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) June 25, 2004
ANGELES OPPORTUNITY PROPERTIES, LTD.
(Exact name of registrant as specified in its charter)
California 0-16116 95-4052473
(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 June 25, 2004, the Registrant sold one of its investment properties, Lake
Meadows Apartments, located in Dallas, Texas. The Registrant sold Lake Meadows
Apartments to Lake Meadows Partners, Ltd., a third party, for $4,350,000. The
sales price was determined based on the fair market value of the investment
property.
In accordance with the Amended 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 Lake Meadows
Apartments had been sold on January 1, 2003.
The pro forma consolidated financial statements do not project the Registrant's
results of operations at any future date or for any future period. This pro
forma information should be read in conjunction with the Registrant's 2003
Annual Report on Form 10-KSB.
PRO FORMA CONSOLIDATED BALANCE SHEET
(in thousands)
March 31, 2004
All other assets $ 313
Investment properties, net 3,851
Total Assets $ 4,164
All other liabilities $ 214
Mortgage note payable 5,036
Partners' deficit (1,086)
Total Liabilities and Partners' Deficit $ 4,164
PRO FORMA CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per unit data)
Three Months Ended Year Ended
March 31, 2004 December 31, 2003
Total revenues $ 447 $ 1,813
Total expenses 415 1,777
Net income $ 32 $ 36
Net income per limited partnership unit $ 2.58 $ 2.90
(c) Exhibits.
The following exhibits are filed with this report (1):
10.12 Purchase and Sale Contract between Registrant and Wyndmere
Capital, Inc., dated April 15, 2004.
10.13 Amendment to Purchase and Sale Contract between Registrant and
Wyndmere Capital, Inc., dated May 13, 2004.
10.14 Second Amendment to Purchase and Sale Contract between
Registrant and Wyndmere Capital, Inc., dated May 27, 2004.
10.15 Third Amendment to Purchase and Sale Contract between
Registrant and Wyndmere Capital, Inc., dated June 9, 2004.
10.16 Assignment of Purchase and Sale Contract between Wyndmere
Capital Inc., and Lake Meadows Partners, Ltd., dated June 15,
2004.
(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.
ANGELES OPPORTUNITY PROPERTIES, LTD.
By: Angeles Realty Corporation II
General Partner
By: /s/Martha L. Long
Martha L. Long
Senior Vice President
Date: July 9, 2004
Exhibit 10.12
PURCHASE AND SALE CONTRACT
BETWEEN
NEW LAKE MEADOWS, L.P.,
a South Carolina limited partnership
AS SELLER
AND
WYNDMERE CAPITAL, INC.,
a Texas corporation
AS PURCHASER
LAKE MEADOWS APARTMENTS
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT (this "Contract") is entered into as of
the 15th day of April, 2004 (the "Effective Date") by and between NEW LAKE
MEADOWS, L.P., a South Carolina limited partnership, having an address at 4582
South Ulster Street Parkway, Suite 1100, Denver, Colorado 80238 ("Seller") and
WYNDMERE CAPITAL, INC., a Texas corporation, having a principal address at 14785
Preston Road, Suite 550, Dallas, Texas 75254 ("Purchaser").
NOW, THEREFORE, in consideration of mutual covenants set forth herein,
Seller and Purchaser hereby agree as follows:
RECITALS
A. Seller owns the real estate located in Dallas County, Texas, as more
particularly described in Exhibit A attached hereto and made a part hereof, and
the improvements thereon, commonly known as "Lake Meadows Apartments".
B. Purchaser desires to purchase, and Seller desires to sell, such land,
improvements and certain associated property, on the terms and conditions set
forth below.
ARTICLE 1
DEFINED TERMS
1.1 Unless otherwise defined herein, any term with its initial letter
capitalized in this Contract shall have the meaning set forth in this ARTICLE 1.
1.1.1 "ADA" shall have the meaning set forth in Section 13.22.
1.1.2 "Additional Deposit" shall have the meaning set forth in Section 2.2.2.
1.1.3 "AIMCO" shall mean Apartment Investment and Management Company.
1.1.4 "AIMCO Marks" means all words, phrases, slogans, materials, software,
proprietary systems, trade secrets, proprietary information and lists, logos and
phone numbers, and other intellectual property owned or used by Seller, the
Property Manager, or AIMCO in the marketing, operation or use of the Property
(or in the marketing, operation or use of any other properties managed by the
Property Manager or owned by AIMCO or an affiliate of either Property Manager or
AIMCO), but excluding any rights Seller has to the name "Lake Meadows
Apartments".
1.1.5 "Broker" shall have the meaning set forth in Section 9.1.
1.1.6 "Business Day" means any day other than a Saturday or Sunday or Federal
holiday or legal holiday in the States of Colorado, Tennessee, or Texas, or any
day on which Lender is not open for business.
1.1.7 "Closing" means the consummation of the purchase and sale and related
transactions contemplated by this Contract in accordance with the terms and
conditions of this Contract.
1.1.8 "Closing Date" means the date on which date the Closing of the
conveyance of the Property is required to be held pursuant to Section 5.1.
1.1.9 "Code" shall have the meaning set forth in Section 2.3.6.
1.1.10 Intentionally Omitted.
1.1.11 "Consultants" shall have the meaning set forth in Section 3.1.
1.1.12 "Damage Notice" shall have the meaning set forth in Section 11.1.
1.1.13 "Deed" shall have the meaning set forth in Section 5.2.1.
1.1.14 "Deed of Trust" shall have the meaning set forth in Section 4.5.
1.1.15 "Deposit" means, to the extent actually deposited by Purchaser
with Escrow Agent, the Initial Deposit and the Additional Deposit.
1.1.16 "Escrow Agent" shall have the meaning set forth in Section 2.2.1.
1.1.17 "Excluded Permits" means those Permits which, under applicable
law, are nontransferable and such other Permits, if any, as may be designated
as Excluded Permits on Schedule 1.1.17.
1.1.18 "Existing Survey" shall have the meaning set forth in Section 4.2.
1.1.19 "Feasibility Period" shall have the meaning set forth in
Section 3.1.
1.1.20 "FHA" shall have the meaning set forth in Section 13.22.
1.1.21 "Fixtures and Tangible Personal Property" means all fixtures, furniture,
furnishings, fittings, equipment, machinery, apparatus, appliances and other
articles of tangible personal property located on the Land or in the
Improvements as of the Effective Date and used or usable in connection with the
occupation or operation of all or any part of the Property, but only to the
extent transferable. The term "Fixtures and Tangible Personal Property" does not
include (a) equipment leased by Seller and the interest of Seller in any
equipment provided to the Property for use, but not owned or leased by Seller,
or (b) property owned or leased by any Tenant or guest, employee or other person
furnishing goods or services to the Property, or (c) property and equipment
owned by Seller, which in the ordinary course of business of the Property is not
used exclusively for the business, operation or management of the Property, or
(d) the property and equipment, if any, expressly identified in Schedule 1.1.21.
1.1.22 "General Assignment" shall have the meaning set forth in
Section 5.2.3.
1.1.23 "Good Funds" shall have the meaning set forth in Section 2.2.1.
1.1.24 "Improvements" means all buildings and improvements located on
the Land taken "as is."
1.1.25 "Independent Contract Consideration" shall have the meaning set
forth in Section 2.2.3.
1.1.26 "Initial Deposit" shall have the meaning set forth in
Section 2.2.1.
1.1.27 "Land" means all of those certain tracts of land located in the State of
Texas described on Exhibit A, and all rights, privileges and appurtenances
pertaining thereto.
1.1.28 "Lease(s)" means the interest of Seller in and to all leases, subleases
and other occupancy contracts, whether or not of record, which provide for the
use or occupancy of space or facilities on or relating to the Property and which
are in force as of the Closing Date for the applicable Property.
1.1.29 "Leases Assignment" shall have the meaning set forth in Section 5.2.4.
1.1.30 "Lender" means FANNIE MAE (whose servicer is GMAC Commercial Mortgage
Corporation), assignee of GMAC Commercial Mortgage Corporation.
1.1.31 "Lender Fees" shall mean 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 Loan Payoff, and, to the extent
that the Loan Payoff occurs on a date other than as permitted under the Note and
Deed of Trust, any amounts of interest charged by Lender for the period from the
Closing Date to the permitted prepayment date, the amount of the Lender Fees to
be determined as of the Closing Date.
1.1.32 "Loan" means the indebtedness owing to Lender evidenced by the Note.
1.1.33 "Loan Payoff" shall have the meaning set forth in Section 5.4.7.
1.1.34 "Losses" shall have the meaning set forth in Section 3.4.1.
1.1.35 "Materials" shall have the meaning set forth in Section 3.5.
1.1.36 "Miscellaneous Property Assets" means all contract rights, leases,
concessions, warranties, guaranties, plans, drawings, agreements from
contractors, subcontractors, vendors and suppliers regarding their performance,
quality of workmanship and quality of materials supplied in connection with the
construction, manufacture, development, installation and operation of any and
all Improvements (to the extent assignable), and other items of intangible
personal property relating to the ownership or operation of the Property and
owned by Seller, excluding, however, (a) receivables, (b) Property Contracts,
(c) Leases, (d) Permits, (e) cash or other funds, whether in petty cash or house
"banks," or on deposit in bank accounts or in transit for deposit, (f) refunds,
rebates or other claims, or any interest thereon, for periods or events
occurring prior to the Closing Date, (g) utility and similar deposits, (h)
insurance or other prepaid items, (i) Seller's proprietary books and records, or
(j) any right, title or interest in or to the AIMCO Marks. The term
"Miscellaneous Property Assets" also shall include all of Seller's rights, if
any, in and to the name "LAKE MEADOWS APARTMENTS" as it relates solely to use in
connection with the Property (and not with respect to any other property owned
or managed by Seller, Property Manager, AIMCO, or their respective affiliates).
1.1.37 "Note" means that certain Multifamily Note in the original principal
amount of $2,096,250.00, dated as of May 16, 2003, executed by Seller and
payable to the order of GMAC Commercial Mortgage Corporation, as assigned to
FANNIE MAE.
1.1.38 "Objection Deadline" shall have the meaning set forth in
Section 4.3.
1.1.39 "Objection Notice" shall have the meaning set forth in
Section 4.3.
1.1.40 "Objections" shall have the meaning set forth in Section 4.3.
1.1.41 "Permits" means all licenses and permits granted by any
governmental authority having jurisdiction over the Property owned by Seller
and required in order to own and operate the Property.
1.1.42 "Permitted Exceptions" shall have the meaning set forth in Section 4.4.
1.1.43 "Property" means (a) the Land and Improvements and all rights of Seller,
if any, in and to all of the easements, rights, privileges, and appurtenances
belonging or in any way appertaining to the Land and Improvements, (b) the
right, if any and only to the extent transferable, of Seller in the Property
Contracts, Leases, Permits (other than Excluded Permits), and the Fixtures and
Tangible Personal Property, and (c) the Miscellaneous Property Assets owned by
Seller which are located on the Property and used in its operation.
1.1.44 "Property Contracts" means all contracts, agreements, equipment leases,
purchase orders, maintenance, service, or utility contracts and similar
contracts, excluding Leases, which relate to the ownership, maintenance,
construction or repair and/or operation of the Property, but only to the extent
the assignment of such contract to Purchaser is permitted pursuant to the
express terms of such contract (including any contracts that are expressly
assignable with the consent of the applicable vendor), and not including (a) any
national contracts entered into by Seller, Property Manager, or AIMCO with
respect to the Property (i) which terminate automatically upon transfer of the
Property by Seller, or (ii) which Seller, in Seller's sole discretion, elects to
terminate with respect to the Property effective as of the Closing Date, or (b)
any property management contract for the Property.
1.1.45 "Property Contracts Notice" shall have the meaning set forth in
Section 3.6.
1.1.46 "Property Manager" means the current property manager of the
Property.
1.1.47 "Proration Schedule" shall have the meaning set forth in
Section 5.4.1.
1.1.48 "Purchase Price" means the consideration to be paid by Purchaser
to Seller for the purchase of the Property pursuant to Section 2.2.
1.1.49 Intentionally Omitted.
1.1.50 "Regional Property Manager" shall have the meaning set forth in
Section 6.4.
1.1.51 Intentionally Omitted.
1.1.52 "Required Assignment Consent" shall have the meaning set forth in
Section 3.6.
1.1.53 "Response Deadline" shall have the meaning set forth in
Section 4.3.
1.1.54 "Response Notice" shall have the meaning set forth in Section 4.3.
1.1.55 "Seller's Indemnified Parties" shall have the meaning set forth
in Section 3.4.1
1.1.56 "Seller's Representations" shall have the meaning set forth in
Section 6.1.
1.1.57 "Survey" shall have the meaning ascribed thereto in Section 4.2.
1.1.58 "Survival Period" shall have the meaning set forth in Section 6.3.
1.1.59 "Survival Provisions" shall have the meaning set forth in Section
13.28.
1.1.60 "Tenant" means any person or entity entitled to occupy any portion of the
Property under a Lease.
1.1.61 "Tenant Deposits" means all security deposits, prepaid rentals, cleaning
fees and other refundable deposits and fees collected from Tenants, plus any
interest accrued thereon, paid by Tenants to Seller pursuant to the Leases.
Tenant Deposits shall not include any non-refundable deposits or fees paid by
Tenants to Seller, either pursuant to the Leases or otherwise.
1.1.62 "Tenant Security Deposit Balance" shall have the meaning set forth in
Section 5.4.6.2.
1.1.63 "Terminated Contracts" shall have the meaning set forth in Section 3.6.
1.1.64 "Third-Party Reports" means any reports, studies or other information
prepared or compiled for Purchaser by any Consultant or other third-party hired
or commissioned by Purchaser in connection with Purchaser's investigation of the
Property.
1.1.65 "Title Commitment" shall have the meaning ascribed thereto in Section
4.1.
1.1.66 "Title Documents" shall have the meaning set forth in Section 4.1.
