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) September 4, 2003
CONSOLIDATED CAPITAL GROWTH FUND
(Exact name of registrant as specified in its charter)
California 0-8639 94-2382571
(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 September 4, 2003, the Registrant sold one of its investment properties,
Doral Springs Apartments, located in Miami, Florida. The Registrant sold Doral
Springs Apartments to Fairfield Doral Springs, LLC, an unrelated party, for
$22,800,000. 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 Doral Springs
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 $ 880
Investment properties, net 4,858
Total Assets $ 5,738
All other liabilities $ 711
Mortgage notes payable 12,240
Partners' deficit (7,213)
Total Liabilities and Equity $ 5,738
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 $ 1,653 $ 3,774
Total expenses 2,111 4,074
Net loss $ (458) $ (300)
Net loss per limited partnership unit $ (9.22) $ (6.04)
(c) Exhibits.
The following exhibits are filed with this report (1):
10.38 Purchase and Sale Contract between Registrant and FF Realty, LLC,
dated June 6, 2003.
10.39 Reinstatement and Amendment to Purchase and Sale Contract between
Registrant and FF Realty, LLC dated July 11, 2003.
10.40 Second Amendment to Purchase and Sale Contract between Registrant
and FF Realty, LLC dated August 15, 2003.
10.41 Escrow Agreement between Registrant and FF Realty, LLC dated June 6,
2003.
10.42 Assignment and Assumption of Real Estate Sales Agreement between FF
Realty, LLC and Fairfield Doral Springs, LLC dated August 22, 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.
CONSOLIDATED CAPITAL GROWTH FUND
By: ConCap Equities, Inc.
Its General Partner
By: /s/Patrick J. Foye
Patrick J. Foye
Executive Vice President
Date: September 18, 2003
Exhibit 10.38
PURCHASE AND SALE CONTRACT
BETWEEN
CONSOLIDATED CAPITAL GROWTH FUND,
a California limited partnership
AS SELLER
AND
FF REALTY LLC,
a Delaware limited liability company
AS PURCHASER
(Doral Springs)
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract" or the "Agreement")
is entered into as of the 6th day of June, 2003 (the "Effective Date") by and
between CONSOLIDATED CAPITAL GROWTH FUND, a California limited partnership,
having a principal address at 4582 South Ulster Street Parkway, Suite 1100,
Denver, Colorado 80237 ("Seller") and FF REALTY LLC, a Delaware limited
liability company, having a principal address at 5510 Morehouse Drive, Suite
200, San Diego, California 92121 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements hereinafter set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. Seller holds legal title to the real estate located in Miami-Dade
County, Florida, as more particularly described in Exhibit A attached hereto and
made a part hereof. Improvements have been constructed on the property described
in this Recital.
R-2. Purchaser desires to purchase and Seller has agreed to sell such
land, improvements and certain associated property, defined below as the
"Property" on the terms and conditions set forth below, (which terms and
conditions shall control in the event of any conflict with these Recitals), such
that on the Closing Date (as hereinafter defined) the Property will be conveyed
by special warranty deed to Purchaser.
R-3. Purchaser has agreed to pay to Seller the Purchase Price for the
Property, and Seller has agreed to sell the Property to Purchaser, on the terms
and conditions set forth below.
R-4. Purchaser intends to make investigations regarding the Property, and
Purchaser's intended uses of each of the Property as Purchaser deems necessary
and desirable.
ARTICLE 1
DEFINED TERMS
1.1 Unless otherwise defined herein, terms with initial capital letters in this
Purchase Contract shall have the meanings set forth in this ARTICLE 1 below.
1.1.1 "Business Day" means any day other than a Saturday or Sunday or Federal
holiday or legal holiday in the State of Florida.
1.1.2 "Closing" means the consummation of the purchase and sale and related
transactions contemplated by this Purchase Contract in accordance with the terms
and conditions of this Purchase Contract.
1.1.3 "Closing Date" means the date on which date the Closing of the conveyance
of the Property is required to be held under the terms and conditions of this
Purchase Contract and on which date full payment of the Purchase Price for the
Property shall have been paid to and received by Seller in immediately available
U.S. funds.
1.1.4 "Excluded Permits" means those Permits which, under applicable
law, are nontransferable and such other Permits as may be designated as Excluded
Permits on Exhibit 1.1.5, if any, attached hereto.
1.1.5 Intentionally Omitted.
1.1.6 "Fixtures and Tangible Personal Property" means all fixtures, furniture,
furnishings, fittings, equipment, machinery, apparatus, appliances and all other
articles of tangible personal property. The term "Fixtures and Tangible Personal
Property" does not include (i) 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 (ii) property owned or leased by Tenants and guests,
employees or other persons furnishing goods or services to the Property, or
(iii) 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 or (iv) the property and equipment, if any, expressly
identified in Exhibit 1.1.7.
1.1.7 "Improvements" means all buildings and
improvements, located on the Land taken "as is".
1.1.8 "Land" means all of those certain tracts of land located in the State of
Florida described on Exhibit "A" attached hereto, and all rights, privileges and
appurtenances pertaining thereto.
1.1.9 "Lease(s)" means the interest of Seller in and to all leases, subleases
and other occupancy agreements, 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 Effective Date for the Property.
1.1.10 "Lender Fees" means all fees and expenses (including, without limitation,
all prepayment penalties and pay-off fees) imposed or charged by Lender or its
counsel in connection with the repayment of the loan secured by the existing
lien on the Property, and, to the extent that such loan repayment occurs on a
date other than as permitted under the loan documents, any amounts of interest
charged by such lender for the period from the Closing Date to the permitted
prepayment date, the amount of the Lender Fees to be determined as of the
Closing Date.
1.1.11 "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, excluding, however, (i) receivables, (ii) Property Contracts,
(iii) Leases, (iv) Permits, (v) cash or other funds, whether in petty cash or
house "banks," or on deposit in bank accounts or in transit for deposit, (vi)
refunds, rebates or other claims, or any interest thereon, for periods or events
occurring prior to the Closing Date, (vii) utility and similar deposits, or
(viii) insurance or other prepaid items or (ix) Seller's proprietary books and
records, except to the extent that Seller receives a credit on the closing
statement for any such item. The term "Miscellaneous Property Assets shall also
include the following, but only to the extent owned by Seller and in Seller's
possession: site plans, surveys, soil and substrata studies, architectural
renderings, plans and specifications, engineering plans and studies, floor
plans, tenant data sheets, landscape plans and other plans or studies of any
kind, if any, which relate to the Land and or the Improvements or the Fixtures
and Tangible Personal Property. The term "Miscellaneous Property Assets" shall
also include all of Seller's rights, if any, in and to the name "Doral Springs".
1.1.12 "Permits" means all licenses and permits granted by governmental
authorities having jurisdiction over the Property in respect of the matter to
which the applicable license or permit applies and owned by Seller and used in
or relating to the ownership, occupancy or operation of the Property or any part
thereof not subject to a Lease.
1.1.13 "Permitted Exceptions" means those exceptions or conditions permitted to
encumber the title to the Property in accordance with the provisions of Section
6.2.
1.1.14 "Property" means the Land and Improvements and all rights of Seller
relating to the Land and the Improvements, including without limitation, any
rights, title and interest of Seller, if any, in and to (i) any strips and gores
adjacent to the Land and any land lying in the bed of any street, road, or
avenue opened or proposed, in front of or adjoining the Land, to the center line
thereof; (ii) any unpaid award for any taking by condemnation or any damage to
the Property by reason of a change of grade of any street or highway; (iii) all
of the easements, rights, privileges, and appurtenances belonging or in any way
appertaining to the Property; together with all Fixtures and Tangible Personal
Property, the right, if any and only to the extent transferable, of Seller in
and to Property Contracts and Leases, Permits other than Excluded Permits and
the Miscellaneous Property Assets owned by Seller which are located on the
Property and used in its operation.
1.1.15 "Property Contracts" means all purchase orders, maintenance, service, or
utility contracts and similar contracts, which relate to the ownership,
maintenance, construction or repair and/or operation of the Property and which
are not cancelable on 30 days' or shorter Notice, except Leases.
1.1.16 "Purchase Contract" means this Purchase and Sale Contract by and between
Seller and Purchaser.
1.1.17 "Purchase Price" means the total consideration to be paid by Purchaser to
Seller for the purchase of the Property.
1.1.18 "Survey" shall have the meaning ascribed thereto in Section 6.12.
1.1.19 "Tenant" means any person or entity entitled to occupy any portion of the
Property under a Lease.
1.1.20 "Title Commitment" or "Title Commitments" shall have the meaning ascribed
thereto in Section 6.1.
1.1.21 "Title Insurer" shall have the meaning set forth
in Section 6.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Seller agrees to sell and convey the Property to Purchaser and Purchaser
agrees to purchase the Property from Seller, in accordance with the terms and
conditions set forth in this Purchase Contract.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be
Twenty-Two Million Nine Hundred Thousand and No/100 Dollars ($22,900,000.00),
reduced by the amount of the Lender's Fees, which shall be paid by Purchaser, as
follows:
3.1.1 On the date hereof, Purchaser shall deliver to STEWART TITLE GUARANTY
COMPANY ("Escrow Agent" or the "Title Insurer") a deposit in the sum of One
Hundred Fifty Thousand and No/100 Dollars ($150,000.00), in cash, (such sum
being hereinafter referred to and held as the "Initial Deposit"). A portion of
the Initial Deposit in the amount of One Hundred Thousand and No/100 Dollars
($100,000.00) (the "Non-Refundable Amount") shall become immediately
non-refundable upon delivery to Escrow Agent other than upon the occurrence of a
Refundable Event (as hereinafter defined). As used herein, the term "Refundable
Event" shall mean (a) Seller is unable to provide clear, insurable title to the
Property satisfactory to Purchaser and its lender in its reasonable discretion,
(b) the Phase I environmental study of the Property ordered by Purchaser
reflects a condition on the Property that is unacceptable to Purchaser in its
reasonable discretion, (c) Seller defaults (after expiration of any applicable
notice and/or cure periods) in failing to close this transaction as required
hereunder, (d) Purchaser terminates this Purchase Contract as permitted and
pursuant to Section 13.1 (major casualty), or Section 15.1 (condemnation), (e)
the transaction contemplated by this Purchase Contract does not close because a
condition precedent to Purchaser's obligation to close under Section 9.1 has not
been satisfied (after expiration of any applicable notice or cure periods), or
(f) the transaction contemplated by this Purchase Contract does not close
because Seller is unable to obtain any necessary partner consents required
pursuant to Section 9.2.5 hereunder. Purchaser shall also deliver a quitclaim
deed to the Escrow Agent in the form attached as Exhibit 3.1.1. Purchaser and
Seller each approve the form of Escrow Agreement attached as Exhibit B.
3.1.2 At or before 5:00 p.m. Eastern time on the date of expiration of the
Feasibility Period, provided Purchaser has not terminated this Purchase Contract
pursuant to Section 5.2 below, Purchaser shall deliver to Escrow Agent an
additional deposit in the sum of One Hundred Fifty Thousand and no/100 Dollars
($150,000.00), in cash (such sum being hereinafter referred to as the
"Additional Deposit").
