located on the West margin of
Queensbury Drive; thence South 00 degrees 35 minutes West a distance of 18.43
feet to a point; thence North 89 degrees 18 minutes West a distance of 129.39
feet to a point; thence North 00 degrees 33 minutes East a distance of 81.65
feet to a point on the South margin of Wellington Road; thence North 85 degrees
35 minutes East and along the South margin of the said Wellington Road a
distance of 59.73 feet to a point of curvature; thence around a curve to the
right, said curve having a radius of 64.44 feet a distance of 106.85 feet to a
point of the West margin of Queensbury Drive, thence South 00 degrees 35 minutes
West a distance of 4.59 feet to the Point of Beginning.
It is intended that that part of Block 8, which lies North of the first above
described property and West of the above excepted property and East of that part
of Block 8 as described in Parcel 3 herein, be conveyed also.
PARCEL 13:
Block 14, according to the map of survey of Westbury Estates, Fifth Addition,
Huntsville, Alabama as recorded in Plat Book 5, Page 96, Probate Records of
Madison County, Alabama.
PARCEL 14:
Block 12, according to the map of Westbury Estates Fifth Addition, Huntsville,
Alabama, as recorded in Plat Book 5, Page 96, Probate Records of Madison County,
Alabama.
PARCEL 15:
Lot 11, Block 9, according to the plat of Westbury Estates Sixth Addition,
Huntsville, Alabama as of record in Plat Book 6, Page 27, in the Office of the
Judge of Probate, Madison County, Alabama.
PARCEL 16:
Lot 23, Block 6, according to the survey of Westbury Estates Fourth Addition, as
recorded in Plat Book 5, page 27, in the Office of the Judge of Probate of
Madison County, Alabama.
EXHIBIT B
THIS INSTRUMENT WAS PREPARED BY: SOURCE OF TITLE:
Eileen E. Sommer Deed Book ______, Page _____
Jackson Walker L.L.P.
112 E. Pecan, Suite 2100 Quarter
Section Township Range
San Antonio, Texas 78205
(210) 978-7784 (210) 978-7790 (fax)
SPECIAL WARRANTY DEED
THE STATE OF ALABAMA ss.
ss.
COUNTY OF MADISON ss.
ss.
WATERFORD SQUARE LIMITED PARTNERSHIP, a Connecticut limited partnership
("Grantor"), for and in consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, the sufficiency of which is hereby
acknowledged and confessed, has GRANTED and CONVEYED SPECIALLY, and by these
presents does GRANT, CONVEY and SPECIALLY WARRANT unto WS HUNTSVILLE, LLC, an
Alabama limited liability company ("Grantee"), its legal representatives,
successors and assigns forever, all those certain lots, tracts or parcels of
land in Madison County, Alabama, more particularly described on Exhibit A
attached hereto and incorporated herein by this reference for all purposes,
together with all the improvements, structures and fixtures situated thereon,
and all appurtenances, rights and privileges thereunto attached or in anywise
belonging (the "Property");
EXCEPT THAT, this conveyance is expressly made subject to the Permitted
Exceptions described in Exhibit B hereto, to the extent the same are validly
existing and applicable to the Property (the "Permitted Encumbrances").
TO HAVE AND TO HOLD the above described premises unto the said GRANTEE,
its successors and assigns forever, and the GRANTOR does hereby bind itself, its
successors and assigns to forever warrant and defend said premises unto the said
GRANTEE, its successors and assigns against the lawful claims of any person now
claiming or to claim the same or any part thereof by through or under Grantor,
but not otherwise, subject only to the Permitted Encumbrances.
In addition, Grantor hereby conveys to Grantee, for the same consideration
set forth above and subject to the same consideration set forth above and
subject to the Permitted Encumbrances, all of Grantor's right, title and
interest, if any, in and to any minerals, oil, gas and other hydrocarbon
substances, development rights, air rights, water, water rights, wastewater or
other utility rights, water stock relating to the land, strips and gores,
streets, alleys, easements, rights-of-way, public ways, or other rights of
Grantor appurtenant, abutting or adjoining the Property.
EXCEPT AS TO THE SPECIAL WARRANTY OF TITLE SET FORTH ABOVE AND THE
REPRESENTATIONS OF GRANTOR CONTAINED IN THAT CERTAIN PURCHASE AND SALE CONTRACT
DATED AS OF OCTOBER 31, 2002, BETWEEN GRANTOR AND GRANTEE (WHICH REPRESENTATIONS
AND WARRANTIES ARE PERSONAL TO GRANTEE, DO NOT RUN WITH THE LAND AND EXPIRE
WITHIN 12 MONTHS FOLLOWING THE DATE OF THIS DEED) IT IS EXPRESSLY UNDERSTOOD AND
AGREED THAT THE GRANT AND CONVEYANCE OF THE PROPERTY IS "AS-IS", "WHERE-IS" AND
"WITH ALL FAULTS" OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY MATTER, FACT OR
CONDITION PERTAINING TO OR AFFECTED BY ANY APPLICABLE LAW, RULE OR REGULATION
PERTAINING TO WATER, AIR, WASTE OR ENVIRONMENTAL PROTECTION (WHETHER ABOVE,
WITHIN, UNDER OR ADJACENT TO THE PROPERTY). GRANTOR HAS NOT MADE AND DOES NOT
MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY
DISCLAIMS WARRANTIES, EXPRESS OR IMPLIED, AS TO THE FITNESS, ENVIRONMENTAL
COMPLIANCE, HANDICAPPED ACCESSIBILITY LAW COMPLIANCE, ELECTROMAGNETIC FIELD
EXPOSURE LEVELS, AREA, CONDITION, QUALITY, QUANTITY, CHARACTER, SIZE, VALUE OF
THE PROPERTY OR IMPROVEMENTS THEREON, EXPENSES, DESCRIPTION, MERCHANTABILITY OR
HABITABILITY OF THE PROPERTY, FITNESS OF THE PROPERTY FOR A PARTICULAR PURPOSE
OR OTHERWISE. GRANTEE, BY ITS ACCEPTANCE HEREOF, DOES HEREBY RELEASE AND FOREVER
DISCHARGE GRANTOR, ITS OFFICERS, DIRECTORS AND TRUSTEES AND THEIR RESPECTIVE
AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNEES FROM ANY AND ALL CLAIMS, OBLIGATIONS
AND LIABILITIES (WHETHER BASED IN TORT, UNDER CONTRACT OR OTHERWISE)
ATTRIBUTABLE, IN WHOLE OR IN PART, TO ANY SUCH REPRESENTATION (OTHER THAN THE
SPECIAL WARRANTY OF TITLE SET FORTH HEREIN) AND/OR ALLEGED REPRESENTATION.
Grantee, by its acceptance hereof, hereby assumes payment of all standby
charges, ad valorem real estate taxes and assessments with respect to the fiscal
year beginning October 1, 2002 and subsequent calendar years not yet due and
payable, each to the extent attributable to all or any portion of the Property.
Grantee's address: P.O. Box 1370
1200 Greensboro Avenue
Tuscaloosa, AL 35403
Telephone No. (205) 391-6000
Grantor's address: 2000 South Colorado Boulevard
Tower Two, Suite 2000
Denver, Colorado 80222
Telephone No. (303) 691-4344
Executed as of 31stday of March, 2003.
GRANTOR:
Waterford Square Apartments,
a California general partnership
By: Angeles Realty Corporation II,
a California corporation,
its managing general partner
_By: /s/ Patrick Slavin
_ Patrick Slavin
_ Senior Vice President
THE STATE OF COLORADO ss.
ss.
DENVER COUNTY ss.
I, the undersigned authority, a notary public in and for said County and
said State, hereby certify that Patrick Slavin, whose name Senior Vice President
of Angeles Realty Corporation II, a California corporation, in its capacity as
managing general partner of Waterford Square Apartments, a California general
partnership, is signed to the foregoing instrument and who is known to me,
acknowledged before me on this day that, being informed of the contents of the
instrument, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said corporation in such capacity.
Given under my hand on this the 31st day of March, 2003.