1.1.67 "Title Insurer" shall have the meaning set forth in Section 2.2.1.
1.1.68 "Title Policy" shall have the meaning set forth in Section 4.1.
1.1.69 "Uncollected Rents" shall have the meaning set forth in Section
5.4.6.1.
1.1.70 Intentionally Omitted.
1.1.71 "Vendor Terminations" shall have the meaning set forth in Section
5.2.5.
ARTICLE 2
PURCHASE AND SALE, PURCHASE PRICE & DEPOSIT
2.1 Purchase and Sale. Seller agrees to sell and convey the Property to
Purchaser and Purchaser agrees to purchase the Property from Seller, all in
accordance with the terms and conditions set forth in this Contract.
2.2 Purchase Price and Deposit. The total purchase price ("Purchase Price") for
the Property shall be an amount equal to Four Million Three Hundred Fifty
Thousand and No/100 Dollars ($4,350,000.00) less the Lender Fees paid by
Purchaser through the Closing, which amount shall be paid by Purchaser, as
follows:
2.2.1 On the Effective Date, Purchaser shall deliver to Stewart Title Guaranty
Company, c/o Wendy Howell, National Commercial Closing Specialist, 1980 Post Oak
Boulevard, Suite 610, Houston, TX 77056, 800-729-1906 ("Escrow Agent" or "Title
Insurer") an initial deposit (the "Initial Deposit") of $43,500.00 by wire
transfer of immediately available funds ("Good Funds"). The Initial Deposit
shall be held and disbursed in accordance with the escrow provisions set forth
in Section 2.3.
2.2.2 On the day that the Feasibility Period expires, Purchaser shall deliver to
Escrow Agent an additional deposit (the "Additional Deposit") of $43,500.00 by
wire transfer of Good Funds. The Additional Deposit shall be held and disbursed
in accordance with the escrow provisions set forth in Section 2.3.
2.2.3 In addition to the Initial Deposit, Seller and Purchaser agree that the
amount of One Hundred and No/100 Dollars ($100.00) shall be paid by Purchaser to
Seller concurrently with the deposit into escrow of the Initial Deposit, as
consideration for Seller's execution and delivery of this Purchase Contract (the
"Independent Contract Consideration"). The Independent Contract Consideration is
independent of any other consideration or payment provided for in this Purchase
Contract and, notwithstanding anything to the contrary herein, is non-refundable
in all events.
2.2.4 The balance of the Purchase Price for the Property shall be paid to and
received by Escrow Agent by wire transfer of Good Funds no later than 11:00 a.m.
(in the time zone in which Escrow Agent is located) on the Closing Date (or such
earlier time as required by Lender).
2.3 Escrow Provisions Regarding Deposit.
2.3.1 Escrow Agent shall hold the Deposit and make delivery of the Deposit to
the party entitled thereto under the terms of this Contract. Escrow Agent shall
invest the Deposit in such short-term, high-grade securities, interest-bearing
bank accounts, money market funds or accounts, bank certificates of deposit or
bank repurchase contracts as Escrow Agent, in its discretion, deems suitable,
and all interest and income thereon shall become part of the Deposit and shall
be remitted to the party entitled to the Deposit pursuant to this Contract.
2.3.2 Escrow Agent shall hold the Deposit until the earlier occurrence of (i)
the Closing Date, at which time the Deposit shall be applied against the
Purchase Price, or (ii) the date on which Escrow Agent shall be authorized to
disburse the Deposit as set forth in Section 2.3.3. The tax identification
numbers of the parties shall be furnished to Escrow Agent upon request.
2.3.3 If the Deposit has not been released earlier in accordance with Section
2.3.2, and either party makes a written demand upon Escrow Agent for payment of
the Deposit, Escrow Agent shall give written notice to the other party of such
demand. If Escrow Agent does not receive a written objection from the other
party to the proposed payment within 5 Business Days after the giving of such
notice, Escrow Agent is hereby authorized to make such payment. Purchaser agrees
to return all Third-Party Reports and information and Materials provided to
Purchaser within five (5) days after termination of this Contract. If Escrow
Agent does receive such written objection within such 5-Business Day period,
Escrow Agent shall continue to hold such amount until otherwise directed by
written instructions from the parties to this Contract or a final judgment or
arbitrator's decision. However, Escrow Agent shall have the right at any time to
deposit the Deposit and interest thereon, if any, with a court of competent
jurisdiction in the state in which the Property is located. Escrow Agent shall
give written notice of such deposit to Seller and Purchaser. Upon such deposit,
Escrow Agent shall be relieved and discharged of all further obligations and
responsibilities hereunder.
2.3.4 The parties acknowledge that Escrow Agent is acting solely as a
stakeholder at their request and for their convenience, that Escrow Agent shall
not be deemed to be the agent of either of the parties for any act or omission
on its part unless taken or suffered in bad faith in willful disregard of this
Contract or involving gross negligence. Seller and Purchaser jointly and
severally shall indemnify and hold Escrow Agent harmless from and against all
costs, claims and expenses, including reasonable attorney's fees, incurred in
connection with the performance of Escrow Agent's duties hereunder, except with
respect to actions or omissions taken or suffered by Escrow Agent in bad faith,
in willful disregard of this Contract or involving gross negligence on the part
of the Escrow Agent.
2.3.5 The parties shall deliver to Escrow Agent an executed copy of this
Contract, which shall constitute the sole instructions to Escrow Agent. Escrow
Agent shall execute the signature page for Escrow Agent attached hereto with
respect to the provisions of this Section 2.3; provided, however, that (a)
Escrow Agent's signature hereon shall not be a prerequisite to the binding
nature of this Contract on Purchaser and Seller, and the same shall become fully
effective upon execution by Purchaser and Seller, and (b) the signature of
Escrow Agent will not be necessary to amend any provision of this Contract other
than this Section 2.3.
2.3.6 Escrow Agent, as the person responsible for closing the transaction within
the meaning of Section 6045(e)(2)(A) of the Internal Revenue Code of 1986, as
amended (the "Code"), shall file all necessary information, reports, returns,
and statements regarding the transaction required by the Code including, but not
limited to, the tax reports required pursuant to Section 6045 of the Code.
Further, Escrow Agent agrees to indemnify and hold Purchaser, Seller, and their
respective attorneys and brokers harmless from and against any Losses resulting
from Escrow Agent's failure to file the reports Escrow Agent is required to file
pursuant to this section. 2.3.7 The provisions of this Section 2.3 shall survive
the termination of this Contract, and if not so terminated, the Closing and
delivery of the Deed to Purchaser.
ARTICLE 3
FEASIBILITY PERIOD
3.1 Feasibility Period. Subject to the terms of Section 3.3 and 3.4 and the
right of Tenants under the Leases, from the Effective Date to and including the
date which is 30 days after the Effective Date (the "Feasibility Period"),
Purchaser and its agents, contractors, engineers, surveyors, attorneys,
accountants, advisors, lenders, affiliates, consultants, shareholders, investors
and employees (collectively, "Consultants") shall have the right from time to
time to enter onto the Property (subject to only a reasonable number of
individuals at any one time):
3.1.1 To conduct and make any and all customary studies, tests, examinations,
inquiries, and inspections, or investigations (collectively, the "Inspections")
of or concerning the Property (including, without limitation, engineering and
feasibility studies, evaluation of drainage and flood plain, soil tests for
bearing capacity and percolation and surveys, including topographical surveys);
3.1.2 To confirm any and all matters which Purchaser may reasonably desire to
confirm with respect to the Property;
3.1.3 To ascertain and confirm the suitability of the Property for Purchaser's
intended use of the Property; and
3.1.4 To review the Materials at Purchaser's sole cost and expense.
3.2 Expiration of Feasibility Period. If the results of any of the matters
referred to in Section 3.1 appear unsatisfactory to Purchaser for any reason or
if Purchaser elects not to proceed with the transaction contemplated by this
Contract for any other reason, or for no reason whatsoever, in Purchaser's sole
and absolute discretion, then Purchaser shall have the right to terminate this
Contract by giving written notice to that effect to Seller and Escrow Agent on
or before 5:00 p.m. (in the time zone in which the Escrow Agent is located) on
or before the date of the expiration of the Feasibility Period. If Purchaser
exercises such right to terminate, this Contract shall terminate and be of no
further force and effect, subject to and except for Purchaser's liability
pursuant to Section 3.3 and any other provision of this Contract which survives
such termination, and Escrow Agent shall forthwith return the Initial Deposit to
Purchaser. Purchaser agrees to return all Third-Party Reports and information
and Materials provided to Purchaser within five (5) days after termination of
this Contract. If Purchaser fails to provide Seller with written notice of
termination prior to the expiration of the Feasibility Period in strict
accordance with the notice provisions of this Contract, Purchaser's right to
terminate under this Section 3.2 shall be permanently waived and this Contract
shall remain in full force and effect, the Deposit (including both the Initial
Deposit and, when delivered in accordance with Section 2.2.2, the Additional
Deposit) shall be non-refundable, and Purchaser's obligation to purchase the
Property shall be non-contingent and unconditional except only for satisfaction
of the conditions expressly stated in Section 8.1.
3.3 Conduct of Investigation. Purchaser shall not permit any mechanic's or
materialmen's liens or any other liens to attach to the Property by reason of
the performance of any work or the purchase of any materials by Purchaser or any
other party in connection with any Inspections conducted by or for Purchaser.
Purchaser shall give at least 48 hours notice to Seller prior to entry onto the
Property and shall permit Seller to have a representative present during all
Inspections conducted at the Property. Purchaser shall use its best efforts to
conduct and cause its Consultants to conduct any and all Inspections in such a
manner as to avoid any disruption or disturbance of Tenants' occupancy of the
Property. All information made available by Seller to Purchaser in accordance
with this Contract or obtained by Purchaser in the course of its Inspections
shall be treated as confidential information in accordance with the provisions
of Section 13.14 herein by Purchaser, and, prior to the purchase of the Property
by Purchaser, Purchaser shall use its best efforts to prevent its Consultants
from divulging such information to any unrelated third parties except as
reasonably necessary to third parties engaged by Purchaser for the limited
purpose of analyzing and investigating such information for the purpose of
consummating the transaction contemplated by this Contract. The provisions of
this Section 3.3 shall survive the termination of this Contract, and if not so
terminated shall survive (except for the confidentiality provisions of this
Section 3.3) the Closing and delivery of the Deed to Purchaser.
3.4 Purchaser Indemnification.
3.4.1 Purchaser shall indemnify, hold harmless and, if requested by Seller (in
Seller's sole discretion), defend (with counsel approved by Seller) Seller,
together with Seller's affiliates, parent and subsidiary entities, successors,
assigns, partners, managers, members, employees, officers, directors, trustees,
shareholders, counsel, representatives, agents, Property Manager, Regional
Property Manager, and AIMCO (collectively, including Seller, "Seller's
Indemnified Parties"), from and against any and all damages, mechanics' liens,
liabilities, losses, demands, actions, causes of action, claims, costs and
expenses (including reasonable attorneys' fees, including the cost of in-house
counsel and appeals) (collectively, "Losses") arising from or related to
Purchaser's or its Consultant's entry onto the Property, and any Inspections or
other matters performed by Purchaser with respect to the Property during the
Feasibility Period or otherwise.
3.4.2 Notwithstanding anything in this Contract to the contrary, Seller shall
have the right, without limitation, to disapprove any and all entries, surveys,
tests (including, without limitation, a Phase II environmental study of the
Property), investigations and other matters that in Seller's reasonable judgment
could result in any injury to the Property or breach of any contract, or expose
Seller to any Losses or violation of applicable law, or otherwise adversely
affect the Property or Seller's interest therein. Purchaser shall use best
efforts to minimize disruption to Tenants in connection with Purchaser's or its
Consultants' activities pursuant to this Section. No consent by the Seller to
any such activity shall be deemed to constitute a waiver by Seller or assumption
of liability or risk by Seller. Purchaser hereby agrees to restore, at
Purchaser's sole cost and expense, the Property to the same condition existing
immediately prior to Purchaser's exercise of its rights pursuant to this Article
3. Purchaser shall maintain and cause its third party Consultants to maintain in
an amount not less than $2,000,000 combined single limit (except for Purchaser's
surveyor, whose insurance shall be in an amount no less than $1,000,000,
combined single limit), together with workmen's compensation insurance if
required by state law (and if none if required by state law, it is understood
that each such party not having workmen's compensation insurance shall assume
all liability for their employees and Seller shall be indemnified from liability
for same), and in form and substance adequate to insure all liability of
Purchaser and its Consultants arising out of inspections and testing at the
Property or any part thereof made on behalf of Purchaser. Purchaser shall
deliver proof of the insurance coverage required pursuant to this Section 3.4.2
to Seller (in the form of a certificate of insurance) prior to Purchaser's or
Purchaser's Consultants' entry onto the Property. The provisions of this Section
3.4 shall survive the termination of this Contract, and if not so terminated,
the Closing and delivery of the Deed to Purchaser for a period of eighteen (18)
months.
3.5 Property Materials.
3.5.1 On the Effective Date, and to the extent the same exist and are in
Seller's possession or reasonable control (subject to Section 3.5.2), Seller
agrees to make the documents set forth on Schedule 3.5 (the "Materials")
available at the Property for review and copying by Purchaser at Purchaser's
sole cost and expense. In the alternative, at Seller's option and on the
Effective Date, Seller may deliver some or all of the Materials to Purchaser, or
make the same available to Purchaser on a secure web site (Purchaser agrees that
any item to be delivered by Seller under this Contract shall be deemed delivered
to the extent available to Purchaser on such secured web site). To the extent
that Purchaser determines that any of the Materials have not been made available
or delivered to Purchaser pursuant to this Section 3.5.1, Purchaser shall notify
Seller and Seller shall use commercially reasonable efforts to deliver the same
to Purchaser within 5 Business Days after such notification is received by
Seller; provided, however, that under no circumstances will the Feasibility
Period be extended and Purchaser's sole remedy will be to terminate this
Contract pursuant to Section 3.2.