3.1.3 The Escrow Agent shall hold the Initial Deposit and the Additional Deposit
(collectively, to the extent paid, the "Deposit") and make delivery of the
Deposit to the party entitled thereto under the terms hereof. 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 agreements as Escrow Agent, in its discretion, deems suitable,
(provided that Escrow Agent shall invest the Deposit as directed by Purchaser
and consented to by Seller (which consent shall not be unreasonably withheld,
conditioned or delayed) should Purchaser determine to issue such investment
instructions to the Escrow Agent) and all interest and income thereon shall
become part of the Deposit and shall be remitted to the party entitled to the
Deposit, as set forth below.
3.1.4 If the sale of the Property is closed by the
date fixed therefor (or any extension date provided for herein), monies held as
the Deposit shall be applied to the Purchase Price on the Closing Date.
3.1.5 If the sale of the Property is not closed by the date fixed therefor (or
any such extension date) owing to a default by Seller, Purchaser shall be
entitled to the remedies set forth in ARTICLE 12 hereof. If the sale of the
Property is not closed by the date fixed therefor (or any such extension date)
owing to a default by Purchaser, the Deposit shall be forfeited by Purchaser and
the sum thereof shall go to Seller forthwith as liquidated damages for the lost
opportunity costs and transaction expenses incurred by Seller, as more fully set
forth in ARTICLE 12 below.
ARTICLE 4
FINANCING
4.1 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
to the Closing.
ARTICLE 5
FEASIBILITY PERIOD
5.1 Subject to the terms of Section 5.3 below, for the period commencing on the
date hereof and ending thirty (30) calendar days thereafter (the "Feasibility
Period"), Purchaser, and its agents, contractors, engineers, surveyors,
attorneys, and employees ("Consultants") shall have the right from time to time
to enter onto the Property:
5.1.1 To conduct and make any and all customary studies, tests, examinations and
inspections, or investigations 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).
5.1.2 To confirm any and all matters which Purchaser may reasonably desire to
confirm with respect to the Property.
5.1.3 To ascertain and confirm the
suitability of the property for Purchaser's intended use of the Property.
5.1.4 To review all Materials (as hereinafter defined) other than Seller's
proprietary information, including, Materials held by the Property Manager and
the Regional Property Manager (as defined in Section 8.1.4 of this Purchase
Contract).
5.2 Purchaser shall have the right to terminate this Purchase
Contract for any reason, or no reason, on or before 5:00 p.m. Eastern time on
the date of expiration of the Feasibility Period. Unless Purchaser delivers
written Notice to Seller and Escrow Agent waiving its contingencies under
Articles 5 and 6 on or before 5:00 p.m. Eastern time on the date of expiration
of the Feasibility Period, this Purchase Contract shall terminate and be of no
further force and effect, subject to and except for Purchaser's liability under
Section 5.3, and Escrow Agent shall forthwith deliver the Quitclaim Deed of all
of Purchaser's right and interest in the Property to Seller, and then promptly
return the Deposit (less the Non-Refundable Amount unless a Refundable Event has
occurred) to Purchaser. If Purchaser delivers such written Notice of waiver
prior to the end of the Feasibility Period in strict accordance with the Notice
provisions of this Purchase Contract, this Purchase Contract shall remain in
full force and effect and Purchaser's obligation to purchase the Property shall
be non-contingent and unconditional except only for satisfaction of the
conditions expressly stated in ARTICLE 5 and ARTICLE 9.
5.3 Purchaser shall indemnify and hold Seller harmless for any actions taken by
Purchaser and its Consultants on the Property. Purchaser shall indemnify, defend
(with attorneys selected by Seller) and hold Seller harmless from any and all
actual claims, damages, costs and liability which may arise due to such entries,
surveys, tests, investigations and the like; provided, however, that the
foregoing indemnification obligation shall not include any claims for (a)
diminution in value arising out of Purchaser's discovery of any pre-existing
hazardous condition on the Property but only to the extent such condition is not
exacerbated by Purchaser, or (b) any losses arising out of the gross negligence
or willful misconduct of Seller. Seller shall have the right, without
limitation, to disapprove any and all entries, surveys, tests, investigations
and the like that in their reasonable judgment could result in any injury to the
Property which could not reasonably be repaired within a reasonable time, or
breach of any agreement, or expose Seller to any liability, costs, liens or
violations of applicable law, or otherwise adversely affect the Property or
Seller's interest therein (as reasonably determined by Seller). 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
the Property to the same condition existing immediately prior to Purchaser's
exercise of its rights pursuant to this ARTICLE 5 at Purchaser's sole cost and
expense. Purchaser shall maintain casualty insurance and comprehensive public
liability insurance with coverages of not less than $1,000,000.00 for injury or
death to any one person and $3,000,000.00 for injury or death to more than one
person and $500,000.00 with respect to property damage, by water or otherwise.
The provisions of this Section shall survive the Closing or termination of this
Purchase Contract.
5.4 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 studies or tests conducted by or for Purchaser. Purchaser shall give
notice to Seller a reasonable time prior to entry onto the Property, shall
deliver proof of insurance coverage required above to Seller and shall permit
Seller to have a representative present during all investigations and
inspections conducted with respect to the Property. Purchaser shall take all
reasonable actions and implement all protections necessary to ensure that all
actions taken in connection with the investigations and inspections of the
Property, and all equipment, materials and substances generated, used or brought
onto the Property pose no material threat to the safety of persons or the
environment and cause no damage to the Property or other property of Seller or
other persons. All information made available by Seller to Purchaser in
accordance with this Purchase Contract or obtained by Purchaser in the course of
its investigations shall be treated as confidential information by Purchaser,
and, prior to the purchase of the Property by Purchaser, Purchaser shall use its
best efforts to prevent its Consultants, agents and employees 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 Purchase Contract, including Purchaser's attorneys and
representatives, prospective lenders and investors and their attorneys, and
engineers.
5.5 Seller shall deliver to Purchaser within ten (10) calendar days from the
Effective Date copies of all leases, contracts, engineering studies, surveys and
other materials (the "Materials") in Seller's possession or control relating to
the Property (other than proprietary information of Seller). If the sale of the
Property is not closed by the date fixed therefor, Purchaser shall, within five
(5) calendar days, return all such Materials to Seller. During the Feasibility
Period, Seller and Purchaser shall jointly prepare a list of the personal
property intended to be conveyed to Purchaser at the Closing.
ARTICLE 6
TITLE
6.1 Seller shall promptly obtain from Stewart Title Guaranty Company, 1980 Post
Oak Boulevard, Suite 610, Houston, Texas 77056, Attention: Ms. Wendy Howell,
Facsimile (713) 552-1703 (the "Title Insurer") a preliminary title report or
commitment (the "Title Commitment") to issue an Owner's Policy of Title
Insurance (the "Title Policy") insuring Purchaser's title to the Property to be
good and indefeasible in the amount of the Purchase Price, subject only to the
Permitted Exceptions (described below) and other liens and encumbrances not
constituting objections to title in accordance herewith. A copy of the Title
Commitment and the documents of record reflected therein and Seller's existing
survey shall be furnished to the Purchaser and attorney for Seller. On or before
the expiration of the Feasibility Period, Purchaser shall give written notice
(the "Objection Notice") to the attorneys for Seller of any conditions of title
which Purchaser is not obligated to take the Property subject to pursuant to the
provisions of this Agreement (the "Objections") separately specifying and
setting forth each of such Objections. Seller shall be entitled to reasonable
adjournments of the Closing Date to cure the Objections. If Purchaser gives
Seller an Objection Notice within the period set forth above, then all matters
disclosed on the Title Commitment which are not objected to in such Objection
Notice shall be deemed to be Permitted Exceptions. If Purchaser fails to give
Seller an Objection Notice within the period set forth above, then all matters
disclosed on the Title Commitment shall be deemed to be Permitted Exceptions.
6.2 If Seller gives Purchaser notice (the "Response Notice") that Seller is
unable or unwilling to convey title to the Property as required by this Purchase
Agreement, Purchaser may, as its exclusive remedy, elect by written notice given
to Seller within five (5) days after the Response Notice is given, either (a) to
accept such title as Seller is able to convey without any reduction or abatement
of the Purchase Price, or (b) to terminate this Purchase Contract in which event
the Deposit shall be returned to Purchaser. If Purchaser fails to give notice of
its election to terminate this Agreement within such five (5) day period,
Purchaser shall be deemed to have waived said objections and to have elected to
proceed to close the transactions contemplated by this Purchase Contract.
6.3 The existence of liens or encumbrances other than the Permitted Exceptions
or those which are permitted by this Purchase Contract shall be deemed to be
Permitted Exceptions if the Title Insurer will insure Purchaser's title clear of
the matter or will insure against the enforcement of such matter out of the
Property, and such lien or encumbrance would not adversely affect Purchaser's
rights in the Property (as reasonably determined by Purchaser). Unpaid liens for
real estate and personal property taxes for years prior to the fiscal year in
which the Closing Date occurs and any other matter which Seller is obligated to
pay and discharge at the Closing shall not be deemed objections to title, but
the amount thereof chargeable to Seller, plus interest and penalties thereon, if
any, shall be deducted from the Purchase Price on the Closing Date and paid to
the Title Insurer for the payment of such matters; provided, however, Purchaser
shall be responsible for paying the Lender Fees (subject to reduction of the
Purchase Price in accordance with Section 3.1).
6.4 Intentionally Deleted.
6.5 Intentionally Deleted.
6.6 Seller covenants that it will not voluntarily create or cause any lien or
encumbrance to attach to the Property between the date of this Purchase Contract
and the Closing Date (other than Leases in the ordinary course of business which
shall not exceed a term of six (6) months, and Property Contracts in the
ordinary course of business which can be terminated on thirty (30) days or less
notice without penalty); any such monetary lien or encumbrance so attaching by
voluntary act of Seller (hereinafter, a "Voluntary Intervening Lien") shall be
discharged by the Seller at or prior to Closing on the Closing Date or any
postponed Closing Date. Except as expressly provided above, Seller shall not be
required to undertake efforts to remove any other lien, encumbrance, security
interest, exception, objection or other matter, to make any expenditure of money
or institute litigation or any other judicial or administrative proceeding and
Seller may elect not to discharge the same; provided, however, if any lien or
encumbrance (other than a Voluntary Intervening Lien) attaches to the Property
between the date of this Purchase Contract and the Closing Date, Seller shall be
required to satisfy or discharge said lien or encumbrance at or prior to the
Closing, provided that Seller shall not be required to expend more than $250,000
in connection with such satisfaction or discharge. If any new exception to title
arises after the expiration of the Feasibility Period which Purchaser
disapproves within five (5) days after notice thereof, and Seller does not elect
to cure, or if the amount required to satisfy or discharge any Voluntary
Intervening Lien exceeds $250,000, Purchaser shall have the option of either (a)
with respect to any such Voluntary Intervening Lien paying the excess amount
over $250,000 required to satisfy or discharge such lien, and proceeding to the
Closing, and with respect to any other encumbrance, accept such title as Seller
is willing to convey without any reduction or abatement of the Purchase Price or
(b) terminating this Purchase Contract, in which case, the Deposit shall be
returned and refunded to Purchaser and neither party shall have any further
liability hereunder, subject to and except for Purchaser's liability under
Section 5.3 of this Purchase Contract. Seller shall have no option to terminate
this Purchase Contract if Purchaser has elected to pay the amount in excess of
$250,000 to satisfy or discharge such lien or encumbrance.
