UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported) September 27, 2004
United Investors Income Properties
(Exact Name of Registrant as Specified in its Charter)
Missouri 0-17646 43-1483942
(State or Other (Commission File Number) (I.R.S. Employer
Jurisdiction of Identification No.)
Incorporation)
55 Beattie Place
P.O. Box 1089
Greenville, South Carolina 29602
(Address of Principal Executive Offices)
Registrant's telephone number, including area code (864) 239-1000
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
Written communications pursuant to Rule 425 under the Securities Act
Soliciting material pursuant to Rule 14a-12 under the Exchange Act
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
Item 1.01. Entry into a material definitive agreement.
On September 27, 2004, United Investors Income Properties, a Missouri limited
partnership (the "Partnership"), entered into a Purchase and Sale Contract (the
"Purchase Agreement"), with Bronson Place Associates, LLC, a Delaware limited
liability company (the "Purchaser"), which is an affiliate of the general
partner of the Partnership. The Purchaser and the general partner of the
Partnership may be deemed to be under common control of Apartment Investment and
Management Company, a Maryland corporation and publicly traded real estate
investment trust. Under the terms of the Purchase Agreement, the Purchaser will
purchase Bronson Place Apartments, a 70- unit apartment complex located in
Mountainlake Terrace, Washington (the "Property"), for a gross purchase price of
$3,800,000. Limited partners of the Partnership who hold a majority of the units
held by all limited partners who are not the general partner or its affiliates
may object to the sale of the Property, and the Purchase Agreement is
conditioned upon a majority of such unaffiliated limited partners not objecting.
The following is a summary of the terms and conditions of the Purchase
Agreement, which is qualified in its entirety by reference to the Purchase
Agreement. The Purchase Agreement, may be amended or superseded at any time and
from time to time by the parties; provided, however, that if any amendment
materially changes the terms or conditions of the sale, the general partner will
provide an opportunity for the unaffiliated limited partners to object.
PURCHASE PRICE. Pursuant to the Purchase Agreement, the purchase price is
$3,800,000. The purchase price is subject to prorations and adjustments at the
Closing (as defined below) as provided in the Purchase Agreement.
CLOSING. The closing of the sale is to occur as promptly as possible after the
satisfaction or waiver of all of the conditions to closing contained in the
Purchase Agreement (the "Closing Date"). The Purchaser has the right to extend
the Closing Date in its sole discretion for up to two hundred seventy (270)
days.
COSTS AND FEES. The Purchaser will pay the cost of all transfer, sales, use and
excise taxes and recording costs and all other closing costs and fees with
respect to the Closing Date.
REPRESENTATIONS AND WARRANTIES. The Partnership and the Purchaser each made
limited representations and warranties to the other.
CONDITIONS TO CLOSING. The parties had customary closing conditions. In
addition, the Partnership's obligation to close under the Purchase Agreement is
subject to receipt by the Partnership of all consents and approvals to the
consummation of the transactions (a) of the Partnership's partners, including
the failure of limited partners to object to the sale, (b) that are required by
law, or (c) that are required by the partnership agreement, as amended.
RISK OF LOSS. The risk of loss or damage to the Property by reason of any
insured or uninsured casualty during the period through and including the
Closing Date will be borne by the Partnership. The Partnership must maintain all
of its existing insurance coverage on the Property in full force and effect
until the Closing Date, without material modification. In the event of any
material damage to or destruction of the Property or any portion, the Purchaser
may, at its option, by notice within ten (10) days after the Purchaser is
notified of such material damage or destruction: (i) unilaterally terminate the
Purchase Agreement, or (ii) proceed under the Purchase Agreement with no
reduction in the purchase price, receive any insurance proceeds, together with
the amount of any deductible with respect to such insurance proceeds, together
with the amount of any deductible with respect to such insurance proceeds, and
assume responsibility for repair of the Property. If the Property is not
materially damaged, then the Purchaser may not terminate the Purchase Agreement,
but all insurance proceeds, together with the amount of any deductible with
respect to the insurance proceeds, will be paid or assigned to the Purchaser and
the Purchaser will assume responsibility for repair. "Material damage" means
damages reasonably exceeding $500,000 to repair, as determined by an independent
insurance claims adjuster doing business in the county in which the Property is
located, which claims adjuster must be reasonably satisfactory to the
Partnership and the Purchaser.
CLOSING DELIVERIES. At the Closing Date, the Partnership must deliver to the
Purchaser and the Purchaser must deliver to the Partnership customary closing
deliveries.
ASSIGNMENT. The Purchase Agreement is not assignable by either party without
first obtaining the prior written approval of the non-assigning party; provided
that either party has the right to assign the Purchase Agreement to an affiliate
without the consent of the other party.
TERMINATION. At any time prior to Closing, either party may terminate the
Purchase Agreement, in each case acting in their sole discretion and for any
reason or no reason, upon written notice. In such case, the Purchase Agreement
and the transactions contemplated will be terminated without liability on the
part of either party.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
(c)___Exhibits
The following exhibits are filed with this report:
Exhibit No. Description
(1) Purchase and Sale Contract, dated September 27, 2004, between
United Investors Income Properties and Bronson Place
Associates, LLC.