3.5.2 In providing such information and Materials to Purchaser, Seller makes no
representation or warranty, express, written, oral, statutory, or implied, and
all such representations and warranties are hereby expressly excluded and
disclaimed except as provided in Section 6.1 and Section 9.1 herein, in the Deed
and in the Leases Assignment. Except as provided in Section 6.1 and Section 9.1
herein, in the Deed and in the Leases Assignment, any information and Materials
provided by Seller to Purchaser under the terms of this Contract are for
informational purposes only and, together with all Third-Party Reports, shall be
returned by Purchaser to Seller no later than five (5) days after termination of
this Contract. Except as provided in Section 6.1 and Section 9.1 herein, in the
Deed and in the Leases Assignment, Purchaser shall not in any way be entitled to
rely upon the accuracy of such information and Materials. Purchaser recognizes
and agrees that, except as provided in Section 6.1 and Section 9.1 herein, in
the Deed and in the Leases Assignment, the Materials and other documents and
information delivered or made available by Seller pursuant to this Contract may
not be complete or constitute all of such documents which are in Seller's
possession or control, but are those that are readily available to Seller after
reasonable inquiry to ascertain their availability. Purchaser understands that,
although Seller will use commercially reasonable efforts to locate and make
available the Materials and other documents required to be delivered or made
available by Seller pursuant to this Contract, Purchaser will not rely on such
Materials or other documents as being a complete and accurate source of
information with respect to the Property except as provided in Section 6.1 and
Section 9.1 herein, in the Deed and in the Leases Assignment, and will instead
in all instances, except as provided in Section 6.1 and Section 9.1 herein, in
the Deed and in the Leases Assignment, rely exclusively on its own Inspections
and Consultants with respect to all matters which it deems relevant to its
decision to acquire, own and operate the Property.
3.5.3 The provisions of this Section 3.5 shall survive the Closing and delivery
of the Deed to Purchaser.
3.6 Property Contracts. On or before the expiration of the Feasibility Period,
Purchaser may deliver written notice to Seller (the "Property Contracts Notice")
specifying any Property Contracts with respect to which Purchaser desires to
have Seller deliver notices of termination at the Closing (the "Terminated
Contracts"); provided that (a) the effective date of such termination after
Closing shall be subject to the express terms of such Terminated Contracts,
(and, to the extent that the effective date of termination of any Terminated
Contract is after the Closing Date, Purchaser shall be deemed to have assumed
all of Seller's obligations under such Terminated Contract as of the Closing
Date), (b) if any such Property Contract cannot by its terms be terminated, it
shall be assumed by Purchaser and not be a Terminated Contract, and (c) to the
extent that any such Terminated Contract requires payment of a penalty or
premium for cancellation, Purchaser shall be solely responsible for the payment
of any such cancellation fees or penalties. If Purchaser fails to deliver the
Property Contracts Notice on or before the expiration of the Feasibility Period,
there shall be no Terminated Contracts and Purchaser shall assume all Property
Contracts at the Closing. Seller shall deliver to Purchaser, at least ten (10)
days prior to the expiration of the Feasibility Period, a list certified to
Seller's knowledge, of all Property Contracts in existence relating to the
ownership and operation of the Property. To the extent that any Property
Contract to be assumed by Purchaser (including any Property Contracts that,
because of advance notice requirements, will be temporarily assumed by Purchaser
pending the effective date of termination after the Closing Date) is assignable
but requires the applicable vendor to consent to the assignment or assumption of
the Property Contract by Seller to Purchaser, then, prior to the Closing,
Purchaser shall be responsible for obtaining from each applicable vendor a
consent (each a "Required Assignment Consent") to the assignment of the Property
Contract by Seller to Purchaser (and the assumption by Purchaser of all
obligations under such Property Contract). Purchaser shall indemnify, hold
harmless and, if requested by Seller (in Seller's sole discretion), defend (with
counsel approved by Seller) Seller's Indemnified Parties from and against any
and all Losses arising from or related to Purchaser's failure to obtain any
Required Assignment Consent.
ARTICLE 4
TITLE
4.1 Title Documents. On the Effective Date, Seller shall cause to be delivered
to Purchaser a standard form commitment for title insurance ("Title Commitment")
for the Property in an amount equal to the Purchase Price from Title Insurer for
an owner's title insurance policy (the "Title Policy") on the most recent TLTA
T-1 Owner's Policy form, together with copies of all instruments identified as
exceptions therein (together with the Title Commitment, referred to herein as
the "Title Documents"). Seller shall be responsible only for payment of the
basic premium for the Title Policy, including all title search and examination
fees. Purchaser shall be solely responsible for payment of all other costs
relating to procurement of the Title Commitment, the Title Policy, and any
requested amendments or endorsements.
4.2 Survey. On the Effective Date, Seller shall deliver to Purchaser or make
available at the Property the existing survey of the Property dated as of
October 20, 2003 bearing File No. CO3318 prepared by Brockette Davis Drake, Inc.
(the "Existing Survey"). In the event that such Existing Survey was prepared in
connection with the sale of the Property, then Seller shall pay the costs
thereof. Purchaser acknowledges and agrees that delivery of the Existing Survey
is subject to Section 3.5.2. To the extent that Purchaser desires that a new
survey of the Property be prepared (or that the Existing Survey be updated),
Purchaser may cause to be prepared a survey (or an update to the Existing
Survey) for the Property (together with the Existing Survey, referred to herein
as the "Survey") to be delivered to Purchaser and Seller no later than 10 days
after the Effective Date. Purchaser and Seller shall split the cost and expense
of the preparation of any updated survey requested pursuant to the terms of this
Section 4.2. Purchaser shall be solely responsible for the cost and expense of
the preparation of any new survey requested pursuant to the terms of this
Section 4.2.
4.3 Objection and Response Process. On or before the date which is 20 days after
the Effective Date (the "Objection Deadline"), Purchaser shall give written
notice (the "Objection Notice") to the attorneys for Seller of any matter set
forth in the Title Documents or the Survey to which Purchaser objects (the
"Objections"). If Purchaser fails to tender an Objection Notice on or before the
Objection Deadline, Purchaser shall be deemed to have approved and irrevocably
waived any objections to any matters covered by the Title Documents and the
Survey. On or before 25 days after the Effective Date (the "Response Deadline"),
Seller may, in Seller's sole discretion, give Purchaser notice (the "Response
Notice") of those Objections which Seller is willing to cure, if any. Seller
shall be entitled to reasonable adjournments of the Closing Date (up to 30 days)
to cure the Objections. If Seller fails to deliver a Response Notice by the
Response Deadline, Seller shall be deemed to have elected not to cure or
otherwise resolve any matter set forth in the Objection Notice. If Purchaser is
dissatisfied with the Response Notice, Purchaser may, as its exclusive remedy,
elect by written notice given to Seller on or before the expiration of the
Feasibility Period either (a) to accept the Title Documents and Survey with
resolution, if any, of the Objections as set forth in the Response Notice (or if
no Response Notice is tendered, without any resolution of the Objections) and
without any reduction or abatement of the Purchase Price, or (b) to terminate
this Contract, in which event the Initial Deposit shall be returned to
Purchaser. Purchaser agrees to return all Third-Party Reports and information
and Materials provided to Purchaser within five (5) days after termination of
this Contract. If Purchaser fails to give notice to terminate this Contract on
or before the expiration of the Feasibility Period, Purchaser shall be deemed to
have elected to approve and irrevocably waived any objections to any matters
covered by the Title Documents or the Survey, subject only to resolution, if
any, of the Objections as set forth in the Response Notice (or if no Response
Notice is tendered, without any resolution of the Objections).
4.4 Permitted Exceptions. The Deed delivered pursuant to this Contract shall be
subject to the following, all of which shall be deemed "Permitted Exceptions":
4.4.1 All matters shown in the Title Documents and the Survey, other than (a)
those Objections, if any, which Seller has agreed to cure pursuant to the
Response Notice under Section 4.3, (b) mechanics' liens and taxes due and
payable with respect to the period preceding Closing, (c) the standard exception
regarding the rights of parties in possession which shall be limited to those
parties in possession pursuant to the Leases, and (d) the standard exception
pertaining to taxes which shall be limited to taxes and assessments payable in
the year in which the Closing occurs and subsequent taxes and assessments;
4.4.2 All Leases;
4.4.3 Intentionally Omitted;
4.4.4 Applicable zoning and governmental regulations and ordinances;
4.4.5 Any defects in or objections to title to the Property, or title exceptions
or encumbrances, arising by, through or under Purchaser; and
4.4.6 The terms and conditions of this Contract.
4.5 Existing Deed of Trust. It is understood and agreed that, whether or not
Purchaser gives an Objection Notice with respect thereto, any deeds of trust
and/or mortgages (including any and all mortgages which secure the Note) against
the Property (whether one or more, the "Deed of Trust") shall not be deemed
Permitted Exceptions, whether Purchaser gives written notice of such or not, and
shall be paid off, satisfied, discharged and/or cured by Seller at Closing,
provided that the Lender Fees due in connection with the Loan Payoff shall be
paid by Purchaser, to the extent such Lender Fees do not exceed the Purchase
Price. In no event shall Purchaser be liable for any Lender Fees asserted to be
payable to Lender after the Closing (for which Purchaser did not receive a
credit against the Purchase Price at Closing).
ARTICLE 5
CLOSING
5.1 Closing Date. Seller has informed Purchaser that Seller is required to
deliver to the Securities and Exchange Commission (the "SEC") an information
statement (the "Information Statement") for disclosure to Seller's partners of
the transactions contemplated hereby. The Closing shall occur the earlier to
occur of (a) if Seller circulates the Information Statement to its partners
prior to the expiration of the Feasibility Period (Seller shall promptly notify
Purchaser of such circulation), the Closing shall occur 60 days after the
Effective Date, or (b) if Seller circulates the Information Statement to its
partners within 30 days after the expiration of the Feasibility Period (the
"Extended Circulation Period"), the Closing shall occur 45 days after Seller
notifies Purchaser that the Information Statement has been circulated (the
"Closing Date") through an escrow with Escrow Agent, whereby the Seller,
Purchaser and their attorneys need not be physically present at the Closing and
may deliver documents by overnight air courier or other means. The Closing Date
may be extended without penalty at the option of Seller to a date not later than
30 days following the Closing Date specified in the first sentence of this
paragraph above to satisfy a condition to be satisfied by Seller, or such
earlier or later date as is mutually acceptable to Seller and Purchaser. Seller
agrees that if the Information Statement has not been circulated to Seller's
partners prior to the expiration of the Extended Circulation Period, then
Purchaser shall have the right to terminate this Contract by giving written
notice to Seller and Escrow Agent within five (5) days after the expiration of
the Extended Circulation Period. If Purchaser exercises such right to terminate,
(a) this Contract shall terminate and be of no further force and effect, subject
to and except for Purchaser's liability pursuant to Section 3.3 and any other
provision of this Contract which survives such termination, (b) Escrow Agent
shall forthwith return the Deposit to Purchaser, and (c) Seller shall reimburse
Purchaser for its reasonable actual out of pocket due diligence expenses and
costs incurred in connection with the transaction contemplated by this Contract,
including, without limitation reasonable attorneys fees and costs, in the
aggregate not to exceed $38,000.00 (collectively, the "Incurred Closing Costs").
Purchaser shall provide Seller with written substantiation of the cost incurred
in connection with the Incurred Closing Costs. Seller shall pay the Purchaser
the Incurred Closing Costs within thirty (30) days of the presentation of such
written substantiation to Seller from Purchaser. Notwithstanding the foregoing,
if Purchaser requests a modification to any provision of this Contract that
would require Seller to deliver a new Information Statement to the SEC then (a)
Purchaser's right to terminate this Contract and receive reimbursement of the
Incurred Closing Costs pursuant to this Section 5.1 shall be waived, (b)
Purchaser shall pay for any of Seller's actual legal fees or costs incurred in
connection with delivering a new Information Statement to the SEC, and (c)
Purchaser's condition precedent to close set forth in Section 8.1.4 shall be
automatically waived by Purchaser.
5.2 Seller Closing Deliveries. No later than 1 Business Day prior to the Closing
Date, Seller shall deliver to Escrow Agent (for disbursement to Purchaser upon
the Closing), each of the following items:
5.2.1 Special Warranty Deed (the "Deed") in the form attached as Exhibit B to
Purchaser, subject to the Permitted Exceptions.
5.2.2 A Bill of Sale in the form attached as Exhibit C.
5.2.3 A General Assignment in the form attached as Exhibit D (the "General
Assignment").
5.2.4 An Assignment of Leases and Security Deposits in the form attached as
Exhibit E (the "Leases Assignment").
5.2.5 A letter in the form attached hereto as Exhibit F prepared by Seller and
countersigned by Purchaser to each of the vendors under the Terminated Contracts
informing them of the termination of such Terminated Contract as of the Closing
Date (subject to any delay in the effectiveness of such termination pursuant to
the express terms of each applicable Terminated Contract) (the "Vendor
Terminations").
5.2.6 A closing statement executed by Seller.
5.2.7 A title affidavit or at Seller's option an indemnity, as applicable, in
the customary form reasonably acceptable to Seller to enable Title Insurer to
delete the standard exceptions to the title insurance policy set forth in this
Contract (other than matters constituting any Permitted Exceptions and matters
which are to be completed or performed post-Closing) to be issued pursuant to
the Title Commitment; provided that such affidavit does not subject Seller to
any greater liability, or impose any additional obligations, other than as set
forth in this Contract. Seller informs Purchaser that Title Insurer has agreed
to insure the gap in connection with the Closing, if required, based solely on
Title Insurer's receipt of Seller's standard title affidavit.
5.2.8 A certification of Seller's non-foreign status pursuant to Section 1445 of
the Internal Revenue Code of 1986, as amended.