6.7 Purchaser at
Purchaser's sole cost and expense, may cause to be prepared a survey for the
Property ("Survey") to be delivered to Purchaser and Seller within the
Feasibility Period. The Survey (i) shall be in a form, and shall be certified as
of a date satisfactory to Title Insurer to enable Title Insurer to delete
standard survey exceptions from the title insurance policy to be issued pursuant
to the Title Commitments, except for any Permitted Exceptions; (ii) shall
contain a perimeter legal description of the Property which may be used in the
special warranty deed or equivalent deed; and (iii) shall be certified to
Purchaser, Purchaser's lender, Seller and Title Insurer as being true and
correct. In the event the perimeter legal description of the Property contained
in the Survey differs from that contained in the deed or deeds by which Seller
took title to the Property, the latter description shall be used in the special
warranty deed delivered to Purchaser at Closing, and the Survey legal shall be
used in a quitclaim deed to the Property which also shall be delivered to
Purchaser at Closing. Purchaser, at Purchaser's sole cost and expense, may also
cause to be prepared an environmental report for the Property ("Environmental
Report").
6.7.1 Should such Survey disclose conditions that give rise to a title
exception other than a Permitted Exception, Purchaser shall have the right to
object thereto within the Feasibility Period in accordance with the procedures
set forth in ARTICLE 5 above.
ARTICLE 7
CLOSING
7.1 Dates, Places Of Closing, Prorations, Delinquent Rent and Closing Costs.
7.1.1 The Closing shall occur thirty (30) calendar days after the expiration of
the Feasibility Period. The closing shall occur 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. Notwithstanding the foregoing to the contrary, Purchaser shall have
the option, by delivering written notice to Seller on or before July 21, 2003,
to cause the Closing to occur on July 31, 2003 ("Purchaser's Option"). In the
event that Purchaser does not exercise Purchaser's Option, Seller shall have the
option, by delivering written notice to Purchaser on or before July 23, 2003, to
extend the Closing Date to August 29, 2003 ("Seller's Extension Option"), in
connection with the payoff requirements of the loan secured by the lien on the
Property.
7.1.2 The Closing Date may be extended without penalty at the option
of Seller to a date not later than thirty (30) days following the Closing Date
specified above to satisfy a condition to be satisfied by Seller, or such later
date as is mutually acceptable to Seller and Purchaser; provided that Seller
gives Purchaser at least fifteen (15) days prior notice of the exercise of such
option.
7.1.3 All normal and customarily proratable items, including, without
limitation, Rents (as defined below), operating expenses, personal property
taxes, other operating expenses and fees, shall be prorated as of the Closing
Date, Seller being charged or credited, as appropriate, for all of same
attributable to the period up to the Closing Date (and credited for any amounts
paid by Seller attributable to the period on or after the Closing Date, if
assumed by Purchaser) and Purchaser being responsible for, and credited or
charged, as the case may be, for all of same attributable to the period on and
after the Closing Date. All unapplied deposits under Tenant leases, if any,
shall be transferred by Seller to Purchaser at the Closing. Purchaser shall
assume at Closing the obligations under the Property Contracts which Purchaser
has agreed to assume, provided that any payments under the Property Contracts
being assumed by Purchaser have been prorated. Seller shall terminate any
Property Contract which is not being assumed by Purchaser provided Purchaser
gives Seller at least 30 days written notice prior to the Closing Date that
Purchaser does not intend to assume such Property Contract and such Property
Contract can be terminated by Seller within 30 days without penalty or cost to
Seller. Seller shall have no obligation to terminate any contract which cannot
be terminated without penalty or cost to Seller on 30 days or shorter notice
(and if this Purchase Contract is not terminated by Purchaser prior to the
expiration of the Feasibility Period, Purchaser shall be deemed to have agreed
to assume any such property contract as of the Closing). 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 fiscal 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 using the maximum
allowable discount; 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 using the maximum allowable discount. The provisions of
this Section 7.1.3 shall apply during the Proration Period (as defined below).
Rents and all related charges shall be prorated based on actual collections as
of the Closing Date.
7.1.4 If any of the items subject to proration hereunder cannot be prorated at
the Closing because the information necessary to compute such proration is
unavailable, or if any errors or omissions in computing prorations at the
Closing are discovered subsequent to the Closing, then such item shall be
reapportioned and such errors and omissions corrected as soon as practicable
after the Closing Date and the proper party reimbursed, which obligation shall
survive the Closing for a period (the "Proration Period") from the Closing Date
until one (1) year after the Closing Date. Neither party hereto shall have the
right to require a recomputation of a Closing proration or a correction of an
error or omission in a Closing proration unless within the Proration Period one
of the parties hereto (i) has obtained the previously unavailable information or
has discovered the error or omission, and (ii) has given Notice thereof to the
other party together with a copy of its good faith recomputation of the
proration and copies of all substantiating information used in such
recomputation. The failure of a party to obtain any previously unavailable
information or discover an error or omission with respect to an item subject to
proration hereunder and to give Notice thereof as provided above within the
Proration Period shall be deemed a waiver of its right to cause a recomputation
or a correction of an error or omission with respect to such item after the
Closing Date.
7.1.5 If on the Closing Date any Tenant is in arrears in any Rent payment under
any Tenant lease (the "Delinquent Rent"), any Delinquent Rent received by
Purchaser and Seller from such Tenant after the Closing shall be applied to
amounts due and payable by such Tenant during the following periods in the
following order of priority: (i) first, to the period of time after the Closing
Date, and (ii) second, to the period of time before the Closing Date. If
Delinquent Rent or any portion thereof received by Seller or Purchaser after the
Closing are due and payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable attorneys' fees
and costs and expenses expended in connection with the collection thereof, shall
be promptly paid to the other party. Any monies received by Seller after closing
shall be forwarded to Purchaser for disbursement in accordance with the order of
payment provided herein above. 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 Delinquent Rent 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 Seller shall not commence any
legal actions or proceedings against any Tenant which continues as a Tenant at
the Property after Closing without the prior consent of Purchaser, which will
not be unreasonably withheld or delayed), and the delivery of the Assignment as
defined in Section 7.2.1.3 shall not constitute a waiver by Seller of such
right. Purchaser agrees to cooperate with Seller at no cost, expense or
liability to Purchaser in connection with all efforts by Seller to collect such
Delinquent Rent and to take all steps, whether before or after the Closing Date,
as may be necessary to carry out the intention of the foregoing, including,
without limitation, the delivery to Seller, within seven (7) days after a
written request, of any relevant books and records (including, without
limitation, rent statements, receipted bills and copies of tenant checks used in
payment of such rent), the execution of any and all consents or other documents,
and the undertaking of any act reasonably necessary for the collection of such
Delinquent Rent by Seller; provided, however, that Purchaser's obligation to
cooperate with Seller pursuant to this sentence shall not obligate Purchaser to
terminate any Tenant lease with an existing Tenant or evict any existing Tenant
from the Property. The provisions of this Section 7.1.5 shall apply during the
Proration Period.
7.1.6 Seller shall pay the cost of all transfer taxes and recordation taxes
(e.g., excise stamp taxes) and Purchaser shall pay the cost of all recording
costs and mortgage taxes with respect to the Closing. Seller and Purchaser shall
share equally in the costs of the Escrow Agent for escrow fees. Purchaser agrees
to pay the cost of the Title Policy, and the cost of any lender's or other title
policy required by Purchaser or its lender.
7.2 Items To Be Delivered Prior To Or At Closing.
7.2.1 Seller. At Closing, Seller shall deliver to Purchaser, each of the
following items, as applicable:
7.2.1.1 Special Warranty Deed in the form
attached as Exhibit 7.2.1.1 and, if applicable a quitclaim deed as set forth in
Section 6.7 hereof, to Purchaser. The acceptance of such deed at Closing and the
delivery day of other documents to be delivered under this Section 7.2.1, shall
be deemed to be full performance of, and discharge of, every agreement and
obligation on Seller's part to be performed under this Purchase Contract, except
for those that this Purchase Contract specifically provides shall survive
Closing.
7.2.1.2 A Bill of Sale in the form attached as Exhibit 7.2.1.2 covering all
Property Contracts, Leases, Permits (other than Excluded Permits) and Fixtures
and Tangible Personal Property required to be transferred to Purchaser with
respect to such Property. Purchaser shall countersign the same so as to effect
an assumption by Purchaser of, among other things, Seller's obligations
thereunder.
7.2.1.3 An Assignment (to the extent assignable and in force and
effect) in the form attached as Exhibit 7.2.1.3 of all of Seller's right, title
and interest in and to the Miscellaneous Property Assets, subject to any
required consents. Purchaser shall countersign the same so as to effect an
assumption by Purchaser, including, without limitation, of Seller's obligations
thereunder.
7.2.1.4 A closing statement executed by Seller.
7.2.1.5 An 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 Purchase
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 Purchase Contract; and
7.2.1.6 A certification of Seller's non-foreign status pursuant to Section 1445
of the Internal Revenue Code of 1986, as amended.
7.2.1.7 Except for the items expressly listed above to be delivered at Closing,
delivery of any other required items shall be deemed made by Seller to
Purchaser, if Seller leaves such documents at the Property in their customary
place of storage or in the custody of Purchaser's representatives.
7.2.1.8 Intentionally Omitted.
7.2.1.9 A list certified to the best of Seller's knowledge, disclosing any known
current pending and/or threatened litigation affecting the Property.
7.2.1.10 Evidence that the management agreement for Seller's manager has been
terminated.
7.2.1.11 A rent roll for the Property certified by Seller (the "Rent Roll"), but
limited to Seller's knowledge, listing the monthly base rent payable, lease
expiration date, unapplied security deposit as of the Closing Date, any rent
concessions and any options in favor of the tenants.
7.2.1.12 Resolutions, certificates of good standing, and such other
organizational documents as Title Insurer shall reasonably require evidencing
Seller's authority to consummate this transaction.
7.2.1.13 To the extent in Seller's possession or control, originals or copies of
the Leases and Property Contracts, lease files, warranties, guaranties,
operating manuals, keys to the property, Seller's books and records (other than
proprietary information) regarding the Property.
7.2.2 Purchaser. At Closing, Purchaser shall deliver to the Title Company (for
disbursement to Seller upon the Closing) the following items with respect to the
Property being conveyed at such Closing:
7.2.2.1 The full Purchase Price as required by ARTICLE 3 hereof plus or minus
the adjustments or prorations required by this Purchase Contract. If at Closing
there are any liens or encumbrances on the Property that Seller is obligated or
elects to pay and discharge, Seller may use any portion of the Purchase Price
for the Property(s) to satisfy the same, provided that Seller shall have
delivered to Title Company, on such Closing instruments in recordable form
sufficient to satisfy such liens and encumbrances of record (or, as to any
mortgages or deeds of trust, appropriate payoff letters, acceptable to the Title
Insurer), together with the cost of recording or filing such instruments. The
existence of any such liens or encumbrances shall not be deemed objections to
title if Seller shall comply with the foregoing requirements.
7.2.2.2 A closing statement executed by Purchaser.
7.2.2.3 A countersigned counterpart of the Bill of Sale in the form attached as
Exhibit 7.2.1.2.
7.2.2.4 A countersigned counterpart of the Assignment in the form attached as
Exhibit 7.2.1.3.