/s/Marcey K. Anderson
Notary Public Marcey K. Anderson
______ My Commission Expires: July 27, 2006
EXHIBIT C
FORM OF BILL OF SALE
THIS BILL OF SALE ("Bill of Sale") is made this 31st day of March, 2003 by
WATERFORD SQUARE LIMITED PARTNERSHIP, a Connecticut limited partnership
("Seller"), in favor of WS Huntsville, LLC, an Alabama limited liability company
("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale
Contract dated as of October 31, 2002 ("Contract") with respect to the sale of
certain the Real Property identified on Exhibit A attached hereto and the
Improvements located thereon. (Any term with its initial letter capitalized and
not otherwise defined herein shall have the meaning set forth in the Contract.)
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller does hereby absolutely and
unconditionally give, grant, bargain, sell, transfer, set over, assign, convey,
release, confirm and deliver to Purchaser all of the Fixtures and Tangible
Personal Property, without representation or warranty of any kind whatsoever
except as set forth in and subject to the terms of the Contract.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
This Bill of Sale shall be binding upon and inure to the benefit of the
successors, assigns, personal representatives, heirs and legatees of Purchaser
and Seller.
This Bill of Sale shall be governed by, interpreted under, and construed
and enforceable in accordance with, the laws of the State of Alabama.
EXECUTED as of the date set forth above.
______
Waterford Square Apartments,
a California general partnership
By: Angeles Realty Corporation II,
a California corporation,
its managing general partner
_By: /s/ Patrick Slavin
_ Patrick Slavin
______ Senior Vice President
EXHIBIT A
LEGAL DESCRIPTION
(Waterford Square Apartments)
PARCEL 3
All that part of Westbury Estates, Fifth Addition, a plat of which is recorded
in Plat Book 5, at Page 96, and all that part of the Resubdivision of Lot 9,
Block 8, of Westbury Estates, Third Addition, a Plat of which is recorded in
Plat Book 6, at Page 39, all being recorded in the Office of the Judge of
Probate, Madison County, Alabama, particularly described as follows:
All that part of Block No. 8, of the said Westbury Estates Fifth Addition,
described as beginning at the Southeast corner of said Block 8; thence North 00
degrees 35 minutes East, a distance of 675.49 feet to a point on the South
margin of Wellington Road; thence South 85 degrees 31 minutes West and along the
South margin of Wellington Road, a distance of 160.00 feet to a point; said
point being the Northwest corner of said Block 8; thence South 00 degrees 17
minutes West along the West margin of said Block 8, a distance of 662.28 feet to
a point; said point being the Southwest corner of said Block 8; thence South 89
degrees 44 minutes East and along South margin of said Block 8, a distance of
156.05 feet to the Point of Beginning. LESS AND EXCEPT a 25 foot radius at the
Northwest and Southwest corners of said block for street rights-of-way.
Also, all that part of Lot 9, Block 8 of said Resubdivision of Lot 9, Block 8,
Westbury Estates, Third Addition, described as being the South 146.82 feet of
Lot 9, Block 8, as recorded in Plat Book 6, Page 39.
Also, all of Block No. 15 of the said Westbury Estates, Fifth Addition as
recorded in Plat Book 5, Page 96.
Also, all of Block No. 16 of the said Westbury Estates, Fifth Addition as
recorded in Plat Book 5, Page 96.
Also, all that part of Block No. 17, of the said Westbury Estates, Fifth
Addition described as beginning at the Southwest corner of said Block No. 17;
thence North 85 degrees 35 minutes East and along the South margin of said Block
No. 17, a distance of 831.32 feet to a point of curvature; thence around a curve
to the left, having a radius of 156.53 feet and having a chord bearing and
distance of North 53 degrees 16 minutes 23 seconds East 167.33 feet to a point;
thence South 85 degrees 30 minutes West, a distance of 989.95 feet to a point on
the West margin of said Block 17; thence South 15 degrees 29 minutes East a
distance of 89.55 feet to the Point of Beginning. LESS AND EXCEPT a 25 foot
radius at the Northwest corner of said Block for a street right-of-way as
recorded in Plat Book 5, Page 96.
PARCEL 4
Lot 1 and 2, in Block 13, according to the Plat of Westbury Estates, Fifth
Addition, Huntsville, Alabama as of record in Plat Book 5, Page 96, in the
Office of the Judge of Probate, Madison County, Alabama.
PARCEL 5
Begin at the Northwest corner of Block No. 16 of Westbury Estates Fifth
Addition, a Plat of said subdivision being recorded in Plat Book 5, at Page 96,
in the Office of the Judge of Probate, Madison County, Alabama; thence from the
point of beginning North 85 degrees 04 minutes East, and along the North margin
of said Lot 16, a distance of 141.50 feet to a point on the West margin of
Balmoral Drive; thence North 15 degrees 26 minutes 30 seconds West and along the
West margin of Balmoral Drive a distance of 205.69 feet to a point, said point
being the Southeast corner of that property described in Deed Book 465, at Page
621, Probate Records; thence South 85 degrees 48 minutes 30 seconds West and
along the South boundary of that property described in Deed Book 465, at Page
621, a distance of 160.15 feet to a point on the East margin of Louisville and
Nashville Railroad right-of-way (Right of Way width 100 feet); thence South 15
degrees 29 minutes East and along the said East margin of the Louisville and
Nashville Railroad right of way a distance of 273.17 feet to a point; thence
North 00 degrees 32 minutes East, and along the boundary of said Block 16,
Westbury Estate Fifth Addition a distance of 64.50 feet to the point of
beginning.
PARCEL 8
Lot 22, Block 6, according to the plat of Westbury Estates Third Addition,
Huntsville, Alabama as of record in Plat Book 4, Page 63, of the Office of the
Judge of Probate, Madison County, Alabama; also, Lot 10, Block 9, according to
the plat of Westbury Estates Third Addition, Huntsville, Alabama as of record in
Plat Book 4, Page 63, in the Office of the Judge of Probate, Madison County,
Alabama.
PARCEL 9
All that part of Lot 1, Block 12, according to the plat of Westbury Estates,
Third Addition, Huntsville, Alabama, as of record in Plat Book 4, Page 63, of
the Probate Records of Madison County, Alabama, particularly described as
beginning at the Southwest corner of said Lot 1, Block 12; thence from the place
of the true beginning South 89 degrees 45 minutes East along the North margin of
Jones Valley Drive, a distance of 150.0 feet; thence North 0 degrees 35 minutes
East along the West margin of Queensbury Drive, a distance of 940.3 feet; thence
North 89 degrees 25 minutes West 150.0 feet; thence South 0 degrees 35 minutes
West along the West boundary of said Lot 1, Block 12, a distance of 941.18 feet
to the place of beginning.
PARCEL 10
Lot 10, Block 9, according to the plat of Westbury Estates Third Addition,
Huntsville, Alabama as of record in Plat Book 4, Page 63, in the Office of the
Judge of Probate, Madison County, Alabama.
PARCEL 11
All that part of Lot 1, Block 12, according to the plat of Westbury Estates
Third Addition, Huntsville, Alabama as of record in Plat Book 4, Page 63 in the
Office of the Judge of Probate, Madison County, Alabama particularly described
as beginning at the Northwest corner of said Lot 1, Block 12, thence South 89
degrees 28 minutes East along the South margin of Westbury Place a distance of
150.0 feet; thence South 0 degrees 35 minutes West along the West margin of
Queensbury Drive (formerly Westbury Drive) a distance of 233.95 feet; thence
North 89 degrees 25 minutes West 150.0 feet; thence North 0 degrees 35 minutes
East 233.82 feet to the place of beginning.
PARCEL 12
All that part of Lot 9, Block 8, according to the plat of the Resubdivision of
Lot 9, Block 8, Westbury Estates, Third Addition, Huntsville, Alabama as of
record in Plat Book 6, Page 39 of the Probate Records of Madison County,
Alabama, particularly described as beginning South 0 degrees 35 minutes West
15.13 feet from the Northeast corner of said Lot 9, Block 8, thence from the
place of true beginning, South 0 degrees 35 minutes West along the West margin
of Queensbury Drive, a distance of 449.35 feet; thence North 89 degrees 28
minutes West 150.0 feet; thence North 0 degrees 35 minutes East along the West
boundary of said Lot 9, Block 8, a distance of 449.85 feet; thence South 89
degrees 18 minutes East 150.03 feet to the place of beginning.