5.2.9 A rent roll for the Property certified by Seller, but limited to Seller's
knowledge, listing the monthly base rent payable, lease expiration date and
unapplied security deposit as of the Closing Date.
5.2.10 Resolutions, certificates of good standing, and such other organizational
documents as Title Insurer shall reasonably require evidencing Seller's
authority to consummate this transaction.
5.2.11 An operating statement for the Property as of the month immediately
preceding the month in which the Closing occurs, certified by Seller, but
limited to Seller's knowledge.
5.2.12 Such other instruments, documents or certificates as are required to be
delivered by Seller to Purchaser in accordance with any of the other provisions
of this Contract.
5.3 Purchaser Closing Deliveries. No later than 1 Business Day prior to the
Closing Date (except for the balance of the Purchase Price which is to be
delivered at the time specified in Section 2.2.4), Purchaser shall deliver to
the Escrow Agent (for disbursement to Seller upon the Closing) the following
items with respect to the Property being conveyed at such Closing:
5.3.1 The full Purchase Price (with credit for the Deposit and Lender Fees),
plus or minus the adjustments or prorations required by this Contract.
5.3.2 If required by Title Insurer, a title affidavit or at Purchaser's option
an indemnity, as applicable, pertaining to Purchaser's activity on the Property
prior to Closing, in the customary form reasonably acceptable to Purchaser to
enable Title Insurer to delete the standard exceptions to the title insurance
policy set forth in this Contract (other than matters constituting any Permitted
Exceptions and matters which are to be completed or performed post-Closing) to
be issued pursuant to the Title Commitment; provided that such affidavit does
not subject Purchaser to any greater liability, or impose any additional
obligations, other than as set forth in this Contract and shall only concern
liens filed against the Property as a result of the actions of Purchaser or
Purchaser's Consultants.
5.3.3 Any declaration or other statement which may be required to be submitted
to the local assessor with respect to the terms of the sale of the Property.
5.3.4 A closing statement executed by Purchaser.
5.3.5 A countersigned counterpart of the General Assignment.
5.3.6 A countersigned counterpart of the Leases Assignment.
5.3.7 Notification letters to all Tenants prepared and executed by Purchaser
in the form attached hereto as Exhibit G.
5.3.8 A countersigned counterpart of the Vendor Terminations (Purchaser shall be
solely responsible for identifying each of the Terminated Contracts (subject to
the terms and conditions of Section 3.6)); provided, however, that such Vendor
Terminations do not subject Purchaser to any greater liability, or impose any
additional obligations other than as set forth in this Contract.
5.3.9 Any cancellation fees or penalties due to any vendor under any Terminated
Contract as a result of the termination thereof.
5.3.10 Resolutions, certificates of good standing, and such other organizational
documents as Title Insurer shall reasonably require evidencing Purchaser's
authority to consummate this transaction.
5.3.11 Intentionally Omitted.
5.3.12 The Lender Fees (subject to reduction from the Purchase Price in
accordance with Section 2.2).
5.3.13 Such other instruments, documents or certificates as are required to be
delivered by Purchaser to Seller in accordance with any of the other provisions
of this Contract.
5.4 Closing Prorations and Adjustments.
5.4.1 General. All normal and customarily proratable items, including, without
limitation, collected rents, operating expenses, personal property taxes, other
operating expenses and fees, shall be prorated as of the Closing Date, Seller
being charged or credited, as appropriate, for all of same attributable to the
period up to the Closing Date (and credited for any amounts paid by Seller
attributable to the period on or after the Closing Date, if assumed by
Purchaser) and Purchaser being responsible for, and credited or charged, as the
case may be, for all of same attributable to the period on and after the Closing
Date. Seller shall prepare a proration schedule (the "Proration Schedule") of
the adjustments described in this Section 5.4 prior to Closing. Such adjustments
shall be paid by Purchaser to Seller (if the prorations result in a net credit
to Seller) or by Seller to Purchaser (if the prorations result in a net credit
to Purchaser), by increasing or reducing the cash to be paid by Purchaser at
Closing.
5.4.2 Operating Expenses. All of the operating, maintenance, taxes (other than
real estate taxes, such as rental taxes), and other expenses incurred in
operating the Property that Seller customarily pays, and any other costs
incurred in the ordinary course of business for the management and operation of
the Property, shall be prorated on an accrual basis. Seller shall pay all such
expenses that accrue prior to Closing and Purchaser shall pay all such expenses
that accrue from and after the Closing Date.
5.4.3 Utilities. The final readings and final billings for utilities will be
made if possible as of the Closing Date, in which case Seller shall pay all such
bills as of the Closing Date and no proration shall be made at the Closing with
respect to utility bills. Otherwise, a proration shall be made based upon the
parties' reasonable good faith estimate and a readjustment made within 30 days
after the Closing, if necessary. Seller shall be entitled to the return of any
deposit(s) posted by it with any utility company, and Seller shall notify each
utility company serving the Property to terminate Seller's account, effective as
of noon on the Closing Date.
5.4.4 Real Estate Taxes. In the event any of the real estate ad valorem or
similar taxes for the Property are delinquent at the time of Closing, Seller
shall pay same at Closing. Any real estate ad valorem or similar taxes for the
Property for the calendar year in which Closing occurs, or any installment of
assessments payable in installments which installment is payable in the calendar
year of Closing, shall be prorated to the date of Closing, based upon actual
days involved. The proration of real property taxes or installments of
assessments shall be based upon the assessed valuation and tax rate figures for
the year in which the Closing occurs to the extent the same are available;
provided, that in the event that actual figures (whether for the assessed value
of the Property or for the tax rate) for the year of Closing are not available
at the Closing Date, the proration shall be made using figures from the
preceding year. The proration of real property taxes or installments of
assessments shall be final and not subject to re-adjustment after Closing.
5.4.5 Property Contracts. Purchaser shall assume at Closing the obligations
under the Property Contracts assumed by Purchaser, subject to proration of
operating expenses under Section 5.4.2; provided, however, that Seller shall be
responsible for any monetary obligations accruing thereunder to the date of
Closing.
5.4.6 Leases.
5.4.6.1 All collected rent (whether fixed monthly rentals, additional rentals,
escalation rentals, retroactive rentals, operating cost pass-throughs or other
sums and charges payable by Tenants under the Leases), income and expenses from
any portion of the Property shall be prorated as of the Closing Date (prorated
for any partial month). Purchaser shall receive all collected rent and income
attributable to dates from and after the Closing Date. Seller shall receive all
collected rent and income attributable to dates prior to the Closing Date.
Notwithstanding the foregoing, no prorations shall be made in relation to either
(a) non-delinquent rents which have not been collected as of the Closing Date,
or (b) delinquent rents existing, if any, as of the Closing Date (the foregoing
(a) and (b) referred to herein as the "Uncollected Rents"). In adjusting for
Uncollected Rents, no adjustments shall be made in Seller's favor for rents
which have accrued and are unpaid as of the Closing, but Purchaser shall pay
Seller such accrued Uncollected Rents as and when collected by Purchaser;
provided, however, after the Closing all sums collected by Purchaser for any
tenant delinquent in its rent shall first be applied to pay Purchaser the amount
of any rent owing for the period after the Closing and the amount of Purchaser's
out of pocket costs of collection, and then such remaining amount shall be
distributed by Purchaser to Seller toward the Uncollected Rents. Purchaser
agrees to take commercially reasonable actions to collect Uncollected Rents.
After the Closing, Seller shall continue to have the right, but not the
obligation, in its own name, to demand payment of and to collect Uncollected
Rents owed to Seller by any Tenant which is no longer in possession at the
Property, which right shall include, without limitation, the right to continue
or commence legal actions or proceedings against any such Tenant and the
delivery of the Leases Assignment shall not constitute a waiver by Seller of
such right. Purchaser agrees to cooperate with Seller in connection with all
efforts by Seller to collect such Uncollected Rents and to take all steps,
whether before or after the Closing Date, as may be necessary to carry out the
intention of the foregoing, including, without limitation, the delivery to
Seller, within 10 days after a written request, of any relevant books and
records (including, without limitation, rent statements, receipted bills and
copies of tenant checks used in payment of such rent), the execution of any and
all consents or other documents, and the undertaking of any act reasonably
necessary for the collection of such Uncollected Rents by Seller; provided,
however, that Purchaser's obligation to cooperate with Seller pursuant to this
sentence shall not obligate Purchaser to terminate any Tenant lease with an
existing Tenant or evict any existing Tenant from the Property. Notwithstanding
anything in this provision to the contrary but subject to Seller's right to
demand payment of and to collect Uncollected Rents in accordance with this
Section, Purchaser's obligation to collect Uncollected Rents shall be limited to
Uncollected Rents of not more than 60 days past due and Purchaser's collection
of rents shall be applied, first, towards current rent due and owing under the
Leases and the amount of Purchaser's actual out of pocket costs of collection,
and, second, to Uncollected Rents.
5.4.6.2 At Closing, Purchaser shall receive a credit against the Purchase Price
in an amount equal to the received and unapplied balance of all cash (or cash
equivalent) Tenant Deposits, including, but not limited to, security, damage or
other refundable deposits or required to be paid by any of the Tenants to secure
their respective obligations under the Leases, together, in all cases, with any
interest payable to the Tenants thereunder as may be required by their
respective Tenant Lease or state law (the "Tenant Security Deposit Balance").
Any cash (or cash equivalents) held by Seller which constitute the Tenant
Security Deposit Balance shall be retained by Seller in exchange for the
foregoing credit against the Purchase Price and shall not be transferred by
Seller pursuant to this Contract (or any of the documents delivered at Closing),
but the obligation with respect to the Tenant Security Deposit Balance
nonetheless shall be assumed by Purchaser. The Tenant Security Deposit Balance
shall not include any non-refundable deposits or fees paid by Tenants to Seller,
either pursuant to the Leases or otherwise.
5.4.6.3 With respect to operating expenses, taxes, utility charges, other
operating cost pass-throughs, retroactive rental escalations, sums or charges
payable by Tenants under the Tenant Leases, to the extent that Seller has
received as of the Closing payments allocable to periods subsequent to Closing,
the same shall be properly prorated with an adjustment in favor of Purchaser,
and Purchaser shall reserve a credit therefor at Closing. With respect to any
payments received by Purchaser after the Closing allocable to Seller prior to
Closing, Purchaser shall promptly pay the same to Seller.
5.4.7 Existing Loan. On the Closing Date, Seller shall pay (which payment may be
made by Seller out of the proceeds of the Purchase Price) the outstanding
principal balance of the Note, together with all interest accrued under the Note
prior to the Closing Date (the "Loan Payoff"). Purchaser shall pay all Lender
Fees (subject to reduction from the Purchase Price in accordance with Section
2.2). Any existing reserves, impounds and other accounts maintained in
connection with the Loan shall be released in Good Funds to Seller at the
Closing unless credited by Lender against the amount due from Seller under the
Note.
5.4.8 Insurance. No proration shall be made in relation to insurance premiums
and insurance policies will not be assigned to Purchaser.
5.4.9 Employees. All of Seller's and Seller's manager's on-site employees shall
have their employment at the Property terminated as of the Closing Date.
5.4.10 Closing Costs. Purchaser shall pay any transfer, sales, use, gross
receipts or similar taxes, any premiums or fees required to be paid by Purchaser
with respect to the Title Policy pursuant to Section 4.1, and one-half of the
customary closing costs of the Escrow Agent. Seller shall pay the base premium
for the Title Policy to the extent required by Section 4.1, the cost of
recording any instruments required to discharge any liens or encumbrances
against the Property, and one-half of the customary closing costs of the Escrow
Agent.
5.4.11 Intentionally Omitted.
5.4.12 Survival. The provisions of this Section 5.4 shall survive the Closing
and delivery of the Deed to Purchaser.
5.4.13 Possession. Possession of the Property, subject to the Leases, Property
Contracts which are not identified as Terminated Contracts during the
Feasibility Period (subject to the limitations of Section 3.6), and Permitted
Exceptions, shall be delivered to Purchaser at the Closing upon release from
escrow of all items to be delivered by Purchaser pursuant to Section 5.3,
including, without limitation, the Purchase Price. To the extent reasonably
available to Seller, originals or copies of the Leases and Property Contracts,
lease files, warranties, guaranties, operating manuals, keys to the property,
and Seller's books and records (other than proprietary information) regarding
the Property shall be made available to Purchaser at the Property after the
Closing.
5.4.14 Post Closing Adjustments. In general, and except as provided in this
Contract or the Closing Documents, Seller shall be entitled to all income, and
shall pay all expenses, relating to the operation of the Property for the period
prior to the Closing Date and Purchaser shall be entitled to all income, and
shall pay all expenses, relating to the operation of the Property for the period
commencing on and after the Closing Date. Purchaser or Seller may request that
Purchaser and Seller undertake to re-adjust any item on the Proration Schedule
(or any item omitted therefrom) in accordance with the provisions of Section 5.4
of this Contract; provided, however, that neither party shall have any
obligation to re-adjust any items (a) after the expiration of 120 days after
Closing, or (b) subject to such 120 day period, unless such items exceed
$2,000.00 in magnitude (either individually or in the aggregate). The provisions
of this Section 5.6 shall survive the Closing and delivery of the Deed to
Purchaser.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER
6.1 Seller's Representations. Except, in all cases, for any fact, information or
condition disclosed in the Title Documents, the Permitted Exceptions, the
Property Contracts, or the Materials, or which is otherwise known by Purchaser
prior to the Closing, Seller represents and warrants to Purchaser the following
(collectively, the "Seller's Representations") as of the Effective Date and as
of the Closing Date (provided that Purchaser's remedies if any such Seller's
Representations are untrue as of the Closing Date are limited to those set forth
in Section 8.1):
6.1.1 Seller is a limited partnership duly organized, validly existing and in
good standing under the laws of the state of its formation set forth in the
initial paragraph of this Contract. Seller, acting through any of its or their
duly empowered and authorized officers or members, has all necessary entity
power and authority to own and use its properties and to transact the business
in which it is engaged, and subject to Section 8.2.4 has or at the Closing shall
have full power and authority to enter into this Contract, to execute and
deliver the documents and instruments required of Seller herein, and to perform
its obligations hereunder; and no consent of any of Seller's partners,
directors, officers or members are required to so empower or authorize Seller.