7.2.2.5 Such other instruments, documents or certificates as are required to be
delivered by Purchaser to Seller in accordance with any of the other provisions
of this Purchase Contract.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SELLER AND PURCHASER
8.1 Representations, Warranties and Covenants Of Seller.
8.1.1 For the purpose of inducing Purchaser to enter into this Purchase Contract
and to consummate the sale and purchase of the Property in accordance herewith,
Seller represents and warrants to Purchaser the following as of the Effective
Date and as of the Closing Date:
8.1.1.1 Seller is lawfully and duly organized, and in good standing under the
laws of the state of its formation set forth in the initial paragraph of this
Purchase Contract; and has or at the Closing shall have the 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 Purchase Contract, and the consummation of
the transactions contemplated by this Purchase 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 purchase contract to which Seller is a party or by which Seller is
otherwise bound. Seller has not made any other purchase contract for the sale
of, or given any other person the right to purchase, all or any part of any of
the Property;
8.1.1.2 Seller owns insurable, fee title to the Property,
including all real property contained therein required to be sold to Purchaser,
subject only to the Permitted Exceptions (provided, however, that if this
representation is or becomes untrue, Purchaser's remedies shall be limited to
the remedies set forth in Section 6.2 hereof and Seller shall have no other
liability as a result thereof, either before or after Closing);
8.1.1.3 There are no adverse or other parties in possession of the Property,
except for occupants, guests and tenants under the Leases (provided, however,
that if this representation is or becomes untrue, Purchaser's remedies shall be
limited to the remedies set forth in Section 6.2 hereof).
8.1.1.4 The joinder of no person or entity other than Seller is necessary to
convey the Property, fully and completely, to Purchaser at Closing, or to
fulfill Seller's obligations and Seller has all necessary right and authority to
convey and assign to Purchaser all contract rights and warranties required to be
conveyed and assigned to Purchaser hereunder;
8.1.1.5 Intentionally Deleted.
8.1.1.6 To Seller's knowledge, there are no actions, proceedings, litigation or
governmental investigations or condemnation actions either pending or threatened
against the Property, as applicable;
8.1.1.7 Except for a claim for cleaning services rendered, which claim is
pending settlement and was previously disclosed in a letter to Purchaser dated
June 3, 2003 (and the payment of such claim shall be the sole responsibility of
Seller), Seller has no knowledge of any claims for labor performed, materials
furnished or services rendered in connection with constructing, improving or
repairing any of the Property, as applicable, caused by Seller and which remain
unpaid beyond the date for which payment was due and in respect of which liens
may or could be filed against any of the Property, as applicable;
8.1.1.8 To Seller's knowledge, Seller has not received any written
notice of any proposed taking, condemnation or special assessment with respect
to the Property;
8.1.1.9 Except for a notice of violation received by Seller and
previously disclosed to Purchaser in a letter dated June 3, 2003 relating to the
lift station, for which repairs and testing are scheduled, to Seller's
knowledge, Seller has not received any written notice of any uncured violations
of any federal, state, county or municipal law, ordinance, order, regulation or
requirement affecting the Property, including, without limitation, any
environmental violations (Seller agrees to pay for any repairs or testing
required by the pending inspection of the lift station and/or provide Purchaser
with a credit for same);
8.1.1.10 To Seller's knowledge, Seller has not received any written notice of
any default by Seller under any of the Property Contracts that will not be
terminated on the Closing Date;
8.1.1.11 Seller agrees to maintain its existing insurance policies covering the
Property in full force and effect through the Closing Date, to continue to
maintain the Property as Seller has been operating the Property immediately
prior to the Effective Date, and to cause any of the units on the Property that
are vacant as of five (5) days prior to the Closing Date to be in "rent ready"
condition on the Closing Date; provided, however Seller shall not be deemed to
be in default for a breach of this representation in Section 8.1.1.11 if Seller
cures such breach within five (5) days after notification thereof by Purchaser;
and
8.1.1.12 To Seller's
knowledge, all documents relating to the Property that were delivered by Seller
to Purchaser in connection with this Purchase Contract, including, without
limitation, the Rent Roll, are true, correct and complete in all material
respects, and none contain any untrue statement of a material fact or omit to
state a material fact.
8.1.2 Except for the representations and warranties
expressly set forth above in Subsection 8.1.1, 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 deeds conveying the Property and the representations set forth above).
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, 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, Seller's partners or affiliates or any of their respective
partners, officers, directors, participants, employees, contractors, attorneys,
consultants, representatives, agents, successors, assigns or
predecessors-in-interest. Purchaser shall rely only upon any title insurance
obtained by Purchaser with respect to title to the Property. Except as provided
herein, Purchaser acknowledges and agrees that no representation has been made
and no responsibility is assumed by Seller with respect to current and future
applicable zoning or building code requirements or the compliance of the
Property with any other laws, rules, ordinances or regulations, the financial
earning capacity or expense history of the Property, the continuation of
contracts, continued occupancy levels of the Property, or any part thereof, or
the continued occupancy by tenants of any Leases or, without limiting any of the
foregoing, occupancy at Closing. Prior to Closing, Seller shall have the right,
but not the obligation, to enforce its rights against any and all Property
occupants, guests or tenants. Except as otherwise set forth herein, 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 Purchase Contract in any manner whatsoever; and Purchaser shall close
title and accept delivery of the deed with or without such tenants in possession
and without any allowance or reduction in the Purchase Price under this Purchase
Contract. Purchaser hereby releases Seller from any and all claims and
liabilities relating to the foregoing matters, except as provided in Section
8.1.3 below.
8.1.3 Seller agrees that Purchaser shall be entitled to rely on the
foregoing representations and warranties made by Seller herein and that
Purchaser has so relied. Seller and Purchaser agree that those representations
and warranties contained in Section 8.1 shall survive Closing for a period of
one (1) year (the "Survival Period"). Seller shall have no liability after the
Survival Period with respect to the representations and warranties contained
herein except to the extent that Purchaser has filed a lawsuit against Seller
during the Survival Period for breach of any representation or warranty. In the
event that Seller breaches any representation contained in Section 8.1 and
Purchaser had knowledge of such breach prior to the Closing Date, Purchaser
shall be deemed to have waived any right of recovery, and Seller shall not have
any liability in connection therewith.
8.1.4 Representations and warranties
above made to the knowledge of Seller shall not be deemed to imply any duty of
inquiry. For purposes of this Purchase Contract, the term Seller's "knowledge"
shall mean and refer to only actual knowledge of the Designated Representative
(as hereinafter defined) 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 Hector Arguelles of Apartment
Investment & Management Company ("AIMCO"), as the on-site property manager (the
"Property Manager"), and Mack Gipson, the Regional Property Manager handling
this Property at AIMCO (the "Regional Property Manager").
8.2 Representations And Warranties Of Purchaser
8.2.1 For the purpose of inducing Seller to enter
into this Purchase 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:
8.2.2 With respect to Purchaser and its business, Purchaser represents and
warrants, in particular, that:
8.2.2.1 Purchaser is a limited liability company duly
organized, validly existing and in good standing under the laws of Delaware.
8.2.2.2 Purchaser, acting through any of its or their duly empowered and
authorized officers or members, has all necessary 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 Purchase 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 officers
or members are required to so empower or authorize Purchaser.
8.2.2.3 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 Purchase Contract or would declare illegal,
invalid or non-binding any of Purchaser's obligations or covenants to Seller.
8.2.2.4 Purchaser is duly authorized to execute and deliver, acting through its
duly empowered and authorized officers and members, respectively, and perform
this Purchase Contract and all documents and instruments and transactions
contemplated hereby or incidental hereto, and such execution, delivery and
performance by Purchaser does not (i) violate any of the provisions of their
respective certificates of formation or bylaws, (ii) violate any provision of
any law, governmental rule or regulation currently in effect, (iii) violate any
judgment, decree, writ, injunction, award, determination or order currently in
effect that names or is specifically directed at Purchaser or its property, and
(iv) require the consent, approval, order or authorization of, or any filing
with or notice to, any court or other governmental authority.
8.2.2.5 The joinder of no person or entity other than Purchaser is necessary to
consummate the transactions to be performed by Purchaser and Purchaser has all
necessary right and authority to perform such acts as are required and
contemplated by this Purchase Contract. 8.2.3 Other than the Broker, Purchaser
has not dealt with any broker, finder or any other person, in connection with
the purchase of or the negotiation of the purchase of the Property that might
give rise to any claim for commission against Seller or lien or claim against
the Property.
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the following
conditions precedent:
9.1.1 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 and shall be in form and substance reasonably satisfactory to
Purchaser;
9.1.2 Each of the representations, warranties and covenants of Seller
contained herein shall be true in all material respects as of the Closing Date
(and Purchaser shall be permitted to perform an inspection of the Property
immediately prior to the Closing Date to verify same);
9.1.3 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;
9.1.4 Neither Seller nor Seller's general partner shall be a debtor in any
bankruptcy proceeding or shall have been in the last 6 months a debtor in any
bankruptcy proceeding;
9.1.5 A taking of all or any part of the Property must not have been commenced
or threatened in writing;
9.1.6 The actual occupancy level of the Property shall not have decreased by
more than fifteen percent (15%) from the actual occupancy level on the Effective
Date;
9.1.7 Seller shall have terminated any Property Contracts which are not being
assumed by Purchaser as of the Closing Date (and which are capable of being
terminated by Seller without penalty or cost to Seller).
9.1.8 Notwithstanding anything to the contrary, there are no other conditions on
Purchaser's obligation to Close except as expressly set forth above. If any of
the above conditions is not satisfied, then notwithstanding anything to the
contrary contained in this Purchase Contract, Purchaser may, at its option (a)
waive such condition and proceed to Closing and accept title to the Property
with an agreed upon offset or deduction from the Purchase Price (assuming Seller
and Purchaser can agree upon such offset or deduction amount, and neither party
has any obligation to come to an agreement), (b) waive such condition and
proceed to Closing and accept title to the Property without any offset or
deduction from the Purchase Price, or (iii) notify Seller of Purchaser's
election to terminate this Purchase Contract and receive a return of the Deposit
from the Escrow Agent.
9.2 Without limiting any of the rights of Seller elsewhere provided for in this
Purchase Contract, Seller's obligation to close with respect to conveyance of
the Property under this Purchase Contract shall be subject to and conditioned
upon the fulfillment of each and all of the following conditions precedent:
9.2.1 Purchaser's representations and warranties set forth in this Purchase
Contract shall have been true and correct in all material respects when made,
and shall be true and correct in all material respects on the Closing Date and
as of the Effective Date as though such representations and warranties were made
at and as of such date and time.
9.2.2 Purchaser shall have fully performed and complied with all covenants,
conditions, and other obligations in this Purchase Contract to be performed or
complied with by it at or prior to Closing including, without limitation,
payment in full of the Purchase Price.
9.2.3 There shall not be
pending or, to the knowledge of either Purchaser or Seller, any litigation or
threatened litigation which, if determined adversely, would restrain the
consummation of any of the transactions contemplated by this Purchase Contract
or declare illegal, invalid or nonbinding any of the covenants or obligations of
the Purchaser.
9.2.4 If applicable, Purchaser shall have produced evidence
reasonably satisfactory to Seller of Purchaser's compliance with
Hart-Scott-Rodino Act requirements or of the non-applicability thereof to the
transactions contemplated by this Purchase Contract.
