UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) August 28, 2003
CENTURY PROPERTIES FUND XIX
(Exact name of registrant as specified in its charter)
California 0-11935 94-2887133
(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 August 28, 2003, the Registrant sold one of its investment properties,
McMillan Place Apartments, located in Dallas, Texas. The Registrant sold
McMillan Place Apartments to McMillan Development Associates, LP, an unrelated
party, for $14,150,000. The sale price was determined based on the fair market
value of the investment property.
In accordance with the Limited Partnership Agreement of the Registrant, the
Registrant's general partner is evaluating the cash requirements of the
Registrant to determine whether any portion of the net proceeds will be
distributed to the Registrant's partners.
Item 7. Financial Statements and Exhibits
(b) Pro forma financial information.
The following unaudited pro forma consolidated balance sheet and statements of
operations reflect the operations of the Registrant as if McMillan Place
Apartments had been sold on January 1, 2002.
The unaudited pro forma consolidated financial statements are presented for
illustrative purposes only and are not necessarily indicative of the operating
results or financial position that would have resulted had the sale been
consummated on the date indicated, nor do they represent a forecast thereof at
any future date or for any future period. This pro forma information should be
read in conjunction with the Registrant's 2002 Annual Report on Form 10-KSB.
PRO FORMA CONSOLIDATED BALANCE SHEET
(Unaudited)
(in thousands)
June 30, 2003
All other assets $ 3,944
Investment properties, net 38,993
Total Assets $42,937
All other liabilities $ 1,358
Mortgage notes payable 47,309
Partners' deficit (5,730)
Total Liabilities and Equity $42,937
PRO FORMA CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
(in thousands, except per unit data)
Six Months
Ended Year Ended
June 30, December 31,
2003 2002
Total revenues $ 6,544 $14,313
Total expenses 6,997 13,314
Net (loss) income $ (453) $ 999
Net (loss) income per limited partnership unit $ (4.47) $ 9.87
(c) Exhibits.
The following exhibits are filed with this report (1):
10.22 Purchase and Sale Contract between Registrant and Suncase
Corporation, dated June 11, 2003.
10.23 First Amendment to the Purchase and Sale Contract between Registrant
and Suncase Corporation, dated July 10, 2003.
10.23 Second Amendment to the Purchase and Sale Contract between
Registrant and Suncase Corporation, dated August 13, 2003.
10.24 Assignment Agreement between Suncase Corporate and McMillan
Development Associates, LP dated August 25, 2003.
(1) Schedules and supplemental materials to the exhibits have been omitted but
will be provided to the Securities and Exchange Commission upon request.
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.
CENTURY PROPERTIES FUND XIX
By: Fox Partners II
General Partner
By: /s/Patrick J. Foye
Patrick J. Foye
Executive Vice President
Date: September 10, 2003
Exhibit 10.22
PURCHASE AND SALE CONTRACT
BETWEEN
CENTURY PROPERTIES FUND XIX,
a California limited partnership
AS SELLER
AND
SUNCASE CORPORATION,
a Texas corporation
AS PURCHASER
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT (this "Contract") is entered into as of
the last date this Contract has been executed by each of Seller and Purchaser
and delivered to Escrow Agent, being the 11th day of June, 2003 (the "Effective
Date") by and between CENTURY PROPERTIES FUND XIX, a California limited
partnership, having an address at Stanford Place 3, 4582 S. Ulster St. Parkway,
Suite 1100, Denver, Colorado 80237 ("Seller") and SUNCASE CORPORATION, a Texas
corporation, having a principal address at 901 Waterfall Way, Suite 555,
Richardson, TX 75080 ("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 Dallas County, Texas, 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 "Broker" shall have the meaning set forth in Section 9.1.
1.1.6 "Business Day" means any day other than a Saturday or Sunday, a Federal
holiday or legal holiday in the States of Colorado and Texas or, in the case of
a day which would otherwise be the Closing Date, a day on which the Lender is
not open for business.
1.1.7 "Capital Improvements Schedule" shall have the meaning given to such term
in Schedule 3.5.
1.1.8 "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.
1.1.9 "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.
1.1.10 "Code" shall have the meaning set forth in Section 2.3.6.
1.1.11 "Consultants" shall have the meaning set forth in Section 3.1.
1.1.12 "Damage Notice" shall have the meaning set forth in Section 11.1.
1.1.13 "Deed" shall have the meaning set forth in Section 5.2.1.
1.1.14 "Deed of Trust" shall have the meaning set forth in Section 4.5.
1.1.15 "Deposit" means, to the extent actually deposited by Purchaser with
Escrow Agent, the Initial Deposit and the Additional Deposit.
1.1.16 "Escrow Agent" shall have the meaning set forth in Section 2.2.1.
1.1.17 "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 1.1.17.
1.1.18 "Excluded Property Contracts" shall have the meaning given such term in
Section 1.1.47.
1.1.19 "Existing Survey" shall have the meaning set forth in Section 4.2.
1.1.20 "Feasibility Period" shall have the meaning set forth in Section 3.1.
1.1.21 "Final Response Deadline" shall have the meaning set forth in Section
4.3.
1.1.22 "Financing Contingency Period" shall have the meaning set forth in
Section 3.7.