The compliance with or fulfillment of the terms and conditions hereof will not
conflict with, or result in a breach of, the terms, conditions or provisions of,
or constitute a default under, any contract to which Seller is a party or by
which Seller is otherwise bound, which conflict, breach or default would have a
material adverse affect on Seller's ability to consummate the transaction
contemplated by this Contract or on the Property. Subject to Section 8.2.4, this
Contract is a valid, binding and enforceable agreement against Seller in
accordance with its terms, subject to bankruptcy and similar laws affecting the
rights and remedies of creditors generally;
6.1.2 Other than the Leases, the Property is not subject to any written lease
executed by Seller or, to Seller's knowledge, any other possessory interests of
any person;
6.1.3 Seller is not a "foreign person," as that term is used and defined in the
Internal Revenue Code, Section 1445, as amended;
6.1.4 Except for any actions by Seller to evict Tenants under the Leases, to
Seller's knowledge, there are no actions, proceedings, litigation or
governmental investigations or condemnation actions either pending or threatened
against the Property;
6.1.5 To Seller's knowledge, Seller has not received any written notice from a
governmental agency of any uncured material violations of any federal, state,
county or municipal law, ordinance, order, regulation or requirement affecting
the Property;
6.1.6 To Seller's knowledge, (A) Seller has not received any written notice of
any material default by Seller under any of (i) the Property Contracts that will
not be terminated on the Closing Date, or (ii) the Leases; (B) no Tenant is in
default under the Leases except as shown on the Rent Roll delivered by Seller to
Purchaser and as of the Effective Date, there are no pending eviction actions
against any Tenant; (C) the Rent Roll is true and correct in all material
respects; (D) no Tenant has any option to purchase the Property; (E) the
operating reports delivered by Seller to Purchaser (as described in section (g)
of Schedule 3.5 attached hereto) are true and correct in all material respects,
(F) the copies of the Leases delivered by Seller to Purchaser (or made available
to Purchaser) are true and correct copies of all the Leases, and (G) the copies
of the Property Contracts delivered by Seller to Purchaser (or made available to
Purchaser) are true and correct copies of all the Property Contracts.
6.1.7 To Seller's knowledge: (A) no hazardous or toxic materials or other
substances regulated by applicable federal or state environmental laws are
stored by Seller on, in or under the Property in quantities which violate
applicable laws governing such materials or substances, and (B) the Property is
not used by Seller for the storage, treatment, generation or manufacture of any
hazardous or toxic materials or other substances in a manner which would
constitute a violation of applicable federal or state environmental laws.
6.2 AS-IS. Except as provided in Section 6.1 and Section 9.1 herein, in the Deed
and in the Leases Assignment, 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
(except as provided in Section 6.1 and Section 9.1 herein, in the Deed and in
the Leases Assignment). Purchaser agrees that Seller shall not be responsible or
liable to Purchaser for any defects, errors or omissions, or on account of any
conditions affecting the Property except as provided in Section 6.1 and Section
9.1 herein, in the Deed and in the Leases Assignment. Purchaser, its successors
and assigns, and anyone claiming by, through or under Purchaser, hereby fully
releases Seller's Indemnified Parties from, and irrevocably waives its right to
maintain, any and all claims and causes of action that it or they may now have
or hereafter acquire against Seller's Indemnified Parties with respect to any
and all Losses arising from or related to any defects, errors, omissions or
other conditions affecting the Property except as provided in Section 6.1 and
Section 9.1 herein, in the Deed and in the Leases Assignment. Purchaser
represents and warrants that, as of the date hereof and as of the Closing Date,
it has and shall have reviewed and conducted such independent analyses, studies
(including, without limitation, environmental studies and analyses concerning
the presence of lead, asbestos, PCBs and radon in and about the Property),
reports, investigations and inspections as it deems appropriate in connection
with the Property. If Seller provides or has provided any documents, summaries,
opinions or work product of consultants, surveyors, architects, engineers, title
companies, governmental authorities or any other person or entity with respect
to the Property, including, without limitation, the offering prepared by Broker,
Purchaser and Seller agree that Seller has done so or shall do so only for the
convenience of both parties, and Purchaser shall not rely thereon and the
reliance by Purchaser upon any such documents, summaries, opinions or work
product shall not create or give rise to any liability of or against Seller's
Indemnified Parties except as provided in Section 6.1 and Section 9.1 herein, in
the Deed and in the Leases Assignment. Purchaser shall rely only upon any title
insurance obtained by Purchaser with respect to title to the Property except as
provided in Section 6.1 and Section 9.1 herein, in the Deed and in the Leases
Assignment. Except as provided in Section 6.1 and Section 9.1 herein, in the
Deed and in the Leases Assignment, 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. Purchaser agrees that
the departure or removal, prior to Closing, of any of such guests, occupants or
tenants shall not be the basis for, nor shall it give rise to, any claim on the
part of Purchaser, nor shall it affect the obligations of Purchaser under this
Contract in any manner whatsoever, subject to the provisions of Section 8.1
hereof; and Purchaser shall close title and accept delivery of the Deed with or
without such tenants in possession and without any allowance or reduction in the
Purchase Price under this Contract, subject to the provisions of Section 8.1
hereof. Purchaser hereby releases Seller from any and all claims and liabilities
relating to the foregoing matters except as otherwise expressly provided herein.
The provisions of this Section 6.2 shall survive the Closing and delivery of the
Deed to Purchaser.
6.3 Survival of Seller's Representations. Seller and Purchaser agree that
Seller's Representations shall survive Closing for a period of 6 months (the
"Survival Period"). Seller shall have no liability after the Survival Period
with respect to Seller's Representations contained herein except to the extent
that Purchaser has requested arbitration against Seller during the Survival
Period for breach of any of Seller's Representations. Under no circumstances
shall Seller be liable to Purchaser for more than $87,000 in any individual
instance or in the aggregate for all breaches of Seller's Representations, nor
shall Purchaser be entitled to bring any claim for a breach of Seller's
Representations unless the claim for damage (either in the aggregate or as to
any individual claim) by Purchaser exceeds $2,500. In the event that Seller
breaches any representation contained in Section 6.1 and Purchaser had knowledge
of such breach prior to the Closing Date, Purchaser shall be deemed to have
waived any right of recovery, and Seller shall not have any liability in
connection therewith.
6.4 Definition of Seller's Knowledge. Any representations and warranties made
"to the knowledge of Seller" shall not be deemed to imply any duty of inquiry.
For purposes of this Contract, the term Seller's "knowledge" shall mean and
refer only to actual knowledge of the Designated Representative of the Seller
and shall not be construed to refer to the knowledge of any other partner,
officer, director, agent, employee or representative of the Seller, or any
affiliate of the Seller, or to impose upon such Designated Representative any
duty to investigate the matter to which such actual knowledge or the absence
thereof pertains, or to impose upon such Designated Representative any
individual personal liability. As used herein, the term Designated
Representative shall refer to Jennifer Stevenson who is the Regional Property
Manager handling this Property (the "Regional Property Manager"), Stephanie
Bailey who is the property manager for this Property (the "Property Manager"),
and Paul Hemmert who is the Regional Vice President of AIMCO (the "Regional Vice
President").
6.5 Representations And Warranties Of Purchaser. For the purpose of inducing
Seller to enter into this Contract and to consummate the sale and purchase of
the Property in accordance herewith, Purchaser represents and warrants to Seller
the following (collectively, the "Purchaser's Representations"), as of the
Effective Date and as of the Closing Date:
6.5.1 Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of Texas.
6.5.2 Purchaser, acting through any of its or their duly empowered and
authorized officers or members, has all necessary entity power and authority to
own and use its properties and to transact the business in which it is engaged,
and has full power and authority to enter into this Contract, to execute and
deliver the documents and instruments required of Purchaser herein, and to
perform its obligations hereunder; and no consent of any of Purchaser's
partners, directors, officers or members are required to so empower or authorize
Purchaser. The compliance with or fulfillment of the terms and conditions hereof
will not conflict with, or result in a breach of, the terms, conditions or
provisions of, or constitute a default under, any contract to which Purchaser is
a party or by which Purchaser is otherwise bound, which conflict, breach or
default would have a material adverse affect on Purchaser's ability to
consummate the transaction contemplated by this Contract. This Contract is a
valid, binding and enforceable agreement against Purchaser in accordance with
its terms, subject to bankruptcy and similar laws affecting the rights and
remedies of creditors generally.
6.5.3 No pending or, to the knowledge of Purchaser, threatened litigation exists
which if determined adversely would restrain the consummation of the
transactions contemplated by this Contract or would declare illegal, invalid or
non-binding any of Purchaser's obligations or covenants to Seller.
6.5.4 Other than Seller's Representations, as provided in Section 9.1 herein, in
the Deed and in the Leases Assignment, Purchaser has not relied on any
representation or warranty made by Seller or any representative of Seller
(including, without limitation, Broker) in connection with this Contract and the
acquisition of the Property.
6.5.5 The Broker and its affiliates do not, and will not at the Closing, have
any direct or indirect legal, beneficial, economic or voting interest in
Purchaser (or in an assignee of Purchaser, which pursuant to Section 13.3,
acquires the Property at the Closing), nor has Purchaser or any affiliate of
Purchaser granted (as of the Effective Date or the Closing Date) the Broker or
any of its affiliates any right or option to acquire any direct or indirect
legal, beneficial, economic or voting interest in Purchaser.
6.6 .Survival of Purchaser's Representations. Seller and Purchaser agree that
Purchaser's Representations shall survive Closing for a period of 6 months (the
"Survival Period"). Purchaser shall have no liability after the Survival Period
with respect to Purchaser's Representations contained herein except to the
extent that Seller has requested arbitration against Purchaser during the
Survival Period for breach of any of Purchaser's Representations. Under no
circumstances shall Purchaser be liable to Seller for more than $87,000 in any
individual instance or in the aggregate for all breaches of Purchaser's
Representations, nor shall Seller be entitled to bring any claim for a breach of
Purchaser's Representations unless the claim for damage (either in the aggregate
or as to any individual claim) by Seller exceeds $2,500.00. In the event
Purchaser breaches any representation contained in Section 6.5 and Seller had
knowledge of such breach prior to the Closing Date, Seller shall be deemed to
have waived any right of recovery, and Purchaser shall not have any liability in
connection therewith.
6.7 Definition of Purchaser's Knowledge. Any representations and warranties made
"to the knowledge of Purchaser" shall not be deemed to imply any duty of
inquiry. For purposes of this Contract, the term Purchaser's "knowledge" shall
mean and refer only to actual knowledge of the Designated Representative of the
Purchaser and shall not be construed to refer to the knowledge of any other
partner, officer, director, agent, employee or representative of the Purchaser,
or any affiliate of the Purchaser, 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 Douglas C. Jones, who is the President
of Purchaser, and Rick Scarola.
ARTICLE 7
OPERATION OF THE PROPERTY
7.1 Leases and Property Contracts. During the period of time from the Effective
Date to the Closing Date, in the ordinary course of business Seller may enter
into new Property Contracts, new Leases, renew existing Leases or modify,
terminate or accept the surrender or forfeiture of any of the Leases, modify any
Property Contracts, or institute and prosecute any available remedies for
default under any Lease or Property Contract without first obtaining the written
consent of Purchaser; provided, however, Seller agrees that any such new or
modified Property Contracts (a) shall not in the case of a new Property Contract
have a term in excess of 1 year, and in the case of any modified Property
Contract shall not be modified to extend the term thereof in excess of 1 year,
(b) shall be executed in the ordinary course of Seller's business and (c) in the
case of new Property Contracts shall be terminable upon thirty (30) days or less
notice without penalty or cost and in the case of any modified Property Contract
shall not be modified to revise the termination provisions thereof without
Purchaser's prior written consent; and provided further that any new, renewed or
modified Leases shall not have a term in excess of 1 year, shall be executed in
Seller's ordinary course of business, and shall be on Seller's standard form
lease (which is subject to change but in no event shall be in a form that
violates Texas law). Seller agrees to promptly deliver to Purchaser copies of
any new or modified Property Contracts entered into by Seller after the
Effective Date.
7.2 General Operation of Property. Except as specifically set forth in this
Article 7, Seller shall operate the Property after the Effective Date in the
ordinary course of business, and except as necessary in the Seller's sole
discretion to address (a) any life or safety issue at the Property or (b) any
other matter which in Seller's reasonable discretion materially adversely
affecting the use, operation or value of the Property, Seller will not make any
material alterations to the Property or remove any material Fixtures and
Tangible Personal Property without the prior written consent of Purchaser which
consent shall not be unreasonably withheld, denied or delayed. Seller agrees to
maintain its existing insurance policies (or replacement policies on comparable
terms) covering the Property in full force and effect until the Closing Date.
7.3 Liens. Seller covenants that it will not voluntarily create or cause any
lien or encumbrance to attach to the Property between the Effective Date and the
Closing Date (other than Leases and Property Contracts as provided in Section
7.1) unless Purchaser approves such lien or encumbrance, which approval shall
not be unreasonably withheld or delayed. If Purchaser approves any such
subsequent lien or encumbrance, the same shall be deemed a Permitted Encumbrance
for all purposes hereunder.
7.4 Management Agreement. The existing management agreement for the Property
will be terminated on or prior to the Closing Date with no liability to
Purchaser.