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.
Date: October 1, 2004 United Investors Income Properties
By: United Investors Real Estate, Inc.
Its general partner
By: /s/ Martha L. Long
Senior Vice President
PURCHASE AND SALE CONTRACT
BETWEEN
UNITED INVESTORS INCOME PROPERTIES,
a Missouri limited partnership,
AS SELLER
AND
BRONSON PLACE ASSOCIATES, LLC,
a Delaware limited liability company,
AS PURCHASER
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS....................................................1
ARTICLE 2 PURCHASE AND SALE OF PROPERTY....................................4
ARTICLE 3 PURCHASE PRICE...................................................4
ARTICLE 4 FINANCING........................................................4
ARTICLE 5 TITLE AND SURVEY.................................................4
ARTICLE 6 CLOSING..........................................................5
ARTICLE 7 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER AND
THE PURCHASER....................................................7
ARTICLE 8 CONDITIONS PRECEDENT TO CLOSING..................................9
ARTICLE 9 POSSESSION......................................................10
ARTICLE 10 TERMINATION OPTION..............................................10
ARTICLE 11 RISK OF LOSS OR CASUALTY........................................10
ARTICLE 12 INTENTIONALLY OMITTED...........................................11
ARTICLE 13 EMINENT DOMAIN..................................................12
ARTICLE 14 MISCELLANEOUS...................................................12
ARTICLE 15 OPERATION OF THE PROPERTY.......................................15
EXHIBITS
A LEGAL DESCRIPTION OF LAND
6.2.1.1FORM OF DEED
6.2.1.2 FORM OF BILL OF SALE
6.2.1.3 FORM OF GENERAL ASSIGNMENT
6.2.1.4.....FORM OF RELEASE AND ASSUMPTION AGREEMENT
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT (this "Purchase Contract") is entered into
September 27, 2004 by and between UNITED INVESTORS INCOME PROPERTIES, a Missouri
limited partnership, having a principal address at c/o Apartment Investment and
Management Company, Stanford Place 3, 4582 South Ulster Street Parkway, Suite
1100, Denver, Colorado 80237 (the "Seller") and BRONSON PLACE ASSOCIATES, LLC, a
Delaware limited liability company, having a principal address at c/o Apartment
Investment and Management Company, Stanford Place 3, 4582 South Ulster Street
Parkway, Suite 1100, Denver, Colorado 80237 (the "Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of Ten Dollars
($10.00) is hand paid by the Purchaser to the Seller and the mutual covenants
and agreements herein after set forth, the receipt and sufficiency of which are
hereby acknowledged, the Seller and the Purchaser hereby agree as follows:
RECITALS
R-1 The Seller holds fee simple title to the land described in Exhibit A
attached hereto and made a part hereof. R-2 Subject to Section 8.3 and ARTICLE
10 hereof, the Purchaser desires to purchase and the Seller has agreed to sell
such land, together with improvements and certain associated property, defined
below as the "Property", on the terms and conditions set forth in this Purchase
Contract (which terms and conditions shall control in the event of any conflict
with these Recitals), such that on the Closing Date (as hereinafter defined) the
Property will be conveyed by Deed (as hereinafter defined) to the Purchaser. R-3
The Purchaser has agreed to pay to the Seller the Purchase Price for the
Property, and the Seller has agreed to sell the Property to the Purchaser on the
terms and conditions set forth in this Purchase Contract.
ARTICLE 1
DEFINED TERMS
1.1 Unless otherwise defined herein, terms with initial capital letters in this
Purchase Contract shall have the meanings set forth in this ARTICLE 1 below.
1.1.1 "Assumed Indebtedness" means any and all indebtedness (including,
principal and accrued and unpaid interest) outstanding under the Note and
secured by the Mortgage as of the Closing Date assumed by the Purchaser. 1.1.2
"Business Day" means any day other than a Saturday or Sunday or Federal holiday
or legal holiday in the state in which the Land is located. 1.1.3 "Closing"
means the consummation of the purchase and sale and related transactions
contemplated by this Purchase Contract, in accordance with the terms and
conditions of this Purchase Contract.
1.1.4 "Closing Date" means the date on which the Closing is required to be held
under the terms and conditions of this Purchase Contract. 1.1.5 "Deed" means a
limited or special warranty deed or equivalent deed customarily used in the
applicable jurisdiction.
1.1.6 "Excluded Permits" means those Permits, which, under applicable law or by
their terms, are nontransferable. 1.1.7 "Effective Date" means the date this
Purchase Contract has been fully executed by both Seller and Purchaser as
indicated by the latest date opposite the signatures herein of Seller and
Purchaser. 1.1.8 "Fixtures and Tangible Personal Property" means all fixtures,
furniture, furnishings, fittings, equipment, machinery (including all computers,
software, programs and other data relating to the ownership and operation on the
Property), apparatus, appliances and other articles of tangible personal
property now located on the Land or in the Improvements as of the Effective Date
(or hereafter acquired by the Seller prior to the Closing Date) and used or
usable in connection with any present or future occupation or operation of all
or any part of the Property, but only to the extent transferable.