LESS AND EXCEPT All that part of Lot 9, Block 8 of the Plat of the Resubdivision
of Lot 9, Block 8, Westbury Estates, Third Addition, said Plat being recorded in
Plat Book 6, Page 39 in the Office of the Judge of Probate, Madison County,
Alabama, and all that part of Block 8, Westbury Estates Fifth Addition, said
plat being recorded in Plat Book 5, Page 96, in said Probate Records,
particularly described as follows:
Begin at the Northeast corner of Lot 9, Block 8 of the said resubdivision of
Westbury Estates Third Addition, said point being located on the West margin of
Queensbury Drive; thence South 00 degrees 35 minutes West a distance of 18.43
feet to a point; thence North 89 degrees 18 minutes West a distance of 129.39
feet to a point; thence North 00 degrees 33 minutes East a distance of 81.65
feet to a point on the South margin of Wellington Road; thence North 85 degrees
35 minutes East and along the South margin of the said Wellington Road a
distance of 59.73 feet to a point of curvature; thence around a curve to the
right, said curve having a radius of 64.44 feet a distance of 106.85 feet to a
point of the West margin of Queensbury Drive, thence South 00 degrees 35 minutes
West a distance of 4.59 feet to the Point of Beginning.
It is intended that that part of Block 8, which lies North of the first above
described property and West of the above excepted property and East of that part
of Block 8 as described in Parcel 3 herein, be conveyed also.
PARCEL 13
Block 14, according to the map of Westbury Estates, Fifth Addition, Huntsville,
Alabama as recorded in Plat Book 5, Page 96, Probate Records of Madison County,
Alabama.
PARCEL 14
Block 12, according to the map of Westbury Estates, Fifth Addition, Huntsville,
Alabama as recorded in Plat Book 5, Page 96, Probate Records of Madison County,
Alabama.
PARCEL 15
Lot 11, Block 9, according to the plat of Westbury Estates Sixth Addition,
Huntsville, Alabama as recorded in Plat Book 6, Page 27, in the Office of the
Judge of Probate, Madison County, Alabama.
PARCEL 16
Lot 23, Block 6, according to the survey of Westbury Estates Fourth Addition, as
recorded in Plat Book 5, page 27, in the Office of the Judge of Probate of
Madison County, Alabama.
EXHIBIT D
GENERAL ASSIGNMENT AND ASSUMPTION
This General Assignment and Assumption (this "Assignment") is executed by
WATERFORD SQUARE LIMITED PARTNERSHIP, a Connecticut limited partnership
("Seller"), in favor of WS Huntsville, LLC, an Alabama limited liability company
("Purchaser") as of March 31, 2003 (the "Effective Date").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract dated as of October 31, 2002 ("Contract"), in which Seller has agreed
to sell and Purchaser has agreed to purchase the real property described in
Exhibit A attached thereto and the improvements located thereon collectively,
the "Project"). Capitalized terms not otherwise defined herein shall have the
meaning ascribed to them in the Contract.
Pursuant to the Contract, Seller has agreed to assign, without recourse or
warranty (other than the Seller's Representations), to Purchaser all of Seller's
right, title and interest, if any, in and to the Miscellaneous Property Assets,
the Permits (other than the Excluded Permits), and the Property Contracts.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1.____Assignment. As of the Effective Date, Seller hereby assigns, sells
and transfers, without recourse or warranty (other than the Seller
Representations), to Purchaser all of Seller's right, title and interest, if
any, in and to the Miscellaneous Property Assets, the Permits (other than the
Excluded Permits), and the Property Contracts.
2.____Assumption. As of the Effective Date, Purchaser expressly agrees to
assume and hereby assumes all liabilities and obligations of the Seller accruing
from and after the date hereof in connection with the Property Contracts and, if
any, the Miscellaneous Property Assets and the Permits (other than the Excluded
Permits); provided, however, that to the extent that any Property Contract
constitutes a Terminated Property Contract, Purchaser assumes such Property
Contract only (a) through the effective date of the termination of such Property
Contract pursuant to its express terms, and (b) to the extent of any
cancellation fees or penalties due as a result of such termination.
3.____Counterparts. This Assignment may be executed in counterparts, each
of which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
4.____Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be awarded all reasonable costs and expenses incurred
in such action or proceeding, including reasonable attorneys' fees and costs
(including the cost of in-house counsel and appeals), in addition to any other
relief awarded by the court.
5.____Applicable Law. This Assignment shall be governed by and interpreted
in accordance with the laws of the State of Alabama.
6.____Binding Effect. This Assignment shall be binding upon and inure to
the benefit of the parties hereto and their respective transferees, successors,
and assigns.
7.____Further Assurances. Seller, for itself and its successors and
assigns, agrees to execute and deliver such further endorsements, transfers,
conveyances and assignments as may be reasonably necessary, pursuant to the
request of a bona fide third party or legal authority, to further evidence the
assignment and transfer intended to be effected by Seller to Purchaser pursuant
to this Assignment.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
[Remainder of Page Intentionally Left Blank]
Executed effective as of the Effective Date.
Waterford Square Apartments,
a California general partnership
By: Angeles Realty Corporation II,
a California corporation,
its managing general partner
_By: /s/ Patrick Slavin
_ Patrick Slavin
______ Senior Vice President
______ Purchaser:
WS Hunstville, LLC, an Alabama limited
liability company
______
______ By: /s/ Charlie O. Sealy, Jr.
______ Name: Charlie O. Sealy, Jr.
______ Title: President
EXHIBIT E
ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS
This Assignment and Assumption of Leases and Security Deposits (this
"Assignment") is executed by and between WATERFORD SQUARE LIMITED PARTNERSHIP, a
Connecticut limited partnership ("Assignor"), and WS Huntsville, LLC, an Alabama
limited liability company ("Assignee"), as of March 31, 2003 (the "Effective
Date").
Assignee and Assignor have entered into that certain Purchase and Sale
Contract, dated as of October 31, 2002 (the "Purchase Contract"), in which
Assignor has agreed to sell and Assignee has agreed to purchase the real
property described in Exhibit A attached to the Purchase Contract and the
improvements located thereon (collectively, the Project).
Assignor, as landlord, has entered into those certain leases identified on
Exhibit A attached hereto and incorporated herein by reference (collectively,
together with all amendments, modifications, supplements, restatements and
guarantees thereof, the "Leases") for the Project.
The Purchase Contract requires Assignor and Assignee to execute this
Assignment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree
as follows:
1.____Capitalized Terms. Unless the context otherwise requires, all
capitalized terms used, but not otherwise defined herein, shall have the
meanings set forth for the same in the Purchase Contract.
2.____Assignment and Assumption. As of the Effective Date, Assignor hereby
irrevocably assigns, sets over, transfers and conveys to Assignee all of
Assignor's right, title and interest in and to (a) the Leases and all lease
guaranties, if any, related to the Leases, and (b) the Tenant Security Deposit
Balance. Assignee hereby accepts this Assignment and the rights granted herein,
and Assignee hereby expressly assumes, for itself and its successors, assigns
and legal representatives, the Leases and the Tenant Security Deposit Balance
and all of the obligations and liabilities, fixed and contingent, of Assignor
thereunder accruing from and after the date hereof with respect to the Leases
and the Tenant Security Deposit Balance and agrees to (i) be fully bound by all
of the terms, covenants, agreements, provisions, conditions, obligations and
liability of Assignor thereunder, which accrue from and after the date hereof,
and (ii) keep, perform and observe all of the covenants and conditions contained
therein on the part of Assignor to be kept, performed and observed, from and
after the date hereof.
3.____Indemnification. Assignee shall indemnify, protect, defend and hold
harmless Assignor from and against any and all claims incurred by Assignor with
respect to the Security Deposits assigned herein.
4.____General Provisions.
______a. Successors. This Assignment shall inure to the benefit of, and be
binding upon, the parties hereto and their respective successors and assigns.
______b. Counterparts. This Assignment may be executed in as many
counterparts as may be deemed necessary and convenient, and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed an original, but all such counterparts shall constitute one and the
same instrument.
______c. Governing Law. This Assignment and the legal relations between
the parties hereto shall be governed by and construed and enforced in accordance
with the laws of the State wherein the Project is located, without reference to
the conflict of law provisions thereof.
______d. Attorney's Fees. If any action or proceeding is commenced by
either party to enforce its rights under this Assignment, the prevailing party
in such action or proceeding shall be awarded all reasonable costs and expenses
incurred in such action or proceeding, including reasonable attorneys' fees and
costs (including the cost of in-house counsel and appeals), in addition to any
other relief awarded by the court.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, this Assignment was made and executed as of the date
first above written.