ARTICLE 8
CONDITIONS PRECEDENT TO CLOSING
8.1 Purchaser's Conditions to Closing. Purchaser's obligation to close under
this Contract, shall be subject to and conditioned upon the fulfillment of each
and all of the following conditions precedent:
8.1.1 All of the documents required to be delivered by Seller to Purchaser at
the Closing pursuant to the terms and conditions hereof shall have been
delivered;
8.1.2 Each of the representations, warranties and covenants of Seller contained
herein shall be true in all material respects as of the Closing Date;
8.1.3 Seller shall have complied with, fulfilled and performed in all material
respects each of the covenants, terms and conditions to be complied with,
fulfilled or performed by Seller hereunder; and
8.1.4 The occupancy rate at the Property shall not be below eighty-five percent
(85%) as of May 5, 2004; provided, however, if Seller circulates the Information
Statement to its partners after the expiration of the Feasibility Period, then
the date of such occupancy covenant will be extended one day for each day after
the expiration of the Feasibility Period on which Seller circulates the
Information Statement to its partners; provided, however, if Purchaser requests
a modification to any provision of this Contract that would require Seller to
deliver a new Information Statement to the SEC then this Section 8.1.4 shall be
automatically waived by Purchaser.
8.1.5 Intentionally Omitted.
Notwithstanding anything to the contrary, there are no other conditions on
Purchaser's obligation to Close except as expressly set forth in this Section
8.1. If any condition set forth in Sections 8.1.1, 8.1.3, or 8.1.4 is not met,
Purchaser may (a) waive any of the foregoing conditions and proceed to Closing
on the Closing Date with no offset or deduction from the Purchase Price, (b) if
such failure constitutes a default by Seller, exercise any of its remedies
pursuant to Section 10.2, or (c) notify Seller of Purchaser's election to
terminate this Contract and receive a return of the Deposit from the Escrow
Agent. Purchaser agrees to return all Third-Party Reports and information and
Materials provided to Purchaser within five (5) days after termination of this
Contract. If the condition set forth in Section 8.1.2 is not met, Purchaser may,
as its sole and exclusive remedy, (i) notify Seller of Purchaser's election to
terminate this Contract and receive a return of the Deposit from the Escrow
Agent, or (ii) waive such condition and proceed to Closing on the Closing Date
with no offset or deduction from the Purchase Price. Notwithstanding the
foregoing, Seller and Purchaser acknowledge that Purchaser retains and does not
waive any right that Purchaser may have by law with respect to a claim against
Seller for any fraudulent misrepresentation made by Seller to Purchaser; however
this sentence shall not be construed to expand or in any way enhance any such
rights of Purchaser, and Seller is not agreeing to waive any defenses in
connection with any such claim.
8.2 Without limiting any of the rights of Seller elsewhere provided for in this
Contract, Seller's obligation to close with respect to conveyance of the
Property under this Contract shall be subject to and conditioned upon the
fulfillment of each and all of the following conditions precedent:
8.2.1 All of the documents and funds required to be delivered by Purchaser to
Seller at the Closing pursuant to the terms and conditions hereof shall have
been delivered;
8.2.2 Each of the representations, warranties and covenants of Purchaser
contained herein shall be true in all material respects as of the Closing Date;
8.2.3 Purchaser shall have complied with, fulfilled and performed in all
material respects each of the covenants, terms and conditions to be complied
with, fulfilled or performed by Purchaser hereunder; and
8.2.4 Intentionally Omitted.
If any of the foregoing conditions to Seller's obligation to close with
respect to conveyance of the Property under this Contract are not met, Seller
may (a) waive any of the foregoing conditions and proceed to Closing on the
Closing Date, or (b) terminate this Contract, and, if such failure constitutes a
default by Purchaser, exercise any of its remedies under Section 10.1.
ARTICLE 9
BROKERAGE
9.1 Indemnity. Seller represents and warrants to Purchaser that it has dealt
only with O'Boyle Properties, Inc., a member of Apartment Realty Advisors, 14114
Dallas Parkway, Suite 520, Dallas, Texas 75254 ("Broker") in connection with
this Contract. Purchaser represents and warrants to Seller that it has not dealt
with or engaged any other real estate broker in connection with this Contract.
Seller and Purchaser each represents and warrants to the other that, other than
Broker, it has not dealt with or utilized the services of any other real estate
broker, sales person or finder in connection with this Contract, and each party
agrees to indemnify, hold harmless, and, if requested in the sole and absolute
discretion of the indemnitee, defend (with counsel approved by the indemnitee)
the other party from and against all Losses relating to brokerage commissions
and finder's fees arising from or attributable to the acts or omissions of the
indemnifying party. The provisions of this Section 9.1 shall survive the
termination of this Contract, and if not so terminated, the Closing and delivery
of the Deed to Purchaser.
9.2 Survival. If the Closing occurs, Seller agrees to pay Broker a commission
according to the terms of a separate contract. Broker shall not be deemed a
party or third party beneficiary of this Contract. Notwithstanding any other
provision herein to the contrary, in no event is Purchaser, or shall Purchaser
be, liable to Broker and/or any other real estate broker for any commission or
other sum of money owed and/or payable in connection with the transaction
contemplated by this Contract.
9.3 Broker Signature Page. As a condition to Seller's obligation to pay the
commission pursuant to Section 9.2, Broker shall execute the signature page for
Broker attached hereto solely for purposes of confirming the matters set forth
therein; provided, however, that (a) Broker's signature hereon shall not be a
prerequisite to the binding nature of this Contract on Purchaser and Seller, and
the same shall become fully effective upon execution by Purchaser and Seller,
and (b) the signature of Broker will not be necessary to amend any provision of
this Contract.
9.4 Texas Real Estate License Act. The Texas Real Estate License Act requires
written notice to Purchaser from any licensed real estate broker or salesman who
is to receive a commission from Purchaser that Purchaser should have an attorney
of its own selection examine an abstract of title to the property being acquired
or that Purchaser should be furnished with or should obtain a title insurance
policy. Notice to that effect is, therefore, hereby given to Purchaser on behalf
of Broker.
ARTICLE 10
DEFAULTS AND REMEDIES
10.1 Purchaser Default. If Purchaser defaults in its obligations hereunder to
(a) deliver the Initial Deposit or Additional Deposit, (or any other deposit or
payment required of Purchaser hereunder), (b) deliver to the Seller the
deliveries specified under Section 5.3 on the date required thereunder, or (c)
deliver the Purchase Price at the time required by Section 2.2.4 and close on
the purchase of the Property on the Closing Date, then, immediately and without
notice or cure, Purchaser shall forfeit the Deposit, and the Escrow Agent shall
deliver the Deposit to Seller, and neither party shall be obligated to proceed
with the purchase and sale of the Property. If, Purchaser defaults in any of its
other representations, warranties or obligations under this Contract, and such
default continues for more than 10 days after written notice from Seller, then
Purchaser shall forfeit the Deposit, and the Escrow Agent shall deliver the
Deposit to Seller, and neither party shall be obligated to proceed with the
purchase and sale of the Property. The Deposit is liquidated damages and
recourse to the Deposit is, except for Purchaser's indemnity and confidentiality
obligations hereunder, Seller's sole and exclusive remedy for Purchaser's
failure to perform its obligation to purchase the Property or breach of a
representation or warranty. Seller expressly waives the remedies of specific
performance and additional damages for such default by Purchaser. SELLER AND
PURCHASER ACKNOWLEDGE THAT SELLER'S DAMAGES WOULD BE DIFFICULT TO DETERMINE, AND
THAT THE DEPOSIT IS A REASONABLE ESTIMATE OF SELLER'S DAMAGES RESULTING FROM A
DEFAULT BY PURCHASER IN ITS OBLIGATION TO PURCHASE THE PROPERTY. SELLER AND
PURCHASER FURTHER AGREE THAT THIS SECTION 10.1 IS INTENDED TO AND DOES LIQUIDATE
THE AMOUNT OF DAMAGES DUE SELLER, AND SHALL BE SELLER'S EXCLUSIVE REMEDY AGAINST
PURCHASER, BOTH AT LAW AND IN EQUITY, ARISING FROM OR RELATED TO A BREACH BY
PURCHASER OF ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS
CONTRACT, OTHER THAN WITH RESPECT TO PURCHASER'S INDEMNITY AND CONFIDENTIALITY
OBLIGATIONS HEREUNDER.
10.2 Seller Default. If Seller, prior to the Closing, defaults in its
representations, warranties, covenants, or obligations under this Contract,
including to sell the Property as required by this Contract and such default
continues for more than 10 days after written notice from Purchaser, then, at
Purchaser's election and as Purchaser's sole and exclusive remedy, either (A)
this Contract shall terminate, and all payments and things of value, including
the Deposit, provided by Purchaser hereunder shall be returned to Purchaser and
Purchaser may recover, as its sole recoverable damages (but without limiting its
right to receive a refund of the Deposit), its direct and actual out-of-pocket
expenses and costs (documented by paid invoices to third parties) in connection
with this transaction, which damages shall not exceed $100,000 in aggregate, or
(B) Purchaser may seek specific performance of Seller's obligation to deliver
the Deed pursuant to this Contract (but not damages). Purchaser agrees to return
all Third-Party Reports and information and Materials provided to Purchaser
within five (5) days after termination of this Contract. Purchaser agrees that
it shall promptly deliver to Seller an assignment of all of Purchaser's right,
title and interest in and to (together with possession of) all plans, studies,
surveys, reports, and other materials paid for with the out-of-pocket expenses
reimbursed by Seller pursuant to the foregoing sentence. SELLER AND PURCHASER
FURTHER AGREE THAT THIS SECTION 10.2 IS INTENDED TO AND DOES LIMIT THE AMOUNT OF
DAMAGES DUE PURCHASER AND THE REMEDIES AVAILABLE TO PURCHASER, AND SHALL BE
PURCHASER'S EXCLUSIVE REMEDY AGAINST SELLER, BOTH AT LAW AND IN EQUITY ARISING
FROM OR RELATED TO A BREACH BY SELLER OF ITS REPRESENTATIONS, WARRANTIES, OR
COVENANTS OR ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS
CONTRACT. UNDER NO CIRCUMSTANCES MAY PURCHASER SEEK OR BE ENTITLED TO RECOVER
ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, SPECULATIVE OR INDIRECT DAMAGES, ALL OF
WHICH PURCHASER SPECIFICALLY WAIVES, FROM SELLER FOR ANY BREACH BY SELLER, OF
ITS REPRESENTATIONS, WARRANTIES OR COVENANTS OR ITS OBLIGATIONS UNDER THIS
CONTRACT. PURCHASER SPECIFICALLY WAIVES THE RIGHT TO FILE ANY LIS PENDENS OR ANY
LIEN AGAINST THE PROPERTY UNLESS AND UNTIL IT HAS IRREVOCABLY ELECTED TO SEEK
SPECIFIC PERFORMANCE OF THIS CONTRACT AND HAS FILED AN ACTION SEEKING SUCH
REMEDY.
ARTICLE 11
RISK OF LOSS OR CASUALTY
11.1 Major Damage. Seller shall provide Purchaser with prompt notification of
any known fire or other casualty at the Property. 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 $300,000, then Seller shall have no obligation to repair
such damage or destruction and shall notify Purchaser in writing of such damage
or destruction (the "Damage Notice"). Within 10 days after Purchaser's receipt
of the Damage Notice, Purchaser may elect at its option to terminate this
Contract by delivering written notice to Seller. In the event Purchaser fails to
terminate this Contract within the foregoing 10-day period, this transaction
shall be closed in accordance with the terms of this Contract for the full
Purchase Price notwithstanding any such damage or destruction and Purchaser
shall receive all insurance proceeds pertaining thereto (plus a credit against
the Purchase Price in the amount of any deductible payable by Seller in
connection therewith) at Closing.
11.2 Minor Damage. In the event that the Property is damaged or destroyed by
fire or other casualty prior to the Closing, and the cost of repair is less than
$300,000, this transaction shall be closed in accordance with the terms of this
Contract, notwithstanding the damage or destruction; provided, however, Seller
shall make such repairs to the extent of any recovery from insurance carried on
the Property if they can be reasonably effected before the Closing. Subject to
Section 11.3, if Seller is unable to effect such repairs, then Purchaser shall
receive all insurance proceeds pertaining thereto (plus a credit against the
Purchase Price in the amount of any deductible payable by Seller in connection
therewith) at Closing.
11.3 Repairs. To the extent that Seller elects to commence any repair,
replacement or restoration of the Property prior to Closing, then Seller shall
be entitled to receive and apply available insurance proceeds to any portion of
such repair, replacement or restoration completed or installed prior to Closing,
with Purchaser being responsible for completion of such repair, replacement or
restoration after Closing from the balance of any available insurance proceeds.
The provisions of this Section 11.3 shall survive the Closing and delivery of
the Deed to Purchaser.
ARTICLE 12
EMINENT DOMAIN
12.1 Eminent Domain. Seller shall provide Purchaser with prompt notification of
any known pending or threatened eminent domain action. In the event that, at the
time of Closing, any material part of the Property is (or previously has been)
acquired, or is about to be acquired, by any governmental agency by the powers
of eminent domain or transfer in lieu thereof (or in the event that at such time
there is any notice of any such acquisition or intent to acquire by any such
governmental agency), Purchaser shall have the right, at Purchaser's option, to
terminate this Contract by giving written notice within 10 days after
Purchaser's receipt from Seller of notice of the occurrence of such event, and
if Purchaser so terminates this Contract shall recover the Deposit hereunder.
Purchaser agrees to return all Third-Party Reports and information and Materials
provided to Purchaser within five (5) days after termination of this Contract.
If Purchaser fails to terminate this Contract within such 10-day period, this
transaction shall be closed in accordance with the terms of this Contract for
the full Purchase Price and Purchaser shall receive the full benefit of any
condemnation award.
ARTICLE 13
MISCELLANEOUS
13.1 Binding Effect of Contract. This Contract shall not be binding on either
party until executed by both Purchaser and Seller. As provided in Section 2.3.5
and Section 9.3 above, neither the Escrow Agent's nor the Broker's execution of
this Contract shall be a pre-requisite to its effectiveness.