1.1.9 "Improvements" means all buildings and improvements located on the Land
taken "as is". 1.1.10 "Land" means all of those certain tracts of land described
on Exhibit A attached hereto, and all rights, privileges and appurtenances
pertaining thereto.
1.1.11 "Lease(s)" means all rights and interests of the Seller in and to all
leases, subleases and other occupancy agreements, whether or not of record,
which provide for the use or occupancy of space or facilities on or relating to
the Property and which are in force as of the Effective Date for the Property or
thereafter as permitted in ARTICLE 15.
1.1.12 "Loan Documents" shall mean all agreements or other instruments
evidencing the Assumed Indebtedness, including without limitation, the Mortgage
and the Note.
1.1.13 "Management Contract" means that certain agreement between the
Seller and Manager pertaining to the Land and Improvements.
1.1.14 "Manager" means AIMCO Properties, L.P., a Delaware limited
partnership, or one of its affiliates.
1.1.15 "Miscellaneous Property Assets" means all contract rights; leases;
concessions; warranties; plans; drawings; the residual receipts account; any
capital replacement, repair or other reserves held by the Seller or any other
party on behalf of or for the benefit of the Seller, with respect to the
Property; receivables; cash or other funds, whether in petty cash or house
banks, or on deposit in bank accounts or in transit for deposit; refunds,
rebates or other claims, or any interest thereon; utility and similar deposits;
insurance or other prepaid items; the Seller's books and records; escrows held
by the Mortgagee for real property taxes, insurance and mortgage insurance
premiums; the Management Contract; and other items of intangible personal
property relating to the ownership or operation of the Property and owned by the
Seller, but only to the extent transferable, excluding, however, (i) Property
Contracts, (ii) Leases, (iii) Permits, and (iv) Fixtures and Tangible Personal
Property which shall be transferred to the Purchaser as hereinafter provided.
1.1.16 "Mortgage" means any mortgage, deed of trust or other first in priority
encumbrance upon the Property made by the Seller or its predecessor in interest
in favor of the Mortgagee securing the outstanding indebtedness under the Note
or other Loan Documents, if any, remaining upon the Closing Date or its
predecessor in interest recorded in the real estate, mortgage or land records of
the county in which the Land is located. 1.1.17 "Mortgagee" means the current
holder of record of the Mortgage and the Note.
1.1.18 "Note" means any promissory note made by the Seller or its predecessor in
interest in favor of the Mortgagee or its predecessor in interest under which
there remains outstanding indebtedness as of the Closing Date which is secured
by the Mortgage.
1.1.19 "Permits" means all licenses and permits granted by governmental
authorities having jurisdiction over the Property owned by the Seller and
required in order to own and operate the Property.
1.1.20 "Permitted Exceptions" means those exceptions or conditions permitted to
encumber or affect the title to the Property in accordance with the provisions
of Section 5.2.
1.1.21 "Property" means the Land and Improvements and all rights of the Seller
relating to the Land and the Improvements, including without limitation, any
rights, title and interest of the Seller, if any, in and to (i) any strips and
gores adjacent to the Land and any land lying in the bed of any street, road, or
avenue opened or proposed, in front of or adjoining the Land, to the centerline
thereof; (ii) any unpaid award for any taking by condemnation or any damage to
the Property by reason of a change of grade of any street or highway; (iii) all
of the easements, rights, privileges, and appurtenances belonging or in any way
appertaining to the Land and Improvements, together with all Fixtures and
Tangible Personal Property, all Property Contracts and Leases, Permits other
than Excluded Permits and the Miscellaneous Property Assets owned by the Seller
which are located on the Property and used in its operation.
1.1.22 "Property Contracts" means all purchase orders, maintenance, service, or
utility contracts and similar contracts, excluding Leases, which relate to the
ownership, maintenance, construction or repair and/or operation of the Property,
but only to the extent transferable and shall also mean any third party
maintenance, service, marketing or other contract relating to the Property which
the Seller is obligated to cause successors-in-interest to enter into upon
purchase of the Property.
1.1.23 "Purchase Contract" means this Purchase and Sale Contract by and between
the Seller and the Purchaser. 1.1.24 "Purchase Price" shall have the meaning
ascribed thereto in Section 3.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 The Seller agrees to sell and convey the Property to the Purchaser and the
Purchaser agrees to purchase the Property from the Seller in accordance with the
terms and conditions set forth in this Purchase Contract.
ARTICLE 3
PURCHASE PRICE
3.1 The total purchase price ("Purchase Price") for the Property shall be THREE
MILLION EIGHT HUNDRED THOUSAND AND NO/100 DOLLARS ($3,800,000.00), which amount
shall be paid by Purchaser at Closing as follows:
3.1.1 In connection with Purchaser's assumption of any Loan
Documents, Purchaser shall receive a credit against the Purchase Price in the
amount of the outstanding principal balance of and accrued but unpaid interest
on the Note.