9.2.5 Seller shall have
obtained the approval and consent of its constituent partners to consummate the
sale of the Property. If said approvals are not obtained on or before the
ninetieth (90th) calendar day after the Effective Date, this Agreement shall
automatically terminate, in which case (i) Escrow Agent shall return the Deposit
to Purchaser, (ii) Seller shall reimburse Purchaser for Purchaser's actual
out-of-pocket expenses incurred in connection with Purchaser's due diligence
investigations of the Property provided that such reimbursement shall not exceed
$20,000.00, (iii) Escrow Agent shall forthwith deliver the Quitclaim Deed of all
of Purchaser's right and interest in the Property to Seller, (iv) the parties
shall share equally the cancellation charges of Escrow Agent and the Title
Insurer, if any, and (v) neither party shall thereafter have any rights or
obligations to the other hereunder, other than pursuant to any provision hereof
which expressly survives the termination of this Agreement.
ARTICLE 10
BROKERAGE
10.1 Purchaser represents and warrants to Seller that it has dealt only with
David L. Williams Management Consultants, LLC ("Broker") in connection with this
Purchase 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
Purchase Contract, and each party agrees to indemnify the other party from and
against all claims for brokerage commissions and finder's fees arising from or
attributable to the acts or omissions of the indemnifying party.
10.2 Purchaser agrees to pay Broker any brokerage commission according to the
terms of a separate agreement due Broker in connection with this transaction.
Broker shall not be deemed a party or third party beneficiary of this Purchase
Contract.
10.3 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller or
Purchaser.
ARTICLE 11
POSSESSION
11.1 Possession of the Property subject to the Permitted Exceptions shall be
delivered to Purchaser at the Closing, subject to Purchaser's right of entry for
inspection as set forth in ARTICLE 5.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1 In the event Purchaser defaults under the terms of this Purchase Contract
and consummation of the Closing does not occur by reason of such default by
Purchaser, Seller and Purchaser agree that it would be impractical and extremely
difficult to estimate the damages which Seller may suffer. Therefore, Seller and
Purchaser hereby agree that, except for the Purchaser's obligations to Seller
under Section 5.3, the reasonable estimate of the total net detriment that
Seller would suffer in the event that Purchaser terminates this Purchase
Contract or defaults hereunder on or prior to the Closing Date is and shall be,
as Seller's sole remedy (whether at law or in equity), the right to receive from
the Escrow Agent and retain the full amount of the Deposit. The payment and
performance of the above as liquidated damages is not intended as a forfeiture
or penalty within the meaning of applicable law and is intended to settle all
issues and questions about the amount of damages suffered by Seller in the
applicable event, except only for damages under Section 5.3 above, irrespective
of the time when the inquiry about such damages may take place. Upon any such
failure by Purchaser hereunder, this Purchase Contract shall be terminated, and
neither party shall have any further rights or obligations hereunder, each to
the other, except for the Purchaser's obligations to Seller under Section 5.3
above, and the right of Seller to collect such liquidated damages to the extent
not theretofore paid by Purchaser.
12.2 Provided that Purchaser has not terminated this Purchase Contract and is
not otherwise in default hereunder, if the Closing does not occur as a result of
Seller's default hereunder, Purchaser's sole remedy shall be to elect to either
(a) terminate this Purchase Contract and receive reimbursement of the Deposit or
(b) enforce specific performance of this Purchase Contract. In the event
Purchaser is unable to enforce the remedy of specific performance after using
commercially reasonable efforts to seek to enforce such remedy, then in lieu of
obtaining specific performance, Purchaser shall have the right to bring suit for
damages against Seller in an amount not to exceed $250,000.00 in addition to
receiving reimbursement of the Deposit.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 In the event that the Property is damaged or destroyed by fire or other
casualty prior to Closing, and the cost of repair is more than $750,000.00, then
Seller will have no obligation to repair such damage or destruction and, at
Purchaser's option, Purchaser shall have the right to terminate this Purchase
Contract by giving written Notice to Seller and Escrow Agent within fifteen (15)
days after Purchaser's receipt of notice from Seller that such casualty has
occurred. In the event Purchaser elects not to terminate this Agreement, this
transaction shall be closed in accordance with the terms of this Agreement,
notwithstanding any such damage or destruction and Purchaser shall receive at
Closing all insurance proceeds (or an assignment of such claim, as applicable)
pertaining thereto (plus a credit against the Purchase Price in the amount of
(i) any deductible payable by Seller in connection therewith and (ii) any costs
of repair or replacement which are not covered by insurance). Seller agrees not
to settle any such insurance claims referenced in either Section 13.1 or 13.2
without Purchaser's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed.
13.2 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 $750,000.00,
this transaction shall be closed in accordance with the terms of this Agreement,
notwithstanding the damage or destruction; provided, however, Seller shall if
requested by Purchaser make such repairs if they can be reasonably effected
before the Closing. If Seller is unable to effect such repairs or if Purchaser
does not elect to have Seller make such repairs, then Purchaser shall receive at
Closing all insurance proceeds (or an assignment of such claim, as applicable)
pertaining thereto (plus a credit against the Purchase Price in the amount of
(i) any deductible payable by Seller in connection therewith and (ii) any costs
of repair or replacement which are not covered by insurance).
ARTICLE 14
RATIFICATION
14.1 This Purchase Contract shall be null and void unless fully executed by
Purchaser and Seller on or before June 9, 2003.
ARTICLE 15
EMINENT DOMAIN
15.1 In the event that at the time of Closing all or any part of the Property is
(or has previously been) acquired, or is about to be acquired, by authority of
any governmental agency in purchase 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 Purchase Contract by giving written Notice within
Fifteen (15) days of Purchaser's receipt from Seller of the occurrence of such
event and recover the Deposit hereunder, or to settle in accordance with the
terms of this Purchase Contract for the full Purchase Price and receive the full
benefit or any condemnation award. Seller agrees not to settle any such
condemnation claim without Purchaser's prior written consent, which consent
shall not be unreasonably withheld, conditioned or delayed. It is expressly
agreed between the parties hereto that this paragraph shall in no way apply to
customary dedications for public purposes which may be necessary for the
development of the Property.
ARTICLE 16
MISCELLANEOUS
16.1 Exhibits And Schedules
All Exhibits and Schedules, whether or not annexed hereto, are a part
of this Purchase Contract for all purposes.
16.2 Assignability
Subject to Section 16.18, this Purchase Contract is not assignable
without first obtaining the prior written approval of the non-assigning party,
except that Purchaser may assign all or an undivided interest in this Purchase
Contract to one or more entities so long as (i) Purchaser or its affiliate
remains a part of the purchasing entity(ies), or Purchaser or its affiliate has
entered into a management agreement with assignee, (ii) Purchaser is not
released from its liability hereunder, and (iii) Seller receives timely written
notification of such assignment.
16.3 Binding Effect
This Purchase Contract shall be binding upon and inure to the
benefit of Seller and Purchaser, and their respective successors, heirs and
permitted assigns.
16.4 Captions
The captions, headings, and arrangements used in this Purchase
Contract are for convenience only and do not in any way affect, limit, amplify,
or modify the terms and provisions hereof.
16.5 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.
16.6 Notices
All Notices, demands, requests and other communications required
pursuant to the provisions of this Purchase Contract ("Notice") shall be in
writing and shall be deemed to have been properly given or served for all
purposes (i) if sent by Federal Express or a nationally recognized overnight
carrier for next business day delivery, on the first business day following
deposit of such Notice with such carrier, or (ii) if personally delivered, on
the actual date of delivery or (iii) if sent by certified mail, return receipt
requested postage prepaid, on the Fifth (5th) business day following the date of
mailing, or (iv) if sent by telecopier, then on the actual date of delivery (as
evidenced by a telecopier confirmation) provided that a copy of the telecopy and
confirmation is also sent by U.S. mail, addressed as follows:
If to Seller: If to Purchaser:
c/o AIMCO FF REALTY LLC
4582 South Ulster Street 5510 Morehouse Drive, Suite 200
Parkway, Suite 1100 San Diego, California 92121
Denver, Colorado 80237 Attn: Mr. Stanley P. Herskovitz
Attn: Mr. Patrick Slavin Telephone No. (858) 457-2123
Telephone No. (303) 691-4340 Facsimile No. (858) 625-8606
Facsimile No. (303) 300-3282
And With a copy to
c/o AIMCO Swidler Berlin Shereff Friedman
4582 South Ulster Street LLP
Parkway, Suite 1100 3000 "K" Street, N.W., Suite 300
Denver, Colorado 80237 Washington, D.C. 20007
Attn: Mr. Harry Alcock Attn: Jeffrey Scharff, Esq.
Telephone No. (303) 691-4344 Telephone No. (202) 424-7622
Facsimile No. (303) 300-3282 Facsimile No. (202) 295-8478
And with a copy to
Chad Asarch, Esq.
Vice President and Assistant
General Counsel
AIMCO
4582 South Ulster Street
Parkway, Suite 1100
Denver, Colorado 80237
Telephone No. (303) 691-4303
Facsimile No. (303) 300-3260
And with a copy to
Argent Real Estate
1401 Brickell Avenue, Suite 520
Miami, Florida 33131
Attention: Mr. David Marquette
Telephone: (305) 371-9299
Facsimile: (305) 6756-2998
And with a copy to
Loeb & Loeb, LLP
1000 Wilshire Boulevard, Suite
1800
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq. and
Karen N. Higgins, Esq.
Facsimile No. (213) 688-3460
Any of the parties may designate a change of address by Notice in writing
to the other parties. Whenever in this Purchase Contract the giving of Notice by
mail or otherwise is required, the giving of such Notice may be waived in
writing by the person or persons entitled to receive such Notice.
16.7 Governing Law And Venue
The laws of the State of Florida shall govern the validity,
construction, enforcement, and interpretation of this Purchase Contract, unless
otherwise specified herein except for the conflict of laws provisions thereof.
All claims, disputes and other matters in question arising out of or relating to
this Purchase Contract, or the breach thereof, shall be decided by proceedings
instituted and litigated in the United States District Court for the district in
which the Property is situated, and the parties hereto expressly consent to the
venue and jurisdiction of such court.
16.8 Entirety And Amendments
This Purchase Contract embodies the entire Purchase Contract between
the parties and supersedes all prior Purchase Contracts and understandings, if
any, relating to the Property, and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
16.9 Severability
If any provision of this Purchase Contract is held to be illegal,
invalid, or unenforceable under present or future laws, such provision shall be
fully severable. The Purchase Contract shall be construed and enforced as if
such illegal, invalid, or unenforceable provision had never comprised a part of
this Purchase Contract; and the remaining provisions of this Purchase Contract
shall remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Purchase
Contract. In lieu of such illegal, invalid, or unenforceable provision, there
shall be added automatically as a part of this Purchase Contract a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible to make such provision legal, valid, and enforceable.
16.10 Multiple Counterparts
This Purchase Contract may be executed in a number of identical
counterparts. If so executed, each of such counterparts is to be deemed an
original for all purposes and all such counterparts shall, collectively,
constitute one Purchase Contract. In making proof of this Purchase Contract, it
shall not be necessary to produce or account for more than one such
counterparts.
16.11 Further Acts
In addition to the acts and deeds recited herein and contemplated
and performed, executed and/or delivered by Seller and Purchaser, Seller and
Purchaser agree to perform, execute and/or deliver or cause to be performed,
executed and/or delivered any and all such further acts, deeds, and assurances
as may be necessary to consummate the transactions contemplated hereby.
16.12 Construction
No provision of this Purchase Contract shall be construed in favor
of, or against, any particular party by reason of any presumption with respect
to the drafting of this Purchase Contract; both parties, being represented by
counsel, having fully participated in the negotiation of this instrument.