1.1.23 "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 transferable. The term "Fixtures and Tangible Personal Property" does not
include (a) equipment leased by Seller and the interest of Seller in any
equipment provided to the Property for use, but not owned or leased by Seller,
or (b) property owned or leased by any Tenant or guest, employee or other person
furnishing goods or services to the Property, or (c) property and equipment
owned by Seller, which in the ordinary course of business of the Property is not
used exclusively for the business, operation or management of the Property and
expressly identified on Schedule 1.1.23, or (d) the property and equipment, if
any, expressly identified in Schedule 1.1.23.
1.1.24 "General Assignment" shall have the meaning set forth in Section 5.2.3.
1.1.25 "Good Funds" shall have the meaning set forth in Section 2.2.1.
1.1.26 "Improvements" means all buildings and improvements located on the Land
taken "as is."
1.1.27 "Initial Deposit" shall have the same meaning set forth in Section 2.2.1.
1.1.28 "Independent Contract Consideration" shall have the meaning set
forth in Section 2.2.3.
1.1.29 "Land" means all of those certain tracts of land located in the State of
Texas described on Exhibit A, and all rights, privileges and appurtenances
pertaining thereto.
1.1.30 "Lease(s)" means 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 and which are in force as of the
Closing Date for the applicable Property.
1.1.31 "Leases Assignment" shall have the meaning set forth in Section 5.2.4.
1.1.32 "Lender" shall mean The Traveler's Insurance Company, a Connecticut
corporation (whose servicer is Midland Loan Services, Inc.).
1.1.33 "Lender's Fees" shall mean all fees and expenses (including, without
limitation, all prepayment penalties and other fees, profits interests and other
amounts) imposed or charged by Lender or its counsel in connection with the Loan
Payoff, and, to the extent that the Loan Payoff occurs on a date other than as
permitted under the Note and Deed of Trust, any amounts of interest charged by
Lender for the period from the Closing Date to the permitted prepayment date,
the amount of the Lender's Fees to be determined as of the Closing Date.
1.1.34 "Loan" shall mean the indebtedness owing to Lender evidenced by the Note.
1.1.35 "Loan Payoff" shall have the meaning set forth in Section 5.4.7.
1.1.36 "Local Escrow Agent" shall mean Stewart Title North Texas, 8201
Preston Road, Suite 220, Dallas, Texas 75228, Attn: Ms. Mary Nell Gibbins
and Mr. Drex Baker.
1.1.37 "Losses" shall have the meaning set forth in Section 3.4.1.
1.1.38 "Materials" shall have the meaning set forth in Section 3.5.
1.1.39 "Miscellaneous Property Assets" means all contract rights, leases,
concessions, warranties, plans, drawings and other items of intangible personal
property relating to the ownership or operation of the Property and owned by
Seller, including all telephone and facsimile numbers associated with the
Property (to the extent transferable), but excluding, however, (a) receivables,
(b) Property Contracts (and any other contracts by definition excluded from the
term "Property Contracts"), (c) Leases, (d) Permits (and Excluded 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 "MCMILLAN PLACE
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).
1.1.40 "New Survey" shall have the meaning set forth in Section 4.2.
1.1.41 "Note" shall mean those certain Promissory Notes respectively in the
original principal amount of $10,800,000.00, dated September 1, 1994, and in the
original principal amount of $2,138,673.53, dated September 1, 1994, executed by
Seller and payable to the order of The Traveler's Insurance Company.
1.1.42 "Objection Deadline" shall have the meaning set forth in Section 4.3.
1.1.43 "Objection Notice" shall have the meaning set forth in Section 4.3.
1.1.44 "Objections" shall have the meaning set forth in Section 4.3.
1.1.45 "Operating Statements" shall have the meaning given such term in Schedule
3.5.
1.1.46 "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.
1.1.47 "Permitted Exceptions" shall have the meaning set forth in Section 4.4.
1.1.48 "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
right, if any and only to the extent transferable, of Seller in the Property
Contracts, Leases, Permits (other than Excluded Permits), and the Fixtures and
Tangible Personal Property, and (c) the Miscellaneous Property Assets owned by
Seller which are located on the Property and used in its operation.
1.1.49 "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 to the extent copies of such
purchase orders or contracts have been delivered to Purchaser pursuant to
Section 3.5 or entered into subsequent to the Effective Date in accordance with
Section 7.1, and not including the following ("Excluded Property Contracts"):
(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 or leasing contract for the Property.
1.1.50 "Property Contracts Notice" shall have the meaning set forth in Section
3.6.
1.1.51 "Property Manager" means the current property manager of the Property.
1.1.52 "Proration Schedule" shall have the meaning set forth in Section 5.4.1.
1.1.53 "Purchase Price" means the consideration to be paid by Purchaser to
Seller for the purchase of the Property pursuant to Section 2.2.
1.1.54 "Regional Property Manager" shall have the meaning set forth in Section
6.4.
1.1.55 "Rent Roll" shall mean a list of all Leases affecting the Property,
including thereon the following information: (a) the name of each Tenant and the
corresponding number of the unit leased (or, unoccupied units, an indication
that such unit is unoccupied); (b) the commencement and termination date of each
Lease; (c) the base rent of each occupied unit; and (d) the amount of any
security deposits held by Seller under such Lease.
1.1.56 "Response Deadline" shall have the meaning set forth in Section 4.3.
1.1.57 "Response Notice" shall have the meaning set forth in Section 4.3.