3.1.2 Purchaser shall pay to Seller the balance of the Purchase
Price for the Property in cash or other immediately available funds.
ARTICLE 4
FINANCING
4.1 Notwithstanding any provision of this Purchase Contract to the contrary,
neither party hereto shall be required to consummate the transactions
contemplated hereby if the Purchaser does not have adequate cash or financing
commitments to pay all or any portion of the Purchase Price pursuant to the
provisions hereof.
4.2 The Purchaser intends to assume the obligations under the Loan Documents and
the Assumed Indebtedness, if any, at Closing. The Seller and the Purchaser shall
cooperate in preparation and submission of a request for approval of transfer of
the Property and assumption of Assumed Indebtedness, requesting Mortgagee's
approval of the conveyance of the Property to the Purchaser in accordance with
the terms of this Purchase Contract to the extent required, and if so required,
each shall cooperate fully in providing information reasonably requested by
Mortgagee in connection with its consideration thereof. The cost of any transfer
or assumption application (and the cost of receiving approval thereof) and any
physical inspection report required thereby shall be borne by the Purchaser.
ARTICLE 5
TITLE
5.1 The Purchaser may cause title to the Property to be examined at its sole
cost and expense. 5.2 The Purchaser agrees to accept title to the Land and
Improvements and the Deed of conveyance pursuant to this Purchase Contract shall
be subject to the following, all of which shall be deemed "Permitted Exceptions"
and the Purchaser agrees to accept the Deed and title subject thereto: 5.2.1 All
exceptions shown on any title examination which the Purchaser obtains; 5.2.2 All
Leases; 5.2.3 Real estate and property taxes; and 5.2.4 The Mortgage and any
ancillary security documents in connection therewith, if any. ARTICLE 6
CLOSING
6.1 Dates, Places Of Closing and Closing Costs
6.1.1 The Closing Date shall be December 31, 2004, or such earlier date as the
parties may otherwise agree. The Seller, the Purchaser and their attorneys need
not be physically present at the Closing and may deliver documents by overnight
air courier or other means. Notwithstanding any provision of this Purchase
Contract to the contrary, the Purchaser shall have the right to extend the
Closing Date in its sole discretion for up to two hundred seventy (270) days
after December 31, 2004. Notwithstanding any provision of this Agreement to the
contrary, however, the consummation of the transactions contemplated hereby will
be effective as of December 31, 2004 for all purposes, including without
limitation, for all allocations of profit and loss for tax purposes, except that
partners of the Seller will be entitled to retain all distributions paid to them
by the Seller on and after December 31, 2004 and prior to the Closing.
6.1.2 The Purchaser and Seller shall pay the cost of transfer taxes, sales, use
and excise taxes, and recording costs with respect to the Closing in accordance
with local custom in the state where the Property is located. The provisions of
this Section shall survive the Closing.
6.2 Items To Be Delivered Prior To Or At Closing
6.2.1 The Seller. At Closing, the Seller shall deliver to the Purchaser,
each of the following items, as applicable (except to the extent such
delivery is waived by the Purchaser):
6.2.1.1 The Deed in the form attached as Exhibit 6.2.1.1 to the Purchaser with a
legal description of the Land identical to that of the deed vesting title into
the Seller. The acceptance of the Deed at Closing, shall be deemed to be full
performance of, and discharge of, every agreement and obligation on the Seller's
part to be performed under this Purchase Contract, except for those that this
Purchase Contract specifically provides shall survive Closing.
6.2.1.2 A Bill of Sale without recourse or warranty in the form attached as
Exhibit 6.2.1.2 covering all Property Contracts, Leases, Permits (other than
Excluded Permits) and Fixtures and Tangible Personal Property required to be
transferred to the Purchaser with respect to such Property. 6.2.1.3 A General
Assignment (to the extent assignable and in force and effect) without recourse
or warranty in the form attached as Exhibit 6.2.1.3 of all of the Seller's
right, title and interest in and to the Miscellaneous Property Assets, subject
to any required consents.
6.2.1.4 If any outstanding indebtedness remains under the Note as of Closing, a
Release and Assumption Agreement relating to the Loan Documents in the form
attached as Exhibit 6.2.1.4, or such other documents as Mortgagee shall require.
6.2.1.5 A closing statement executed by the Seller.
6.2.1.6 A certification of the Seller's non-foreign status pursuant to Section
1445 of the Internal Revenue Code of 1986, as amended. 6.2.1.7 Except for the
items expressly listed herein to be delivered at Closing, delivery of any other
required items including, without limitation, leases, property contracts, lease
files, keys, and books and records (in each case in Seller's possession and
control), shall be deemed made by the Seller to the Purchaser, if the Seller
leaves such documents at the Property in their customary place of storage or in
the custody of the Purchaser's representatives.