16.13 Confidentiality
Purchaser shall not disclose the terms and conditions contained in
this Purchase Contract, shall keep the same confidential, provided that
Purchaser may disclose the terms and conditions of this Purchase Contract (i) as
required by law, (ii) to consummate the terms of this Purchase Contract, or any
financing relating thereto, or (iii) to Purchaser's or Seller's lenders,
attorneys, partners and potential partners and accountants. Any information
provided by Seller to Purchaser is also confidential and Purchaser shall be
prohibited from making such information public to any other person or entity
other than its agents and legal representatives, any other than as set forth in
this Section 16.13 above, without Seller's prior written authorization, which
may be granted or denied in Seller's sole discretion. Notwithstanding the
foregoing, Purchaser (and each employee, representative, or other agent of
Purchaser) may disclose to any and all persons, without limitation of any kind,
the tax treatment and any facts that may be relevant to the tax structure of the
transaction, provided, however, that neither Purchaser nor any employee,
representative, or other agent of Purchaser shall disclose except as permitted
above any other information that is not relevant to understanding the tax
treatment and tax structure of the transaction (including the identity of any
party and any information that could lead another to determine the identity of
any party), or any other information to the extent that such disclosure could
result in a violation of any federal or state securities law.
16.14 Time Of The Essence
It is expressly agreed by the parties hereto that time is of the essence
with respect to this Purchase Contract.
16.15 Cumulative Remedies And Waiver
No remedy herein conferred or reserved is intended to be exclusive
of any other available remedy or remedies herein conferred or referred, but each
and every such remedy shall be cumulative and shall be in addition to every
other remedy given under this Purchase Contract. 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 Purchase Contract shall be established by conduct, custom,
or course of dealing.
16.16 Litigation Expenses
In the event either party hereto commences litigation against the
other to enforce its rights hereunder, the prevailing party in such litigation
shall be entitled to recover from the other party its reasonable attorneys' fees
and expenses incidental to such litigation.
16.17 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.
16.18 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 Purchase 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 Purchase
Contract will be extended as a result thereof.
16.19 No Personal Liability of Officers, Trustees or directors of Seller's
Partners
Purchaser acknowledges that this Agreement is entered into by Seller
which is a California limited partnership, and Purchaser agrees that no
individual officer, trustee, director or representative of the partners of
Seller shall have any personal liability under this Agreement or any document
executed in connection with the transactions contemplated by this Agreement.
16.20 No Exclusive Negotiations
Seller shall have the right, at all times prior to the expiration of
the Feasibility Period, to solicit backup offers and enter into discussions,
negotiations, or any other communications concerning or related to the sale of
the Property with any third-party; provided, however, that such communications
are subject to the terms of this Agreement, and that Seller shall not enter into
any contract or binding agreement with a third-party for the sale of the
Property unless such agreement is contingent on the termination of this
Agreement without the Property having been conveyed to Purchaser.
16.21 Radon Gas
Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and
state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county health
department. [Note: This paragraph is provided for informational purposes
pursuant to Section 4.4.056(6), Florida Statutes (2002).]
16.22 Energy Efficiency
Purchaser may have the building's energy efficiency rating determined.
Seller has, simultaneously with the execution hereof, delivered to Purchaser a
copy of the Florida Building Energy Efficiency Rating System pamphlet prepared
by the State of Florida Department of Community Affairs. [Note: This paragraph
is provided for informational purposes pursuant to Section 553.996, Florida
Statutes (2002).]
16.23 Consent Agreement
Testing (the "Testing") has been performed at the Property with
respect to lead-based paint. Law Engineering and Environmental Services, Inc.
performed the Testing and reported its findings in the Report of Findings dated
May 14, 2001 (the "Report"). The Report certifies the Property as lead-based
paint free. By execution hereof, Purchaser acknowledges receipt of a copy of the
Report, the Lead-Based Paint Disclosure Statement attached hereto as Exhibit
16.23, and acknowledges receipt of that certain Consent Agreement (the "Consent
Agreement") by and among the United States Environmental Protection Agency
(executed December 19, 2001), the United States Department of Housing and Urban
Development (executed January 2, 2002), and Apartment Investment and Management
Company ("AIMCO") (executed December 18, 2001). Because the Property has been
certified lead-based paint free, Seller is not required under the Consent
Agreement to remediate or abate any lead-based paint condition at the Property
prior to Closing. Purchaser acknowledges and agrees that (1) after Closing,
Purchaser (solely as it relates to the Property), and the Property shall be
subject to the Consent Agreement and the provisions contained herein related
thereto and (2) that Purchaser shall not be deemed to be a third party
beneficiary to the Consent Agreement. The provisions of this Section 16.23 shall
survive the termination of this Purchase Contract, and if not so terminated, the
Closing and delivery of the Special Warranty Deed to Purchaser.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
NOW WHEREFORE, the parties hereto have executed this Purchase Contract as
of the date first set forth above.
Seller:
CONSOLIDATED CAPITAL GROWTH FUND, a California
limited partnership
By: ConCap Equities, Inc.,
a Delaware corporation,
its general partner
By:/s/Patrick F. Slavin
Name: Patrick F. Slavin
Its: Senior Vice President
Purchaser:
FF REALTY LLC
a Delaware limited liability company
By: FF Properties, Inc., a Delaware
corporation, Its Manager
By:/s/Patrick J. Gavin
Its: Vice President
Exhibit 10.39
REINSTATEMENT AND AMENDMENT OF PURCHASE AND SALE CONTRACT
(Doral Springs, Florida)
THIS REINSTATEMENT AND AMENDMENT OF PURCHASE AND SALE CONTRACT
("Amendment") is entered into as of the 11th day of July, 2003 (the "Effective
Date") by and between CONSOLIDATED CAPITAL GROWTH FUND, a California limited
partnership, having a principal address at 4582 South Ulster Street Parkway,
Suite 1100, Denver, Colorado 80237 ("Seller") and FF REALTY LLC, a Delaware
limited liability company, having a principal address at 5510 Morehouse Drive,
Suite 200, San Diego, California 92121 ( the "Purchaser"), and acknowledged by
STEWART TITLE GUARANTY COMPANY ("Escrow Agent").
RECITALS
A. Seller and Purchaser entered into a Purchase and Sale Contract dated as of
June 6, 2003 (the "Contract"), pursuant to which Seller agreed to sell to
Purchaser, and Purchaser agreed to buy from Seller the Property (as defined in
the Contract).
B. The Contract terminated by its terms on July 7, 2003. Seller and Purchaser
have agreed to reinstate and modify the terms of the Contract as set forth in
this Amendment.
C. All capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Contract.
NOW THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
Seller and Purchaser agree as follows:
AGREEMENTS
1. Reinstatement. The Contract is hereby reinstated and is in full force and
effect as if it had never been terminated.
2. Reduction of Purchase Price. For valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller hereby agrees to reduce the
Purchase Price by the sum of $100,000.00 from $22,900,000.00 to $22,800,000.00.
3. Closing Date. Section 7.1.1 of the Contract is hereby deleted in its entirety
and the following is hereby inserted in its place:
"The Closing shall occur on August 28, 2003 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."
4. Brokerage Fee. The first sentence of Section 10.2. of the Contract is hereby
deleted in its entirety and the following is hereby inserted, it being the
intent of the parties hereto that Seller shall pay Purchaser's Broker fee:
"Seller agrees to pay Broker any brokerage commission due to Broker
in connection with this transaction; provided, however, in no event
shall Seller be obligated to pay Broker more than Three Hundred
Thousand and No/100 Dollars ($300,000.00)."
5. Waiver of Feasibility Period Contingencies. Except as otherwise provided in
Section 6 below of this Amendment, Purchaser hereby agrees and acknowledges that
all contingencies relating to the Feasibility Period have been satisfied or
waived by Purchaser as of the Effective Date of this Amendment. Additionally,
Purchaser hereby acknowledges and agrees that all contingencies relating to
Purchaser's review of the Title Commitment and Survey, as more particularly set
forth in Section 6.1, Section 6.2, Section 6.3 and Section 6.7 of the Contract,
have been waived by Purchaser as of the Effective Date of this Amendment.
6. Limited Environmental Contingency. Purchaser shall have until 5:00 p.m.
Eastern time on July 28, 2003 (the "Extended Feasibility Date") to obtain and
review a limited phase II environmental study of the Property having the scope
of work set forth in the letter proposal from ATC Associates, Inc. to Purchaser
dated July 7, 2003 which was delivered to Seller. In the event such phase II
study discloses any materials above applicable action levels, Purchaser shall
have the right to waive such condition or terminate the Contract on or before
5:00 p.m. Eastern time on the Extended Feasibility Date by delivery of written
notice to Seller whereupon the Contract shall be deemed terminated in accordance
with Section 5.2 thereof, provided, further, that such termination in accordance
with this Section 6 shall be deemed a Refundable Event. Purchaser agrees to
execute an Access and License Agreement in form and substance satisfactory to
Seller in connection with such limited phase II environmental study.
7. Elevator and Fire System Violation Repairs. Seller and Purchaser acknowledge
that certain notices of violation have been issued with respect to the elevators
and fire alarm systems on the Property as evidenced by the following inspection
reports (collectively, the "Violation Reports"): (a) Fire Inspection violation
reports on 4920 N.W. 79th Avenue office, clubhouse, 4800 N.W. 79th Avenue #1,
4804 N.W. 79th Avenue #2, 4810 N.W. 79th Avenue #3, 4900 N.W. 79th Avenue #4,
4920 N.W. 79th Avenue #6, 4910 N.W. 79th Avenue #5, 5020 N.W. 79th Avenue #7,
5112 N.W. 79th Avenue #8, 5122 N.W. 79th Avenue #9, 5102 N.W. 79th Avenue #10,
5000 N.W. 79th Avenue #11, 5221 N.W. 79th Avenue #12, 5231 Geneva Way #13, 5241
Geneva Way #14, and 5201 Geneva Way #15, and (b) Elevator Inspection Reports for
an inspection performed on May 27, 2003 on elevator serial numbers 65448, 65444,
65446, 65900, 65451, 65445, 65449, 65447, 65450, 65898 and 65899. Copies of the
Violation Reports have been delivered to Buyer. Seller agrees that on or before
the Closing, Seller shall at its sole and cost and expense remedy to the
satisfaction of applicable governmental authorities each of the violations
described in the Violation Reports, together with any other violations on the
elevators and fire alarm systems issued by any applicable governmental agency
prior to the Closing Date.
8. Additional Deposit. Concurrently with or prior to the execution and delivery
of this Amendment, Purchaser shall have delivered to Escrow Agent the Additional
Deposit.
9. Effectiveness of Contract. Except as modified by this Amendment, all the
terms of the Contract shall remain unchanged and in full force and effect.
10. Counterparts. This Amendment may be executed in counterparts, and all
counterparts together shall be construed as one document.
11. Telecopied Signatures. A counterpart of this Amendment signed by one party
to this Amendment and telecopied to the other party to this Amendment or its
counsel (i) shall have the same effect as an original signed counterpart of this
Amendment, and (ii) shall be conclusive proof, admissible in judicial
proceedings, of such party's execution of this Amendment.
IN WITNESS WHEREOF, Seller and Purchaser have entered into this Amendment
of Purchase and Sale Contract as of the date first above stated.