1.1.58 "Seller's Indemnified Parties" shall have the meaning set forth in
Section 3.4.1
1.1.59 "Seller's Representations" shall have the meaning set forth in
Section 6.1.
1.1.60 "Survey" shall mean the New Survey, as defined in Section 4.2, or if no
New Survey is requested by Purchaser, the Existing Survey.
1.1.61 "Survival Period" shall have the meaning set forth in Section 6.3.
1.1.62 "Survival Provisions" shall have the meaning set forth in Section 13.28.
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 "Third-Party Reports" means any reports, studies or other information
prepared or complied for Purchaser by any Consultant or other third-party in
connection with Purchaser's investigation of the Property.
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 an amount equal to (a) $14,150,000.00, less (b) the
Lender's Fees, which shall be paid by Purchaser, as follows:
2.2.1 Not later than 1 Business Day following the Effective Date, Purchaser
shall deliver to Stewart Title Guaranty Company, c/o Wendy Howell, 1980 Post Oak
Boulevard, Suite 610, Houston, TX 77056 (800) 729-1906 ("Escrow Agent" or "Title
Insurer") a deposit (the "Initial Deposit") of $135,000.00 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.
If Purchaser should fail to deposit the Initial Deposit in the time frame
specified in this Section 2.2.1, this Contract shall automatically terminate and
neither Seller nor Purchaser shall have any further obligations hereunder.
2.2.2 On the day that the Financing Contingency Period expires, Purchaser shall
deliver to Escrow Agent an additional deposit (the "Additional Deposit") of
$135,000.00 in Good Funds. The Additional Deposit shall be held and disbursed in
accordance with the escrow provisions set forth in Section 2.3. If Purchaser
should fail to deposit the Additional Deposit in the time frame specified in
this Section 2.2.2, then this Contract shall automatically terminate and the
Initial Deposit shall be forwarded to Seller by the Escrow Agent, and neither
Seller nor Purchaser shall have any further obligations hereunder.
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 The balance of the Purchase Price for the Property shall be paid to and
received by Escrow Agent in Good Funds no later than 12:00 p.m. (in the time
zone in which the Escrow Agent is located) on the Closing Date.
2.3 Escrow Provisions Regarding Deposit and Documents.
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 (a) 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, or (b) actions brought against Escrow Agent by
either of the Seller or the Purchaser.
2.3.5 The parties acknowledge that Local Escrow Agent may act as a repository of
documentation deliverable by Purchaser to its lender, and as escrow agent for
the lender (as the designee of Escrow Agent), in connection with Purchaser's
financing of the Purchase Price (or portion thereof), and that in so acting,
Local Escrow Agent will serve as a representative and agent of Escrow Agent,
both with respect to the Closing of Purchaser's financing and the recording of
the Deed.
2.3.6 The parties shall deliver to Escrow Agent an executed copy of this
Contract, which shall constitute the sole instructions to Escrow Agent with
respect to sale and purchase of the Property. 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.
2.3.7 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.
2.3.8 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 AND FINANCING CONTINGENCY PERIODS
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 the
date which is 30 days after the Effective Date (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 subject to the Financing Contingency Period set
forth in Section 3.7.1 and satisfaction of the conditions expressly stated in
Section 8.1.
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 reasonable 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, and if not so terminated shall survive (except
for the confidentiality provisions of this Section 3.3) the Closing and delivery
of the Deed to Purchaser.
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 during the
Feasibility Period or otherwise.
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 (except that third
party consultants of Purchaser may maintain a coverage of $1,000,000.00 for
injury or death to more than one person if the coverage maintained by Purchaser
covers the acts of its third party consultants at the Property) 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 make the
documents set forth on Schedule 3.5 (the "Materials") assembled and made
available at the Property for review and copying by Purchaser at Purchaser's
sole cost and expense (subject to Section 3.5.2). In the alternative, at
Seller's option and within the foregoing 5-day period, Seller may deliver some
or all of the Materials to Purchaser, or 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 secured web site). 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 within 10 days
following the Effective Date and Seller shall use commercially reasonable
efforts to deliver the same to Purchaser within 5 Business Days after such
notification is received by Seller. In addition to the delivery of the Materials
required by this Section 3.5. Seller shall deliver to Purchaser an updated
certified Rent Roll on the 40th day following the Effective Date.
3.5.2 In providing such information and Materials to Purchaser, other than
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 shall be destroyed by Purchaser if this Contract
is terminated for any reason prior to the Closing. Purchaser shall, in the event
of the termination of this Contract prior to the Closing, provide to Seller (a)
its affidavit that all such information and Materials in Purchaser's possession
have been destroyed and that Purchaser has requested its Consultants and
advisors to destroy any such information and Materials in their possession, and
(b) a copy of each notice sent to its Consultants requesting the destruction of
such information and Materials in their possession, as acknowledged in writing
by such Consultants, and shall indemnify and hold Seller harmless from any loss
sustained or incurred by Seller as a result of (i) Purchaser's failure to
destroy such information and Materials as required by this Section 3.5.2, and
(ii) the failure of any of Purchaser's Consultants to so destroy such
information and Materials other than those Consultants identified in the written
acknowledgments delivered to Seller pursuant to this Section 3.5.2. Except for
the Seller's Representations, Purchaser shall not in any way be entitled to rely
upon the accuracy of such information and Materials. Except for the Seller's
Representations 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 as set forth in
the 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.