______ ASSIGNEE:
WS Huntsville, LLC ,an Alabama limited
liability company
By: Tuscaloosa Realty Corporation, Inc.
an Alabama corporation,
its Manager
By: /s/ Charlie O. Sealy, Jr.
Charlie O. Sealy, Jr.
Its President
______
______ ASSIGNOR:
Waterford Square Apartments,
a California general partnership
By: Angeles Realty Corporation II,
a California corporation,
its managing general partner
_By: /s/ Patrick Slavin
_ Patrick Slavin
______ Senior Vice President
THE STATE OF COLORADO ss.
______ ss.
COUNTY OF DENVER ss.
Personally appeared before me, the undersigned authority in and for said
county and state, on this 31st day of March, 2003, within my jurisdiction, the
within named Patrick Slavin, who acknowledged that he is the Senior Vice
President of Angeles Realty Corporation II, a California corporation, managing
general partner of Waterford Square Apartments, a California general
partnership, and that for and on behalf of corporation, a general partner of
said limited partnership, and as the act and deed of said corporation, a general
partner of said limited partnership, and as the act and deed of said limited
partnership, he executed the above and foregoing instrument, after having been
duly authorized by said corporation and said limited partnership so to do.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 31st day of March, 2003.
/s/Marcey K. Anderson
Marcey K. Anderson
My commission expires: July 27, 2006
______
______ Notary Public in and for the State of
Colorado
EXHIBIT A
(Rent Roll)
EXHIBIT F
TENANT NOTIFICATION
Tenants at Waterford Square Apartments
1045 Flynt Drive
Huntsville, Alabama 39208
Re: Your lease at Waterford Square
Apartments
Dear Tenant:
Effective as of March 31, 2003, Waterford Square Limited Partnership, a
Connecticut limited partnership ("Seller"), has sold the Waterford Square
Apartments located at1045 Flynt Drive, Huntsville, Alabama 39208 (and has
assigned your lease) to WS Huntsville, LLC, an Alabama limited liability company
("Purchaser"). In connection with such sale and assignment, the Purchaser has
assumed the Seller's obligations as landlord under your lease and has also been
transferred any unapplied and refundable portion of your security deposit(s).
The amount of your security deposit is
$______________________________.
All rent thereafter due should be made payable to the Purchaser and
forwarded to the following address:
Waterford Square Apartments Office
201 Queensbury Drive
Huntsville, AL 35802
All inquiries you may have should be addressed to the property manager at
the address set forth above.
Very truly yours,
Purchaser:
WS Huntsville, LLC, an Alabama limited
liability company
By: Tuscaloosa Realty Corporation, Inc.
an Alabama corporation
its Manager
____________ Seller:
Waterford Square Apartments,
a California general partnership
By: Angeles Realty Corporation II,
a California corporation,
its managing general partner
_By: /s/ Patrick Slavin
_ Patrick Slavin
____________ Senior Vice President
EXHIBIT G
[INTENTIONALLY OMITTED]
SCHEDULE 1.1.19
LIST OF EXCLUDED PERMITS
None
SCHEDULE 1.1.21
LIST OF EXCLUDED FIXTURES AND TANGIBLE PERSONAL PROPERTY
1. Purchasers Access Computer Hardware and Software
2. AIMCO Benchmark Series Books
3. Connect: Remote Horizon Software
SCHEDULE 3.5
LIST OF MATERIALS DELIVERED
(a) Seller's form of residential lease agreement used at the Property (b) all
Property Contracts and any equipment leases (c) any property locator or similar
agreements (other than agreements with
the Property Manager), if any, pertaining to the marketing and
advertisement of the Property for leasing (and payment of commissions in
connection therewith), but only to the extent the same will remain in
effect after the Closing
(d) all engineering studies, environmental reports, termite inspections or
warranties, to the extent available and in Seller's possession (subject to
Section 3.5.2), which relate to the Property and were prepared for Seller
by third parties
(e) to the extent in Seller's possession (subject to Section 3.5.2), ad
valorem and personal property tax statements for the current year, and the
status of any pending appeal
(f) a current rent roll for the Property, in Seller's existing format, showing
the unit number, tenant name, term of lease, rental amount and amount of
security deposit
(g) current operating statements for the Property, and to the extent available
and in Seller's possession (subject to Section 3.5.2), for the three years
prior to the year in which the Effective Date occurs
(h) a summary of pending insurance claims and pending litigation, if any,
provided that such summary shall be prepared to Seller's knowledge (as
defined in Section 6.4 of the Contract) and Seller makes no
representations or warranties regarding the outcome of such claims or
litigation
(i) to the extent available and in Seller's possession (subject to Section
3.5.2), guaranties or warranties with respect to the roof of the Property,
if any
(j) Seller's ACM plan, lead in water O&M, and other O&M plans, if any (k)
copies of any certificates of occupancy and/or other Permits, to the
extent available and in Seller's possession (subject to Section 3.5.2) (l)
a summary (as prepared by each utility provider) for the billing
activity with respect to such utility as to the Property for the 2 month
period prior to the Effective Date
Exhibit 10.43.2
REINSTATEMENT AND FIRST AMENDMENT
TO PURCHASE AND SALE CONTRACT
THIS REINSTATEMENT AND FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT (this
"Amendment") is entered into effective as of the 15th day of November, 2002, by
and between WATERFORD SQUARE APARTMENTS, a California general partnership
("Seller"), and SEALY MANAGEMENT COMPANY, INC., an Alabama corporation
("Purchaser").
RECITALS:
A. Purchaser and Seller have entered into that certain Purchase and Sale
Contract (the "Purchase Contract") dated as of October 31, 2002, covering
certain real property located in Madison County, Alabama, as more particularly
described in the Purchase Contract.
B. The Purchase Contract was terminated by Purchaser on November 4, 2002,
pursuant to Section 3.2 thereof.
C. Purchaser and Seller desire to reinstate the Purchase Contract and
amend the Purchase Contract in certain respects, as set forth below.
D. All capitalized terms used but not defined in this Amendment shall have
the meaning ascribed to them in the Purchase Contract.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Purchaser and Seller hereby agree
as follows:
1. The Purchase Contract is hereby reinstated in full force and effect,
subject to the amendments contained herein.
2. Section 3.1 of the Purchase Contract is hereby amended such that the
Feasibility Period shall extend from the Effective Date to and including
November 22, 2002.
3. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
4. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
Seller:
Waterford Square Apartments,
a California general partnership
By: _Angeles Realty Corporation II,
a California corporation,
its managing general partner
By: _/s/ Patrick Slavin
_Patrick Slavin, Senior Vice
President
Purchaser:
Sealy Management Company, Inc.,
an Alabama corporation
By:__/s/ Charlie O. Sealy, Jr.
Charlie O. Sealy, Jr., Vice President
Exhibit 10.43.3
REINSTATEMENT AND SECOND AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS REINSTATEMENT AND SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT
(this "Amendment") is entered into effective as of the 25th day of November,
2002, by and between WATERFORD SQUARE APARTMENTS, a California general
partnership ("Seller"), and SEALY MANAGEMENT COMPANY, INC., an Alabama
corporation ("Purchaser").
RECITALS:
A. Purchaser and Seller have entered into that certain Purchase and Sale
Contract (the "Purchase Contract") dated as of October 31, 2002, covering
certain real property located in Madison County, Alabama, as more particularly
described in the Purchase Contract.
B. The Purchase Contract was terminated by Purchaser on November 4, 2002,
pursuant to Section 3.2 thereof, and subsequently reinstated pursuant to that
certain Reinstatement and First Amendment to Purchase and Sale Contract dated as
of November 15, 2002.
C. The Purchase Contract was again terminated by Purchaser on November 25,
2002, pursuant to Section 3.2 thereof, and Purchaser and Seller desire to
reinstate and further amend the Purchase Contract in certain respects, as set
forth below.
D. All capitalized terms used but not defined in this Amendment shall have
the meaning ascribed to them in the Purchase Contract.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Purchaser and Seller hereby agree
as follows:
1. Section 2.2 of the Purchase Contract is hereby amended to read as
follows:
2.2 Purchase Price and Deposit. The total purchase price ("Purchase
Price") for the Property shall be $18,200,000.00, which shall be paid by
Purchaser, as follows:
2. Section 3.1 of the Purchase Contract is hereby amended such that the
Feasibility Period shall extend from the Effective Date to and including
November 25, 2002.