6.2.1.8 An executed Excise Tax Affidavit with respect to the transfer of the
Property. 6.2.1.9 Such other documents as are reasonably necessary to consummate
the transactions herein contemplated in accordance with the terms of this
Purchase Contract.
6.2.2 The Purchaser. At Closing, the Purchaser shall deliver to the Seller the
following items with respect to the Property being conveyed at such Closing
(except to the extent such delivery is waived by the Seller): 6.2.2.1 The
Purchase Price less a credit for the outstanding principal balance due under the
Note, as provided above in Section 3.1. 6.2.2.2 A closing statement executed by
the Purchaser. 6.2.2.3 A countersigned counterpart of the Bill of Sale in the
form attached as Exhibit 6.2.1.2 to effect an assumption of Seller's obligations
under all Property Contracts, Leases, Permits (other than Excluded Permits) and
Fixtures and Tangible Personal Property.
6.2.2.4 A countersigned counterpart of the General Assignment in the form
attached as Exhibit 6.2.1.3 to effect an assumption of Seller's obligations
under the Miscellaneous Property Assets.
6.2.2.5 A countersigned counterpart of the Release and Assumption Agreement in
the form attached as Exhibit 6.2.1.4 and/or countersigned counterparts of such
documents as Mortgagee shall require to evidence the assumption of the Loan
Documents by Purchaser.
6.2.2.6 A countersigned counterpart of the Excise Tax Affidavit with respect to
the transfer of the Property, and an executed Sales/Use Tax Return in connection
with the sale of the Tangible Personal Property. 6.2.2.7 Such other documents as
are reasonably necessary to consummate the transactions herein contemplated in
accordance with the terms of this Purchase Contract.
ARTICLE 7
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER AND THE PURCHASER 7.1
Representations and Warranties of the Seller 7.1.1 For the purpose of inducing
the Purchaser to enter into this Purchase Contract and to consummate the sale
and purchase of the Property in accordance herewith, the Seller represents and
warrants to the Purchaser the following as of the Effective Date and as of the
Closing Date: 7.1.1.1 The Seller is lawfully and duly organized, and in good
standing under the laws of the state of its formation, and subject to consents
and approvals required from the Mortgagee (as described in ARTICLE 8), the
Seller shall at the Closing have the power and authority to sell and convey the
Property and to execute the documents to be executed by the Seller and prior to
the Closing will have taken as applicable, all corporate, partnership, limited
liability company or equivalent entity actions required for the execution and
delivery of this Purchase Contract, and the consummation of the transactions
contemplated by this Purchase Contract. The compliance with or fulfillment of
the terms and conditions hereof will not conflict with, or result in a breach
of, the terms, conditions or provisions of, or constitute a default under, any
purchase contract or other agreement or instrument to which the Seller is a
party or by which the Seller is otherwise bound. 7.1.1.2 The Seller holds title
to the Property, including all real property contained therein required to be
sold to the Purchaser, subject only to the Permitted Exceptions.
7.1.1.3 The Seller has not dealt with any broker, finder or any other person, in
connection with the purchase of or the negotiation of the purchase of the
Property that might give rise to any claim for commission or lien or claim
against the Property.
7.1.2 Except for the representations and warranties expressly set forth above in
Section 7.1, the Property is expressly purchased and sold "AS IS," "WHERE IS,"
and "WITH ALL FAULTS." The Purchaser represents and warrants that as of the date
hereof and as of the Closing Date, it has and shall have reviewed and conducted
such independent analyses, studies, reports, investigations and inspections as
it deems appropriate in connection with the Property. If the 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, the Purchaser and the
Seller agree that the Seller has done so or shall do so only for the convenience
of both parties, the Purchaser shall not rely thereon and the reliance by the
Purchaser upon any such documents, summaries, opinions or work product shall not
create or give rise to any liability of or against the Seller, the Seller's
partners or affiliates or any of their respective partners, officers, directors,
participants, employees, contractors, attorneys, consultants, representatives,
agents, successors, assigns or predecessors-in-interest. The Purchaser
acknowledges and agrees that no representation has been made and no
responsibility is assumed by the 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. The Purchaser hereby releases the Seller from
any and all claims and liabilities relating to the foregoing matters.
7.2 Representations and Warranties of the Purchaser
7.2.1 For the purpose of inducing the Seller to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in accordance
herewith, the Purchaser represents and warrants to the Seller the following as
of the Effective Date and as of the Closing Date: 7.2.2 With respect to the
Purchaser and its business, the Purchaser represents and warrants, in
particular, that:
7.2.2.1 The Purchaser is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware. 7.2.2.2
The Purchaser, acting through any of its or their duly empowered and authorized
officers, joint venturers, partners, managers, or members has the power and
authority to enter into this Purchase Contract, to execute and deliver this
Purchase Contract, and to perform its obligations hereunder; and no consent of
any of the Purchaser's officers, joint venturers, partners, managers, or members
are required to so empower or authorize the Purchaser. 7.2.2.3 Neither the
execution nor the delivery of this Purchase Contract, nor the consummation of
the purchase and sale contemplated hereby, conflict with or will result in the
breach of any of the terms, conditions or provisions of any agreement or
instrument to which the Purchaser is a party or is otherwise bound.