3.5.3 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 (provided that such a
contract is not with an affiliated party of Seller, Property Manager or AIMCO),
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. Notwithstanding the foregoing,
Seller aggress to terminate the Excluded Property Contracts effective as of the
Closing, or to cause them to be amended to exclude the Property from their
scope.
3.7 Financing Contingency Period.
3.7.1 Purchaser shall have a period of 45 days following the Effective Date (the
"Financing Contingency Period") to seek acceptable financing for the acquisition
of the Property. In the event that, after using commercially reasonable efforts,
Purchaser is unable to obtain a commitment for the acquisition of the Property
prior to the end of the Financing Contingency Period, Purchaser may, at its
option, by the delivery of written Notice by Purchaser to Seller and Escrow
Agent not later than 5:00 p.m., Houston, Texas time, of the last day of the
Financing Contingency Period, terminate this Contract, whereupon this Contract
shall terminate and the Deposit shall be returned to Purchaser by the Escrow
Agent and this Purchase Contract shall automatically be of no further force and
effect and neither party shall have any further rights and obligations
hereunder, except as provided in Section 5.3.
3.7.2 Following the expiration of the Financing Contingency Period, Purchaser
assumes full responsibility to expeditiously and diligently initiate and pursue
all steps necessary to obtain the funds required for settlement, and Purchaser's
acquisition of such funds shall not be a contingency or condition to the
Closing. Seller will be responsible for the payment of any amounts necessary to
obtain a release of the Deed of Trust.
ARTICLE 4
TITLE
4.1 Title Documents. Within 10 calendar 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
$14,150,000 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 to the extent of the amount chargeable on a policy in the
amount of $13,550,000. Purchaser shall be solely responsible for payment of all
additional amounts and other costs relating to procurement of the Title
Commitment, the Title Policy, and any requested amendments or endorsements.
4.2 Survey. Within 3 Business Days after the Effective Date, Seller shall
deliver to Purchaser or make available at the Property the existing survey of
the Property (the "Existing Survey") (subject to Section 3.5.2). To the extent
that Purchaser desires that a new survey of the Property be prepared (or that
the Existing Survey be updated or changed in any way), Purchaser may request in
writing to Seller, no later than 5 Business Days after the Effective Date, that
a new survey of the Property be prepared or that the Existing Survey be updated
or changed, as applicable, in which event Seller shall order such new or updated
survey from the surveyor who prepared the Existing Survey or from such other
surveyor as Seller determines in its reasonable discretion, and shall use
reasonable efforts to cause the New Survey to be delivered to Purchaser within
15 days after the date it is requested by Purchaser. Any New Survey shall be an
ALTA survey. Purchaser shall pay the cost and expense of any new, updated or
changed Survey requested pursuant to the terms of this Section 4.2 and for any
further updates or revisions of the Survey required by Purchaser or Purchaser's
lender.
4.3 Objection and Response Process. On or before the date which is 10 days after
the receipt of the last to be received of the Title Documents or the Survey (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 Business Days after the 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 5 days after the receipt of
the Response Notice (the "Final 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 and, if applicable, the Additional Deposit, shall be returned to
Purchaser. If Purchaser fails to give notice to terminate this Contract on or
before the Final Response Deadline, Purchaser shall be deemed to have elected to
approve and irrevocably waived any objections to any matters covered by the
Title Documents or 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; and
4.4.3 Applicable zoning and governmental regulations and ordinances;
4.5 Existing Deed of Trust. It is understood and agreed that, whether or not
Purchaser gives an Objection Notice with respect thereto, any deeds of trust
and/or mortgages (including any and all mortgages which secure the Note) against
the Property (whether one or more, the "Deed of Trust") shall not be deemed
Permitted Exceptions, whether Purchaser gives written notice of such or not, and
shall be paid off, satisfied, discharged and/or cured by Seller at Closing,
provided that the Lender's Fees due in connection with the Loan Payoff shall be
paid by Purchaser.
ARTICLE 5
CLOSING
5.1 Closing Date. The Closing shall occur 15 days following the expiration of
the Financing Contingency 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. The Closing Date may be extended without penalty at the
option of Seller and upon the giving of written notice to Purchaser not later
than 5 Business Days prior to the Closing Date 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") in the form attached as Exhibit B to
Purchaser, subject to the Permitted Exceptions. If Purchaser's lender requires a
vendor's lien be added to the Deed, the Deed shall be appropriately modified.
5.2.2 A Bill of Sale in the form attached as Exhibit C.
5.2.3 A General Assignment in the form attached as Exhibit D (the
"General Assignment").
5.2.4 An Assignment of Leases and Security Deposits in the form attached as
Exhibit E (the "Leases Assignment").
5.2.5 A proforma owner's policy of title insurance, prepared by the Title
Insurer for the benefit of the Purchaser, evidencing the Title Policy to be
issued by the Title Insurer pursuant to the Title Commitment as of the Closing
Date, in the amount of the Purchase Price plus the amount of the Lender's Fees,
insuring good and indefeasible title to the Property in Purchaser as of the
Closing Date, subject only to the Permitted Encumbrances and the standard
printed exceptions promulgated by the Texas State Board of Insurance, except
that exception number 2 of Schedule B thereof shall, at the expense of
Purchaser, be amended to read "shortages in area".