13.2 Exhibits And Schedules. All Exhibits and Schedules, whether or not annexed
hereto, are a part of this Contract for all purposes.
13.3 Assignability. This Contract is not assignable by Purchaser without first
obtaining the prior written approval of the Seller, except that Purchaser may
assign this Contract to one or more entities so long as (a) Douglas C. Jones
(the President of Purchaser) or Charles V. Welden, III is the general partner of
such purchasing entity or an officer of the general partner of such purchasing
entity, (b) Covenant Apartment Fund III, L.P. (or another fund created and
operated by Covenant Capital Group, LLC) owns at least a 51% voting and economic
interest in such purchasing entity, (c) Purchaser is not released from its
liability hereunder, and (d) Purchaser promptly notifies Seller of such
transfer.
13.4 Binding Effect. Subject to Section 13.3, this Contract shall be binding
upon and inure to the benefit of Seller and Purchaser, and their respective
successors, heirs and permitted assigns.
13.5 Captions. The captions, headings, and arrangements used in this Contract
are for convenience only and do not in any way affect, limit, amplify, or modify
the terms and provisions hereof.
13.6 Number And Gender Of Words. Whenever herein the singular number is used,
the same shall include the plural where appropriate, and words of any gender
shall include each other gender where appropriate.
13.7 Notices. All notices, demands, requests and other communications required
or permitted hereunder shall be in writing, and shall be (a) personally
delivered with a written receipt of delivery; or (b) sent by a nationally
recognized overnight delivery service requiring a written acknowledgement of
receipt or providing a certification of delivery or attempted delivery; or (c)
sent by certified or registered mail, return receipt requested, or (d) sent by
confirmed facsimile transmission with an original copy thereof transmitted to
the recipient by one of the means described in subsections (a) through (c) no
later than 3 Business Days thereafter. All notices shall be deemed effective
when actually delivered as documented in a delivery receipt; provided, however,
that if the notice was sent by overnight courier or mail as aforesaid and is
affirmatively refused or cannot be delivered during customary business hours by
reason of the absence of a signatory to acknowledge receipt, or by reason of a
change of address with respect to which the addressor did not have either
knowledge or written notice delivered in accordance with this paragraph, then
the first attempted delivery shall be deemed to constitute delivery. Each party
shall be entitled to change its address for notices from time to time by
delivering to the other party notice thereof in the manner herein provided for
the delivery of notices. All notices shall be sent to the addressee at its
address set forth following its name below:
To Purchaser:
Wyndmere Capital
14785 Preston Rd., Suite 550
Dallas, Texas 75254
Attention: Mr. Douglas C. Jones
Telephone: 972-789-5590
Facsimile: 972-789-5591
and a copy to:
Lea W. Stouffer, Esq.
6507 Brownlee Drive
Nashville, Tennessee 37205
Telephone: 615-356-0642
Facsimile: 662-796-4797
To Seller:
c/o AIMCO
Stanford Place 3
4582 South Ulster Street Parkway
Suite 1100
Denver, Colorado 80237
Attention: Mr. Patrick Slavin
Telephone: 303-691-4340
Facsimile: 303-300-3282
And:
c/o AIMCO
Stanford Place 3
4582 South Ulster Street Parkway
Suite 1100
Denver, Colorado 80237
Attention: Mr. Harry Alcock
Telephone: 303-691-4344
Facsimile: 303-300-3282
with copy to:
Chad Asarch, Esq.
Vice President and Assistant General Counsel
AIMCO
Stanford Place 3
4582 South Ulster Street Parkway
Suite 1100
Denver, Colorado 80237
Facsimile: 303-300-3297
and a copy to:
Loeb & Loeb LLP
10100 Santa Monica Blvd., Suite 2200
Los Angeles, California 90067
Attention: Karen N. Higgins, Esq., and
Rafael Castellanos, Esq.
Facsimile: 310-282-2200
Any notice required hereunder to be delivered to the Escrow Agent shall be
delivered in accordance with above provisions as follows:
Stewart Title Guaranty Company
1980 Post Oak Boulevard, Suite 610
Houston, Texas 77056
Attention: Wendy Howell, National Commercial Closing Specialist
Telephone: 800-729-1906
Facsimile: (713) 552-1703
Unless specifically required to be delivered to the Escrow Agent pursuant
to the terms of this Contract, no notice hereunder must be delivered to the
Escrow Agent in order to be effective so long as it is delivered to the other
party in accordance with the above provisions.
13.8 Governing Law And Venue. The laws of the State of Texas shall govern the
validity, construction, enforcement, and interpretation of this Contract, unless
otherwise specified herein except for the conflict of laws provisions thereof.
Subject to Section 13.25, all claims, disputes and other matters in question
arising out of or relating to this Contract, or the breach thereof, shall be
decided by proceedings instituted and litigated in a court of competent
jurisdiction in the state in which the Property is situated, and the parties
hereto expressly consent to the venue and jurisdiction of such court.
13.9 Entire Agreement. This Contract embodies the entire Contract between the
parties hereto concerning the subject matter hereof and supersedes all prior
conversations, proposals, negotiations, understandings and contracts, whether
written or oral.
13.10 Amendments. This Contract shall not be amended, altered, changed,
modified, supplemented or rescinded in any manner except by a written contract
executed by all of the parties; provided, however, that, (a) as provided in
Section 2.3.5 above, the signature of the Escrow Agent shall not be required as
to any amendment of this Contract other than an amendment of Section 2.3, and
(b) as provided in Section 9.3 above, the signature of the Broker shall not be
required as to any amendment of this Contract
13.11 Severability. In the event that any part of this Contract shall be held to
be invalid or unenforceable by a court of competent jurisdiction, such provision
shall be reformed, and enforced to the maximum extent permitted by law. If such
provision cannot be reformed, it shall be severed from this Contract and the
remaining portions of this Contract shall be valid and enforceable.
13.12 Multiple Counterparts/Facsimile Signatures. This Contract may be executed
in a number of identical counterparts. This Contract may be executed by
facsimile signatures which shall be binding on the parties hereto, with original
signatures to be delivered as soon as reasonably practical thereafter.
13.13 Construction. No provision of this Contract shall be construed in favor
of, or against, any particular party by reason of any presumption with respect
to the drafting of this Contract; both parties, being represented by counsel,
having fully participated in the negotiation of this instrument.
13.14 Confidentiality. Purchaser shall not disclose the terms and conditions
contained in this Contract and shall keep the same confidential, provided that
Purchaser may disclose the terms and conditions of this Contract (a) as required
by law or by regulatory or judicial process, (b) to consummate the terms of this
Contract, or any financing relating thereto, or (c) to the extent such
information is a matter of public record, or (d) to Purchaser's Consultant's or
Seller's lenders, attorneys or accountants. Any information and Materials
provided by Seller to Purchaser hereunder are confidential and Purchaser shall
be prohibited from making such information public to any other person or entity
other than as permitted by this Section 13.14, without Seller's prior written
authorization, which may be granted or denied in Seller's sole discretion.
Notwithstanding the provisions of Section 13.9, Purchaser agrees that the
covenants, restrictions and agreements of Purchaser contained in any
confidentiality agreement executed by Purchaser prior to the Effective Date
shall survive the execution of this Contract and shall not be superceded hereby.
13.15 Time Of The Essence. It is expressly agreed by the parties hereto that
time is of the essence with respect to this Contract.
13.16 Waiver. No delay or omission to exercise any right or power accruing upon
any default, omission, or failure of performance hereunder shall impair any
right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed
expedient. No waiver, amendment, release, or modification of this Contract shall
be established by conduct, custom, or course of dealing and all waivers must be
in writing and signed by the waiving party.
13.17 Attorneys Fees. In the event either party hereto commences litigation or
arbitration against the other to enforce its rights hereunder, the substantially
prevailing party in such litigation shall be entitled to recover from the other
party its reasonable attorneys' fees and expenses incidental to such litigation
and arbitration, including the cost of in-house counsel and any appeals.
13.18 Time Periods. Should the last day of a time period fall on a weekend or
legal holiday, the next Business Day thereafter shall be considered the end of
the time period.
13.19 Intentionally Omitted.
13.20 No Personal Liability of Officers, Trustees or Directors of Seller's
Partners. Purchaser acknowledges that this Contract is entered into by Seller
which is a South Carolina limited partnership, and Purchaser agrees that none of
Seller's Indemnified Parties shall have any personal liability under this
Contract or any document executed in connection with the transactions
contemplated by this Contract.
13.21 No Exclusive Negotiations. Seller shall have the right, at all times prior
to the expiration of the Feasibility Period, to solicit backup offers and enter
into discussions, negotiations, or any other communications concerning or
related to the sale of the Property with any third-party; provided, however,
that such communications are subject to the terms of this Contract, and that
Seller shall not enter into any contract or binding Contract with a third-party
for the sale of the Property unless such Contract is contingent on the
termination of this Contract without the Property having been conveyed to
Purchaser.
13.22 ADA Disclosure. Purchaser acknowledges that the Property may be subject to
the federal Americans With Disabilities Act (the "ADA"), and the federal Fair
Housing Act (the "FHA"). The ADA requires, among other matters, that tenants
and/or owners of "public accommodations" remove barriers in order to make the
Property accessible to disabled persons and provide auxiliary aids and services
for hearing, vision or speech impaired persons. Seller makes no warranty,
representation or guarantee of any type or kind with respect to the Property's
compliance with the ADA or the FHA (or any similar state or local law), and
Seller expressly disclaims any such representation.
13.23 No Recording. Purchaser shall not cause or allow this Contract or any
contract or other document related hereto, nor any memorandum or other evidence
hereof, to be recorded or become a public record without Seller's prior written
consent, which consent may be withheld at Seller's sole discretion. If the
Purchaser records this Contract or any other memorandum or evidence thereof,
Purchaser shall be in default of its obligations under this Contract. Purchaser
hereby appoints the Seller as Purchaser's attorney-in-fact to prepare and record
any documents necessary to effect the nullification and release of the Contract
or other memorandum or evidence thereof from the public records. This
appointment shall be coupled with an interest and irrevocable.
13.24 Relationship of Parties. Purchaser and Seller acknowledge and agree that
the relationship established between the parties pursuant to this Contract is
only that of a seller and a purchaser of property. Neither Purchaser nor Seller
is, nor shall either hold itself out to be, the agent, employee, joint venturer
or partner of the other party.
13.25 Dispute Resolution. Any controversy, dispute, or claim of any nature
arising out of, in connection with, or in relation to the interpretation,
performance, enforcement or breach of this Contract (and any closing document
executed in connection herewith), including any claim based on contract, tort or
statute, shall be resolved at the written request of any party to this Contract
by binding arbitration. The arbitration shall be administered in accordance with
the then current Commercial Arbitration Rules of the American Arbitration
Association. Any matter to be settled by arbitration shall be submitted to the
American Arbitration Association in the state in which the Property is located.
The parties shall attempt to designate one arbitrator from the American
Arbitration Association. If they are unable to do so within 30 days after
written demand therefor, then the American Arbitration Association shall
designate an arbitrator. The arbitration shall be final and binding, and
enforceable in any court of competent jurisdiction. The arbitrator shall award
attorneys' fees (including those of in-house counsel) and costs to the
substantially prevailing party and charge the cost of arbitration to the party
which is not the substantially prevailing party. Notwithstanding anything herein
to the contrary, this Section 13.25 shall not prevent Purchaser or Seller from
seeking and obtaining equitable relief on a temporary or permanent basis,
including, without limitation, a temporary restraining order, a preliminary or
permanent injunction or similar equitable relief, from a court of competent
jurisdiction located in the state in which the Property is located (to which all
parties hereto consent to venue and jurisdiction) by instituting a legal action
or other court proceeding in order to protect or enforce the rights of such
party under this Contract or to prevent irreparable harm and injury. The court's
jurisdiction over any such equitable matter, however, shall be expressly limited
only to the temporary, preliminary, or permanent equitable relief sought; all
other claims initiated under this Contract between the parties hereto shall be
determined through final and binding arbitration in accordance with this Section
13.25.
13.26 AIMCO Marks. Purchaser agrees that Seller, the Property Manager or AIMCO,
or their respective affiliates, are the sole owners of all right, title and
interest in and to the AIMCO Marks (or have the right to use such AIMCO Marks
pursuant to license agreements with third parties) and that no right, title or
interest in or to the AIMCO Marks is granted, transferred, assigned or conveyed
as a result of this Contract. Purchaser further agrees that Purchaser will not
use the AIMCO Marks for any purpose.
13.27 Non-Solicitation of Employees Prior to Expiration of the Feasibility
Period. Purchaser acknowledges and agrees that, prior to the expiration of the
Feasibility Period, without the express written consent of Seller, neither
Purchaser nor any of Purchaser's employees, affiliates or agents shall solicit
any of Seller's employees or any employees located at the Property (or any of
Seller's affiliates' employees located at any property owned by such affiliates)
for potential employment.
13.28 Survival. Except for (a) all of the provisions of this Article 13 (other
than Section 13.19, 13.21 and 13.23), and (b) any provision of this Contract
which expressly states that it shall so survive, and (c) any payment obligation
of Purchaser under this Contract which expressly survives under the terms of
this Contract (the foregoing (a), (b) and (c) referred to herein as the
"Survival Provisions"), none of the terms and provisions of this Contract shall
survive the termination of this Contract, and, if the Contract is not so
terminated, all of the terms and provisions of this Contract (other than the
Survival Provisions) shall be merged into the Closing documents and shall not
survive Closing.