7.2.2.4 The Purchaser has not dealt with any broker, finder or any other person,
in connection with the purchase of or the negotiation of the purchase of the
Property that might give rise to any claim for commission or lien or claim
against the Property.
ARTICLE 8
CONDITIONS PRECEDENT TO CLOSING
8.1 The Purchaser's obligation to close under this Purchase Contract shall be
subject to and conditioned upon the fulfillment in all material respects of each
and all of the following conditions precedent (except to the extent waived by
the Purchaser):
8.1.1 All of the documents required to be delivered by the Seller to the
Purchaser at the Closing pursuant to the terms and conditions hereof shall have
been delivered and shall be in form and substance reasonably satisfactory to the
Purchaser.
8.1.2 Each of the representations and warranties of the Seller contained herein
shall be true in all material respects as of the Closing Date. 8.1.3 The Seller
shall have complied with, fulfilled and performed, in each case in all material
respects, each of the covenants, terms and conditions to be complied with,
fulfilled or performed by the Seller hereunder. 8.1.4 Mortgagee shall have
issued approval of conveyance of the Property to the Purchaser and the
assumption of the Loan Documents, all on terms and conditions reasonably
acceptable to the Purchaser.
8.1.5 Consent or approvals of any federal or state authorities having
jurisdiction over the Property, to the extent required shall have been obtained.
8.1.6 Notwithstanding anything to the contrary, there are no other conditions on
the Purchaser's obligation to Close except as expressly set forth above. 8.2
Without limiting any of the rights of the Seller elsewhere provided for in this
Purchase Contract, the Seller's obligation to close with respect to conveyance
of the Property under this Purchase Contract shall be subject to and conditioned
upon the fulfillment of each and all of the following conditions precedent
(except to the extent waived by the Seller): 8.2.1 The Purchaser's
representations and warranties set forth in this Purchase Contract shall have
been true and correct in all material respects when made, and shall be true and
correct in all material respects on the Closing Date and as of the Effective
Date as though such representations and warranties were made at and as of such
date and time.
8.2.2 The Purchaser shall have complied with, fulfilled and performed, in each
case in all material respects, each of the covenants, terms and conditions
complied with, fulfilled or performed by the Purchaser hereunder. 8.2.3 The
Seller shall have received all consents and approvals to the consummation of the
transactions contemplated hereby (a) of the Seller's partners, (b) that are
required by law, or (c) that are required by the partnership agreement, as
amended, governing the Seller. 8.2.4 The limited partners of Seller holding a
majority of the units of the limited partnership not owned by the general
partner of Seller or any affiliates of such general partner have not objected to
the transactions contemplated hereby.
8.2.5 The Mortgagee shall have issued approval of the conveyance of the Property
to the Purchaser and the release of the Seller from and assumption by the
Purchaser of the Loan Documents on terms and conditions reasonably acceptable to
the Seller.
8.2.6 Consent or approvals of any federal or state authorities having
jurisdiction over the Property, to the extent required shall have been obtained.
ARTICLE 9
POSSESSION
9.1 Possession of the Property subject to the Permitted Exceptions and the
Leases shall be delivered to the Purchaser at the Closing.
ARTICLE 10
TERMINATION OPTION
10.1 At any time prior to Closing, either party may terminate this Purchase
Contract, in each case acting in their sole discretion and for any reason or no
reason, upon written Notice (as hereinafter defined). In such case, this
Purchase Contract and the transactions contemplated hereby shall be terminated
without liability on the part of either party hereto.
ARTICLE 11
RISK OF LOSS OR CASUALTY
11.1 The risk of loss of damage to the Property by reason of any insured or
uninsured casualty during the period through and including the Closing Date
shall be borne by the Seller. The Seller covenants and agrees to maintain all of
its existing insurance coverage upon the Property in full force and effect until
the Closing Date, without material modification thereto. In the event of any
"material damage," as hereinafter defined, to or destruction of the Property or
any portion thereof, the Purchaser may, at its option, by Notice given to the
Seller within ten (10) days after the Purchaser is notified of such material
damage or destruction: (i) unilaterally terminate this Purchase Contract or (ii)
proceed under this Purchase Contract with no reduction in the Purchase Price,
receive any insurance proceeds due the Seller as a result of such damage or
destruction (including any rent loss insurance applicable to the period from and
after the Closing Date), together with the amount of any deductible with respect
to such insurance proceeds, and assume responsibility for repair of the
Property. If the Property is not materially damaged, then the Purchaser shall
not have the right to terminate this Purchase Contract, but all insurance
proceeds (including any rent loss insurance applicable to the period from and
after the Closing Date), together with the amount of any deductible with respect
to such insurance proceeds, shall be paid or assigned to the Purchaser and the
Purchaser shall assume responsibility for such repair. For purposes of this
paragraph, "material damage" means damages reasonably exceeding $500,000 to
repair, as determined by an independent insurance claims adjuster doing business
in the county in which the Land is located, which claims adjuster shall be
reasonably satisfactory to the Seller and the Purchaser.