5.2.6 A letter prepared by Purchaser and countersigned by Seller to each of the
vendors under the Terminated Contracts informing them of the termination of such
Terminated 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 Contract) (the "Vendor Terminations").
5.2.7 A closing statement executed by Seller.
5.2.8 A title affidavit or at Seller's option an indemnity, as applicable, 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; provided that such affidavit does not subject Seller to
any greater liability, or impose any additional obligations, other than as set
forth in this Contract;
5.2.9 A certification of Seller's non-foreign status pursuant to Section 1445 of
the Internal Revenue Code of 1986, as amended;
5.2.10 Notification letters to all Tenants, executed by Seller in the
form attached hereto as Exhibit F;
5.2.11 An updated Rent Roll, certified by Seller to its knowledge to be true,
correct and complete in all material respects as of a date within 5 Business
Days of the Closing Date;
5.2.12 An updated list of Tenant delinquencies and any pending evictions filed
against any Tenant, certified by Seller to its knowledge to be true, correct and
complete in all material respects as of a date within 5 Business Days of the
Closing Date; and
5.2.13 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), plus or minus the
adjustments or prorations required by this Contract.
5.3.2 A closing statement executed by Purchaser.
5.3.3 A countersigned counterpart of the General Assignment.
5.3.4 A countersigned counterpart of the Leases Assignment.
5.3.5 Notification letters to all Tenants prepared and executed by
Purchaser in the form attached hereto as Exhibit F.
5.3.6 The Vendor Terminations.
5.3.7 Any cancellation fees or penalties due to any vendor under any Terminated
Property Contract as a result of the termination thereof.
5.3.8 Resolutions, certificates of good standing, and such other organizational
documents as Title Insurer shall reasonably require evidencing Purchaser's
authority to consummate this transaction.
5.3.9 The Lender's Fees.
5.4 Closing Prorations and Adjustments.
5.4.1 General. All normal and customarily proratable items, including, without
limitation, collected rents, operating expenses, real and personal property
taxes, other operating expenses and fees, shall be prorated as of the Closing
Date as set forth herein, Seller being responsible, 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 and deliver the same to Purchaser at least 2 days 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 to the extent so provided in this
Section 5.4.
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. Any adjustments necessary to effect
this apportionment shall be effected within 60 days following Closing to the
extent provided in this Section 5.4.
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 for the tax year beginning January 1, 2003 shall be subject to
re-adjustment when the actual property taxes are known; provided, further,
Purchaser must provide written notice to Seller within 30 days after such taxes
are finally known, accompanied with a statement and calculation of reproration;
provided, however, that no re-adjustment shall be made with respect to an
increase in real property taxes which are attributable solely to the occurrence
of the sale of the Property to Purchaser pursuant to this Contract.
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 provided under Leases (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 after first applying such rents received after Closing to the
current month's rent then due and owing under the Leases. 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, which right shall include, without limitation, the right to continue
or commence legal actions or proceedings against any Tenant, provided that any
such action or proceedings shall be limited actions seeking monetary damages and
in no event shall Seller seek to evict any Tenants. The delivery of the Leases
Assignment shall not constitute a waiver by Seller of such right. Purchaser
agrees to reasonably cooperate with Seller in Seller's efforts to collect such
Uncollected Rents; 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.
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. On the Closing Date, Seller shall pay (which payment may be
made by Seller out of the proceeds of the Purchase Price) the outstanding
principal balance of the Note together with all interest accrued under the Note
prior to the Closing Date (the "Loan Payoff"). Purchaser shall pay all Lender
Fees. Seller shall be entitled to any existing reserves, impounds and other
accounts maintained in connection with the Loan.
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. Seller shall terminate the employment at the Property of all of
Seller's and Seller's manager's on-site employees as of the Closing Date and
shall pay all compensation due to such employees through the date of
termination.
5.4.10 Closing Costs. Seller shall pay the cost of recording any instruments
required to discharge any liens or encumbrances against the Property, the basic
premium required to be paid with respect to the Title Policy pursuant to Section
4.1 up to the amount that would be payable if the amount of insurance thereunder
were equal to $13,550,000, and one-half of the customary closing costs of the
Escrow Agent. Purchaser shall pay the any premiums or fees with respect to the
Title Policy required by Section 4.1, the amount of the basic premium which
exceeds the amount to be paid by Seller pursuant to this Section 5.4.10 and
one-half of the customary closing costs of the Escrow Agent. In addition to the
customary costs incurred by Escrow Agent (except for costs or liabilities
arising from Escrow Agent's gross negligence or willful misconduct), Escrow
Agent shall receive a fee of $500 for its services hereunder, to be borne
equally by Seller and Purchaser.
5.4.11 Capital Improvements. Purchaser shall be entitled to a credit against the
Purchase Price in the amount of $600,000 to cover capital improvements to be
made at the Property.
5.4.12 Survival. The provisions of this Section 5.4 shall survive the Closing
and delivery of the Deed to Purchaser.