Seller:
CONSOLIDATED CAPITAL GROWTH FUND, a California
limited partnership
By: ConCap Equities, Inc.,
a Delaware corporation,
its general partner
By:/s/Patrick F. Slavin
Name: Patrick F. Slavin
Its: Senior Vice President
Purchaser:
FF REALTY LLC
a Delaware limited liability company
By: FF Properties, Inc., a Delaware
corporation, Its Manager
By: /s/Patrick J. Gavin
Its: Vice President
Acknowledged by Escrow Agent:
STEWART TITLE GUARANTY COMPANY
By:/s/Wendy Howell
Name: Wendy Howell
Title: National Commercial Closing Specialist
Exhibit 10.40
SECOND AMENDMENT OF PURCHASE AND SALE CONTRACT
(Doral Springs, Florida)
THIS SECOND AMENDMENT OF PURCHASE AND SALE CONTRACT ("Amendment") is
entered into as of the 15th day of August, 2003 (the "Effective Date") by and
between CONSOLIDATED CAPITAL GROWTH FUND, a California limited partnership,
having a principal address at 4582 South Ulster Street Parkway, Suite 1100,
Denver, Colorado 80237 ("Seller") and FF REALTY LLC, a Delaware limited
liability company, having a principal address at 5510 Morehouse Drive, Suite
200, San Diego, California 92121 ( the "Purchaser"), and acknowledged by STEWART
TITLE GUARANTY COMPANY ("Escrow Agent").
RECITALS
A. Seller and Purchaser entered into a Purchase and Sale Contract dated as of
June 6, 2003 (the "Contract"), pursuant to which Seller agreed to sell to
Purchaser, and Purchaser agreed to buy from Seller the Property (as defined in
the Contract). The Contract terminated by its terms on July 7, 2003, and was
reinstated and modified by that certain Reinstatement and Amendment of Purchase
and Sale Contract dated as of July 11, 2003 (together with the Contract, the
"Amended Contract").
B. Seller and Purchaser have agreed to modify the terms of the Amended Contract
as set forth in this Amendment.
C. All capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Amended Contract.
NOW THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
Seller and Purchaser agree as follows:
AGREEMENTS
1 Closing Date. Section 7.1.1 of the Amended Contract is hereby deleted in its
entirety and the following is hereby inserted in its place:
"The Closing shall occur on September 4, 2003 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."
2 Loan Assignment and Release.
2.1 On or about November 1, 1996, Lehman Brothers Holdings, Inc.
("Lehman") made a loan (the "Loan") to Seller in the original principal amount
of $6,000,000.00, evidenced by that certain Multifamily Note dated November 1,
1996 ("Note"), and secured by a Multifamily Mortgage, Assignment of Rents and
Security Agreement made by Seller in favor of Lehman of even date therewith
("Mortgage"). Lehman subsequently assigned its interest in the Mortgage and Note
to Freddie Mac ("Freddie Mac"). On or about June 27, 2001, Freddie Mac assigned
its interest in the Mortgage and Note to GMAC Commercial Mortgage Corporation
("GMAC"). Immediately thereafter, GMAC and Seller entered into an Extension and
Modification Agreement whereby the Seller and GMAC agreed to (i) restate the
terms of the existing Note in a new note (the "Modified Note"), the maximum
principal amount of which is $10,790,000; and (ii) restate the terms of the
existing Mortgage in a new mortgage (the "Modified Mortgage"). Subsequent
thereto, GMAC assigned its interest in the Modified Note and Modified Mortgage
to Freddie Mac. GMAC is the servicer of the Modified Note and is hereinafter
referred to as "Lender." The Modified Note, the Modified Mortgage and any other
documents executed by Seller in connection with the Loan are collectively
referred to herein as the "Loan Documents."
Notwithstanding anything to the contrary in the Amended Contract,
Purchaser shall have the right to cause Lender to assign the Loan to a new
lender, at no cost or expense to Seller other than the Lender Fees and provided
that Seller, the current principals of Seller and all guarantors and other
obligors, if any, under the Loan Documents (and any related guarantees,
indemnities, or letters of credit) shall be released from all obligations under
the Loan Documents, including without limitation, any obligation to make
payments of principal and interest under the Modified Note to the same extent
all such obligations would be released and discharged if the Loan was prepaid
and satisfied at Closing (such assignment and release, the "Loan Assignment and
Release"). Seller shall reasonably cooperate with Purchaser in connection
therewith in a manner consistent with the terms hereof. In no event shall the
exercise of such right by Purchaser result in any extension of the Closing Date
without Seller's consent.
Seller shall be responsible for all principal required to be paid under
the terms of the Modified Note prior to Closing, together with all interest
accrued under the Modified Note prior to Closing. If the Loan Assignment and
Release occurs, Purchaser shall be responsible for the payment of all principal
required to be paid from and after Closing, together with all interest accruing
under the Modified Note from and after Closing and Seller shall have no
liability for any Lender Fees or any other fees, penalties, interest and other
amounts first due and owing from and after Closing under the Loan Documents. Any
existing reserves, impounds and other accounts maintained in connection with the
Loan and required to be replaced by Purchaser shall be released in immediately
available funds to Seller at the Closing and replaced by Purchaser at the
Closing.
Purchaser assumes full responsibility to expeditiously and diligently
initiate and pursue all steps necessary to obtain the Loan Assignment and
Release, provided, however, that in the event Purchaser elects not to pursue the
Loan Assignment and Release or is unable to effectuate the same for any reason,
the Loan shall be prepaid and discharged of record by Seller at Closing.
Notwithstanding anything to the contrary contained herein, the Loan Assignment
and Release shall not be a condition precedent to Purchaser's obligation to
close under the Amended Contract.
2.2 Section 1.1.10 of the Amended Contract is amended so that the
following is added as the last sentence to the definition of "Lender Fees":
"Lender Fees shall not include any additional fees charged by Lender
or its counsel in connection with the proposed assignment of the
Loan (as hereinafter defined) which would not otherwise be payable
in connection with a prepayment and discharge of said Loan."
2.3 Section 7.2.2.1 of the Amended Contract is hereby deleted in its
entirety and the following is hereby inserted in its place:
"The full Purchase Price (less the Lender Fees, if any), as required
by ARTICLE 3 hereof plus or minus the adjustments or prorations
required by this Purchase Contract. If the Loan Assignment and
Release does occur, Purchaser shall get a credit at the Closing
equal to the amount of the outstanding principal balance of the
Modified Note. If at Closing there are any liens or encumbrances on
the Property that Seller is obligated or elects to pay and
discharge, Seller may use any portion of the Purchase Price for the
Property to satisfy the same, provided that Seller shall have
delivered to Title Company, on such Closing instruments in
recordable form sufficient to satisfy such liens and encumbrances of
record (or, as to any mortgages or deeds of trust not being assumed
hereunder, appropriate payoff letters, acceptable to the Title
Insurer), together with the cost of recording or filing such
instruments. The existence of any such liens or encumbrances shall
not be deemed objections to title if Seller shall comply with the
foregoing requirements."
2.4 A new Section 7.2.2.6 is added to the Amended Contract as follows:
"If the Loan Assignment and Release does occur, all documents,
instruments, guaranties, and other items or funds required by Lender
to cause the Loan Assignment and Release, including the costs and
expenses of the Loan Assignment and Release (but not including any
Lender Fees which are due irrespective of the Loan Assignment and
Release)."
3 Effectiveness of Contract. Except as modified by this Amendment, all the terms
of the Amended Contract shall remain unchanged and in full force and effect.
4 Counterparts. This Amendment may be executed in counterparts, and all
counterparts together shall be construed as one document.
5 Telecopied Signatures. A counterpart of this Amendment signed by one party to
this Amendment and telecopied to the other party to this Amendment or its
counsel (i) shall have the same effect as an original signed counterpart of this
Amendment, and (ii) shall be conclusive proof, admissible in judicial
proceedings, of such party's execution of this Amendment.
IN WITNESS WHEREOF, Seller and Purchaser have entered into this Second
Amendment of Purchase and Sale Contract as of the date first above stated.
Seller:
CONSOLIDATED CAPITAL GROWTH FUND, a California
limited partnership
By: ConCap Equities, Inc.,
a Delaware corporation,
its general partner
By: /s/Patrick F. Slavin
Name: Patrick F. Slavin
Its: Senior Vice President
Purchaser:
FF REALTY LLC
a Delaware limited liability company
By: FF Properties, Inc., a Delaware
corporation, Its Manager
By:/s/Patrick J. Gavin
Its: Vice President
Acknowledged by Escrow Agent:
STEWART TITLE GUARANTY COMPANY
By:/s/Wendy Howell
Name: Wendy Howell
Title: National Commercial Closing Specialist
Exhibit 10.41
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this 6th day of June, 2003
by and among CONSOLIDATED CAPITAL GROWTH FUND, a California limited partnership
("Seller"), and FF REALTY LLC, a Delaware limited liability company
("Purchaser"); and STEWART TITLE GUARANTY COMPANY ("Escrow Agent");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of the 6th day of June,
2003;
Whereas, the Purchase Contract requires that Purchaser provide a deposit
in the amount of One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) in
cash (the "Initial Deposit"), to be held pursuant to an escrow agreement
approved by Purchaser and Seller of which $100,000 shall be non-refundable
unless a Refundable Event (as defined in the Purchase Contract) occurs; and
Whereas, the Purchase Contract requires that on or before 5:00 p.m.
Eastern time on the date of the expiration of the Feasibility Period, Purchaser
shall provide an additional deposit in the amount of One Hundred Fifty Thousand
and No/100 Dollars ($150,000.00) in cash (the "Additional Deposit"), to be held
by Escrow Agent.
Now, therefore, the parties agree to the following:
1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of One
Hundred Fifty Thousand and No/100 Dollars ($150,000.00) in cash (constituting
the Initial Deposit), to be deposited, held, invested, and disbursed for the
benefit of Seller and Purchaser and their respective successors and assigns, as
provided herein and as provided in the Purchase Contract. Escrow Agent also
hereby acknowledges receipt of a quitclaim deed executed by Purchaser a copy of
which is attached (the "Quitclaim Deed") and agrees to hold and release the
Quitclaim Deed in accordance with the terms of this Escrow Agreement.
2. Investment of Escrow Fund. All funds received by Escrow Agent, including the
Initial Deposit and the Additional Deposit (collectively, the "Escrow Fund"),
shall be held in insured accounts and invested in such short-term, high-grade
securities, money market funds or accounts, interest-bearing bank accounts, bank
certificates of deposit or bank repurchase agreements as Escrow Agent, in its
discretion, deems suitable (provided that Escrow Agent shall invest the Escrow
Fund as directed by Purchaser and consented to by Seller (which consent shall
not be unreasonably withheld, conditioned or delayed), should Purchaser
determine to issue such investment instructions to the Escrow Agent) and all
interest and income thereon shall become part of the Escrow Fund and shall be
remitted to the party entitled to the Escrow Fund, as set forth below.
3. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by mutual written consent of the
parties hereto, given or withheld in their respective sole discretion), Escrow
Agent shall return the Quitclaim Deed to Purchaser and deliver the Escrow Fund
to Seller in immediately available funds by wire transfer in accordance with the
instructions of Seller on the Closing Date as set forth in the Purchase
Contract, (b) if the sale of the Property is not closed by the date fixed
therefor (or any such extension date) owing to failure of satisfaction of a
condition precedent to Purchaser's obligations, the Escrow Agent shall return
and refund the Escrow Fund to Purchaser and shall forthwith deliver the
Quitclaim Deed to Seller, (c) if the sale of the Property is not closed by the
date fixed therefor (or any such extension date) owing to failure of performance
by Seller, Purchaser shall give Notice to the Escrow Agent and Seller and in
such Notice shall state whether it elects as its remedy return of the Escrow
Fund or specific performance of the Purchase Contract; if Purchaser elects
return of the Escrow Fund, Escrow Agent shall return and refund the Escrow Fund
to Purchaser and shall forthwith deliver the Quitclaim Deed to Seller, (d) if
the sale of the Property is not closed by the date fixed therefor (or any such
extension date) owing to failure of performance by Purchaser, Escrow Agent shall
forthwith deliver to Seller the Quitclaim Deed and the Escrow Fund in
immediately available funds by wire transfer in accordance with the instructions
of Seller, and (e) if Purchaser shall have canceled the Purchase Contract on or
before the expiration of the Feasibility Period (as defined in the Purchase
Contract), the Escrow Agent shall return and refund the Escrow Fund (less the
Non-Refundable Amount unless a Refundable Event occurs) to Purchaser and shall
forthwith deliver the Quitclaim Deed to Seller.
If on or prior to the termination of the Escrow Agreement, a party claims
to be entitled to payment of the Escrow Fund under the provisions referred to,
such party shall give Notice to the Escrow Agent and the other party of the
claim in writing, describing in such Notice the nature of the claim, and the
provisions of the Purchase Contract on which the claim is based. Unless the
other party sends the Escrow Agent a written objection to the claim, with a copy
concurrently to the claiming party, within ten (10) days after delivery of the
Notice of claim, the claim shall be conclusively presumed to have been approved.
In such case, or in the event of mutual written consent of the parties hereto,
given or withheld in their respective sole discretion, Escrow Agent shall,
within two (2) business days thereafter, pay the claim as demanded.
Notwithstanding the foregoing, Escrow Agent shall deliver the Escrow Fund to
Seller forthwith upon Closing in accordance with the terms of subpart (a) of the
immediately preceding paragraph.
When all monies held by Escrow Agent have been finally distributed in
accordance herewith, this Escrow Agreement shall terminate.
4. Liability. Escrow Agent will be obligated to perform only the duties that are
expressly set forth herein. In case of conflicting demands upon Escrow Agent, it
may (i) refuse to comply therewith as long as such disagreement continues and
make no delivery or other disposition of any funds or property then held (and
Escrow Agent shall not be or become liable in any way for such failure or
refusal to comply with such conflicting or adverse claims or demands, except for
its failure to exercise due care, willful breach and willful misconduct); and
(ii) continue to so refrain and so refuse to act until all differences have been
adjusted by agreement and, Escrow Agent has been notified thereof in writing
signed jointly by Seller and Purchaser or (iii) to interplead the portion of
Escrow Fund in dispute.
5. No Obligation to Take Legal Action. Escrow Agent shall not be under any
obligation to take any legal action in connection with this Escrow Agreement or
for its enforcement, or to appear in, prosecute, or defend any action or legal
proceeding which, in its opinion, would or might involve it in any costs,
expense, loss, or liability, unless and as often as required by it, it is
furnished with satisfactory security and indemnity against all such costs,
expenses, losses, or liabilities.
6. Status of Escrow Agent. Escrow Agent is to be considered and regarded as a
depository only, and shall not be responsible or liable (except for its failure
to exercise due care, willful breach or willful misconduct) for the sufficiency
or correctness as to form, manner of execution, or validity of any instrument
deposited pursuant to this Escrow Agreement, nor as to the identity, authority,
or rights of any person executing the same. Escrow Agent's duties hereunder
shall be limited to the safekeeping of the Quitclaim Deed and the safekeeping
and investment of money, instruments, and securities received by it as Escrow
Agent and for their disbursement in accordance with the written escrow
instructions given it in accordance with this Escrow Agreement.
7. Written Instructions of Parties. Notwithstanding any contrary provision
contained herein, Escrow Agent shall, at all times, have full right and
authority and the duty and obligation to pay over and disburse the principal and
interest of the Escrow Fund AND Quitclaim Deed in accordance with the joint
written instructions signed by Seller and Purchaser.
8. Notices. Any required or permitted Notice or other communication under this
Escrow Agreement ("Notice") shall be given as follows. All Notices, requests,
demands and other communications hereunder shall be deemed to have been duly
given if the same shall be in writing and shall be delivered personally or sent
by federal express or other recognized national overnight courier service
maintaining records of delivery, or sent by registered or certified mail,
postage pre-paid, or sent by facsimile transmission (with a copy of the
facsimile confirmation and the facsimile transmission also sent by U.S. Mail)
and addressed as set forth below:
If to Seller: If to Purchaser:
c/o AIMCO FF REALTY LLC
4582 South Ulster Street 5510 Morehouse Drive, Suite 200
Parkway, Suite 1100 San Diego, California 92121
Denver, Colorado 80237 Attn: Mr. Stanley P. Herskovitz
Attn: Mr. Patrick Slavin Telephone No. (858) 457-2123
Telephone No. (303) 691-4340 Facsimile No. (858) 625-8606
Facsimile No. (303) 300-3282
And
c/o AIMCO
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 a copy to
Swidler Berlin Shereff Friedman
LLP
3000 "K" Street, N.W., Suite 300
Washington, D.C. 20007
Attn: Jeffrey Scharff, Esq.
Telephone No. (202) 424-7622
Facsimile No. (202) 295-8478
With a 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) 300-3260
And with a copy to
Argent Real Estate
1401 Brickell Avenue, Suite 520
Miami, Florida 33131
Attn: Mr. David Marquette
Telephone No. (305) 371-9299
Facsimile No. (305) 675-2998
And with a copy to If to Escrow Agent:
Loeb & Loeb, LLP Stewart Title Guaranty Company
1000 Wilshire Boulevard, Suite 1980 Post Oak Boulevard, Suite
1800 610
Los Angeles, California 90017 Houston, Texas 77056
Attn: Andrew S. Clare, Esq. and Attn: Ms. Wendy Howell
Karen N. Higgins, Esq. Telephone No. (800) 729-1906
Facsimile No. (213) 688-3460 Facsimile No. (713) 552-1703
Any party may change the address to which Notices are to be addressed by
giving the other parties Notice in the manner herein set forth. All such
Notices, requests, demands and other communications shall be deemed to have been
delivered (i) as of the day of receipt, in the case of personal delivery, or
(ii) as of the day of receipt or attempted delivery date in the case of delivery
by air courier, or (iii) as of the date of receipt or first attempted delivery,
as evidenced by the return receipt card, in the case of mailing by certified or
registered United States mail.
9. Fee. Escrow Agent shall receive a fee of $500.00 for its services hereunder,
and be paid or reimbursed for all expenses, disbursements and advances,
including reasonable attorneys' fees, incurred or paid in connection with
carrying out its duties hereunder, the payment of all amounts to be shared
equally by Purchaser and Seller equally, and not out of the Escrow Fund.
Non-payment of such fee by Seller or Purchaser shall not entitle Escrow Agent to
refuse or fail to act as required by this Escrow Agreement.
10. Titles and Section Headings. Titles of sections and subsections contained in
this Escrow Agreement are inserted for convenience of reference only, and
neither form a part of this Escrow Agreement or are to be used in its
construction or interpretation.
11. Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
12. Non-Waiver. No waiver by either party of any breach of any term or condition
of this Escrow Agreement shall operate as a waiver of any other breach of such
term or condition or of any other term or condition. No failure to enforce such
provision shall operate as a waiver of such provision or of any other provision
hereof, or constitute or be deemed a waiver or release of any other party for
anything arising out of, connected with, or based upon this Escrow Agreement.
13. Binding Effect. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns. The parties recognize and acknowledge that the powers and authority
granted Escrow Agent herein are each irrevocable and coupled with an interest.
Escrow Agent shall have no liability to Seller or Purchaser for any mistakes in
judgment in the performance of any function hereunder, except for failure to
exercise due care, willful breach and willful misconduct.
14. Nonlimitation of Liability. Nothing contained herein shall in any way limit
the liabilities, obligations and remedies of Seller and Purchaser as set forth
in the Purchase Contract.
15. Governing Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
16. Time of Essence. Time is of the essence of this Escrow Agreement.
17. Entire Agreement; Modification.
This Escrow Agreement supersedes all prior agreements and constitutes the entire
agreement with respect to the subject matter hereof. It may not be altered or
modified without the written consent of all parties.
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed under seal on its behalf by duly authorized persons,
all as of the day and year first above written.
Seller:
CONSOLIDATED CAPITAL GROWTH FUND, a
California limited partnership
By: ConCap Equities, Inc.,
a Delaware corporation,
its general partner
By:/s/Patrick F. Slavin
Its: Senior Vice President
Purchaser:
FF REALTY LLC
a Delaware limited liability company
By: FF Properties, Inc., a Delaware
corporation, Its Manager
By:/s/Patrick J. Gavin
Its: Vice President
Escrow Agent:
STEWART TITLE GUARANTY COMPANY
By: /s/Wendy Howell
Name: Wendy Howell
Title: National Commercial Closing
Specialist
Exhibit 10.42
(Doral Springs)
ASSIGNMENT AND ASSUMPTION OF
REAL ESTATE SALES AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF REAL ESTATE SALES AGREEMENT (this
"Assignment") is made as of this 22nd day of August, 2003, by and among FF
REALTY LLC, a Delaware limited liability company ("Assignor") and FAIRFIELD
DORAL SPRINGS LLC, a Delaware limited liability company ("Assignee").
Recitals
A. Assignor, as purchaser, and Consolidated Capital Growth Fund, as Seller,
entered into that certain Purchase and Sale Agreement dated as of June 6, 2003
as reinstated and amended pursuant to a Reinstatement and Amendment of Purchase
and Sale Contract dated as of July 11, 2003 (as it may have been further
amended, the "Contract"; capitalized terms used herein without definition shall
have the respective meanings ascribed thereto in the Contract) in connection
with the acquisition of the Property by Assignor from Seller subject to and in
accordance with the terms and conditions set forth therein.
B. In accordance with Section 16.2 of the Contract, Assignor desires to assign
to Assignee all of Assignor's right, title, interest and obligations under and
in respect of the Contract.
Agreement
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor and Assignee hereby agree as follows:
1. Assignment and Assumption. Assignor hereby assigns to Assignee, and Assignee
hereby accepts and assumes from Assignor, all of Assignor's rights and
obligations under the Contract, effective as of the date of this Assignment.
2. Covenants. Assignor covenants and agrees that notwithstanding the assignment
and assumption contained in this Assignment, Assignor will not be released from
its liability under the Contract.
3. Miscellaneous.
a. Successors and Assigns. This Assignment shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, legal
representatives, successors and assigns.
b. Governing Law. This Assignment shall be governed by and construed in
accordance with the internal laws of the State of Florida (without regard to the
choice of law rules thereof).
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the undersigned have executed this Assignment as of
the day and year first above written.
ASSIGNOR:
FF REALTY LLC, a Delaware limited
liability company
By: FF Properties, Inc., a Delaware
corporation, its Manager
By:/s/Patrick J. Gavin
Name: Patrick J. Gavin
Title: Vice President
ASSIGNEE:
FAIRFIELD DORAL SPRINGS LLC, a Delaware
limited liability partnership
By: FF Strategic Apartment Fund LLC, a
Delaware limited liability company,
its Manager
By: FF Properties, Inc., a
Delaware corporation, its
Manager
By:/s/Patrick J. Gavin
Name: Patrick J. Gavin
Title: Vide President