ARTICLE 12
INTENTIONALLY OMITTED
ARTICLE 13
EMINENT DOMAIN
13.1 In the event that at the time of Closing all or any part of the Property is
(or has previously been) acquired, or is about to be acquired, by authority of
any governmental agency (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),
the Purchaser shall have the right, at the Purchaser's option, to terminate this
Purchase Contract by giving written Notice within fifteen (15) days of the
Purchaser's receipt from the Seller of the occurrence of such event, or to
proceed to Closing in accordance with the terms of this Purchase Contract for
the full Purchase Price and receive the full benefit of any condemnation award.
ARTICLE 14
MISCELLANEOUS
14.1 Exhibits
All Exhibits attached hereto are a part of this Purchase Contract
for all purposes.
14.2 Assignability
This Purchase Contract is not assignable by any party hereto without
obtaining the prior written approval of the non-assigning party; provided
however, that either the Seller or the Purchaser shall have the right to assign
this Purchase Contract to an Affiliate without the consent of the other party
hereto. An "Affiliate" shall mean any entity which, directly or indirectly,
controls or is controlled by or is under the common control of the assigning
party. If either party so permits the other party to assign this Purchase
Contract, the assignor party shall not be relieved of any liability hereunder.
14.3 Binding Effect
This Purchase Contract shall be binding upon and inure to the
benefit of the Seller and the Purchaser, and their respective heirs, personal
representatives, successors and permitted assigns.
14.4 Captions
The captions, headings, and arrangements used in this Purchase
Contract are for convenience only and do not in any way affect, limit, amplify,
or modify the terms and provisions hereof.
14.5 Number and Gender of Words
Whenever herein the singular number is used, the same shall include
the plural where appropriate, and words of any gender shall include each other
gender where appropriate.
14.6 Notices
All notices, demands, requests and other communications required
pursuant to the provisions of this Purchase Contract ("Notice") shall be in
writing and shall be deemed to have been properly given or served for all
purposes (i) if sent by Federal Express or any other nationally recognized
overnight carrier for next business day delivery, on the first business day
following deposit of such Notice with such carrier, (ii) if personally
delivered, on the actual date of delivery, or (iii) if sent by certified mail,
return receipt requested postage prepaid, on the fifth (5th) business day
following the date of mailing addressed as follows:
If to the Seller:
c/o Apartment Investment and
Management Company
Stanford Place 3
4582 South Ulster Street Parkway
Suite 1100
Denver, Colorado 80237
Attn: Derek McCandless, Esq.
If to the Purchaser:
c/o Apartment Investment and
Management Company
Stanford Place 3
4582 South Ulster Street Parkway
Suite 1100
Denver, Colorado 80237
Attn: Ms. Martha Long
Any of the parties may designate a change of address by Notice in
writing to the other parties. Whenever in this Purchase Contract the giving
of Notice by mail or otherwise is required, the giving of such Notice may be
waived in writing by the person or persons entitled to receive such Notice.
14.7 Governing Law And Venue
The laws of the state in which the Land is situated shall govern the
validity, construction, enforcement, and interpretation of this Purchase
Contract, unless otherwise specified herein except for the conflict of law
provisions thereof. All claims, disputes and other matters in question arising
out of or relating to this Purchase Contract, or the breach thereof, shall be
decided by proceedings instituted and litigated in a court for the district in
which the Land is situated, and the parties hereto expressly consent to the
venue and jurisdiction of such court.
14.8 Entirety And Amendments; Survival
This Purchase Contract embodies the entire Purchase Contract between
the parties and supersedes all prior purchase contracts and understandings, if
any, relating to the Property, and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
All terms and provisions of this Purchase Contract shall be merged
into the Closing documents and shall not survive Closing, unless expressly set
forth to the contrary in this Purchase Contract. 14.9 Severability
If any provision of this Purchase Contract is held to be illegal,
invalid, or unenforceable under present or future laws, such provision shall be
fully severable. The Purchase Contract shall be construed and enforced as if
such illegal, invalid, or unenforceable provision had never comprised a part of
this Purchase Contract; and the remaining provisions of this Purchase Contract
shall remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Purchase
Contract. In lieu of such illegal, invalid, or unenforceable provision, there
shall be added automatically as a part of this Purchase Contract a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible to make such provision legal, valid, and enforceable.
14.10 Multiple Counterparts
This Purchase Contract may be executed in a number of identical
counterparts. If so executed, each of such counterparts is to be deemed an
original for all purposes and all such counterparts shall, collectively,
constitute one Purchase Contract. In making proof of this Purchase Contract, it
shall not be necessary to produce or account for more than one such
counterparts.