5.4.13 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. Originals or copies of the
Leases and Property Contracts, lease files, keys to the property, Seller's books
and records (other than proprietary information), and to the extent reasonably
available to Seller, warranties, guaranties, operating manuals, 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 other than ad valorem taxes as set forth in
Section 5.4.4 (a) after the expiration of 60 days after Closing, or (b) subject
to such 60-day period, unless such items exceeds $5,000.00 in magnitude (either
individually or in the aggregate). The provisions of this Section 5.5 shall
survive the Closing and delivery of the Deed to Purchaser.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER
6.1 Seller's Representations. Except, in all cases, for any fact, information or
condition disclosed in the Title Documents, the Permitted Exceptions, the
Property Contracts or the Materials, or which is otherwise known by Purchaser
prior to the Closing, 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, subject to Section 8.2.4, 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. Subject to Section
8.2.4, 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 To Seller's knowledge, Seller has not received any written notice from any
governmental authority of any uncured material violations of any federal, state,
county or municipal law, ordinance, order, regulation, restrictive covenant or
requirement affecting the Property;
6.1.6 To Seller's knowledge, 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, the Rent Roll to be delivered to Purchaser pursuant
to Section 3.5.1 and at Closing, the Operating Statements and the Capital
Improvement Schedules are true, correct and complete;
6.1.8 No management or leasing agreements are in effect with respect to the
Property that will survive Closing; and
6.1.9 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.
6.2 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 of title contained in
the Deed conveying the Property and 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.
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. 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, or the financial earning capacity 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. 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 so long as the conditions
precedent set forth in Sections 8.1 are satisfied, 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; provided that the foregoing shall not modify Seller's agreements
contained in ARTICLE 7 of this Contract. 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 9 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 provided notice to 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 and proceeded to the consummation of the Closing, 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 (a) Cathy Anderson, who is the Regional Property
Manager handling this Property (the "Regional Property Manager") and (b) Casey
Thornton, who is the community manager of the Property employed by the 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 Texas.
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.
The provisions of this Section 6.5 shall survive the Closing and delivery of the
Deed to Purchaser for a period of 9 months from the Closing Date.
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 and any new Property Contract must be terminable by the owner of the
Property upon no more than 30 days notice, without penalty, without the prior
written consent of Purchaser, which consent shall not be unreasonably withheld,
conditioned or delayed.
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 required by governmental authority or
public utility or in case of emergency, 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.
7.4 Inspection of Property. Purchaser may, upon reasonable notice to Seller and
on the terms and conditions set forth in Section 3.3 and Section 3.4, enter the
Property 5 Business Days prior to the Closing Date (or on such other date within
5 days previous to such 5th Business Day as Seller and Purchaser shall mutually
agree) to further inspect the Property to confirm any matters which Purchaser
may reasonably desire to confirm with respect to the Property.
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 Substantially all of those items of Fixtures and Personal Property listed
on the list delivered to and approved by Seller pursuant to Section 3.5.1 shall
still be located at the Property (provided, however, that items listed thereon
may be removed in the ordinary course of business if replaced with comparable
items), and Purchaser may inspect the Property up to 2 Business Days prior to
the Closing date to verify same.
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. 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.
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; and
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.
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.
ARTICLE 9
BROKERAGE
9.1 Indemnity. Seller represents and warrants to Purchaser that it has dealt
only with Brian O'Boyle of O'Boyle Properties, 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 Broker Commission. 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.
9.4 Texas Real Estate License Act. The Texas Real Estate License Act requires
written notice to Purchaser from any licensed real estate broker or salesman who
is to receive a commission from Purchaser that Purchaser should have an attorney
of its own selection examine an abstract of title to the property being acquired
or that Purchaser should be furnished with or should obtain a title insurance
policy. Notice to that effect is, therefore, hereby given to Purchaser on behalf
of Broker.
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 $50,000 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 destroy 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
PRIOR TO CLOSING 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 reasonably
estimated to be more than $300,000, 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. 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 Purchase Price notwithstanding any such damage or destruction and
Purchaser shall receive an assignment of Seller's claims under its insurance
policies to the extent assignable or 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
$300,000, 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 commence any such repairs prior to Closing,
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 commences any repair, replacement or
restoration of the Property prior to Closing pursuant to Section 11.2 above,
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 (but only after application of the deductible), with Purchaser
being responsible for completion of such repair, replacement or restoration
after Closing from the balance of any available insurance proceeds (plus any
unexpended portion of the deductible). 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 if Purchaser so terminates
this Contract shall recover the Deposit hereunder. 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.
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) either Yoram Ginach
or Gideon Lidor is a direct or indirect affiliate of the purchasing entity(ies),
and (b) Purchaser is not released from its liability hereunder; provided,
however, that in the event of such an assignment by Purchaser, it shall be
released from its liability under this Contract, other than the liability of
Purchaser under Section 3.4 for actions of Purchaser or its Consultants
committed or occurring during the period from Effective Date to the Closing
Date, concurrently with and conditioned upon the Closing. 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
confirmed facsimile transmission with an original copy thereof transmitted to
the recipient by one of the means described in subsections (a) through (c) no
later than 3 Business Days thereafter. All notices shall be deemed effective
when actually delivered as documented in a delivery receipt; provided, however,
that if (i) 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 Section 13.7, then
the first attempted delivery shall be deemed to constitute delivery, and (ii) if
a facsimile transmission cannot be confirmed as to each of the persons entitled
to notice set forth below, notice to Seller shall be deemed delivered in
accordance with this Section 13.7 if such transmission is confirmed as to either
of the two individuals named for notice to the Seller set forth below or as to
Seller's counsel named below. 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:
901 Waterfall Way
Suite 555
Richardson, TX 75080
Attn: Sam W. Pettigrew III
Telephone No. (972) 669-9121, ext. 203
Facsimile No. (972) 669-9617
With a copy to Purchaser's counsel:
Shannon, Gracey, Ratliff & Miller, L.L.P.