13.29 Multiple Purchasers. As used in this Contract, the term "Purchaser" means
all entities acquiring any interest in the Property at the Closing, including,
without limitation, any assignee(s) of the original Purchaser pursuant to
Section 13.3 of this Contract. In the event that "Purchaser" has any obligations
or makes any covenants, representations or warranties under this Agreement, the
same shall be made jointly and severally by all entities being a Purchaser
hereunder. In the event that Seller receives notice from any entity being a
Purchaser hereunder, the same shall be deemed to constitute notice from all
entities being a Purchaser hereunder. In the event that any entity being a
Purchaser hereunder takes any action, breaches any obligation or otherwise acts
pursuant to the terms of this Contract, the same shall be deemed to be the
action of the other entity(ies) being a Purchaser hereunder and the action of
"Purchaser" under this Contract. In the event that Seller is required to give
notice or take action with respect to Purchaser under this Contract, notice to
any entity being a Purchaser hereunder or action with respect to any entity
being a Purchaser hereunder shall be a notice or action to all entities being a
Purchaser hereunder. In the event that any entity being a Purchaser hereunder
desires to bring an action or arbitration against Seller, such action must be
joined by all entities being a Purchaser hereunder in order to be effective. In
the event that there is any agreement by Seller to pay any amount pursuant to
this Contract to Purchaser under any circumstance, that amount shall be deemed
maximum aggregate amount to be paid to all parties being a Purchaser hereunder
and not an amount that can be paid to each party being a Purchaser hereunder. In
the event that Seller is required to return the Initial Deposit, Additional
Deposit or other amounts to Purchaser, Seller shall return the same to any
entity being a Purchaser hereunder and, upon such return, shall have no further
liability to any other entity being a Purchaser hereunder for such amount. The
foregoing provisions also shall apply to any documents, including, without
limitation, the General Assignment and Assumption and the Assignment and
Assumption of Leases and Security Deposits, executed in connection with this
Contract and the transaction(s) contemplated hereby.
[ Remaining Page Intentionally Left Blank ]
NOW, THEREFORE, the parties hereto have executed this Contract as of the date
first set forth above.
Seller:
NEW LAKE MEADOWS, L.P.,
a South Carolina limited partnership
By: Lake Meadows GP, L.L.C.,
a South Carolina limited liability
company,
its sole general partner
By: Angeles Opportunity
Properties, Ltd., a
California limited
partnership,
its sole member
By: Angeles Realty
Corporation II, a
California corporation,
its sole general partner
By:/s/Brian J. Bornhorst
Name: Brian J. Bornhorst
Title: Vice President
Purchaser:
WYNDMERE CAPITAL, INC.,
a Texas corporation
By: /s/Douglas C. Jones
Name: Douglas C. Jones
Title: President
Purchaser's Tax Identification
Number/Social
Security Number:
20-0747871
ESCROW AGENT SIGNATURE PAGE
The undersigned executes the Contract to which this signature page is
attached for the purpose of agreeing to the provisions of Section 2.3 of the
Contract, and hereby establishes April 16, 2004 as the date of opening of escrow
and designates 04330093 as the escrow number assigned to this escrow.
ESCROW AGENT:
STEWART TITLE GUARANTY COMPANY
By: /s/Wendy Howell
Name: Wendy Howell
Title: National Commercial Closing
Specialst
BROKER SIGNATURE PAGE
The undersigned Broker hereby executes this Broker Signature Page solely
to confirm the following: (a) Broker represents only the Seller in the
transaction described in the Contract to which this signature page is attached,
(b) Broker acknowledges that the only compensation due to Broker in connection
with the Closing of the transaction described in the Contract to which this
signature page is attached is as set forth in a separate agreement between
Seller and Broker payable at the Closing, and (c) Broker represents and warrants
to Seller that Broker and its affiliates have not and will not receive any
compensation (cash or otherwise) from or on behalf of Purchaser or any affiliate
thereof or any assignee pursuant to Section 13.3 of the Contract in connection
with the transaction described in the Contract to which this signature page is
attached, and do not, and will not at the Closing, have any direct or indirect
legal, beneficial, economic or voting interest in Purchaser (or in an assignee
of Purchaser, which pursuant to Section 13.3 of the Contract, acquires the
Property at the Closing) nor has Purchaser granted (as of the Effective Date or
the Closing Date) the Broker or any of its affiliates any right or option to
acquire any direct or indirect legal, beneficial, economic or voting interest in
Purchaser.
BROKER:
O'BOYLE PROPERTIES, INC.,
A MEMBER OF APARTMENT
REALTY ADVISORS
By: /s/Brian J. O'Boyle
Name: Brian J. O'Boyle
Title: Managing Broker
Exhibit 10.13
AMENDMENT OF PURCHASE AND SALE CONTRACT
(Lake Meadows Apartments, Texas)
THIS AMENDMENT OF PURCHASE AND SALE CONTRACT ("Amendment") is entered into
as of the 13th day of May, 2004 (the "Effective Date") by and between NEW LAKE
MEADOWS, L.P., a South Carolina limited partnership, having a principal address
at 4582 South Ulster Street Parkway, Suite 1100, Denver, Colorado 80237
("Seller") and WYNDMERE CAPITAL, INC., a Texas corporation, having a principal
address at 14785 Preston Road, Suite 550, Dallas, Texas 75254 ("Purchaser").
RECITALS
A. Seller and Purchaser entered into a Purchase and Sale Contract dated as of
April 15, 2004, (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. Pursuant to the Contract, Purchaser delivered to Escrow Agent an Initial
Deposit of $43,500.00, which Initial Deposit continues to be held by Escrow
Agent.
C. Seller and Purchaser have agreed to modify the terms of the Contract as set
forth in this Amendment.
D. 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. Extension of Feasibility Period. The Feasibility Period is hereby extended
from May 17, 2004 to June 1, 2004.
2. Closing Date. Purchase and Seller hereby acknowledge and agree that the
Closing shall occur on or before Wednesday, June 30, 2004. Purchaser agrees to
give Seller five (5) Business Days prior written notification of its election to
Close.
3. Initial Deposit. Purchaser hereby acknowledges and agrees that concurrently
with the execution of this Amendment, $10,000.00 of the Initial Deposit (the
"Non-Refundable Amount") will immediately become non-refundable; provided,
however, the Non-Refundable Amount will be considered part of the Deposit under
the Contract and will apply to the Purchase Price if and when the Closing
occurs.
4. Effectiveness of Contract. Except as modified by this Amendment, all the
terms of the Contract shall remain unchanged and in full force and effect.
5. Counterparts. This Amendment may be executed in counterparts, and all
counterparts together shall be construed as one document.
6. 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.
[Remaining Page Left Intentionally Blank]
IN WITNESS WHEREOF, Seller and Purchaser have entered into this Amendment
of Purchase and Sale Contract as of the date first above stated.
Seller:
NEW LAKE MEADOWS, L.P.,
a South Carolina limited partnership
By: Lake Meadows GP, L.L.C.,
a South Carolina limited liability
company,
its sole general partner
By: Angeles Opportunity
Properties, Ltd., a
California limited
partnership,
its sole member
By: Angeles Realty
Corporation II, a
California corporation,
its sole general partner
By: /s/Patrick F. Slavin
Name: Patrick F. Slavin
Title: Executive Vice
President
Purchaser:
WYNDMERE CAPITAL, INC.,
a Texas corporation
By: /s/Douglas C. Jones
Name: Douglas C. Jones
Title: President
Exhibit 10.14
SECOND AMENDMENT OF PURCHASE AND SALE CONTRACT
(Lake Meadows Apartments, Texas)
THIS SECOND AMENDMENT OF PURCHASE AND SALE CONTRACT ("Amendment") is
entered into as of the 27th day of May, 2004 (the "Effective Date") by and
between NEW LAKE MEADOWS, L.P., a South Carolina limited partnership, having
a principal address at 4582 South Ulster Street Parkway, Suite 1100, Denver,
Colorado 80237 ("Seller") and WYNDMERE CAPITAL, INC., a Texas corporation,
having a principal address at 14785 Preston Road, Suite 550, Dallas, Texas
75254 ("Purchaser").
RECITALS
A. Seller and Purchaser entered into a Purchase and Sale Contract dated as
of April 15, 2004, as amended (collectively, 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. Seller and Purchaser have agreed to 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. Extension of Feasibility Period. The Feasibility Period is hereby
extended from June 1, 2004 to June 4, 2004.
2. Effectiveness of Contract. Except as modified by this Amendment, all
the terms of the Contract shall remain unchanged and in full force and effect.
3. Counterparts. This Amendment may be executed in counterparts, and all
counterparts together shall be construed as one document.
4. 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:
NEW LAKE MEADOWS, L.P.,
a South Carolina limited partnership
By: Lake Meadows GP, L.L.C.,
a South Carolina limited liability
company,
its sole general partner
By: Angeles Opportunity
Properties, Ltd., a
California limited
partnership,
its sole member
By: Angeles Realty
Corporation II, a
California corporation,
its sole general partner
By:/s/Brian J. Bornhorst
Name: Brian J. Bornhorst
Title: Vice President
Purchaser:
WYNDMERE CAPITAL, INC.,
a Texas corporation
By: /s/Douglas C. Jones
Name: Douglas C. Jones
Title: President
Exhibit 10.15
THIRD AMENDMENT OF PURCHASE AND SALE CONTRACT
(Lake Meadows Apartments, Texas)
THIS THIRD AMENDMENT OF PURCHASE AND SALE CONTRACT ("Amendment") is
entered into as of the 9th day of June, 2004 (the "Effective Date") by and
between NEW LAKE MEADOWS, L.P., a South Carolina limited partnership, having
a principal address at 4582 South Ulster Street Parkway, Suite 1100, Denver,
Colorado 80237 ("Seller") and WYNDMERE CAPITAL, INC., a Texas corporation,
having a principal address at 14785 Preston Road, Suite 550, Dallas, Texas
75254 ("Purchaser").
RECITALS
A. Seller and Purchaser entered into a Purchase and Sale Contract dated as
of April 15, 2004, as amended (collectively, 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. Pursuant to the Contract, Purchaser delivered to Escrow Agent an
Initial Deposit of $43,500.00 and an Additional Deposit of $43,500.00, which
Initial Deposit and Additional Deposit continue to held by Escrow Agent.
C. Seller and Purchaser have agreed to modify the terms of the Contract as
set forth in this Amendment.
D. 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. Closing Credit. As full consideration for taking the Property "AS IS"
(except as provided in Section 6.1 and Section 9.1 of the Contract, in the
Deed and in the Leases Assignment), Purchaser shall receive a credit in the
amount of $10,000.00 (the "Credit") against the Purchase Price at Closing,
provided that Purchaser complies with its obligations under the Contract.
2. Waiver of Feasibility Period Contingencies. Purchaser hereby
acknowledges that the Feasibility Period has expired, and that all
contingencies relating to the Feasibility Period have been satisfied or
waived by Purchaser as of June 4, 2004. 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
4.1, Section 4.2 and Section 4.3 of the Contract, have been waived by
Purchaser as of June 4, 2004.
3. Occupancy Rate. Purchaser hereby acknowledges and agrees that
Purchaser"s condition to Close requiring that the occupancy rate at the
Property shall not be below eighty-five percent (85%) as of May 5, 2004, as
more particularly set forth in Section 8.1.4 of the Contract, was satisfied
as of May 5, 2004.
4. Effectiveness of Contract. Except as modified by this Amendment, all
the terms of the Contract shall remain unchanged and in full force and effect.
5. Counterparts. This Amendment may be executed in counterparts, and all
counterparts together shall be construed as one document.
6. 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.
[ Signatures on Following Page ]
IN WITNESS WHEREOF, Seller and Purchaser have entered into this Third
Amendment of Purchase and Sale Contract as of the date first above stated.
Seller:
NEW LAKE MEADOWS, L.P.,
a South Carolina limited partnership
By: Lake Meadows GP, L.L.C.,
a South Carolina limited liability
company,
its sole general partner
By: Angeles Opportunity
Properties, Ltd., a
California limited
partnership,
its sole member
By: Angeles Realty
Corporation II, a
California corporation,
its sole general partner
By: /s/Patrick F. Slavin
Name: Patrick F. Slavin
Title: Senior Vice
President
Purchaser:
WYNDMERE CAPITAL, INC.,
a Texas corporation
By: /s/Douglas C. Jones
Name: Douglas C. Jones
Title: President
Exhibit 10.16
ASSIGNMENT OF
PURCHASE AND SALE CONTRACT
THIS ASSIGNMENT OF PURCHASE AND SALE CONTRACT (this "Assignment") is
made and entered into as of the 15th days of June, 2004, by and between
WYNDMERE CAPITAL, INC., a Texas corporation ("Assignor"), and LAKE MEADOWS
PARTNERS, LTD., a Texas limited partnership ("Assignee").
RECITALS:
WHEREAS, Assignor has previously entered into a certain Purchase and
Sale Contract between Assignor, as Buyer therein, and New Lake Meadows, L.P.,
a South Carolina limited partnership, as Seller therein, dated as of April
15, 2004 (as it may be amended from time to time, the "Agreement");
WHEREAS, the Agreement sets forth the terms and conditions for the sale
and purchase of certain real estate situated in the County of Dallas, State
of Texas and more particularly described in the Agreement; and
WHEREAS, Assignor now desires to assign to Assignee all of Assignor's
right and interest in and to the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is
hereby acknowledged, Assignor hereby assigns, conveys, transfers and sets
over unto Assignee, and Assignee hereby assumes, all of Assignor's rights,
obligations and privileges under the terms and provisions of the Agreement;
provided, however, pursuant to Section 13.3 of the Agreement, Assignor is not
released from its liability under the Agreement.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
SIGNATURE PAGE TO FOLLOW.
IN WITNESS WHEREOF, this Assignment has been executed by the Assignor
and Assignee as of the date set forth above.
ASSIGNOR:
WYNDMERE CAPITAL, INC.,
a Texas corporation
By: /s/Douglas C. Jones
Name: Douglas C. Jones
Title: President
ASSIGNEE:
LAKE MEADOWS PARTNERS, LTD., a Texas
limited partnership
By: Wyndmere Lake Meadows, LLC, a Texas
limited liability company, general
partner
By: /s/Douglas C. Jones
Douglas C. Jones, Manager