14.11 Further Acts
In addition to the acts and deeds recited herein and contemplated
and performed, executed and/or delivered by the Seller and the Purchaser, the
Seller and the Purchaser agree to perform, execute and/or deliver or cause to be
performed, executed and/or delivered any and all such further acts, deeds, and
assurances as may be necessary to, and to use their respective best efforts to
consummate the transactions contemplated hereby. 14.12 Construction
No provision of this Purchase Contract shall be construed in favor
of, or against, any particular party by reason of any presumption with respect
to the drafting of this Purchase Contract; both parties, being represented by
counsel, having fully participated in the negotiation of this instrument.
14.13 Time Of The Essence
It is expressly agreed by the parties hereto that time is of the
essence with respect to this Purchase Contract.
14.14 Cumulative Remedies And Waiver
No remedy herein conferred or reserved is intended to be exclusive
of any other available remedy or remedies herein conferred or referred, but each
and every such remedy shall be cumulative and shall be in addition to every
other remedy given under this Purchase Contract. No delay or omission to
exercise any right or power accruing upon any default, omission, or failure of
performance hereunder shall impair any right or power or shall be construed to
be a waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient. No waiver, amendment, release, or
modification of this Purchase Contract shall be established by conduct, custom,
or course of dealing. 14.15 Time Periods
Should the last day of a time period fall on a Saturday or Sunday or
Federal or legal holiday in the state in which the Land is located, the next
Business Day thereafter shall be considered the end of the time period. 14.16
Confidentiality
The parties shall not disclose the terms and conditions contained
in this Purchase Contract and shall keep the same confidential; provided,
however, that notwithstanding the foregoing, either party may disclose the terms
and conditions of this Purchase Contract (i) as required by law, (ii) to
consummate the transactions contemplated by this Purchase Contract or any
financing relating thereto, or (iii) to Purchaser's or Seller's lenders,
partners, attorneys and accountants. Neither party hereto shall make any public
statements or announcements, or issue any press releases, relating to the
transactions contemplated hereby without the prior approval of the other party
hereto (unless such statement, announcement, or press release is required by any
applicable securities law or any rule or regulation of the New York Stock
Exchange, in which case such prior approval is not required).
14.17 Waiver
Any provision of this Agreement may be waived at any time, from time to
time, or for a period of time by a writing executed by the party entitled to
waive such provision pursuant to the terms hereof or, if no party is entitled to
waive such provision pursuant to the terms hereof, by the parties hereto.
ARTICLE 15
OPERATION OF THE PROPERTY
15.1 During the period of time from the Effective Date to the Closing Date, in
the ordinary course of business the 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
without first obtaining the written consent of the Purchaser. 15.2 Except as
specifically set forth in this ARTICLE 15, the 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 any life or safety issue at
the Property, the Seller will not make any material alterations to the Property
or remove any of the Fixtures and Tangible Personal Property without the prior
written consent of the Purchaser which consent shall not be unreasonably
withheld, denied or delayed.
ARTICLE 16
APPRAISAL RIGHTS
The Seller and the Purchaser agree to provide limited partners of the
Seller with contractual dissenters' appraisal rights that are based upon to the
dissenters' appraisal rights afforded to shareholders in corporate mergers under
the corporation laws of the state of the Seller's organization. Any additional
consideration to be paid to any limited partner of the Seller in connection
therewith will be paid by the Purchaser as additional consideration hereunder.
Notwithstanding, anything to the contrary contained herein, the terms and
conditions of this Article 16 shall survive Closing.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
NOW WHEREFORE, the parties hereto have executed this Purchase Contract
under seal as of the date first set forth above.
Seller:
Date of Execution: September 27, 2004
UNITED INVESTORS INCOME PROPERTIES, a
Missouri limited partnership
By: United Investors Real Estate, Inc.,
a Delaware corporation, its General
Partner
By: /s/Martha Long
Martha Long
Senior Vice President
[CORPORATE SEAL]
Date of Execution: September 27, 2004 Purchaser:
BRONSON PLACE ASSOCIATES, LLC, a
Delaware limited liability company
By: AIMCO Properties, L.P., its Sole
Member
By: AIMCO-GP, Inc., its General
Partner
By: /s/Martha L. Long
Martha L. Long
Senior Vice President
[CORPORATE SEAL]
Purchaser's Tax Identification Number:
EXHIBIT A
LEGAL DESCRIPTION OF LAND
The following described parcel of real estate situated in the County of
Snohomish, State of Washington:
The north half of the northwest quarter of the northeast quarter of the
northeast quarter of Section 28, Township 27 North, Range 4 East, W.M. in
Snohomish County, Washington;
EXCEPT that portion thereof for 212th Avenue Southwest
AND EXCEPT that portion thereof for 48th Avenue West; and
AND EXCEPT that portion thereof conveyed to the City of Mountlake Terrace under
Recording Number 8610140350.
EXHIBIT "B"
PERMITTED EXCEPTIONS
1. All matters of public record.
2. All matters that would be shown by a current and accurate survey. 3. Rights
of tenants, as tenants only, under unrecorded leases. 4. Real estate and
property taxes.