500 North Akard, Suite 2575
Dallas, TX 75201
Attn: Barbara Kennedy, Esq.
Telephone No. (214) 245-3070
Facsimile No. (214) 245-3097
To Seller:
c/o AIMCO
Stanford Place 3
4582 South Ulster Street Parkway
Suite 1100
Denver, Colorado 80237
Attn: Patrick Slavin
Telephone No. (303) 691-4340
Facsimile No. (303) 300-3252
and
c/o AIMCO
Stanford Place 3
4582 South Ulster Street Parkway
Suite 1100
Denver, Colorado 80237
Attn: Mr. Harry Alcock
Telephone No. (303) 691-4344
Facsimile No. (303) 300-3282
with copy to:
Chad Asarch, Esq.
Vice President and Assistant General Counsel
AIMCO
Stanford Place 3
4582 South Ulster Street Parkway
Suite 1100
Denver, Colorado 80237
Telephone No. (303) 691-4303
Facsimile No. (303) 300-3297
and a copy to Seller's counsel:
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 Texas shall govern the
validity, construction, enforcement, and interpretation of this Contract,
without regard to choice of law rules of any jurisdiction. 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 shall not disclose the terms and conditions
contained in this Contract and shall keep the same confidential, provided that
Purchaser may disclose the terms and conditions of this Contract (a) as required
by law, (b) to consummate the terms of this Contract, or any financing relating
thereto, or (c) 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
Partners. Purchaser acknowledges that this Contract is entered into by Seller
which is a California limited partnership, and Purchaser agrees that none of
Seller's Indemnified Parties 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 Financing Contingency 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 Dallas, Texas. 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
prior to the expiration of the Financing Contingency Period.
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, and (c) any payment obligation
of Purchaser under this Contract (the foregoing (a), (b) and (c) 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.
13.29 Multiple Purchasers. As used in this Contract, the term "Purchaser", means
all entities acquiring any interest in the Property at the Closing. In the event
that "Purchaser" has any obligations or makes any covenants, representations or
warranties under this Contract, the same shall be made jointly and severally by
all entities being a Purchaser hereunder. In the event that Seller receives
notice from any entity being a Purchaser hereunder, the same shall be deemed to
constitute notice from all entities being a Purchaser hereunder. In the event
that any entity being a Purchaser hereunder takes any action, breaches any
obligation or otherwise acts pursuant to the terms of this Contract, the same
shall be deemed to be the action of the other entity(ies) being a Purchaser
hereunder and the action of "Purchaser" under this Contract. In the event that
Seller is required to give notice or take action with respect to Purchaser under
this Contract, notice to any entity being a Purchaser hereunder or action with
respect to any entity being a Purchaser hereunder shall be a notice or action to
all entities being a Purchaser hereunder. In the event that any entity being a
Purchaser hereunder desires to bring an action or arbitration against Seller,
such action must be joined by all entities being a Purchaser hereunder in order
to be effective. In the event that there is any agreement by Seller to pay any
amount pursuant to this Contract to Purchaser under any circumstance, that
amount shall be deemed maximum aggregate amount to be paid to all parties being
a Purchaser hereunder and not an amount that can be paid to each party being a
Purchaser hereunder.
ARTICLE 14
LEAD-BASED PAINT DISCLOSURE
[Intentionally Omitted]
NOW, THEREFORE, the parties hereto have executed this Contract as of the
date first set forth above.
Seller:
CENTURY PROPERTIES FUND XIX,
a California limited partnership
By: Fox Partners II, a California
general partnership, its general
partner
By: Fox Capital Management
Corporation, a California
corporation, its managing
partner
By: /s/Patrick F. Slavin
Name: Patrick F. Slavin
Title: Senior Vice President
Purchaser:
SUNCASE CORPORATION,
a Texas corporation
By:/s/Gideon Lidor
Name:Gideon Lidor
Title: 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 June 11, 2003 as the date of opening of escrow
and designates 03160471 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 to be paid to Broker pursuant to a separate
agreement, 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:
O'BOYLE PROPERTIES, INC., a Texas
corporation
By: /s/Brian J. O'Boyle
Name: Brian J. O'Boyle
Title: Managing Broker
Exhibit 10.23
FIRST AMENDMENT
TO PURCHASE AND SALE CONTRACT
THIS FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into effective as of the 10th day of July, 2003, by and between CENTURY
PROPERTIES FUND XIX, a California limited partnership ("Seller"), and SUNCASE
CORPORATION, a Texas corporation ("Purchaser").
RECITALS:
A. Purchaser and Seller have entered into that certain Purchase and Sale
Contract (the "Purchase Contract") dated as of June 10, 2003, covering certain
real property located in Dallas County, Texas, as more particularly described in
the Purchase Contract.
B. Purchaser and Seller desire to amend the Purchase Contract in certain
respects, as set forth below.
C. 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. Feasibility Period. Section 3.1 of the Purchase Contract is hereby
amended such that the date of the expiration of the Feasibility Period shall be
July 18, 2003.