3. Purchaser hereby unconditionally waives the termination provisions of
Section 3.2 of the Purchase Contract, and acknowledges that the Deposit is and
shall be nonrefundable to Purchaser except as provided in Sections 4.3, 8.2.5,
10.2, 11.1 and 12.1 of the Purchase Contract.
4. Section 4.3 of the Purchase Contract is hereby amended to read as
follows:
4.3 Objection and Response Process. On or before Tuesday, November
26, 2002 (the "Objection Deadline"), Purchaser shall give written notice
(the "Objection Notice") to the attorneys for Seller of any matter set
forth in the Title Documents or the Survey to which Purchaser objects (the
"Objections"). If Purchaser fails to tender an Objection Notice on or
before the Objection Deadline, Purchaser shall be deemed to have approved
and irrevocably waived any objections to any matters covered by the Title
Documents and the Survey. On or before 5 days after Seller's receipt of
the Objection Notice (the "Response Deadline"), Seller may, in Seller's
sole discretion, give Purchaser notice (the "Response Notice") of those
Objections which Seller is willing to cure, if any. Seller shall be
entitled to reasonable adjournments of the Closing Date to cure the
Objections. If Seller fails to deliver a Response Notice by the Response
Deadline, Seller shall be deemed to have elected not to cure or otherwise
resolve any matter set forth in the Objection Notice. If Purchaser is
dissatisfied with the Response Notice, Purchaser may, as its exclusive
remedy, elect by written notice given to Seller on or before the
expiration of 5 days following the Response Deadline, either (a) to accept
the Title Documents and Survey with resolution, if any, of the Objections
as set forth in the Response Notice (or if no Response Notice is tendered,
without any resolution of the Objections) and without any reduction or
abatement of the Purchase Price, or (b) to terminate this Contract, in
which event the Deposit shall be returned to Purchaser. If Purchaser fails
to give notice to terminate this Contract on or before the expiration of
such 5 day Period, Purchaser shall be deemed to have elected to approve
and irrevocably waived any objections to any matters covered by the Title
Documents and the Survey, subject only to resolution, if any, of the
Objections as set forth in the Response Notice (or if no Response Notice
is tendered, without any resolution of the Objections).
5. The Additional Deposit shall be due on or before Tuesday, November 26,
2002, and, notwithstanding the provisions of Section 4.5.3 of the Purchase
Contract, Purchaser shall have until Wednesday, December 4, 2002, to submit the
TAP Application as required under the Purchase Contract.
6. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
7. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
Seller:
Waterford Square Apartments,
a California general partnership
By: _Angeles Realty Corporation II,
a California corporation,
its managing general partner
By: _/s/ Harry Alcock
_Harry Alcock, Executive Vice
President
Purchaser:
Sealy Management Company, Inc.,
an Alabama corporation
By:__/s/ Charlie O. Sealy, Jr.
Charlie O. Sealy, Jr., Vice President
Exhibit 10.43.4
THIRD AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS THIRD AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into effective as of the 3rd day of December, 2002, by and between
WATERFORD SQUARE APARTMENTS, a California general partnership ("Seller"), and
SEALY MANAGEMENT COMPANY, INC., an Alabama corporation ("Purchaser").
RECITALS:
A. Purchaser and Seller have entered into that certain Purchase and Sale
Contract (the "Purchase Contract") dated as of October 31, 2002, covering
certain real property located in Madison County, Alabama, as more particularly
described in the Purchase Contract.
B. The Purchase Contract was terminated by Purchaser on November 4, 2002,
pursuant to Section 3.2 thereof, and subsequently reinstated pursuant to that
certain Reinstatement and First Amendment to Purchase and Sale Contract dated as
of November 15, 2002.
C. The Purchase Contract was again terminated by Purchaser on November 25,
2002, pursuant to Section 3.2 thereof, and subsequently reinstated pursuant to
that certain Reinstatement and Second Amendment to Purchase and Sale Contract
dated as of November 25, 2002.
D. Purchaser and Seller desire to further amend the Purchase Contract in
certain respects, as set forth below.
E. All capitalized terms used but not defined in this Amendment shall have
the meaning ascribed to them in the Purchase Contract, as amended.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Purchaser and Seller hereby agree
as follows:
1. Notwithstanding the provisions of Section 4.5.3 of the Purchase
Contract, Purchaser shall have until Wednesday, December 11, 2002, to submit the
TAP Application as required under the Purchase Contract.
2. The first sentence of Section 5.1 of the Purchase Contract is hereby
amended such that the Closing Date shall be Thursday, January 23, 2003.
3. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
4. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
Seller:
Waterford Square Apartments,
a California general partnership
By: _Angeles Realty Corporation II,
a California corporation,
its managing general partner
By: _/s/ Patrick Slavin
_ Patrick Slavin, Senior Vice
President
Purchaser:
Sealy Management Company, Inc.,
an Alabama corporation
By:__Charlie O. Sealy, Jr.
Charlie O. Sealy, Jr., Vice President
Exhibit 10.43.5
FOURTH AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into effective as of the 15th day of January, 2003, by and between
WATERFORD SQUARE APARTMENTS, a California general partnership ("Seller"), and WS
HUNTSVILLE, LLC, an Alabama limited liability company ("Purchaser").
RECITALS:
A. Seller and Sealy Management Company, Inc., an Alabama corporation
("Original Purchaser"), entered into that certain Purchase and Sale Contract
(the "Purchase Contract") dated as of October 31, 2002, covering certain real
property located in Madison County, Alabama, as more particularly described in
the Purchase Contract.
B. The Purchase Contract was terminated by Original Purchaser on November
4, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated pursuant
to that certain Reinstatement and First Amendment to Purchase and Sale Contract
dated as of November 15, 2002.
C. The Purchase Contract was again terminated by Original Purchaser on
November 25, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated
pursuant to that certain Reinstatement and Second Amendment to Purchase and Sale
Contract dated as of November 25, 2002.
D. The Purchase Contract was amended by that certain Third Amendment to
Purchase Contract dated as of December 3, 2002, by and between Seller and
Original Purchaser.
E. Original Purchaser assigned its interest in the Purchase Contract to
Purchaser pursuant to that certain Assignment and Assumption of Purchase and
Sale Contract dated December 5, 2002.
F. Purchaser and Seller desire to further amend the Purchase Contract in
certain respects, as set forth below.
G. All capitalized terms used but not defined in this Amendment shall have
the meaning ascribed to them in the Purchase Contract, as amended.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Purchaser and Seller hereby agree
as follows:
1. The first sentence of Section 5.1 of the Purchase Contract is hereby
amended such that the Closing Date shall be Friday, January 31, 2003.
2. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
3. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
Seller:
Waterford Square Apartments,
a California general partnership
By: _Angeles Realty Corporation II,
a California corporation,
its managing general partner
By: _/s/ Harry Alcock
_ Harry Alcock, Executive Vice
President
Purchaser:
WS Huntsville, LLC, an Alabama
limited liability company
By: Tuscaloosa Realty Company, Inc.,
an Alabama corporation,
its Manager
_By: /s/ Charlie O. Sealy, Jr.
_ Charlie O. Sealy. Jr.
Its President
Exhibit 10.43.6
FIFTH AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS FIFTH AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into effective as of the 24th day of January, 2003, by and between
WATERFORD SQUARE APARTMENTS, a California general partnership ("Seller"), and WS
HUNTSVILLE, LLC, an Alabama limited liability company ("Purchaser").
RECITALS:
A. Seller and Sealy Management Company, Inc., an Alabama corporation
("Original Purchaser"), entered into that certain Purchase and Sale Contract
(the "Purchase Contract") dated as of October 31, 2002, covering certain real
property located in Madison County, Alabama, as more particularly described in
the Purchase Contract.
B. The Purchase Contract was terminated by Original Purchaser on November
4, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated pursuant
to that certain Reinstatement and First Amendment to Purchase and Sale Contract
dated as of November 15, 2002.
C. The Purchase Contract was again terminated by Original Purchaser on
November 25, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated
pursuant to that certain Reinstatement and Second Amendment to Purchase and Sale
Contract dated as of November 25, 2002.
D. The Purchase Contract was amended by that certain Third Amendment to
Purchase Contract dated as of December 3, 2002, by and between Seller and
Original Purchaser.
E. Original Purchaser assigned its interest in the Purchase Contract to
Purchaser pursuant to that certain Assignment and Assumption of Purchase and
Sale Contract dated December 5, 2002.