2. Financing Contingency Period. Section 3.7.1 of the Purchase Contract is
hereby amended such that the last day of the Financing Contingency Period shall
be August 4, 2003.
3. Closing Date. The first sentence of Section 5.1 of the Purchase
Contract is hereby amended such that the Closing Date shall be August 19, 2003
(subject to the Seller's right to extend the Closing Date as set forth in
Section 5.1).
4. 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.
5. 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:
CENTURY PROPERTIES FUND XIX,
a California limited partnership
By: Fox Partners II, a California
general partnership, its general
partner
By: Fox Capital Management
Corporation, a California
corporation, its managing
partner
By: /s/Patrick F. Slavin
Name: Patrick F. Slavin
Title: Senior Vice President
Purchaser:
SUNCASE CORPORATION,
a Texas corporation
By:/s/Gideon Lidor
Name:Gideon Lidor
Title: President
Exhibit 10.24
SECOND AMENDMENT
TO PURCHASE AND SALE CONTRACT
THIS SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into effective as of the 13th day of August, 2003, by and between
CENTURY PROPERTIES FUND XIX, a California limited partnership ("Seller"), and
SUNCASE CORPORATION, a Texas corporation ("Purchaser").
RECITALS:
A. Purchaser and Seller have entered into that certain Purchase and Sale
Contract (the "Purchase Contract") dated as of June 10, 2003, covering certain
real property located in Dallas County, Texas, as more particularly described in
the Purchase Contract.
B. The Purchase Contract was amended by that certain First Amendment to
Purchase and Sale Contract, dated as of July 10, 2003.
C. Purchaser and Seller desire to 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. Additional Deposit. The first sentence of Section 2.2.2 is hereby
amended such that the "Additional Deposit" as defined therein shall refer to
both the amount of $135,000 delivered by Purchaser to Escrow Agent on the day
that the Financing Contingency Period expires and the amount of $100,000 to be
delivered by Purchaser to Escrow Agent on the date of the execution of an
amendment to the Contract extending the Closing Date to August 28, 2003.
2. Closing Date. The first sentence of Section 5.1 of the Purchase
Contract is hereby amended such that the Closing Date shall be August 28, 2003
(subject to the Seller's right to extend the Closing Date as set forth in
Section 5.1).
4. 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.
5. 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:
CENTURY PROPERTIES FUND XIX,
a California limited partnership
By: Fox Partners II, a California
general partnership, its general
partner
By: Fox Capital Management
Corporation, a California
corporation, its managing
partner
By: /s/Patrick F. Slavin
Name: Patrick F. Slavin
Title: Senior Vice President
Purchaser:
SUNCASE CORPORATION,
a Texas corporation
By:/s/Sam W. Pettigrew
Name:Sam W. Pettigrew
Title: Assistant Vice President
Exhibit 10.24
ASSIGNMENT OF
PURCHASE AND SALE CONTRACT
THIS ASSIGNMENT OF PURCHASE AND SALE CONTRACT (the "Assignment") is made
effective as of the 25th day of August, 2003, by and between SUNCASE
CORPORATION, INC., a Texas corporation ("Assignor") and MCMILLAN DEVELOPMENT
ASSOCIATES, L.P., a Texas limited partnership ("Assignee").
WHEREAS, Assignor and Century Properties Fund XIX ("Seller") entered into
that certain Purchase and Sale Contract ("Agreement") dated as of June 10, 2003,
as amended by First Amendment to Purchase and Sale Contract dated July 10, 2003
and by Second Amendment to Purchase and Sale Contract dated August 13, 2003,
pertaining to property known as the McMillan Place Apartments, located at 12610
Jupiter Road, Dallas, Texas, and described more particularly in the Agreement
(the "Property"); and,
WHEREAS, Assignor desires to assign the Agreement to Assignee in
accordance with the terms and provisions hereof.
NOW, THEREFORE, FOR AND IN CONSIDERATION of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Assignor does hereby SELL, ASSIGN, TRANSFER,
SETOVER, and CONVEY unto Assignee, all of Assignor's right, title, and interest
in, to, and under and does hereby delegate to Assignee all of its duties and
obligations in, to and under the Agreement, including all amendments thereto,
more fully described above. Assignee does hereby accept said assignment and
Assignee hereby assumes all obligations of Purchaser under the Agreement and
agrees to perform all duties and obligations of Purchaser under the Agreement to
the extent they arise from and after the effective date hereof. Assignee agrees
to reimburse Assignor for the Earnest Money deposit now on deposit with the
Title Company at or before Closing.
Capitalized terms not otherwise defined herein shall have the meanings set
forth in the Agreement. This Assignment may be executed in multiple
counterparts, each of which shall be an original for all purposes and all of
which, when taken together, shall constitute one agreement. An executed
facsimile of this Assignment shall be fully effective and as binding as an
original upon the party executing and transmitting same.
EXECUTED effective as of the 25th day of August, 2003.
[SIGNATURES ON FOLLOWING PAGE]
ASSIGNOR:
SUNCASE CORPORATION
By:/s/Gideon Lidor
Gideon Lidor, President
ASSIGNEE:
MCMILLAN DEVELOPMENT
ASSOCIATES, L.P.
a Texas limited partnership
By: RRDDO Operations, Inc.,
a Texas corporation
By:/s/Gideon Lidor
Gideon Lidor, President