F. The Purchase Contract was amended by that certain Fourth Amendment to
Purchase Contract dated as of January 15, 2003, by and between Seller and
Purchaser.
G. Purchaser and Seller desire to further amend the Purchase Contract in
certain respects, as set forth below.
H. All capitalized terms used but not defined in this Amendment shall have
the meaning ascribed to them in the Purchase Contract, as amended.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Purchaser and Seller hereby agree
as follows:
1. The first sentence of Section 5.1 of the Purchase Contract is hereby
amended such that the Closing Date shall be Wednesday, February 12, 2003.
2. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
3. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
Seller:
Waterford Square Apartments,
a California general partnership
By: _Angeles Realty Corporation II,
a California corporation,
its managing general partner
By: _/s/ Patrick F.Slavin
_ Patrick Slavin, Senior Vice
President
Purchaser:
WS Huntsville, LLC, an Alabama
limited liability company
By: Tuscaloosa Realty Company, Inc.,
an Alabama corporation,
its Manager
_By: /s/ Charlie O. Sealy, Jr.
_ Charlie O. Sealy. Jr.
Its President
Exhibit 10.43.7
SIXTH AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS SIXTH AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into effective as of the 5th day of February, 2003, by and between
WATERFORD SQUARE APARTMENTS, a California general partnership ("Seller"), and WS
HUNTSVILLE, LLC, an Alabama limited liability company ("Purchaser").
RECITALS:
A. Seller and Sealy Management Company, Inc., an Alabama corporation
("Original Purchaser"), entered into that certain Purchase and Sale Contract
(the "Purchase Contract") dated as of October 31, 2002, covering certain real
property located in Madison County, Alabama, as more particularly described in
the Purchase Contract.
B. The Purchase Contract was terminated by Original Purchaser on November
4, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated pursuant
to that certain Reinstatement and First Amendment to Purchase and Sale Contract
dated as of November 15, 2002.
C. The Purchase Contract was again terminated by Original Purchaser on
November 25, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated
pursuant to that certain Reinstatement and Second Amendment to Purchase and Sale
Contract dated as of November 25, 2002.
D. The Purchase Contract was amended by that certain Third Amendment to
Purchase Contract dated as of December 3, 2002, by and between Seller and
Original Purchaser.
E. Original Purchaser assigned its interest in the Purchase Contract to
Purchaser pursuant to that certain Assignment and Assumption of Purchase and
Sale Contract dated December 5, 2002.
F. The Purchase Contract was amended by that certain Fourth Amendment to
Purchase Contract dated as of January 15, 2003, by and between Seller and
Purchaser.
G. The Purchase Contract was amended by that certain Fifth Amendment to
Purchase Contract dated as of January 24, 2003, by and between Seller and
Purchaser.
H. Purchaser and Seller desire to further amend the Purchase Contract in
certain respects, as set forth below.
I. All capitalized terms used but not defined in this Amendment shall have
the meaning ascribed to them in the Purchase Contract, as amended.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Purchaser and Seller hereby agree
as follows:
1. The first sentence of Section 5.1 of the Purchase Contract is hereby
amended such that the Closing Date shall be Wednesday, February 19, 2003.
2. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
3. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
Seller:
Waterford Square Apartments,
a California general partnership
By: _Angeles Realty Corporation II,
a California corporation,
its managing general partner
By: _/s/ Harry Alcock
_ Name: Harry Alcock
_ Title: Executive Vice President
Purchaser:
WS Huntsville, LLC, an Alabama
limited liability company
By: Tuscaloosa Realty Company, Inc.,
an Alabama corporation,
its Manager
_By: /s/ Gina S. Miers
_ Gina S. Miers
Vice President
Exhibit 10.43.8
SEVENTH AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS SEVENTH AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into effective as of the 14th day of February, 2003, by and between
WATERFORD SQUARE APARTMENTS, a California general partnership ("Seller"), and WS
HUNTSVILLE, LLC, an Alabama limited liability company ("Purchaser").
RECITALS:
A. Seller and Sealy Management Company, Inc., an Alabama corporation
("Original Purchaser"), entered into that certain Purchase and Sale Contract
(the "Purchase Contract") dated as of October 31, 2002, covering certain real
property located in Madison County, Alabama, as more particularly described in
the Purchase Contract.
B. The Purchase Contract was terminated by Original Purchaser on November
4, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated pursuant
to that certain Reinstatement and First Amendment to Purchase and Sale Contract
dated as of November 15, 2002.
C. The Purchase Contract was again terminated by Original Purchaser on
November 25, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated
pursuant to that certain Reinstatement and Second Amendment to Purchase and Sale
Contract dated as of November 25, 2002.
D. The Purchase Contract was amended by that certain Third Amendment to
Purchase Contract dated as of December 3, 2002, by and between Seller and
Original Purchaser.
E. Original Purchaser assigned its interest in the Purchase Contract to
Purchaser pursuant to that certain Assignment and Assumption of Purchase and
Sale Contract dated December 5, 2002.
F. The Purchase Contract was amended by that certain Fourth Amendment to
Purchase Contract dated as of January 15, 2003, by and between Seller and
Purchaser.
G. The Purchase Contract was amended by that certain Fifth Amendment to
Purchase Contract dated as of January 24, 2003, by and between Seller and
Purchaser.
H. The Purchase Contract was amended by that certain Sixth Amendment to
Purchase Contract dated as of February 5, 2003, by and between Seller and
Purchaser.
I. Purchaser and Seller desire to further amend the Purchase Contract in
certain respects, as set forth below.
J. All capitalized terms used but not defined in this Amendment shall have
the meaning ascribed to them in the Purchase Contract, as amended.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Purchaser and Seller hereby agree
as follows:
1. The first sentence of Section 5.1 of the Purchase Contract is hereby
amended such that the Closing Date shall be Wednesday, February 26, 2003.
2. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
3. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
Seller:
Waterford Square Apartments,
a California general partnership
By: _Angeles Realty Corporation II,
a California corporation,
its managing general partner
By: /s/ Patrick F. Slavin
_ Name: Patrick F. Slavin
_ Title: Senior Vice President
Purchaser:
WS Huntsville, LLC, an Alabama
limited liability company
By: Tuscaloosa Realty Company, Inc.,
an Alabama corporation,
its Manager
_By: /s/ Charlie O. Sealy, Jr.
_ Name: Charlie O. Sealy, Jr
_ Title: President
Exhibit 10.43.9
EIGHTH AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS EIGHTH AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into effective as of the 21st day of February, 2003, by and between
WATERFORD SQUARE APARTMENTS, a California general partnership ("Seller"), and WS
HUNTSVILLE, LLC, an Alabama limited liability company ("Purchaser").
RECITALS:
A. Seller and Sealy Management Company, Inc., an Alabama corporation
("Original Purchaser"), entered into that certain Purchase and Sale Contract
(the "Purchase Contract") dated as of October 31, 2002, covering certain real
property located in Madison County, Alabama, as more particularly described in
the Purchase Contract.
B. The Purchase Contract was terminated by Original Purchaser on November
4, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated pursuant
to that certain Reinstatement and First Amendment to Purchase and Sale Contract
dated as of November 15, 2002.
C. The Purchase Contract was again terminated by Original Purchaser on
November 25, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated
pursuant to that certain Reinstatement and Second Amendment to Purchase and Sale
Contract dated as of November 25, 2002.
D. The Purchase Contract was amended by that certain Third Amendment to
Purchase Contract dated as of December 3, 2002, by and between Seller and
Original Purchaser.
E. Original Purchaser assigned its interest in the Purchase Contract to
Purchaser pursuant to that certain Assignment and Assumption of Purchase and
Sale Contract dated December 5, 2002.
F. The Purchase Contract was amended by that certain Fourth Amendment to
Purchase Contract dated as of January 15, 2003, by and between Seller and
Purchaser.
G. The Purchase Contract was amended by that certain Fifth Amendment to
Purchase Contract dated as of January 24, 2003, by and between Seller and
Purchaser.
H. The Purchase Contract was amended by that certain Sixth Amendment to
Purchase Contract dated as of February 5, 2003, by and between Seller and
Purchaser.
I. The Purchase Contract was amended by that certain Seventh Amendment to
Purchase Contract dated as of February 14, 2003, by and between Seller and
Purchaser.
J. Purchaser and Seller desire to further amend the Purchase Contract in
certain respects, as set forth below.
K. All capitalized terms used but not defined in this Amendment shall have
the meaning ascribed to them in the Purchase Contract, as amended.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Purchaser and Seller hereby agree
as follows:
1. The first sentence of Section 5.1 of the Purchase Contract is hereby
amended such that the Closing Date shall be Wednesday, March 5, 2003, or such
earlier date as Seller and Buyer shall mutually agree in writing.
2. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
3. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
Seller:
Waterford Square Apartments,
a California general partnership
By: _Angeles Realty Corporation II,
a California corporation,
its managing general partner
By: /s/ Lisa R. Cohn
_ Name: Lisa R. Cohn
_ Title: Vice President
Purchaser:
WS Huntsville, LLC, an Alabama
limited liability company
By: Tuscaloosa Realty Company, Inc.,
an Alabama corporation,
its Manager
_By: /s/ Charlie O. Sealy, Jr
_ Name: Charlie O. Sealy, Jr.
_ Title: President
Exhibit 10.43.10
NINTH AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS NINTH AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into effective as of the 26th day of February, 2003, by and between
WATERFORD SQUARE APARTMENTS, a California general partnership ("Seller"), and WS
HUNTSVILLE, LLC, an Alabama limited liability company ("Purchaser").
RECITALS:
A. Seller and Sealy Management Company, Inc., an Alabama corporation
("Original Purchaser"), entered into that certain Purchase and Sale Contract
(the "Purchase Contract") dated as of October 31, 2002, covering certain real
property located in Madison County, Alabama, as more particularly described in
the Purchase Contract.
B. The Purchase Contract was terminated by Original Purchaser on November
4, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated pursuant
to that certain Reinstatement and First Amendment to Purchase and Sale Contract
dated as of November 15, 2002.
C. The Purchase Contract was again terminated by Original Purchaser on
November 25, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated
pursuant to that certain Reinstatement and Second Amendment to Purchase and Sale
Contract dated as of November 25, 2002.
D. The Purchase Contract was amended by that certain Third Amendment to
Purchase Contract dated as of December 3, 2002, by and between Seller and
Original Purchaser.
E. Original Purchaser assigned its interest in the Purchase Contract to
Purchaser pursuant to that certain Assignment and Assumption of Purchase and
Sale Contract dated December 5, 2002.
F. The Purchase Contract was amended by that certain Fourth Amendment to
Purchase Contract dated as of January 15, 2003, by and between Seller and
Purchaser.
G. The Purchase Contract was amended by that certain Fifth Amendment to
Purchase Contract dated as of January 24, 2003, by and between Seller and
Purchaser.
H. The Purchase Contract was amended by that certain Sixth Amendment to
Purchase Contract dated as of February 5, 2003, by and between Seller and
Purchaser.
I. The Purchase Contract was amended by that certain Seventh Amendment to
Purchase Contract dated as of February 14, 2003, by and between Seller and
Purchaser.
J. The Purchase Contract was amended by that certain Eighth Amendment to
Purchase Contract dated as of February 21, 2003, by and between Seller and
Purchaser.
K. Purchaser and Seller desire to further amend the Purchase Contract in
certain respects, as set forth below.
L. All capitalized terms used but not defined in this Amendment shall have
the meaning ascribed to them in the Purchase Contract, as amended.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Purchaser and Seller hereby agree
as follows:
1. The first sentence of Section 5.1 of the Purchase Contract is hereby
amended such that the Closing Date shall be Friday, March 14, 2003, or such
earlier date as Seller and Buyer shall mutually agree in writing.
2. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
3. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
Seller:
Waterford Square Apartments,
a California general partnership
By: _Angeles Realty Corporation II,
a California corporation,
its managing general partner
By: /s/ Lisa R. Cohn
Name: Lisa R. Cohn
_ Title: Vice President
Purchaser:
WS Huntsville, LLC, an Alabama
limited liability company
By: Tuscaloosa Realty Company, Inc.,
an Alabama corporation,
its Manager
_By: /s/ Charlie O. Sealy, Jr.
_ Name: Charlie O. Sealy, Jr.
_ Title: President
Exhibit 10.43.11
TENTH AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS TENTH AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into effective as of the 7th day of March, 2003, by and between
WATERFORD SQUARE APARTMENTS, a California general partnership ("Seller"), and WS
HUNTSVILLE, LLC, an Alabama limited liability company ("Purchaser").
RECITALS:
A. Seller and Sealy Management Company, Inc., an Alabama corporation
("Original Purchaser"), entered into that certain Purchase and Sale Contract
(the "Purchase Contract") dated as of October 31, 2002, covering certain real
property located in Madison County, Alabama, as more particularly described in
the Purchase Contract.
B. The Purchase Contract was terminated by Original Purchaser on November
4, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated pursuant
to that certain Reinstatement and First Amendment to Purchase and Sale Contract
dated as of November 15, 2002.
C. The Purchase Contract was again terminated by Original Purchaser on
November 25, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated
pursuant to that certain Reinstatement and Second Amendment to Purchase and Sale
Contract dated as of November 25, 2002.
D. The Purchase Contract was amended by that certain Third Amendment to
Purchase Contract dated as of December 3, 2002, by and between Seller and
Original Purchaser.
E. Original Purchaser assigned its interest in the Purchase Contract to
Purchaser pursuant to that certain Assignment and Assumption of Purchase and
Sale Contract dated December 5, 2002.
F. The Purchase Contract was amended by that certain Fourth Amendment to
Purchase Contract dated as of January 15, 2003, by and between Seller and
Purchaser.
G. The Purchase Contract was amended by that certain Fifth Amendment to
Purchase Contract dated as of January 24, 2003, by and between Seller and
Purchaser.
H. The Purchase Contract was amended by that certain Sixth Amendment to
Purchase Contract dated as of February 5, 2003, by and between Seller and
Purchaser.
I. The Purchase Contract was amended by that certain Seventh Amendment to
Purchase Contract dated as of February 14, 2003, by and between Seller and
Purchaser.
J. The Purchase Contract was amended by that certain Eighth Amendment to
Purchase Contract dated as of February 21, 2003, by and between Seller and
Purchaser.
K. The Purchase Contract was amended by that certain Ninth Amendment to
Purchase Contract dated as of February 26, 2003, by and between Seller and
Purchaser.
L. Purchaser and Seller desire to further amend the Purchase Contract in
certain respects, as set forth below.
M. All capitalized terms used but not defined in this Amendment shall have
the meaning ascribed to them in the Purchase Contract, as amended.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Purchaser and Seller hereby agree
as follows:
1. Section 4.5.2 of the Purchase Contract is hereby amended such that
clause (ii) thereof shall read as follows:
"(ii) the Lender and HUD shall release Seller, as well as any guarantors
and other obligated parties under the Assumed Loan Documents, from all
obligations under the Assumed Loan Documents arising from and after the Closing
Date (and any related guarantees or letters of credit) (including, without
limitation, any obligation to make payments of principal and interest under the
Note) except with respect to any breach of the Regulatory Agreement, including
Section 17(a) and (b) thereof, that may have occurred prior to the Closing Date
(collectively, the foregoing referred to herein as the "Loan Assumption and
Release")."
2. The third sentence of Section 4.5.4 of the Purchase Contract is hereby
amended to read as follows:
"Additionally, since HUD will require that all existing reserves, impounds
and other accounts required to be maintained in connection with the Loan will
remain with Lender, Purchaser shall (a) reimburse Seller at the Closing the
amount of all reserves, impounds and other accounts required to be maintained in
connection with the Loan, (b) increase all such reserves, impounds and accounts
to the extent required by Lender, and (c) fund any additional reserves, impounds
or accounts required by Lender to be maintained by Purchaser in connection with
the Loan after the Loan Assumption and Release (the foregoing amounts in (a),
(b) and (c) collectively referred to herein as the "Required Loan Fund
Amounts"), including but not limited to an account equal to the amount of all
Tenant Deposits."
3. The fourth sentence of Section 4.5.4 of the Purchase Contract is hereby
deleted.
4. The first sentence of Section 5.1 of the Purchase Contract is hereby
amended such that the Closing Date shall be Friday, March 21, 2003, or such
earlier date as Seller and Buyer shall mutually agree in writing.
5. Section 5.3.10 of the Purchase Contract is hereby amended to add the
following after the words "to cause the Loan Assumption and Release":
", including, without limitation, a certificate of insurance evidencing
the satisfaction of Lender's requirements with respect to insurance to be
maintained by Purchaser with respect to the Property from and after the Closing
Date,".
6. The last sentence of Section 5.4.7 is hereby amended to read as
follows: "As set forth in Section 4.5.4, Purchaser shall reimburse Seller at
Closing for any existing reserves, impounds or other accounts maintained in
connection with the Loan, and establish an account for Tenant Deposits in an
amount equal to the Tenant Security Deposit Balance."
7. The last sentence of Section 5.4.12 of the Purchase Contract is hereby
amended to replace the words "shall be made available" with the words "turned
over".
8. Any reference in the Contract indicating that Seller is a "Connecticut
limited partnership" are revised to indicate that Seller is a "California
general partnership."
9. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
10. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
Seller:
Waterford Square Apartments,
a California general partnership
By: _Angeles Realty Corporation II,
a California corporation,
its managing general partner
By: /s/ Pat Foye
_ Name: Pat Foye
_ Title: Executive Vice President
Purchaser:
WS Huntsville, LLC, an Alabama
limited liability company
By: Tuscaloosa Realty Company, Inc.,
an Alabama corporation,
its Manager
_By: /s/ Charlie O. Sealy, Jr.
_ Name: Charlie O. Sealy, Jr.
_ Title: President
Exhibit 10.43.12
ELEVENTH AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS ELEVENTH AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment")
is entered into effective as of the 14th day of March, 2003, by and between
WATERFORD SQUARE APARTMENTS, a California general partnership ("Seller"), and WS
HUNTSVILLE, LLC, an Alabama limited liability company ("Purchaser").
RECITALS:
A. Seller and Sealy Management Company, Inc., an Alabama corporation
("Original Purchaser"), entered into that certain Purchase and Sale Contract
(the "Purchase Contract") dated as of October 31, 2002, covering certain real
property located in Madison County, Alabama, as more particularly described in
the Purchase Contract.
B. The Purchase Contract was terminated by Original Purchaser on November
4, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated pursuant
to that certain Reinstatement and First Amendment to Purchase and Sale Contract
dated as of November 15, 2002.
C. The Purchase Contract was again terminated by Original Purchaser on
November 25, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated
pursuant to that certain Reinstatement and Second Amendment to Purchase and Sale
Contract dated as of November 25, 2002.
D. The Purchase Contract was amended by that certain Third Amendment to
Purchase Contract dated as of December 3, 2002, by and between Seller and
Original Purchaser.
E. Original Purchaser assigned its interest in the Purchase Contract to
Purchaser pursuant to that certain Assignment and Assumption of Purchase and
Sale Contract dated December 5, 2002.
F. The Purchase Contract was amended by that certain Fourth Amendment to
Purchase Contract dated as of January 15, 2003, by and between Seller and
Purchaser.
G. The Purchase Contract was amended by that certain Fifth Amendment to
Purchase Contract dated as of January 24, 2003, by and between Seller and
Purchaser.
H. The Purchase Contract was amended by that certain Sixth Amendment to
Purchase Contract dated as of February 5, 2003, by and between Seller and
Purchaser.
I. The Purchase Contract was amended by that certain Seventh Amendment to
Purchase Contract dated as of February 14, 2003, by and between Seller and
Purchaser.
J. The Purchase Contract was amended by that certain Eighth Amendment to
Purchase Contract dated as of February 21, 2003, by and between Seller and
Purchaser.
K. The Purchase Contract was amended by that certain Ninth Amendment to
Purchase Contract dated as of February 26, 2003, by and between Seller and
Purchaser.
L. The Purchase Contract was amended by that certain Tenth Amendment to
Purchase Contract dated as of March 4, 2003, by and between Seller and
Purchaser.
M. Purchaser and Seller desire to further amend the Purchase Contract in
certain respects, as set forth below.
N. All capitalized terms used but not defined in this Amendment shall have
the meaning ascribed to them in the Purchase Contract, as amended.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Purchaser and Seller hereby agree
as follows:
1. The first sentence of Section 5.1 of the Purchase Contract is hereby
amended such that the Closing Date shall be Friday, March 28, 2003, or such
earlier date as Seller and Buyer shall mutually agree in writing.
2. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
3. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
Seller:
Waterford Square Apartments,
a California general partnership
By: _Angeles Realty Corporation II,
a California corporation,
its managing general partner
By: /s/ Chad Asarch
_ Name: Chad Asarch
_ Title: Vice President
Purchaser:
WS Huntsville, LLC, an Alabama
limited liability company
By: Tuscaloosa Realty Company, Inc.,
an Alabama corporation,
its Manager
_By: /s/ Gina S. Miers
_ Name: Gina S. Miers
_ Title: Vice President
Exhibit 10.43.13
TWELFTH AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS TWELFTH AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into effective as of the 20th day of March, 2003, by and between
WATERFORD SQUARE APARTMENTS, a California general partnership ("Seller"), and WS
HUNTSVILLE, LLC, an Alabama limited liability company ("Purchaser").
RECITALS:
A. Seller and Sealy Management Company, Inc., an Alabama corporation
("Original Purchaser"), entered into that certain Purchase and Sale Contract
(the "Purchase Contract") dated as of October 31, 2002, covering certain real
property located in Madison County, Alabama, as more particularly described in
the Purchase Contract.
B. The Purchase Contract was terminated by Original Purchaser on November
4, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated pursuant
to that certain Reinstatement and First Amendment to Purchase and Sale Contract
dated as of November 15, 2002.
C. The Purchase Contract was again terminated by Original Purchaser on
November 25, 2002, pursuant to Section 3.2 thereof, and subsequently reinstated
pursuant to that certain Reinstatement and Second Amendment to Purchase and Sale
Contract dated as of November 25, 2002.
D. The Purchase Contract was amended by that certain Third Amendment to
Purchase Contract dated as of December 3, 2002, by and between Seller and
Original Purchaser.
E. Original Purchaser assigned its interest in the Purchase Contract to
Purchaser pursuant to that certain Assignment and Assumption of Purchase and
Sale Contract dated December 5, 2002.
F. The Purchase Contract was amended by that certain Fourth Amendment to
Purchase Contract dated as of January 15, 2003, by and between Seller and
Purchaser.
G. The Purchase Contract was amended by that certain Fifth Amendment to
Purchase Contract dated as of January 24, 2003, by and between Seller and
Purchaser.
H. The Purchase Contract was amended by that certain Sixth Amendment to
Purchase Contract dated as of February 5, 2003, by and between Seller and
Purchaser.
I. The Purchase Contract was amended by that certain Seventh Amendment to
Purchase Contract dated as of February 14, 2003, by and between Seller and
Purchaser.
J. The Purchase Contract was amended by that certain Eighth Amendment to
Purchase Contract dated as of February 21, 2003, by and between Seller and
Purchaser.
K. The Purchase Contract was amended by that certain Ninth Amendment to
Purchase Contract dated as of February 26, 2003, by and between Seller and
Purchaser.
L. The Purchase Contract was amended by that certain Tenth Amendment to
Purchase Contract dated as of March 4, 2003, by and between Seller and
Purchaser.
M. The Purchase Contract was amended by that certain Eleventh Amendment to
Purchase Contract dated as of March 14, 2003, by and between Seller and
Purchaser.
N. Purchaser and Seller desire to further amend the Purchase Contract in
certain respects, as set forth below.
O. All capitalized terms used but not defined in this Amendment shall have
the meaning ascribed to them in the Purchase Contract, as amended.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Purchaser and Seller hereby agree
as follows:
1. The first sentence of Section 5.1 of the Purchase Contract is hereby
amended such that the Closing Date shall be Monday, March 31, 2003, or such
earlier date as Seller and Buyer shall mutually agree in writing.
2. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
3. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
Seller:
Waterford Square Apartments,
a California general partnership
By: _Angeles Realty Corporation II,
a California corporation,
its managing general partner
By: /s/ Chad Asarch
_ Name:Chad Asarch
_ Title:Vice President
Purchaser:
WS Huntsville, LLC, an Alabama
limited liability company
By: Tuscaloosa Realty Company, Inc.,
an Alabama corporation,
its Manager
_By: /s/ Charlie O. Sealy, Jr.
_ Name: Charlie O. Sealy, Jr.
_ Title: President